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 US 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

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MAY 1977

come cheap because they allowed the U.S. to issue a "plausible denial" of involvement. But the actual result has been that we have a foreign policy that is based on papering transparent lies over the actions of what has too often been a ruthless giant. For a long time, Americans have not been able to understand the anti-Americanism which blamed all ills (even perhaps some which were none of our doing) on the U.S. Now that we know something of the record that the CIA has established for us overseas, we must now try to ensure that it is a thing of the past.

Covert action - staging coups and burning sugar refineries is now widely admitted, even by administration figures, to be counterproductive, but what about espionage? The answer is that there is no way to draw a line between "simple" espionage and plotting a coup. For a start, spies are notoriously unreliable. Double agents, with their own reasons for telling stories, abound. But even if your agent has not been compromised by one or more other powers, there is still the question of how much to trust his or her judgment. Satellite photography, by contrast, offers the analysts an objective record to study.

and

Secondly, given that the Agency takes in too many reports to analyze, a rational spy system would limit itself to only those reports which are most useful these are from people who are in the power circles of their own countries. To buy these "assets," the CIA uses bribery, blackmail, and extortion; "simple" espionage is therefore a technique which controls and corrupts the foreign government in a way little different from orchestrating a coup.

Thirdly, the legislative record established when Congress set up the CIA in the late '40s shows that they believed that they were setting up an organization only for collecting (including by espionage) and analyzing data. Authorization to conduct espionage soon cut its own loopholes and it was but a short step to focusing the Agency's resources into controlling and/or choosing foreign governments.

There have also been hidden domestic costs, which have not been fully owned up to, for these activities.

The CIA's clandestine warfare has warped the constitutional process in our own government. If the Constitution gives only Congress the power to publicly declare war, can our system of government be said to between the lines - give the President the power to wage secret war? The CIA's operations have come home in other ways also, in ways that are even more ominous than their domestic political surveillance project, Operation CHAOS. The Watergate burglars, for instance, were CIA people, and we still do not have a satisfactory explanation of just what they were trying to do. We also now have thousands of Cuban refugees that the CLA trained in terrorist techniques, such as blowing up Castro's sugar refineries; it should not be surprising that this training has apparently begun to be turned to international and domestic terror, such as blowing up airliners. By the same token, the intelligence agencies (KCIA, SAVAK, DINA) of foreign powers which allow the CIA to operate in their countries, expect to be allowed to operate in the United States.

And finally, votes which are cast for campaign positions which are merely cover stories make mockery of a republic based on the informed consent of the governed. With the list of our foreign policy failures

© 1976 by Herblock in the Washington Post

generated in secrecy, H.R 6051 concludes that we can no longer afford an ingrown decision-making process that values "toughness" and outdated myths more than reason and dispassionate analysis of reliable information.

In addition to the major change in the CIA mission, the Intelligence Control Act also puts forward some specific limitations on FIS authority. It specifically prohibits, for example, the use of organizations, colleges, businesses, the press, religious groups, or individuals in covert activities The FIS would, however, carry out counterespionage abroad, as the FBCI would at home.

The Intelligence Control Act would also put an end to the claim that the intelligence budgets are exempt from the Constitution's requirement for a public accounting of expenditures. The present CIA has had no internal or external audits of its operations (too dangerous to the national security, they say). Instead of a clean reputation, the CIA has a seemingly endless series of allegations of questionable dealings in its proprietary companies and in the heroin trade, as well as some deceptive budgeting practices with DoD and NSA. The bill would require that the Office of Management and Budget submit a budget for the intelligence bureaucracy as a whole, as well as line-item budgets for each foreign intelligence agency. Such routine bookkeeping would be the beginning of accountability and making sure that the public is actually getting what it is paying for.

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TOWARD A RATIONAL

CLASSIFICATION SYSTEM

Even its defenders admit that the present secrecy system classifies far too much information, both as a matter of routine and in order to conceal controversial activities. Successive post-War Presidents have, by only the authority of Executive Orders, set up this system and made a few ineffective, face-saving gestures against massive overclassification. In essence, the presidency has given the agencies the right to keep secret any information which might, by some stretch of the imagination, damage the national security to any degree at all. No where does the presidential system suggest that the public's right to know should be weighed against possible "damage."

Title IV would inject some reality principle into the question. First, for all the fuss about leaks which have contributed to public debate, the executive has not been able to point to one that has actually damaged national security rather than embarrassed some government agency. There remains a consensus that certain kinds of information should not be leaked, and these are, in fact, the only kinds of secrets a classification system should protect.

H.R. 6051 would amend the Freedom of Information Act to provide a legislated, rather than executive, classification system which would end the legal pretext for cover-up and extend public debate. The new classification system would apply only to 1) the technical details of weaponry, 2) technical details of tactical military operations in time of declared war, and 3) defensive military contingency plans. In other words, specific facts about military defense would be secret, but information about the foreign policy decisions that the public is expected to support would not be. In addition, the new classification system includes a fail-safe mechanism no information which "appears to relate to illegal or unconstitutional activity engaged in by any official of the Federal Government" could be properly classified.

Having a rational, limited, and manageable classification system would also improve the security of genuine secrets. When everything is classified, nothing is classified, and there is no effective protection for legitimate secrets. But by limiting the classification stamp to those few documents that actually are critical secrets, we would not be faced with the example of the government employee who carted home boxes full of classified documents that nobody missed.

of illegal conduct, or fails to report illegal activities, then that official would be guilty of a criminal offense. Title VI approaches the problem from a somewhat different perspective namely that officials who have in the past blown the whistle on their colleagues or their organizations have done serious damage to their careers. This has been true even in cases where the whistleblowing consisted of reporting to Congress - such as the case of Ernest Fitzgerald, who reported on the C-5 cost overrun. It took congressional action to ensure that blowing the whistle was not a luxury he paid for by losing his job.

Under the Intelligence Agency Control Act, where a whistleblower has been dismissed, demoted, transferred, reassigned, suspended or reprimanded, the burden of proof would be placed on the agency to show that these actions were not taken in retaliation for the whistleblowing. And under Title VI, such an official would be entitled to sue in court for reinstatement, for damages, and for the cost of enforcing his or her rights in court.

A SPECIAL PROSECUTOR

Currently, the Justice Department is the only means of prosecuting intelligence officials who have violated the law. And although we have at last gotten an indictment of an FBI agent (who apparently violated the law and Hoover's own 1966 prohibition on black bag jobs") the fact is that this is a single example in the face of a long list of criminal activities. The Justice Department has instead explicitly declined to prosecute many instances of documented official crimes. It would seem that Watergate provides a lesson here in prosecuting the White House officials it was necessary to take the investigation out of the President's Justice Department and give it to a Special Prosecutor who would have no real or apparent conflict of interest.

H.R. 6051 would set up the office of Temporary Special Prosecutor, lasting five years and with exclusive jurisdiction over violations of the law dealing with intelligence and counterintelligence. Past crimes would not of course be covered by the provisions of H.R. 6051, but there are unenforced laws already on the books - deprivation of civil or constitutional rights, illegal searches and seizures, unlawful surveillance, obstruction of justice, violation of the postal laws, the destruction of public records, perjury, false statements, and conspiracy to commit any and all of the above.

CONCLUSION

BLOWING THE WHISTLE

Titles V and VI require and protect blowing the whistle on improper government activities. Title V deals with the question of "Official deceit," and it ends the plausible denial - the official lie - as an accepted means of manipulating public opinion. Under its provisions, if an official knowingly covers up an illegal intelligence activity, lies about it, obstructs an investigation

The situation in the post-war era has been that the intelligence agencies have been given great power and politely asked not to abuse it. Unless reforms are enacted that will actually limit that power and enforce the law, we will be allowing the same kinds of operations to spring up again once public interest wanes. And if there is a next time, we may not be so lucky as we have been in this round. We have no guarantee that next time the damage to the body politic would not be permanent. The time for a major overhaul is now.

MAY 1977

BY ROBERT L. BOROSAGE

Free from the crimes and failures of past administrations, President Carter has used human rights as the gospel for a new-born American foreign policy. He has not hesitated to decry the shortcomings of others, to encourage them in the paths of redemption. But in politics as in ministry, hypocrisy is a common currency, a counterfeit coin which breeds suspicion and cynicism. The preacher must either reside above reproach, or keep moving to new territories. President Carter has indicated his intention to speak out repeatedly and frequently on human rights violations around the world. To do so requires that the administration take major steps to protect human rights at home. In his speech before the United Nations General Assembly, the President recognized the principle

We in the United States accept this responsibility to
foster human rights in the fullest and most construc-
tive sense. .. I know perhaps as well as anyone that
our ideals in the area of human rights have not al
ways been attained in the United States But the
American people have an abiding commitment to the
full realization of these ideals. We are determined
therefore to deal with our deficiencies quickly and
openly'

The administration has yet to define a human rights agenda for the United States which will improve our own human rights record. Any number of items might comfortably nestle in a human rights program, ranging from the rights of Native Americans to self-determination to controlling corporate plunder abroad. The initial steps of a domestic human rights program may best be defined by the standards which we have held out for others. The Administration's own language suggests several areas of action.

Passage of International Covenants on Human Rights

Ironically, the United States has yet to ratify any of the major international covenants on human rights, including the International Covenants on Economic, Social Cultural Rights; on Civil and Political Rights; on the Elimination of All Forms of Racial Discrimination; and on the Prevention and Punishment of the Crime of Genocide. These documents codify the Universal Declaration of Human Rights, the generally accepted statement of

Robert L. Borosage is Director of the Center for National Security Studies in Washington

rights recognized by the international community of na

tions

In the late forties, the United States played a major part in steering the Universal Declaration to unanimous approval in the General Assembly. In this country, however, ratification of the covenants has foundered for years on the shoals of Southern opposition. The doyens of the Senate have combined with legal conservatives in the American Bar Association to block passage of any of the major covenants. The Southern senators acted on the general principle that federal meddling in states' rights was bad enough without involving international opinion. The legal conservatives opposed ratification because the treaties might infringe upon the domestic jurisdiction of the United States, and more to the point, might lead, in the words of ABA spokesman George Finch, to "socialism by treaty." In the McCarthy period, opposition to the international covenants grew so hot, that Secretary of State Dulles informed the United Nations that the U.S. would not sign any of the international human rights covenants. Since that time. American spokesmen have been understandably hesitant to lecture others about their international human rights obligations.

Obviously the first item on any domestic human rights agenda is the passage of the major international covenants on human rights President Carter has informed the United Nations General Assembly that he would bring each of these instruments before the Congress. His success or failure in gaining ratification will noticeably influence the tenor of his voice abroad. In addition, both the economic and the political covenants provide for reports to the UN on "the measures adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights." The administration's reports will no doubt receive close scrutiny in capitals throughout the world.

Shedding the Cold War Legacy

President Carter has made the Soviet Union a primary target for his comments on human rights. He should do so with care, for over the long years of the Cold War, we have come to mirror our adversary in many ways. Some of the worst excesses of the McCarthy period in this country have already been interred, but many still remain, and require a proper burial.

For example, President Carter has criticized the Soviet Union for its severe restrictions on free travel. The Helsinki Accords, signed by the U.S., the USSR, and thirtythree other countries, call for the participating states to

"facilitate freer movement and contacts among persons of the participating states." The Administration intends to focus on this issue in the discussion of the accords scheduled for this fall.

But American laws on immigration and trade are a complex web of political restraints and restrictions. For example, the McCarran-Walter Act of 1952 (8 U.S.C. 1701) defines categories of individuals who are ineligible to receive a tourist or immigrant visa to enter the United States. This list includes maniacs, beggars, prostitutes, drug addicts, people with communicable diseases -and anarchists and communists. In 1971, the Supreme Court upheld the government's right to deny a visa to the reputable Belgian marxist Ernst Mandel. In 1975, Dr. Giogio Napolitano, the principle economics advisor to the Italian Communist Party was denied a visa when he attempted to enter for a lecture tour. Last year, a former member of the British Communist Party received similar treatment. "I want to go to your wonderful country," George Marchais, the mayor of Marseilles and leader of the French Communist Party recently said, "But they will not let me do it because I am a dirty Communist."

The apparent theory of the McCarran Act is that subversive ideas are communicable diseases, and must be quarantined from susceptible ears in this country, the bastion of free expression. It is a theory not unknown to the guardians of the Soviet people as well. Clearly the McCarran Act should be redrawn to provide strictly limited categories of persons who may be excluded from entry, primarily for contagious diseases, and not for contagious ideas. Political belief or association should have no basis in exclusion decisions.

Related to the McCarran Act is the Trading with the Enemy Act of 1917. In its present form, the Act provides the President with virtually unlimited power to restrict economic exchanges between the U.S. and its "enemies." This latter category now includes Cuba, North Vietnam, and North Korea, in spite of the absence of any noticeable hostilities with those countries. Successive administrations have used the Act to regulate exchanges for political purposes, even requiring that citizens obtain a license to receive publications or films from the designated countries. Those who apply for licenses become, needless to say, prime suspects for FBI surveillance, a nice twist worthy of the KGB. The House Committee on International Relations is now considering proposals to amend the relevant sections of the Act. Again, the President's authority to impose controls on international trade for political purposes in peacetime should be eliminated.

The restrictions of the McCarran Act and the Trading with the Enemy Act are but two strands in a web of regulations which can be and are invoked to obstruct exchanges between U.S. citizens and those in officially "unapproved countries, or with suspect political backgrounds. The entire range of travel restrictions should be reviewed prior to the fall meeting on the Helsinki Accords.

Another legacy of the Cold War are the many statutes restricting the activities of communists and subversives in this country. The scheduled reform of the federal criminal laws will enable the administration to support repeal of the "speech crimes," the various sedition acts passed over the years, which have already been eviscerated by

the Supreme Court, and which serve primarily to provide the FBI with a statutory excuse for political spying." FBI Director Clarence Kelley has variously admitted that the statutes were "designed for the Civil War era, not the Twentieth Century," and had been "reduced to a fragile shell by the Supreme Court." But neither development has prevented the Director from using the laws to justify FBI political investigations.' Legislation has already been introduced in the Congress for repeal of these laws as part of the process of rechartering the FBI With administration support, these relics may be swept away with little trouble.

The Freedom of Political Expression

Of all of the rights guaranteed by the international conventions, President Carter has placed the greatest emphasis on the rights of free expression, of peaceful assembly and association, and of freedom from arbitrary interference with individual privacy. These are rights guaranteed also by the U.S. Constitution. They are areas where the administration feels that it can "speak from strength."

But formal legal protection offers no necessary guarantee against abuse. At best, legal guarantees are medicinal, useful only if applied, and they are applied only after the damage is done. The vicious tong which now rules Chile boasts a constitution with one of the best sets of constitutional guarantees in existence, and a sav. ings clause which renders them all irrelevant. The Soviet Union also has extensive legal guarantees of rights which seem honored in the breach.

President Carter has expressed his concern for the fate of the courageous dissidents in the Soviet Union, the small number of intellectuals who challenge the regime and are harrassed, arrested, and sometimes expelled by it. The President should also show some concern for the citizens of another country which has historically used its police agencies to spy on and disrupt the activities of individuals labelled as "dissidents." That country is the United States.

The Senate Committee on the Intelligence Agencies detailed a small part of the abuses of the intelligence agencies in its seven-volume report last year. Domestic "dissidents" were the victims of informers, wiretaps, mail openings, cable interceptions, tax probes, provocations, entrapments, grand jury investigations, conspiracy indictments and massive surveillance by the FBI, the CIA, the National Security Agency, military intelligence, the IRS, the Justice Department and state and local police "intelligence" units.

As in the Soviet Union, the government went far beyond mere political voyeurism. The government planted informers to disrupt citizen groups. It aided vigilantes in attacks on innocent citizens. It ordered the burning of private property. It tried to foment riots and violence. It set citizens up for censure and sometimes cruel punishment by planting false information. It wrote anonymous and untrue letters to associates and employers to get citizens in trouble. It broke into homes and ransacked offices. It instituted tax audits and grand jury probes to distract and harass citizens engaged in political activity.

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