straint-in fact, too much restraint, she said-for 20 years, but the CISPES investigation, which was an outrage, which Judge Webster mentioned, happened in the mideighties, not 20 years ago. And it happened under these guidelines and it happened for 27 months. They first engaged in a preliminary inquiry. They had no criminal predicate. They found no criminal predicate. They kept right on. They went to a full investigation. But they put in undercover agents, and this was a church-related group engaged in entirely peaceful first amendment protected activities.

Why did the FBI do that? They did that because a direct mail letter from the group characterized themselves as saying they supported the opposition movement in El Salvador, and since the opposition movement in El Salvador, according to the FBI, included an alleged international terrorist group, CISPES became a supporter of an international terrorist group. And then that created what they thought was a criminal predicate to do this kind of intrusive investigation for 27 months. They never had a single fact to support that conclusion. They never came up with a single fact over 27 months, and now everyone admits that the full investigation was a mistake. That happened under current FBI guidelines.

So we don't need weaker guidelines. If anything, we need stronger guidelines. And what the CISPES investigation showed is that the answer to Mr. Schumer's question that Judge Webster gave was the wrong answer. The answer the question Mr. Schumer asked was, do we need an infiltration warrant? And the answer is yes. All our history shows that if you're going to allow the fox into the chicken coop, you don't want the fox to decide.

Nothing can be more intrusive than an infiltration. It's much more intrusive than a wiretap. It's much more intrusive than a traditional search. If a policeman presents himself at your door in uniform with a search warrant in his hand, you know who he is; he has a limited purpose. He comes in with a particular place to be searched. He does the search. He does it for an hour. He leaves. If the same policeman comes in dressed in civilian clothes and applies for a job in your xerox room and you don't know who he is, and he works there for 6 months or a year, he's a vacuum cleaner of information. It is the most intrusive search that there can be, but we have less process to that kind of a search than we do for a normal search.

Now it's true such warrants would have to be secret warrants because the whole idea of infiltration is that the person searched, the group searched, can't know about it. But the notion that the FBI ought to be deciding itself when to place an undercover agent in a group, when it has demonstrated over and over again, even under the present guidelines, that it cannot police itself, and the notion that a third party, a judge, is somehow going to interfere with law enforcement when the fact is that for almost 9,000 search warrant requests since 1983 only 7 have been denied a wiretapping request I mean-only 7 have been denied, there's very little reason it seems to me other than to invite abuses to oppose an infiltration warrant procedure where a judge would have the precise task of doing what we all agree should be done, of distinguishing between a valid criminal predicate to investigate and an invalid reason to investigate first amendment activity.

I would like to say one more thing about the guidelines. The Government now says, the administration says, they are not looking to expand the scope of the guidelines, but I must call your attention to the bill which is not the subject of these hearings and its relationship to these hearings. The omnibus counterterrorism bill would, if it passed, allow the President, even if, as they now concede, that designation is reviewable by a court, allow the President to designate as terrorists an international organization, like some of the opposition movements in El Salvador a decade ago, like the African National Congress, like the IRA, like the PLO. At that point under this omnibus bill, any American citizen who supports any activity, even if peaceful, of a designated group commits a felony.

What that would mean is if a group of Irish-American women decided to send money and organize money to the orphans of IRA veterans in Belfast, they would commit a felony if the IRA had been designated properly as a terrorist group. Now what that would do, aside from the fact that we think that's improper, what that would do with respect to your domestic concerns here is it would criminalize behavior because of that bill that is not now criminal and that now is protected by the first amendment, and once that kind of behavior was criminal, it would become a predicate under current FBI guidelines for investigating a protected activity.

So that the coming together, the melding of those two bills, cannot escape your scrutiny. There is no bright line between the international bill and the domestic bill. The international bill, if it is passed, will grossly expand the scope of the FBI guidelines under the current law.

As to wiretapping and the ability to get credit and other financial information, now the wiretapping issue is an interesting issue. Incidents like Oklahoma are always occasions to ask for expanded generic authority, but the generic authority to wiretap, including the digital telephony bill, is curious because the Government has hardly used the wiretapping ability it has for these kinds of crimes. They have not borne any burden of showing you why they need expanded wiretapping authority when they haven't used the wiretapping authority they have now-not once since 1988 in the face of increased bombings. We've had a lot of abortion clinic violence. That's been called terrorism, I think properly so. Does that mean we're going to wiretap Operation Rescue? I don't think they've met that burden, and until they can show you that they have used wiretapping and that they need wiretapping to deal with these crimes, it's hard for me to see why they want even more authority

now.

As to the credit information, Ms. Gorelick says the national security letter process should be used. The national security letter process should not be used. We should not allow the Government to scoop up all of our financial information merely by presenting a letter saying this is a national security problem. That's an international intelligence approach; it's not a criminal predicate approach.

Right now, if it's a crime to be engaged in violence and in terrorism, they have the power to get a subpoena, to get a court order. They want to do it without a court order. You ought not to give

them that power. It can only worsen precisely the constitutional violations that we all say we want to limit.

Expanding the power of the Government to violate protected constitutional activity never makes us safer. It never has; it never will. It seems to satisfy the fear of the moment. But all it does is create an additional class of victims.

Thank you.

[The prepared statement of Mr. Glasser follows:]

PREPARED STATEMENT OF IRA GLASSER, EXECUTIVE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION

OUTLINE OF REMARKS OF IRA GLASSER

I. Danger to civil liberties of proceeding hastily with counter-terrorism legislation. II. No new legislation is needed to expand the scope of investigatory authority or the ability to use intrusive investigatory techniques.

III. Need to focus legislative proposals on conduct, not associations, speech protected by the First Amendment, or political viewpoints.

IV. Historical context in which Attorney General Guidelines were adopted:

A. Past FBI abuses.

B. Broadening of Guidelines.

V. FBI investigatory authority under the current Guidelines is broad enough to serve any legitimate law enforcement purpose, and too broad to adequately protect against political abuse.

VI. Civil liberties concerns raised by White House proposals to combat terrorism: A. Counterintelligence investigations should not be employed in lieu of criminal investigations to investigate criminal activities.

B. FBI already has sufficient authority, by subpoena and otherwise, to obtain credit, financial, phone, hotel or motel, and common carrier records in a criminal investigation.

C. Military involvement in the domain of law enforcement should not be expanded.

D. Probable cause finding by a judicial officer as a pre-requisite for a wiretap; the phone to be tapped should be specified; and fruits of illegal wiretap suppressed.

E. Domestic implications of counterterrorism bill (see ACLU testimony of 416195).

VII. Civil liberties principles for counterterrorism legislation.

A. The right to support legal activities of groups.

B. The right to see evidence offered by the government in a criminal trial or a deportation proceeding.

C. Narrowly-drawn statute will not invite selective prosecution.

Mr. MCCOLLUM. Thank you, Mr. Glasser.

Mr. Baker.

STATEMENT OF WILLIAM M. BAKER, FORMER ASSISTANT DIRECTOR, CRIMINAL INVESTIGATION DIVISION, FEDERAL BUREAU OF INVESTIGATION

Mr. BAKER. Mr. Chairman, I, too, have submitted a brief prepared statement, but, for brevity, I'd like to just speak off the table with you.

I want to thank you and your colleagues for the opportunity to be here. I've listened to Mr. Glasser, and it highlights what I have always considered healthy debate and even tension which exists between the powerful rights of the citizens and the Constitution and the need to conduct thorough investigation and resolve criminal acts.

In 1985, 10 years ago, I was in Seattle at the time of the arrest and indictment of the Order, and at that time I made a statement. I said that whenever an individual crosses from the threshold of

rhetoric to the commission of violent acts, whether it be hate motivated or under any other umbrella, the response of the FBI would be rapid and effective. That was put into the New York Times at the time as a quote of the day.

Subsequently, I was called up, Mr. Chairman, by your predecessor. I was taken in chamber and he congratulated the FBI for the investigation in sorting out this order and getting the effective indictments, and then we had about an hour-long dialog on just how far one in my position as a spokesman for the FBI could go and was my statement, in fact, a threat to citizens. Clearly, today we have heard that statement and other incarnations, and when predicated against a violent criminal act, I don't think that statement in any way was beyond the scope of the FBI on the occasion of indictment.

Subsequently, 5 years later, in my FBI capacity of being in charge of all counterterrorism worldwide, I briefed you and many of your colleagues on the threat posed to the United States during Desert Wind and how the FBI would position itself to work against terrorist acts during the forthcoming predicted Desert Storm. At the same time, it was made known that the FBI was conducting an initiative under the guidelines at that time for international terrorism, and that initiative was for us to overtly contact prominently-placed Arab-Americans, in the United States and advise them of two things: one, that the FBI was responsible for conducting investigations of violations of the civil rights of any citizen in the United States, and that we anticipated, because of ill-conceived and ill-thought-out logic, that some Americans might violate these citizens, these Arab-Americans or those here on visas. In fact, that bore fruit; there were violations committed against Arab-Americans during Desert Storm and the preceding Desert Wind.

But the second point that I made was, because of their position as prominent Arab-Americans, I asked them that, should they receive any information that would indicate that a violent terrorist act was contemplated, I reminded them that we would be the gatherer of that information and would welcome their quick reporting of it to us.

It was interesting to me to see the two played out in the press. My first point was nearly forgotten, the fact that there were perceived civil rights violations about to be committed and, in fact, were against Arab-Americans. The second brought all kinds of comments such as: Are you going back to the post-World War II days? Are you going to intern Arab-Americans? And what type of oppression are you considering by this overt presentation of an FBI agent asking for information?

Well, clearly, there was never any word mentioned of internship. There was never any reference to it. But, again, Mr. Chairman, I was back up here in your predecessor's chamber and briefed him again as to the clear intent. In fact, it didn't stop there. I briefed one of the most prominent Arab-Americans in the United States, Mr. Sununu, on this same concept, and I remember his comment. He said, "Mr. Baker, it sounds sound. If you can take the heat, I think the FBI is going in the right direction."

I give you those observations because I think they highlight this tension that I referred to, and I would add it's a necessary tension.

I believe that in the oversight that I experienced in 30 years of government there was always a proper vetting for both sides as we approached criminal guidelines as to just what the FBI could do and whether the FBI was going beyond its authority. Clearly, when there are issues where we have, we have been brought to task.

And when I left the FBI, I passed the baton of my leadership over to Larry Potts, and I was very pleased to see that the FBI Director just announced him Deputy Director today. You may recall that leadership has been discussed at great length today as one of the necessary ingredients and that it has to be direct, and there has to be an appointed agency. After the letter bombing of Judge Vance in Alabama, we noticed discord even among FBI offices and U.S. attorneys, and it was my recommendation to appoint Larry Potts to go down and get rid of this turf issue that was cropping up between postal authorities, the Bureau of Alcohol, Tobacco and Firearms, the FBI, the Marshal Service and local authorities. Also through leadership Larry was able to bring together, the various FBI field offices. In Savannah, a black alderman also lost his life when he opened that letter bomb.

Let's go back, though, and bear in mind that at that time the big fear, and what was stressed by the press, was that this was a militant group that was attacking the civil rights of black minorities and of the Federal system in the South and elsewhere. The FBI did not overrespond to that at the time. We conducted a reasonable and responsive investigation to irrational and irresponsive acts. And, as a result, Walter Moody was indicted, a single person acting in rage against his targets. Again my point to you is that the FBI worked within the guidelines and responded and solved that very important case putting salve on a situation in America which believed that perhaps a right-wing group was behind this. By the way, Larry Potts was the lead FBI agent, and I might point out that Louis Freeh was sent down there as an assistant U.S. attorney, and he was the lead prosecutor. The result was the solving of that case.

Finally, I'd like to make myself available to any questions, but I do stress again that fix responsibility, but fix authority, as has been discussed abundantly today before you. I do believe that the FBI is the agency that should be responsible and then have that authority and the responsibility affixed to it to resolve these issues of domestic and international terrorism.

Thank you.

[The prepared statement of Mr. Baker follows:]

PREPARED STATEMEnt of WiLLIAM M. BAKER, FORMER ASSISTANT DIRECTOR, CRIMINAL INVESTIGATION DIVISION, FEDERAL BUREAU OF INVESTIGATION

Mr. Chairman, members of the Subcommittee. A deadly attack against America has served as a catalyst to convene these important hearings to focus on our law enforcement and intelligence agency ability to combat terrorism.

I offer for your consideration my views on the issue which are based upon thirty years of experience with the Federal Government starting with three years with the Air Force Office of Special Investigations, and then including service with the Federal Bureau of Investigation, a one year assignment with the House Appropriations Committee and two years at the Central Intelligence Agency. My last position in Federal service, prior to my retirement in late 1991, was as Assistant Director of the FBI's Criminal Investigative Division where I was responsible for all FBI criminal investigations which then included both domestic and international acts of terrorism. During the Persian Gulf crisis I briefed many of you and your Congressional