DEPARTMENTS OF STATE, JUSTICE, AND COMMERCE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS FOR FISCAL YEAR 1978 WEDNESDAY, APRIL 27, 1977 U.S. SENATE, SUBCOMMITTee of the Committee on APPROPRIATIONS, Washington, D.C. The subcommittee met at 10 a.m., in room S-146, the Capitol, Hon. Ernest F. Hollings (chairman) presiding. Present: Senators Hollings, McClellan, Burdick, Leahy, DeConcini, Weicker, and Young. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF INVESTIGATION STATEMENT OF CLARENCE M. KELLEY, DIRECTOR ACCOMPANIED BY: RICHARD G. HELD, ASSOCIATE DIRECTOR JAMES B. ADAMS, ASSISTANT TO THE DIRECTOR, DEPUTY ASSOCIATE DIRECTOR-INVESTIGATION JOHN J. MCDERMOTT, ASSISTANT TO THE DIRECTOR, DEPUTY FREDERICK C. FEHL, ASSISTANT DIRECTOR, SPECIAL IN- RICHARD E. LONG, ASSISTANT DIRECTOR, FINANCE AND PER- JOHN A. MINTZ, ASSISTANT DIRECTOR, LEGAL COUNSEL DIVI- DONALD W. MOORE, JR., ASSISTANT DIRECTOR, CRIMINAL IN- JAMES D. INGRAM, INSPECTOR-DEPUTY ASSISTANT DIRECTOR, WILLIAM O. CREGAR, INSPECTOR-DEPUTY DIRECTOR, INTELLIGENCE DIVISION ASSISTANT L. CLYDE GROOVER, JR., SECTION CHIEF, BUDGET AND AC- * (833) [Pages 834-890 of the hearings are deleted] 891 Mr. ADAMS. On the one hand, you have certain violations like bank robberies we investigate. The first time the U.S. attorney sees this case may be when we present the facts to him and the case is already made. As we have gotten into more and more involved investigations that involve possibilities of entrapment, possibilities of close legal issues, we are in touch with the U.S. attorney from the beginning, or the strike force attorneys. We recognize that we need that kind of close legal guidance because they are involved investigations. Senator DECONCINI. In fact, haven't you been unable to get that kind of attention because of lack of personnel? Mr. ADAMS. The whole criminal justice system is short, but on those types of cases, we do get full support. Today in most of our major investigations, we have been involved with the U.S. attorney or the strike force attorneys from the very beginning; but here what we are dealing with is where there was a period of time from 1954 to 1965 where the Attorney General indicated, wrote a letter, saying that we could install microphones on our own authority because the interest of national security required unrestricted use of this technique. Microphones involve surreptitious entries. You can't install one generally unless you break into a place and install it. So we have gone through a period like that where it was left up to the FBI. These are the things that concern people a lot because a lot of those decisions have turned out to be wrong. PERSONAL LIABILITY OF EMPLOYEES I am being sued today for $5 million, personally, by an organization we had under investigation, which is an harassment action, because my actions were in the scope of my official duty. My part in it was that, at the time I took over, my present duties, the Department had instructed us, through an assistant attorney general, to conduct this investigation. Yet, there is a question as to whether I am going to get legal representation because of allegations that maybe somewhere back in that case there might have been some illegal activity or something like that. I am concerned. Our agents are concerned. This is a part of low morale. Each one of you that has been a prosecutor has had cases where evidence has been suppressed because the police officer, acting in an arena of action, made a faulty decision on the spot. He broke the law. He either walked into a place without a search warrant or failed to have probable cause for an arrest-I don't know of one of you or any of us, as I have been a prosecutor, also, that turned around and filed a charge against that agent or that officer because you took into consideration why he did it and his good faith efforts. He was on the spot. He was rushing. He is hired to use the best judgment he is capable of at the time. When that judgment fails, the sanction is that the evidence is suppressed because it was an illegal search. These are the things that cause our concern. I think it would be absolutely wrong for anyone to think that our agents would condone activity on the part of another agent that was clearly illegal and which he knew was wrong and violated our rules and the law. We would investigate and discipline anyone so disposed. 892 A lot of the concern is because over the years, we engaged in surreptitious entries in the domestic security field, with departmental approval, with Presidential approval, and it has been a gray area. Here is a time where someone perhaps overreacted and took it onto himself, made a judgment, we don't know. Our people don't know the facts; but we see time and time again where our judgments are called into question and Congress has seriously considered whether when we make a mistake of judgment, we should have any form of legal representation. We are employees of the Government. We are not hired to do a perfect job. We are hired to do the job that is the best we are capable of, the best judgment at any one time. Many of our actions wind up through the judicial process where it is a 5-to-4 decision of the Supreme Court as to whether that action violated someone's right, and evidence is to be suppressed. We don't tolerate criminal conduct. We don't want to tolerate it. We want to put anybody in jail that clearly gets involved in that; but this activity followed so closely behind other types of approved activity, and not knowing what the facts are-as none of us does-there is great concern as to whether now we are going to look back after Watergate, we are going to look back after all of these other clear-cut signals have been given, and say that certain things we did in the past were wrong and we are not going to get any defense, even though at times they may have been approved by an Attorney General, who is the chief legal officer, and should be able to advise us of the propriety of our actions. I think it is wrong to distort that type of concern and indicate or conclude that we today can't distinguish right from wrong and that we, just because it might be one of our people involved, that we are going to rally around and defend that person. Our concern is that good faith action involved be considered within the scope of prosecutorial discretion. Also whether people acted in good faith, and had no intent to rob, steal or anything else other than conduct an intelligence gathering foray. We are just concerned that we not be ultimately judged by standards of today for the past without a clear exposure of all of the things that might be involved. We share your concern that the Attorney General develop all these facts so when this case comes up, we know all about it, like we found out in the CIA mail opening situation that Presidents approved it, that it was under certain foreign intelligence-gathering powers of the President. We don't know what the facts are. We just want a full exposure. I can assure you there isn't an agent in the FBI that would defend deliberate criminal wrongdoing on the part of another agent. [The remainder of the hearing is deleted] Exhibit 22: Babcock Letter of May 19, 1977 Department of Justice 19 MAY 1977 ASSISTANT ATTORNEY GENERAL CIVIL DIVISION Honorable James O. Eastland Chairman, Committee on the Judiciary Dear Mr. Chairman: The Department of Justice requested a supplemental appropriation for the fiscal year ending September 30, 1977 for the payment of private counsel fees with respect to certain pending suits. The Conference Report (H. R. Rept. No. 95-166, 95th Cong., 1st Sess.), accompanying H.R. 4877, "Making Supplemental Appropriations for the Fiscal Year Ending September 30, 1977," addresses that request under amendments No. 161 and No. 162 on page 27 of the Conference Report. Amendment No. 162 deletes certain bill language proposed by the Senate and continues with the statement: are agreed ⭑ * However, the conferees ar that none of the funds available to the Department shall be obligated or expended by the Department for the representation of any defendants in suits commenced after the effective date of this Act, until the appropriate committees of the Senate and the House of Representatives have reviewed the policy statement embodied in the Attorney General's Order No. 687-77 [sic] dated January 19, 1977. We have been apprised that the "appropriate committees" to which reference is made in the above excerpt means the respective Judiciary Committees of the Senate and the House of Representatives. Representatives from the Department of Justice would welcome an early opportunity to meet with you and members of your committee to discuss the policy statement in the Attorney General's Order No. 683-77, a copy of which is attached for your convenience. Very truly yours, Jarbara Allen Sbrock BARBARA ALLEN BABCOCK Enclosure |