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Laws, Not Trust Alone, Must Restrain FBI

February 04, 1988|JERRY J. BERMAN | Jerry J. Berman is the chief legislative counsel for the American Civil Liberties Union.

Once again the FBI has strayed from its appropriate intelligence mission by investigating lawful political activity rather than crime or terrorism.

Ten years ago we learned of extensive FBI surveillance of civil-rights activists and organizations opposed to the Vietnam War. Now FBI files released under the Freedom of Information Act document a sweeping two-year (1983-85) nationwide investigation of the political beliefs and associations of individuals and organizations opposed to Reagan Administration policy in Central America.

The FBI under its new director, William Sessions, has embarked on an internal review of the FBI investigation of the Coalition in Support of the People of El Salvador (CISPES). Intelligence and judiciary committees are gearing up to pore through the files to determine how an investigation, based on alleged terrorist support activities by CISPES members, continued after it was obvious that the charges were unfounded and how it instead became a sweeping probe of lawful political activity.

These after-the-fact oversight activities are to be commended and encouraged. But they are far from a sufficient remedy. We have been down this sorry road before. We need to institute reforms to finally outlaw this kind of surveillance.

The CISPES investigative files make for chilling reading. The investigation was carried out by more than 50 field offices, using techniques ranging from informants to photographic surveillance, and swept within its net every CISPES chapter and more than 100 human-rights and civil-rights groups opposed to U.S. policy in El Salvador. The CISPES files, although heavily censored, are not about crime, but are about peace demonstrations, political organizing and campus political activities.

But after Congress gets to the bottom of this particular investigation it is imperative that the lawmakers address the root problem.

The "breakdown" at the FBI did not occur in 1983; it stems from the failure of Congress in 1978 to follow the recommendation of the Senate and House committees that studied FBI intelligence operations to enact strict legislative guidelines for FBI domestic security and counterintelligence investigations.

Legislation recommended by the Senate committee headed by the late Frank M. Church of Idaho would have required all FBI counterintelligence investigations to be conducted under a public statutory standard requiring the bureau to demonstrate a reasonable suspicion of criminal activity to initiate or continue an investigation. It would have set forth "special procedures" to ensure against an investigation intruding on lawful political activity, including periodic headquarters review of on-going investigations; mandated Justice Department and congressional oversight of sensitive intelligence investigations, and created civil liability and criminal penalties for violations of the legislated guidelines.

Instead of passing the legislation, Congress declared the problem solved when a new FBI director, William Webster, took over, internal guidelines were put into place and intelligence oversight committees were set up to keep tabs on the bureau.

As the CISPES investigation makes plain and clear, this system doesn't work. Although Webster was at the helm and the guidelines were in place, they were made more flexible by a Reagan Administration executive order on intelligence and by revisions in the still-secret foreign counter-intelligence guidelines. These changes were initiated by a simple "stroke of a pen." It would have been far more difficult for the Administration to amend a legislated set of rules and procedures.

CISPES files indicate only cursory review of the CISPES investigation at FBI headquarters and an investigation that permitted wide discretion on the part of field-office operatives. Agents who requested guidance on how to limit the investigation apparently were ignored by headquarters, and no one in a supervisory position flagged reports indicating that the investigation was spinning out of control. The possibility of civil liability under an FBI statute could have made quite a difference.

Finally, the intelligence oversight committees had reason to look into the CISPES investigation in 1985 but failed to probe deeply.

The general verdict on former Director Webster was that he kept the FBI investigating crime rather than politics. The CISPES investigation raises doubt about that assessment. What is not in doubt is that a system that relies on trusting officials is not enough. We need a statute that strictly limits the FBI's authority to the investigation of crimes and takes away its discretion to spy on citizens peacefully exercising their First Amendment rights.

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