The Burglary (87 page)

At the end of its work, the committee made 180 detailed recommendations with two major goals—curbing abuses and simultaneously increasing the capacity of intelligence agencies to fulfill their lawful missions.
The effort to turn key recommendations into legislation was slowed somewhat at the outset when the relatively halcyon bipartisan work of the committee was deliberately recast by some opponents of reform in ways that stretched and denied the truth.

One of the first attacks on the committee was a vicious false accusation made by George H. W. Bush, the future president. Shortly after he was confirmed in January 1976 as the new director of the CIA, he appeared before the Church Committee and angrily stated that the committee was responsible for the assassination on Christmas Day 1975 of
Richard Welch, the then new CIA station chief in Greece. The committee had honored its agreement with the CIA not to name agents involved in any of the wrongdoing it revealed. In fact, as Senator
Fritz Mondale, a member of the Church Committee, pointed out to Bush, the committee did not even have Welch's name. The CIA, for reasons unrelated to the committee, had warned Welch
not to move into the house of the previous station chief's home, but he had done so.

Later, Bush returned to the committee and conceded there was no evidence that the Church Committee had any impact on Welch's cover in Greece, nor did the committee have “any relationship to his tragic death.” But the original accusation made a strong impression that was never completely erased. Some members of Congress repeated it seemingly without regard for the fact that the director of the CIA had retracted his accusation.

Such attacks on the Church Committee have echoed through three decades. On September 11, 2001,
James Baker, secretary of state in President George H. W. Bush's administration, issued an angry broadside against
Frank Church. The late senator and the committee, he said, could be blamed for the horrendous disaster that had just happened hours earlier when more than 3,000 people were killed in New York, at the Pentagon, and in a field in western Pennsylvania. The Church Committee hearings, he said, had caused the United States to “unilaterally disarm in terms of our intelligence capabilities.” In the same vein, a short time after 9/11, the
Wall Street Journal
asserted in an editorial that the opening of the Church hearings was “the moment that our nation moved from an intelligence to anti-intelligence footing.” Given the very powerful influence the CIA had under successive presidents, beginning with President Reagan, such claims were not sustainable.

In March 2005, George H. W. Bush, despite his decades-old apology to the Church Committee, apparently could not resist taking a swipe at the committee again. In opening remarks at a conference on counterintelligence, he said, “It burns me up to see the agency under fire.” Recent criticism, he said, reminded him of the 1970s, when Congress “unleashed a bunch of untutored little jerks out there” to investigate the CIA.

IMMEDIATELY AFTER
the Church Committee hearings, despite efforts to turn the public and Congress against the committee, a spirit of reform carried the day in Congress. That spirit changed over the next five years as Congress tackled these major reforms the Church Committee had recommended:

Setting a ten-year limit on how long an FBI director could serve was approved in 1976. Hoover had made that reform easy. Given what had become known about how he abused his position, even the strongest defenders of the FBI were hesitant to keep in place a system that had made it possible to appoint a twenty-nine-year-old and give him freedom to build and maintain a fiefdom without accountability for a half century, as Hoover had.

Congress also embraced the Church Committee's recommendation to establish permanent congressional oversight of the FBI. Such committees were created in both houses of Congress. Members of several existing committees—Armed Services, Appropriations, Foreign Affairs, and Judiciary—fought this effort, claiming that oversight of intelligence agencies should be only their responsibility. Given the considerable evidence that showed that none of those committees had in the past exercised the oversight powers they now claimed were theirs, these turf claims did not succeed. During the debate on establishing oversight committees, a few senators, including Senator
Milton Young, Republican from North Dakota, argued that Congress could not be trusted with oversight of intelligence agencies. But voices that claimed the FBI must no longer be an autonomous agency, free of checks and balances, won the day.

In 1978, Congress passed the Foreign Intelligence Surveillance Act, regarded by many as the most important reform to emerge from the Church recommendations. It established a secret federal court to review applications for warrants for electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of residents might be intercepted. The law rejected the claim of presidential inherent authority in such matters, as well as the use of ambiguous terms, such as “subversive” and “national security,” to justify electronic surveillance. The court would set time limits on warrants in order to stop the FBI's practice of placing people under endless electronic surveillance. A popular measure, the act passed in the Senate 95 to 1. It was this court that, in the years after 9/11, the administration of President George W. Bush attempted to evade.

A fierce debate erupted over another major reform recommended by the Church Committee, the creation of a legislative charter for the FBI. For many people inside and outside the bureau such a charter was a major goal.
A charter that would spell out, as a matter of law, what the bureau could and could not do, they thought, would be the strongest possible guarantee that the bureau could never again flout the law. FBI director Clarence Kelley was a strong supporter of the charter concept, but he retired before the charter proposal was debated and ultimately rejected.

As the draft of the charter evolved, it became something completely different from what was originally planned by reformers. In the end, goals of charter supporters varied greatly. Some wanted a charter that would deepen reform of the FBI. Others wanted a charter that would thwart reform.

The charter that ultimately was proposed was, in fact, the opposite of what the Church Committee had recommended. Instead of inhibiting overreach and violation of civil liberties by the FBI, the charter endorsed and protected such behavior.
Thomas I. Emerson, a constitutional law professor at Yale Law School and a strong advocate of preventing the FBI from continuing its past behavior, called for either rejection or serious revisions of the charter. As written, he said, it would make matters much worse: It could legalize and ingrain more deeply the worst FBI practices instead of preventing them. Senator
Edward Kennedy noted when he introduced the charter bill that it had essentially been written by the bureau. In the jawboning that led to the compromise, the reformers had lost. Consequently, Emerson pointed out, the proposed charter would continue to allow “highly intensive methods of investigation that are incompatible with democratic institutions.” It did not require judicial warrants for investigations of political organizations, nor did it provide for oversight by the attorney general.

As
Aryeh Neier, former head of the ACLU and then law professor at New York University Law School, said during the debate, “It belatedly grants to the bureau to operate, as it has all along, as our national political police.”

Former attorney general
Ramsey Clark also strongly opposed the charter. “We are considering a law that, far from preserving and enlarging freedom, puts the imprimatur of positive law on police practices and abuses developed over the years that are irreconcilable with the ideas of freedom.” He wondered how such a charter even could be proposed at that time. “Now, in the wake of Hoover's career, and knowing of the revelations about COINTELPRO, and the outrageous violations of individuals' freedom, from the Black Panthers to Martin Luther King Jr., from Ethel Rosenberg to Jean Seberg, Congress contemplates memorializing the practices by legalizing them.”

Some ACLU officials supported the charter in the belief that a charter,
any
charter, was essential. They agreed that the one proposed in 1979
had major flaws, but they maintained that simply getting a charter in place would pave the way for reform in the future. Once in place, the imperfect charter could be amended.

For many, approving a charter that essentially retroactively made Hoover's FBI lawful was too great a risk. They were not willing to count on amending it in the future. The effort to establish a charter for the FBI failed. Those who initially wanted a charter the most were the people who were most opposed to the one that was proposed.
The politics of intelligence had changed again, and compromise was not possible.

With Congress's failure to agree on a charter, the guidelines promulgated by Attorney General Edward Levi in 1976 were the only external rules governing how the FBI should operate. As the first FBI guidelines ever promulgated by an attorney general, they marked a departure from the practice of most past attorneys general forfeiting their supervision of the bureau and its director to the director. At the time, some FBI critics saw Levi's guidelines as a way of heading off a charter—as a way to keep control of the FBI in the executive branch. Critics also saw guidelines promulgated by an attorney general as fragile because they would be subject to being changed every time a new administration took office.

But the guidelines Levi put in place, after conferring with the Church Committee and the FBI, could not be dismissed by reformers. In contrast to the rules-free past, the Levi guidelines required the bureau to have “specific and articulable facts giving reason to believe that an individual or a group is or may be engaged in activities which involve the use of force or violence and which involve or will involve the violation of federal law” in order to open a full investigation. They embodied the idea that “government monitoring of individuals or groups because they hold unpopular or controversial political views is intolerable in our society.” Time limits were set on each phase of an investigation. FBI headquarters had to approve the use of informers, and the attorney general had to approve the use of mail covers and other invasive investigative methods.

In 1980, a year after the charter effort died, there was more evidence that the reform pendulum was reversing. That year FBI reform was an issue in the presidential campaign. Ronald Reagan, the Republican candidate, promised that as president he would unleash the FBI. Soon after he became president he took his first step in that direction. In September 1980, just two months before Reagan was elected, W. Mark Felt and Edward Miller had become the only high-ranking bureau officials ever to be convicted of criminal charges. They were convicted for ordering FBI agents to illegally break
into the homes of families and friends of Weather Underground members. Shortly after he was inaugurated, Reagan pardoned Felt and Miller.
It was a sign that as far as his administration was concerned, intelligence reform was over.

W. Mark Felt on CBS's
Face the Nation,
August 30, 1976. (
AP Photo
)

Break-ins like the ones Felt and Miller admitted they had approved and directed had been standard practice at the FBI for many years as part of
COINTELPRO and other operations. Until their trial, no agent had been prosecuted for such crimes. In the aftermath of the Church Committee revelations and the illegal bureau actions revealed as part of the Socialist Workers Party lawsuit, the Department of Justice investigated dozens of street-level agents, many from the New York field office, who had conducted break-ins and other crimes on behalf of the FBI. Prosecutors decided to charge the high-level officials who had conceived and ordered the crimes rather than the agents who carried out their orders. Some aspects of the crimes were particularly egregious.
For instance,
Jennifer Dohrn learned years later, when she received her FBI file under the Freedom of Information Act, that in the course of planning the numerous break-ins that were conducted at her apartment and at various places where she worked, Felt suggested agents should kidnap her infant son as a way of pressuring her sister, Bernadine Dohrn, one of the members of the Weather Underground being sought by the FBI, to turn herself in.

When Reagan pardoned Felt and Miller, he likened the pardon to what President Carter had done for draft resisters: “Thousands of draft evaders and others who violated the Selective Service laws were unconditionally pardoned by my predecessor. America was generous to those who refused to serve their country in the Vietnam War. We can be no less generous to two men who acted on high principle to bring an end to the terrorism that was threatening our nation.”