Undercover Operations Act

The subcommittee met, pursuant to notice, at 9:30 a.m., in rooms SD-106 and SD-226, Dirksen Senate Office Building, Hon. Charles McC. Mathias, Jr. presiding.

Present: Senators Thurmond, Denton, Specter, Biden, and Metzenbaum.

Staff present: Steven J. Metalitz, staff director (Subcommittee on Patents, Copyrights and Trademarks); Beverly McKittrick, counsel (Subcommittee on Criminal Law); Joel S. Lisker, chief counsel (Subcommittee on Security and Terrorism); and John Podesta, counsel, Senator Patrick Leahy.

Senator MATHIAS. The subcommittee will come to order. We are pleased that the chairman of the full committee is here this morning, and I turn first to him if he has any remarks.

OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA, CHAIRMAN, COMMITTEE ON THE JUDICIARY

The CHAIRMAN. Thank you, Mr. Chairman. I have no statement to make except just welcome these witnesses here and thank them for their appearance. This is a very important matter.

I have another committee meeting and then I have to open the Senate. So I will not be here very long, but I will read your testimony and want you to know that we appreciate your presence. Thank you, Mr. Chairman.

OPENING STATEMENT OF HON. CHARLES McC. MATHIAS, JR., A U.S. SENATOR FROM THE STATE OF MARYLAND Senator MATHIAS. Thank you, Mr. Chairman.

This morning the Subcommittee on Criminal Law of the Senate Judiciary Committee begins hearings on S. 804, the Undercover Operations Act. I want to thank the chairman of the subcommittee, Senator Laxalt, for his cooperation in arranging this hearing and for the opportunity to conduct the hearing in his absence.

This is the first hearing to be held on the bill; but it is, of course, far from the first time that the Senate has examined the issues that are raised by this legislation. During the 97th Congress, the Senate established a select committee and charged it with the task

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of conducting the most searching inquiry into Federal law enforcement undercover operations that has ever been undertaken by the Congress. There were a dozen public hearings. There were private interviews. There were depositions. There was the perusal of many thousands of pages of documents. And in the course of this investigation, the committee examined the way in which the law enforcement agencies of the Department of Justice actually conducted undercover operations.

The select committee studied the directives and guidelines that those agencies had promulgated to govern the use of undercover techniques. It reviewed the record of the successes and failures, of the benefits and costs that resulted from undercover operations.

In December 1982, the select committee unanimously approved a detailed final report that made numerous specific recommendations for legislation to increase the effectiveness of undercover operations, while strengthening the safeguards for privacy rights and civil liberties.

These recommendations have been embodied in S. 804, which was introduced March 14, 1983. The bill had the support and cosponsorship of the vice chairman of the select committee, Senator Huddleston, and of five other members of the select committee.

Events in the months that have elapsed since the select committee concluded its work have underscored the need for the Senate to consider legislation on the topic of undercover operations. The undercover operation is, of course, a powerful weapon for law enforcement. Techniques of deception allow the authorities to bring to light conspiracies that would otherwise escape attention. For the detection of consensual crimes-trafficking in contraband or stolen goods or giving and taking brides and perversions of public trustthe undercover weapon often appears to be uniquely well suited.

But the use of undercover techniques also brings with it serious risks. More frequently and more urgently than ever the charge is heard that the undercover weapon has been misdirected or has misfired. The curtain that deceptive tactics can pierce may shield a conspiracy or it may simply protect the privacy of an innocent citizen. The Government's unacknowledged presence may ultimately preserve public safety but it may also intrude on precincts from which the State ought to be fenced out. The corrupt informant, always tempted to twist the project to his own ends, may betray his government as well as his erstwhile confederates. As more and more Federal law enforcement agents are called upon to play act in the performance of their duties, the need for clear legislative standards for the directors and script writers becomes more and more compelling.

The Federal Bureau of Investigation in the undercover guidelines that it has adopted has made what I think is a sincere effort to articulate those standards. But the Undercover Operations Act proceeds from the premise that these standards are so important that they ought to be written into the statute books rather than relegated to the netherworld of administrative rules that can be changed by a stroke of the pen and without sufficient notice.

S. 804 would, for the first time, give Justice Department law enforcement agencies express statutory authority to engage in undercover operations. It would grant these agencies permanent exemp

tions for some of the legal restrictions that have impeded use of the undercover technique. But these authorizations and waivers would be conditioned on the adoption of detailed internal guidelines addressing a specified range of issues. Furthermore, the Undercover Operations Act would prohibit undercover operations that fail to meet specified threshold standards of justification. The bill would clarify the rights of innocent victims of undercover operations to financial compensation from the Government. And it would deter some of the worst potential excesses of the undercover technique, by reforming and rationalizing the affirmative defense of entrapment.

With today's hearing, the proposals contained in S. 804 will begin to get the careful scrutiny that they deserve. The provisions of the Undercover Operations Act resulted from a consensus among the members of the select committee that the time had come for Congress to speak on this issue that has such important implications for effective law enforcement and for civil liberties. Although the members of the select committee have spoken with one voice, we all recognize that our statement could be improved upon. We welcome the constructive comments and suggestions of law enforcement agencies, legal scholars, concerned interest groups, and our colleagues in the Congress. We will need all these perspectives on the issue if we are to define the boundaries of the common ground from which the legislative process can usefully proceed.

Accordingly, it is fitting that the first witness this morning will be the distinguished chairman of the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee, Representative Don Edwards of California. Following Representative Edwards, we will hear from two men who can speak authoritatively for the administration on this issue, with particular regard to the effect of S. 804 on law enforcement activities: Judge William Webster, Director of the Federal Bureau of Investigation, and D. Lowell Jensen, Associate Attorney General of the United States. Next, we will take the testimony of a witness who can claim unsurpassed familiarity with the record of the need for this legislation, and a man to whom I feel personally greatly indebted, the former chief counsel of the Senate Select Committee on Undercover Operations, Mr. James Neal. Unfortunately, Malcolm Wheeler, who served as chief counsel after Mr. Neal's departure, is ill today, and we very much regret that he will be unable to join us.

Finally, we will have a panel of public witnesses who will bring diverse perspectives to bear on some of the particularly controversial aspects of the bill, including the provisions regarding the most highly sensitive undercover operations.

Now, before we ask Representative Edwards to begin, I would like to incorporate in the record at this point some explanatory materials concerning the legislation before us. These materials include the text of S. 804, a staff memorandum summarizing its provisions, excerpts from the final report of the select committee which set forth the committee's legislative recommendations and the analysis underlying them.

I will also note for the record that we have solicited the written views of several legal scholars and law enforcement professionals

on the matters addressed by the bill and they will be included at an appropriate point in the record.

[The prepared statement of Senator Leahy, the text of S. 804, the staff summary of S. 804, and excerpts from the select committee's final report follow:]

PREPARED STATEMENT OF HON. PATRICK LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT

There was once a time in my life when I had every hope that crime could be successfully fought with honest and well-trained policemen on the street corners of our towns and cities. As a county prosecutor in a rural state, this seemed a reasonable hope.

Ten years later I see that we need a much broader range of tools to fight crime, for the problem of crime is no longer simply the aberration of a man gone wrong, but often the product of organization and planning by people whose subtlety and care can make normal enforcement methods ineffective.

I recognize today that undercover operations are sometimes a necessary weapon against the modern criminal operation, and as a result I have endorsed S. 804, but with particular reservations. Though undercover operations will surely continue to be necessary on occasion in the future, their potential to harm the fabric of public trust gave me some pause-and frankly I think that a sense of doubt and hesitation in this area is healthy.

Two thorough investigations by the Congress concluded that we would be far better off if Congress established standards and guidelines for undercover activities than we would in relying on general law and the all-too-changeable sense of propriety that governs the law enforcement philosophy at the Department of Justice from Administration to Administration.

We need a bill because we need guidelines that will protect individual citizens from the excessive zeal of an operation that wanders from its rightful goal and places the value of apparent success over the value of individual liberty and privacy. This bill makes a good start by setting standards for targeting and then defining objectives and operational responsibilities.

But the standards for targeting ought to be tightened and we ought to dash the impression that the standards for investigating government officials will be any higher than for any other citizen. To allow any other interpretation would be to miss the whole meaning of Abscam. And the bill ought to apply to all federal law enforcement agencies, not just the Dapartment of Justice.

And there is one very crucial concern that goes to the heart of law enforcement policy in an open society, and that is the use of the media or the clergy as part of an undercover scheme. We like to think that one of the most important qualities of an open society like ours is that the government cannot manipulate the press, and that if it tries, the press will fight back.

Undercover operations that depend, even in small part, on subversion of the media cannot benefit the nation by their results, however spectacular in the short run. Fighting subtle criminals in our modern age means using modern tools, and this bill acknowledges that need. But we must never lose sight of the genius within our system of government-and the heart of that genius is our ability to examine those who govern and to speak to each other about what we find.

Let us pass a strong and bill, but let's make sure that it's a bill that can strike at crime without hobbling any of our valued freedoms.

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