However, with the number of operations expanding every year, and with a record that calls out for stricter controls and supervision over these operations, we believe that a more limited agenda is necessary to begin to address a significant law enforcement tool which today poses significant dangers to civil liberties. Preface The ACLU has long held the view that investigative techniques such as infiltration or undercover operations are highly intrusive and subject to enormous abuse of discretion. Therefore, such techniques require strict standards and controls in order to protect civil liberties. We have urged this view for years upon the courts and upon Congress, without success. This report is intended to generate an informed public debate, both in and outside of Congress. We have reviewed in detail both the court records of particular Abscam cases as well as the excellent hearing record developed by two Congressional committees. This report, prepared by Jerry J. Berman of our legislative office in Washington, provides a detailed factual summary of what actually happened in Abscam what the FBI's own guidelines required, the extent to which those guidelines were followed, why Abscam was initiated, how particular politicians were chosen as targets, and the degree to which the entire operation was adequately supervised. - We believe the facts lead inescapably to the conclusion that new legislation is required to impose limitations on the FBI's discretion to engage in undercover operations, while continuing to permit such operations to take place under narrowly defined circumstances. We believe in general that undercover operations should be authorized only when there exists a sufficient amount of prior evidence of a pattern of criminal activity. We also believe that before any particular individual or group becomes a target of an infiltration or undercover operation, a high standard of reliable evidence indicating involvement or likely involvement in criminal activity must be met, and that the judgment of whether such evidence is sufficient should not be made by those seeking the authorization. ii If police were permitted to issue their own search warrants, Fourth Amendment standards would inevitably be eroded. It is a proven principle, based on centuries of experience, that even adequate standards will be insufficient to protect the innocent from intrusive investigative techniques unless procedures are established that locate the decision to authorize such techniques in some independent authority. Clearly there are differences between traditional searches and undercover operations, but the analytic problems posed by both techniques are very similar. Apparently persuasive arguments will be made by law enforcement officials in defense of retaining their discretion to authorize undercover operations directed at particular targets. We urge the public and Congress to resist these arguments. If the Fourth Amendment did not exist, and were here being proposed, no doubt law enforcement officials would resist the judicial warrant procedure with similar arguments. We believe our country's founders were right to resist those arguments in the 18th Century, and we believe that the lessons of Abscam and other undercover operations should lead this generation's lawmakers to resist them as well. Ira Glasser Executive Director |