the requests for authorization to offer bribes passed through several levels of officials in the field and at FBI Headquarters but were signed off proforma provided a middleman said he could bring a politician to a meeting. The information did not include a specific record of the reliability of the middlemen involved, or any record of independent evidence they adduced. 88/

It is not difficult to see how these shortcomings in authorizing, monitoring, and supervising Abscam contributed to undermining the safeguards. For example, if Weinberg ́s tape recordings were being reviewed by field level or FBI and Justice Department personnel concerned with enforcing the safeguards, the government would have known that Abscam was shifting to a focus on political corruption in September 1979 rather than December 1979 and may have questioned whether a "pattern" of criminal activity had been established to justify the political corruption operation. A high level review could have been conducted to weigh the risks and benefits and plan for minimizing intrusions into privacy. A similar review could have occurred

before Abscam shifted to Congress in late July. More concrete information concerning "ongoing criminal activity" might have been requested before FBI Headquarters allowed the investigation to go forward at both times.

If Weinberg ́s "suitability" determination had been reviewed by the Justice Department, more controls might have been placed on him. If all his conversations with middlemen had been taped or memorialized in FD-3028, the Director of the FBI and the Justice Department would have known how much reliable information was provided by Errichetti about corrupt politicians in New Jersey and Congress at the 4 1/2 hour unrecorded meeting in late March when Errichetti provided his "list" to Weinberg. 89/ If all of Weinberg ́s conversations with middlemen had been taped, the FBI Director might have learned that in some cases the middlemen did not promise that when particular congressmen came to a meeting they were prepared to take bribes. 90/ Some authorization requests might have been rejected or postponed pending further verification.

Similarly, if field and FBI Headquarter personnel were supervising Abscam from a "safeguard" or guideline perspective and supplying information to the Director, the Director of the FBI might have had a record of Silvestri ́s unreliability before him when the request to target Senator Pressler came in from the field. The Director might have cancelled the meeting and asked for more information.

Many of these managment problems have been acknowledged by Justice Department and FBI officials in testimony before the Edwards and Senate Select

*Bureau procedures require all investigative meetings, conversations and contacts to be reduced to memorandum, known as form FD-302.

Committee. 21/ In fact, the Undercover Operations Guidelines issued in January 1980 significantly upgrade the procedures for initiating, monitoring, and extending undercover operations with safeguarding privacy and civil liberties in mind. 92/ However, as will be pointed out in detail below, the ACLU does not think the current Undercover Operations Guidelines solve all of the significant managment problems associated with ensuring the implementation of civil liberties safeguards or that civil liberties can be adequately safeguarded merely by improving management mechanisms. Rather, we believe the record demonstrates the need for stricter substantive standards and external authorization and review. We therefore believe the first priority is to set forth the standards we would recommend for undercover operations as well as adequate procedural mechanisms to insure that those standards are met, and the need to embody both in statute rather than executive guidelines.

As Congressman William Hughes, an innocent person targeted in Abscan, emphasizes: "What differentiates us from a police state is that we have.. certain protections for innocent people." 93/ One of those basic protections is the right of law abiding citizens to be free from intrusive surveillance and invasion of privacy by government investigative agencies.

Undercover operations involve significant intrusions into privacy and other basic civil liberties. Abscam exposed citizens to pretext interviews, deception, audio and video recording of conversations and meetings, and the FBI's testing of persons' disposition to commit crimes. 94/

In other cases, undercover operations may involve infiltration of organizations, surveillance, and information gathering. Current Undercover Operations Guidelines define an undercover operation to include not only the creation of opportunities to commit crimes but "any investigative operation in which an undercover employee is used." 95/ They permit the Director to authorize undercover operations which allow agents to pose as members of the clergy, lawyers, doctors, and newsmedia personnel in circumstances which may involve the intentional collection of privileged information. 96/ In the hands of an errant FBI, and recent history should not be ignored, undercover operations may involve surveillance of lawful political activity and the gathering of information which may be used for purposes of blackmail. It was only a few years ago that Congress discovered and deplored J. Edgar Hoover's compilation of "personal and confidential" files for just such purposes. 97/

Former Attorney General Benjamin Civiletti, in drafting undercover operations guidelines, recognized the intrusiveness of the technique. The Guidelines require the Undercover Operations Review Committee to consider,

among other factors, the possible "harm to reputation", the "harm to privileged or confidential relationships", and the "risk of invasion of privacy" involved in any operation before it is initiated, extended, or renewed. 98/ Unless properly controlled, undercover operations may interfere with constitutional rights protected by the First, Fourth, Fifth, Sixth, and Ninth Amendments.

1. Why Legislation is Necessary

If rights are to be protected in regulating the government ́s use of the undercover operations investigative technique, legislation is necessary. Undercover operations are another case where the public's view of what the Bill of Rights should protect is at odds with what the Supreme Court believes the Constitution requires. However troubling the investigative conduct in Abscam, the Supreme Court, in the Hampton 99/ and Russell 100/ cases, give the government wide latitude to use undercover operatives and to create opportunities for crimes without running afoul of the Constitution. 101/

Similarly, while we believe undercover operatives and informant infiltrators are as intrusive as wiretaps and bugs which require a judicial warrant under the Fourth Amendment, the Supreme Court does not, holding that citizens do not have a "reasonable expectation of privacy" that their confederates are not police operatives or informants. 102/ Nor is there a case holding that even a "reasonable suspicion" standard must be met before a general investigation can be conducted. 103/ Faced with similar situations, Congress in recent years has on several occasions legislated protections for citizens rights which go beyond current Constitutional requirements. For example, Congress established a judicial warrant requirement for "national security" wiretaps, 104/ created a right of privacy in bank records, 105/ and