Additional statutory requirements for the supervision of undercover operations need to be adopted. The decision as to how to meet these requirements through the issuance of guidelines should be left up to the Attorney General and the FBI Director. First, undercover operations should be designed and conducted to insure compliance with guideline standards and procedures. The Attorney General and the FBI Director may mandate training for agents, requirements to instruct informants as to the "rules of the game", the planning of operations with guideline compliance in mind, the appointment of supervisors tasked to monitor guideline compliance. 152/ Second, the Justice Department should review the suitability determination for each informant or cooperating source and insure that they are properly controlled and supervised or terminated if they violate FBI instructions or procedures. 153/ Third, all meetings and contacts between agents, informants and others should be recorded or memorialized and procedures adopted to permit contemporaneous review of this record. This was a major managerial failure in Abs cam and guideline procedures need to be developed to correct it. 154/ Fourth, all information as to the reliability of informants or other persons relied on by the FBI for operational assistance (including middlemen) must be made a part of the record. In future Abscams, supervisors and those who approve operations should be apprised of all information as to the reliability or unreliability of informants or middlemen. Fifth, in major operations, FBI and Strike Force supervisors should be designated at the field level to monitor the operations and report to The designated supervising FBI and Justice Department teams in Washington. guidelines should provide for daily communication, frequent meetings, and on-site inspection by FBI Headquarters and Justice Department teams. The teams would be assigned to insure compliance with guidelines and procedures and to report failure or departures from procedures to the Undercover Operations Review Unit, the Director, and the Attorney General or his designate. 155/ No operation should be conducted for more than 90 days without supervisory review. 7. Absolute Prohibitions In Under current guidelines, the Director apparently may authorize the use of undercover operations for purposes which are so dangerous and intrusive that we believe Congress should act to prohibit these activities. particular, the guidelines permit the Director to authorize undercover operations which may involve substantial risks of violence or injury to persons or which may intrude upon or interfere with confidential communications and relationships. 156/ Congress should respond by prohibiting: solicit privileged or confidential the FBI from permitting an undercover IV. Conclusion The conduct of FBI undercover operations is an issue of vital importance to the public, the Congress, and all who are concerned with the need to strike a proper balance between law enforcement functions and the protection of civil liberties. We reject the argument that effective law enforcement requires the maintenance of the kind of FBI discretion that led to Abscam. We believe that the rights of all Americans are endangered by permitting the FBI to retain such discretion, and that crime and corruption can be adequately investigated and prosecuted without wisk to civil liberties or compromises of American values. We hope that this report will generate wide public debate and that out of congressional hearings and deliberations a consensus will develop around the wisdom of enacting an investigatory charter for the FBI that incorporates the recommendations of this report. Certainly our traditions command it. FOOTNOTES ACLU REPORT ON FBI UNDERCOVER OPERATIONS 1/ Our basic sources are the hearings of the Senate Select Committee to Study Law Enforcement Undercover Activities. Hereinafter referred to as Senate Select Committee Transcripts. The Transcript is unpublished to date and so references will be to particular statements and testimony with particular hearing dates and pages of the unpublished record noted. We also reviewed the record of the Hearings of the House Judiciary Subcommittee on Civil and Constitutional Rights. Hearings in 1980 and 1981 are contained in FBI Undercover Guidelines, Oversight Hearings Before the Subcommittee on Civil and Constitutional Rights of the Judiciary House of Representatives (97th Congress 1st. Sess. Feb. 19, 25, and 26) (G.P.O. Serial No. 18) Hereinafter cited as Edwards Committee Published Hearings. Recent House hearings are unpublished and hereinafter are cited as Unpublished Edwards Committee Hearings with particular statements and testimony keyed to dates and pages. 2 / Attorney General's Guidelines On FBI Undercover Operations, January 5, 1981. 3/ Statement of Philip B. Heymann, former Assistant Attorney General of the United States, Unpublished Edwards Committee Hearings, supra note 1, pgs 8-9 (June 3, 1982). 4/ See note 1, supra. We also reviewed the briefs filed in the Due Process Hearings in Abscam as well as the court decisions involving Abscam defendants. These will be cited where appropriate. 5/ Prepared Statement, American Civil Liberties Union, FBI Charter Act of 1979, S. 1612, Hearings Before the Committee on the Judiciary, United States Senate (96th Cong. 1st Sess. Part I, Serial No. 96-53) pp. 253-270. (Hereinafter cited as ACLU FBI Charter Testimony). See also, Prepared Statement, American Civil Liberties Union on Need for FBI Charter, FBI Statutory Charter, Hearings Before the Committee on the Judiciary, United States Senate (95th Cong. 2nd Sess. Part I April 20 and 25 1978) Hereinafter cited as ACLU Need for Charter Testimony. 6/ See ACLU FBI Charter Testimony, note 5 supra, p. 257. The FBI Commentary accompanying S. 1612 did not exclude undercover operations from preliminary inquiries. Neither do the current Attorney General's Guidelines On Criminal Investigations of Individuals and organizations, December 2,1980. Undercover Operations are FOOTNOTES PAGE 2 permitted in "inquiries" based on unsubstantiated 7/ Opening Statement of Senator Charles McC Mathias, Committee Chairman, Senate Select Committee Transcripts, note 1 supra, July 20, 1982, pp. 4-5. 8 Edwards, Don, "Worry That You Could Be a Victim" 9/ Mathias, Op. Cit, pp. 5-6. 10/ Ibid. p. 6. 11/ Testimony of Oliver B. Revell, Senate Select Committee Transcripts, note 1 supra, July 20, 1982, p. 23. 12/ Report to the Select Committee of the Review By Its Counsel of the Confidential Abscam Files of the FBI, August 18, 1982, p. 34. 13/ Senate Select Committee Transcripts, note 1 supra, July 21, 1982, p. 131. 14/ Unpublished Edwards Committee Hearings, note 1, supra, April 29, 1982, p. 74. 15/ See test accompanying note 3 supra. 16/ Introductory Paragraphs, Attorney General's Guidelines on Criminal Investigations of Individuals and Organizations. 17/ See generally Sections III and IV, Report to the Select Committee by Its Counsel, note 12, supra, pp. 5-13, 18/ Ibid. pp. 5-6. See also Testimony of FBI Director William Webster, Unpublished Edwards Committee Hearings, note 1 supra, April 20, 1982, p. 20. 19/ Ibid. p. 7. See also Webster, Ibid. p. 21. 20/ Ibid. p. 11. See also Webster, Ibid. p. 23. 21/ Testimony of Philip B. Heymann, Assistant Attorney |