FOOTNOTES PAGE 13

141/ See note 120 and 121 supra.

142/ See Text accompanying note 121 supra.

143/ See Text accompanying notes 57, 58 and 59 supra.

144/ As Deputy Counsel Wheeler stated in response to
the argument by Irvin Nathan that probing for
reliable information as a basis for targeting
is "selective targeting": "That, I submit to
you, Mr. Nathan, is a strawman, because in fact,
if the reason that 'No' was said with respect to
certain people such as Senator Pressler, and 'No'
was said pursuant to firm, clear, unequivocal,
proper guidelines such as 'Do not invite a person
before the camera unless you have a statement by
a middleman in which he represents to an agent
or on tape that an agent can listen to that this
Congressman or this official will accept a bribe,'
then in fact you cannot criticize the FBI after
the fact because they can say, 'Look, all we are
doing was following a pre-established, unequivocal
policy, and all we did was apply it." Senate Se-
lect Committee Transcripts, note 1 supra, p. 117.
July 27, 1982)

145/ United States v. United States District Court, 407 U.S. 297, 317 (1972).

146/ Wilson, James Q., "The Real Issues in Abscam", Washington Post, July 15, 1982, reprinted in Congressional Record, S8535, July 16, 1982.

147/ See note 5 supra.

148/ Professor Goeffrey Stone of the University of Chicago Law School made this point before the Edwards Committee in testifying on undercover operations: "It is true, of course, that in the ordinary course of our relationships we necessarily assume the risk that our friends and associates will betray our confidences. Insofar as such persons act solely in their private capacities, and not in cooperation with governmental officials, their betrayals undoubtedly fall beyond the scope of the amendment's concern. The analysis shifts markedly, however, once government enters the picture. For the risk that the individual's confidant may be fickle or a gossip is of an entirely different order from the risk that he is in reality an undercover agent commissioned in advance to report the individual's every utterance or misplaced confidence inherent in the nature of human relationships; we are dealing instead with government action designed explicitly to invade our privacy and to end in deceit and betrayal--with government action

FOOTNOTES PAGE 14

that appreciably alters the nature of the risks
we ordinarily expect to assume. The notion that
our willingness to assume one risk means that we
must necessarily assume the other is doubtful at
best. Indeed, from a constitutional standpoint,
we necessarily assume the risk that private cit-
izens will invade our privacy by tapping our tele-
phones, bugging our offices, and ransacking our
homes, It has never been suggested, however, that
because those risks are unprotected by the Fourth
Amendment we must also assume the risk that govern-
ment agents will engage in similar conduct or induce
others to do so for them. There is simply no logical
reason to assume that the risk of undercover surveil-
lance is any more 'inherent' in our society than the
risk that government officers will tap our telephones,
bug our offices, or ransack our dwellings, Edwards
Committee Published Hearings, note 1 supra, p. 4-5.

149/ See cases cited at note 102 supra.

150/ See note 104 supra.

151/ See text accompanying notes 127 through 133 supra. 152/ Senator Huddleston's point is well taken: "(I)t would be very proper that when guidelines do exist--and now, we do have a set of, I guess, general guidelines, and they even might be altered for a specific operation--that there ought to be a clear understanding between FBI operators, the agents, and the attorneys with the Strike Force. It seems to me they ought to review them together and say, 'These are the rules of this particular game that we are playing. " Senate Select Committee Transcripts, note 1 supra, p. 60 July 29, 1982.

153/ The current Attorney General's Guidelines on FBI Use of Informants and Confidential Sources (December 2, 1980) require a suitability determination to be made. Paragraph D. p. 2, What is troubling about the guidelines is that there is no indication of what "unsuitability" might be. For example, there is no outright prohibition on the use of an informant who has engaged in serious acts of violence or acted as an agent provocatur. Such standards should be included. Moreover, as Oliver B. Revell has testified, the suitability determination is not reviewed by the Justice Department Undercover Operations Review Committee. Testimony, Senate Select Committee Transcripts, note 1, supra, p.76-77 (July 20, 1982). How can the UORC even determine whether

FOOTNOTES

to rely on the information being supplied by the
informant let alone that he or she will obey FBI
or Justice Department rules? The UORC should
review these determinations. Finally, there are
no strict requirements that an informant be ter-
minated if he violates guideline strictures (e.g.
engages in violence, incites criminal acts). Ter-
mination standards should be included.

154/ See Prepared Statement of Philip B. Heymann, Unpublished Edwards Committee Hearings, note 1 supra

June 3, 1982

155/ As Senator Huddleston recommends: "In any particular undercover operation...those who are the operators, the FBI agents, and the attorneys, Strike Force attorneys, the ones that are closest to the field and closest to the actual operation, that they, at least prior to and perhaps during the course of the operation, review those guidelines and make sure that they are both operating on the same wavelength." Senate Select Committee Transcripts, note 1 supra p. 152 (July 27, 1982) We would require FBI Headquarters and UROC representatives to participate in such ongoing reviews in major operations.

156/ See paragraph (B), Attorney General Undercover Operations Guidelines, (January 1981).

Senator MATHIAS. Thank you. I think you stated very accurately the old maxim that the best threatens the good, and that is what we are faced with at this point.

Mr. BERMAN. Well, we learned in the FBI and CIA charter endeavors that by trying to get fundamental reform we have no charters as a consequence.

Senator MATHIAS. We had better make progress where we can. Mr. BERMAN. I think so.

Senator MATHIAS. Professor Freedman.

STATEMENT OF MONROE H. FREEDMAN

Mr. FREEDMAN. Thank you, Mr. Chairman, for the invitation to testify here. I agree with the goals of the sponsors of S. 804. I admire the conscientious effort of the subcommittee in a complex, delicate matter, and I commend the subcommittee and its staff for their achievement in producing S. 804 and the extremely important report that accompanies it.

But I do believe that some additional safeguards should be included, and in making these recommendations, I am going to focus on undercover investigations that are directed against lawyers and judges.

Some of these recommendations may well be applicable to other sensitive areas as well, but I am going to restrict myself to the area in which I have been working most intensively for the last 15 or 20 years.

Let me begin by telling you about a lawyer in New York, named Harry Levine. He was in his law office one day and he got a telephone call. The man at the other end said, "Mr. Levine, I am standing in my bedroom. I have just shot my wife. She is dead on the floor. I am standing here holding the smoking gun. What should I do?" After only a moment's hesitation, Levine replied, "Oh, you want Harry Levine the lawyer!" [Laughter.]

It illustrates a problem that I see increasingly as I speak to bar groups across the country, that is, lawyers who are becoming afraid to be lawyers, afraid to provide the effective assistance of counsel that the sixth amendment guarantees to their clients, afraid to give the zealous representation that the Code of Professional Responsibility demands, and afraid, in short, to be what the American Bar Association has called: the client's "champion against a hostile world."

I have heard more than one lawyer say to me, "I have to keep asking myself when I am talking to a client, 'Is this really a client or is somebody trying to set me up?'

When you have that kind of impairment of the sixth amendment right to counsel, innumerable other basic rights are compromised. We do have to maintain integrity in the administration of justice, and I think to that end some undercover operations are necessary. There is a basic problem, however, with prosecutorial discretion to target particular individuals-what Justice Jackson-who had before that been Attorney General of the United States-referred to as the most dangerous power of the prosecutor, where the crime becomes being obnoxious to the prosecutor or getting in the way of the prosecutor.

That general difficulty of prosecutorial discretion is compounded by an extremely serious conflict of interest for example, when the judge who is targeted, is one who has been conscientious in upholding the constitutional rights of criminal defendants who appear before the judge, or when the lawyer who is targeted by the prosecutor is one who has been zealous in defending his or her client's sixth amendment rights.

Even if, in fact, there is no such motive, we have an extremely serious and undeniable appearance of impropriety, and of conflict of interest in such cases.

That prosecutorial power and that potential for abuse has already begun to undermine the independence of the bar which is essential to a free society.

This committee has achieved a significant insight and a major success in S. 804 in developing two standards for undercover operations. One is for ordinary situations, in which of reasonable suspicion can be decided by the head of a field office. The other is for more sensitive or particularly delicate situations for example, dealing with political and religions groups or with the press, where the standard is "probable cause to believe that the operation is necessary to detect or to prevent specific acts of ciminality," and that determination in those particularly sensitive cases must be made by the Undercover Operations Review Committee.

There are two kinds of operations, however, which are not covered by that higher standard and, I think, must be. One is the case of the sham client, where the undercover operative is posing as a client and misleading the lawyer into thinking that the lawyer is dealing with someone who genuinely is in trouble and in need of legal services.

The other is a case, indeed, where I think that undercover operations should be forbidden altogether, but which is not covered in this bill, and that is infiltration of a lawyer's office.

As I say, I think it should be forbidden altogether, but at the very least, that kind of undercover operation, if it takes place, should be subjected to the higher standard of probable cause and necessary.

Other recommendations that are made in my prepared testimony include concern that the statute provides no judicial oversight of prosecutorial discretion at the beginning, through a warrant requirement. Indeed, throughout the undercover operation, it is entirely a matter of executive discretion and control, with no provision for dismissal for abuse of discretion, and at the conclusion, no sanctions whatsoever through civil action or otherwise against abuse of discretion.

So what we have, in a Government that prides itself on separation of powers and checks and balances, is the most sensitive kind of Government intrusion of all, undercover operations, with the discretion exclusively in the executive department.

I would recommend that all three of those bases be covered, that there be a warrant requirement, that there be dismissal on a showing of an abuse of discretion in targeting, and that there be provision for civil action as well.