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subjected to misleading and intrusive governmental action. It requires a reasoned determination by the government, before the intrusion takes place, that scrutiny of particular citizens is necessary. It strikes an historically justified balance between the individual citizen's interest in being left alone and society's need for effective law enforcement.

The specifics of the Select Committee's proposals are designed to further these principles by closing some of the gaps in the existing guidelines, while allowing for the creation of a flexible and manageable procedural framework. Thus, before a specific, previously targeted individual or group of individuals is subjected to an undercover investigation, Paragraph 1(a) of the proposal requires a finding, based upon articulable facts, of a reasonable suspicion 29 that the targeted individual or group has engaged, is engaging, or is likely to engage in criminal activity.

This standard would apply to all undercover operations and to all uses of the undercover technique, including "preliminary inquiries" and "pretextual interviews," however those undefined terms have been or may be applied by components of the Department of Justice. In the Select Committee's view, neither a particular use of the undercover technique nor the stage at which it is used in an investigation significantly affects the degree to which it intrudes upon privacy interests, the resentment likely to be felt by citizens who discover that they have been misled by federal agents, or the risks of abuse that are peculiar to the undercover technique. Moreover, a reasonable suspicion should be required not only when an operation is initiated, but also when federal authorities seek to renew a previously authorized operation, to use undercover techniques against a new target, or to expand the scope of the operation beyond the geographic or subject-matter boundaries that initially were approved. The proposal establishes such a requirement by use of the words "expand," "extend," and "renew" 30 in the introduction to the proposal's section "1." If the reasonable suspicion requirement were not to apply to such expansions and extensions, the law enforcement agency could readily circumvent all of the threshold requirements for a new operation simply by expanding and extending without limitation any of its existing operations. This, essentially, is a license that the FBI has under the existing guidelines.

Similarly, whenever the authority that approved the operation— in the FBI, either the Undercover Operations Review Committee or a Special Agent in Charge-determines that there no longer is

29 This standard, which is familiar to law enforcement officials from Fourth Amendment law (see, e.g., FBI Statutory Charter: Hearings Before the Subcomm. on Admin. Practice and Procedure of the Senate Comm. on the Judiciary, 95th Cong., 2d Sess., Pt. 2, at 157 (1978) (testimony of Griffin B. Bell)), requires a specific factual basis for the belief that criminality will be found. The reasonable suspicion test apparently is the standard currently required by the Criminal Investigations Guidelines for criminal investigations, but not for "inquiries." (See Attorney General's Guidelines on Criminal Investigations of Individuals and Organizations I, 1 C(1) (Dec. 1980).) This standard cannot be met by assertions such as, "Everyone knows that politicians are corrupt," or even by the arguably accurate assertion that some number of individuals in every discrete group are likely to be lawbreakers. Those assertions are not specific facts relating to the particular situations under investigation.

30 These terms are included in order to make clear that the proposed requirement is meant to reach the expansion of operations into new investigative areas, the temporal extension of operations, and the outright renewal of investigations.

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reason to believe that the target was, is, or will be engaging in criminality or concludes that the original "reasonable suspicion" was not well-founded and that no additional incriminating information has come to light since the initiation of the investigation, that authority should terminate the operation.31 That obligation is imposed in the proposal by use of the word "maintain" in the introductory clause to section "1."

Proposal 1(b) imposes parallel requirements on the initiation and modification of operations that are not aimed at previously identified individuals or that, like sting and decoy investigations, are intended to offer to the public at large an opportunity to engage in criminality. This recommendation is intended to place limitations on the use of scattershot operations that may obtain a vast amount of information about substantial numbers of people. Again, the proposed legislation would require, before the use of intrusive techniques is authorized, a reasonable suspicion that evidence concerning a particular type of criminality will be discovered.32 The concluding proviso to subsection 1(b) is intended to ensure that subsections 1(a) and 1(b) are read in conjunction: It makes clear that, when a specific individual's name comes to the attention of federal authorities during the course of an "umbrella" operation-as happened, for example in Abscam 33-authorities must have a factually based, reasonable suspicion of criminality concerning that individual before offering him an inducement to engage in criminality. The remaining provisions of section "1" articulate a higher threshold test that must be met before undercover techniques may be employed to infiltrate entities that were organized to further legitimate political, governmental, religious, or journalistic ends and before undercover agents or informants are allowed to impersonate certain types of individuals who are especially likely to elicit confidences from third parties. The higher threshold requires probable cause to believe that specific acts of criminality have been, are being, or will be committed. Investigations in such sensitive circumstances are considerably more intrusive than are conventional undercover operations, a fact acknowledged both by Director Webster (see, e.g., FBI Statutory Charter: Hearings Before the Subcomm. on Admin. Practice and Procedure of the Senate Comm. on the Judiciary, 95th Cong., 2d Sess., Pt. 2, at 156, 159 (1978) (testimony of William H. Webster)), and, albeit in slightly different form, by the proposed FBI charter legislation (see S. 1612, 96th Cong., 1st Sess. § 531a(d) (1981)).

31 This obligation is facilitated by the reporting requirements elsewhere recommended by the Select Committee, in particular by Recommendation as to Administrative Directives A(5XiXv) and B (See pp. 31-32 supra.)

32 This imposes a requirement of some specificity in the planning and implementation of the operation. General authorization requests-for example, that which appeared in the "catch-all" provision of the Abscam authorization document (see pp. 15-16 supra)—would not be proper. Also, an application, like the Goldcon application, that lists many different targets, many different criminal activities, and many different geographic areas would have to state articulable facts justifying each aspect of the proposed investigation. It simply will not do, for example, to allow field agents who have stated articulable facts justifying an investigation of narcotics sales in Cleveland to use those narrow facts to justify an investigation of stolen property in Toledo or of racketeering in Akron.

33 Under the proposed standard it would have been improper for the FBI to use undercover techniques to investigate or to offer inducements to individuals, such as Senator Pressler, whose names were forwarded, without corroboration, by a wholly unreliable middleman such as Joseph Silvestri.

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Where First Amendment interests are involved, the possibility of government infiltration can easily inhibit valuable, protected expression. Were agents of the executive branch to insinuate themselves into Congressional offices, for example, substantial separation of powers concerns would arise. The surreptitious placement of federal agents within political bodies may, over the long term, result in the agents' affecting significant decisions for those organizations.

Similarly, society has determined that assuring a free flow of information between private parties and those persons mentioned in subsection 1(d) is so important that privileged communications are inadmissible even at criminal trials. The use of agents posing as lawyers, physicians, clergymen, or reporters may have a considerable inhibitory effect on the exchange of such privileged information.

Most importantly, use of the undercover techniques mentioned in subsections 1(c) and 1(d) is more likely than are conventional wiretaps or searches to reveal legal, but intensely private, information that people seek to protect, for each of those undercover techniques elicits information by winning the confidence of unsuspecting persons and thereby exposing their innermost thoughts. The Select Committee therefore believes that, in these circumstances, the balance between privacy and law enforcement should be weighted in favor of the individual.

Similar factors motivated the Select Committee's proposal in section "2." As Fourth Amendment law has shown, privacy interests can be safeguarded in two ways: (1) By imposing stricter requirements on the use of intrusive techniques; and (2) by lodging the approval authority as far as possible from the law enforcement agent who personally is involved in, and hence has the greatest stake in, and the worst perspective on, the operation. The Select Committee's proposed section "2" employs the latter principle. The authority to approve routine, unexceptional uses of the undercover technique is vested in an SAC or equivalent local official, thereby removing the decision at least one level from the field agent. Where the proposed undercover activity is more intrusive or more dangerous-where First Amendment interests are involved, for example, or where there is the possibility of harm to third parties-the proposal requires consideration and approval of the operation at FBI HQ by the Undercover Operations Review Committee, which, being a second step removed from the field, brings greater perspective and an increased objectivity to the decision.

The value of this approach is recognized by the current FBI Undercover Operations Guidelines, which properly require prior approval by the Undercover Operations Review Committee whenever a significant range of "sensitive circumstances" may be implicated by the investigation.34 Similarly, the Select Committee proposal re

34 Paragraph B of the FBI Undercover Operations Guidelines lists 12 sensitive circumstances, among them that the investigation may involve a public official, foreign government, religious or political organization, or the news media; that the investigation may involve untrue representations concerning the activities of an innocent person; that an undercover agent or informant may engage in serious criminality during the course of the operation; that an undercover operative may attend a meeting between a target and his attorney; that an undercover operative may Continued

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quires that the delicate probable cause determination mandated by subsections 1(c) and 1(d) be made by the Undercover Operations Review Committee.

The Select Committee's proposed section "2" does not establish the procedures to be followed by law enforcement officials in making the decisions required by section "1"; the Department of Justice is in the best position to devise a realistic and workable procedural framework. This legislative approach, however, should not be understood to denigrate the seriousness of the responsibility entrusted to the Undercover Operations Review Committee and to the SACS. To be adequate, any set of procedures must ensure that all relevant information is made available to the decisionmaking authority in a timely fashion. It must guarantee that crucial information, including the facts supporting the finding of reasonable suspicion or probable cause, is memorialized, so that the efficacy of the decisionmaking process and the responsibility for given determinations can be assessed after the fact.

Nevertheless, recognizing the need for flexibility in the world of law enforcement, the Select Committee's proposed section "3" allows for a departure from established procedures when exigent circumstances make noncompliance necessary to prevent serious injury to persons or property, to bar the destruction of evidence or the escape of a suspect, or to forestall similar harm. Again, however, this is intended to provide only a narrow exception to the generally applicable requirements. Thus, the proposal requires that, when both sensitive and exigent circumstances are present, a complete application for approval must be forwarded almost immediately to the Undercover Operations Review Committee; if the Undercover Operations Review Committee concludes that the action taken in the field was not justified, both the Director and the Attorney General should be fully informed of the circumstances surrounding the operation. The Select Committee believes that these steps are essential to place responsibility for making sensitive judgments at the proper levels, while permitting an effective internal review of compliance with legislative and administrative require

ments.

The recommendations outlined above should not unduly impede legitimate law enforcement efforts. The Select Committee's proposal requires no approval or review by a court or by anyone outside the Department of Justice before an undercover operation may be initiated, expanded, continued, extended, or terminated. Instead, in large part the Select Committee's proposals reflect current practice: Officials of the FBI and of the Department of Justice have testified that undercover operations typically are not initiated in the absence of a reason to believe that criminal activity is afoot. (See, e.g., FBI Oversight: Hearings Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 96th Cong., 1st and 2d Sess. 131-32 (1980) (statement of Philip B. Heymann); FBI Charter Act of 1979: Hearings on S. 1612 Before the

pose as an attorney, physician, clergyman, or member of the news media; that the operation poses a significant risk of violence, or of financial loss to innocent individuals; and so on. The Select Committee believes that this is a reasonably complete list, although the citation to it in proposed section "2" is not meant to foreclose the Department of Justice from adding additional categories of sensitive circumstances.

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Senate Comm. on the Judiciary, 96th Cong., 1st Sess., Pt. 1, at 10910 (1979) (testimony of Charles F. C. Ruff and Francis M. Mullen, Jr.).) Indeed, it is difficult to see why law enforcement officials would legitimately need to use intrusive and often expensive undercover investigative techniques in the absence of articulable facts constituting evidence of criminality.

The Select Committee nevertheless strongly believes that legislation is needed to express the will of Congress that law enforcement undercover operations be firmly grounded on a factual basis and be free from arbitrariness and abuse. Nothing in current law would prevent drastic dilution of existing guideline requirements. Indeed, at least one former ranking official of the Department of Justice actually has advocated the use of undercover techniques as a preliminary investigative tool even in the absence of circumstances giving rise to a reasonable suspicion that criminal activity has occurred, is occurring, or is likely to occur. (See Sel. Comm. Hrg., July 29, 1982, at 136-37 (testimony of Irvin B. Nathan).) Pressures to use the undercover technique in an unregulated manner inevitably will rise as the number of such investigations increases and as the supervision of any given operation becomes correspondingly more difficult. Indeed, during Abscam the Department of Justice authorized the use of undercover techniques against any public official whose name was mentioned by any corrupt individual, no matter how obviously unreliable the information.35 Equally as important, legislation is necessary to close major unnecessary gaps in the existing guidelines, which in at least some circumstances clearly permit the use of undercover techniques in the absence of a reasonable suspicion of criminality.

D. Explanation for the Select Committee's Rejection of a Judicial Warrant Requirement

As noted in the opening pages of this report, many informed individuals and organizations, including some of the FBI's staunchest advocates, have argued that a judicial warrant should be required before an undercover operation is initiated or an informant is used, at least in sensitive circumstances. The arguments they have presented are undeniably compelling. First, undercover operatives and informants are law enforcement weapons that as a general rule are at least as intrusive as searches and wiretaps, for which warrants are required. It therefore seems logical to impose equivalent safeguards on the use of each of these investigative techniques.

Second, in undercover operations, no less than in other cases involving attempts to obtain information about private parties, privacy interests are more likely to be given their due when crucial decisions are made by a neutral magistrate. Thus, the Supreme Court's Fourth Amendment decisions are based squarely on the proposition

35 Department of Justice officials testified that this practice was necessary to avoid claims of political targeting, as demonstrated by the Department's ability to insist today that contacts were in fact pursued with every figure whose name was mentioned. (See, e.g., Sel. Comm. Hrg., July 29, 1982, at 121 (testimony of Irvin B. Nathan).) In fact, however, the Department's Abscam practice permits informants and middlemen to engage in targeting of their own. (See pp. 68-77 supra.) In the Select Committee's view, a firmer safeguard against charges of political decisionmaking, and one far more considerate of innocent citizens and civil liberties, would be the evenhanded application of consistent formal threshold requirements, with determinations and the supporting material memorialized in writing.