STATEMENT OF HON. DON EDWARDS, U.S. HOUSE OF REPRESENTATIVES, CHAIRMAN, SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS

Mr. EDWARDS. It is a pleasure being here and I bring you greetings from your colleagues, former colleagues of the House Judiciary Committee, where you served so valuably for such a long time. I would like my statement to be made a part of the record.

Senator MATHIAS. Without objection, Mr. Edwards' statement will be included in full in the record.

Mr. EDWARDS. Mr. Chairman, I listened with interest to your opening statement and certainly agree with what you said. The subcommittee that I chair in the House, which has jurisdiction over the domestic operations of the FBI, started more than 4 years ago to conduct hearings and investigations on this rather new technique that the Bureau began to use-undercover activities.

We had many, many days of hearings and many, many witnesses for that period of time. Then we issued this report. The report is in great detail about one particular operation. We went into one particular undercover operation in great detail both with the field office and at the headquarters in Washington.

Our special counsel, Janice Cooper who is here, was the lawyer who went to the Bureau and examined Operation Corkscrew. Corkscrew was an undercover operation in the city of Cleveland from 1978 to 1982 and had to do with alleged case fixing in the municipal court in Cleveland.

Well, Mr. Chairman, what did we find and conclude? As in your report, we found that the heart of these undercover operations is the middleman, an individual, usually a criminal, and generally unaware that he or she is working for the FBI. The middleman acts as a go-between between the FBI and the targets.

And the theory is that the middleman selects the target, not the FBI. So that the FBI does not improperly target. Well, we found, as you found, that the middleman can be manipulated by the FBI agents to fulfill the agents' work.

In Corkscrew, for example, the FBI undercover agent offered the middleman large sums of money to set up meetings with judges who were supposed to be fixing cases. But the actual evidence, Mr. Chairman, was that the case fixing was carried on by the police, by lawyers and by low level court employees. Yet in Corkscrew, these leads were not followed because the FBI had their eye on the judges. The middlemen were steered by the FBI to the judges.1

Great damage was done to the municipal court in Cleveland even though there was no real credible evidence against these judges and none was developed. The targeting failed.

Now, Mr. Chairman, the Bureau claims that the allegations of these middlemen invariably must be corroborated by strong evi

1See, "FBI Undercover Operations," Ser. No. 11, and “Executive Summary on Report on FBI Undercover Operations," Ser. No. 12, reports of the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 98th Congress. (Available in the subcommittee files.)

dence, and yet in our investigation, we found that too often this corroboration was wishful thinking.

In Corkscrew, again, the corroboration of the case fixing consisted of taped conversations and court records. The FBI headquarters here in Washington and the undercover review committee were assured of the existence and reliability of this corraboration.

Yet in reviewing the tapes we found that they were totally ambiguous if not innocuous. We also found that some allegedly corroborating court records were partially forged by the middlemen and otherwise inconclusive.

Another major myth is that if innocent targets are approached, justice is assured because an honest man or woman can merely reject the criminal offer and walk away. Now, unfortunately, we found that too often the criminal proposition is intentionally phrased in ambiguous, confused language, and there is no way that the target could fully appreciate the meaning of the transaction.

In my prepared testimony, I have a rather lengthy example of a taped conversation between a Cleveland municipal judge and the middleman. That conversation was alleged to be proof of the admission of the acceptance of a bribe. I commend the members of your committee's attention to this tape. It is really shocking that this tape came close to being the basis for an indictment, because it is certainly a very inclusive bit of evidence.

The final myth, Mr. Chairman, is that the problems and the mistakes in these undercover activities are a thing of the past, that they do not happen any more and that the control and supervision is there. Well, most of the operations that we reviewed, and we reviewed more than Corkscrew, were from 1978 to 1982. And although I do not like to comment on an ongoing case, just last week in the New York Times, you read about the DeLorean case where there was a teletype to the FBI headquarters from an undercover agent asking for $17,860 for the undercover operation, and the FBI agent said to headquarters that this DeLorean was involved in large-scale narcotics transactions and laundering of large amounts of illegal money.

Well, the FBI witness acknowledged that this was not true, that it was true of a person by the name of Hetrick but not of DeLorean. The defense attorney asked why did you write to the headquarters like that. Why did you do it? And the agent said, "I thought it sounded pretty good." This was the FBI undercover agent.

This testimony suggests that even today headquarters and the undercover review committee are approving exagerated evidence. Whether Mr. DeLorean is guilty or innocent is for the jury to decide. The only question we have is whether these safeguards are working if the FBI headquarters and the undercover review committee are doing their job or if more effective controls should be enacted such as those suggested in your bill, S. 804.

Last, our report documented a wide variety of personal, financial, institutional, and societal damage that has resulted in the few short years since this new technique of undercover activities became the vogue.

Mr. Chairman, a lot of people have been hurt. Many of these injuries resulted from poor supervision and could and should have been prevented.

I believe that your S. 804 is sound legislation, but the subcommittee that I chair went in our recommendations one step further than you did, because we found that those with a stake in a case cannot seem to make objectively the threshold decision. Accordingly, we recommend that a neutral party make the decision. We recommend the ancient and proven procedure be required of a judicial warrant, the procedure that's used so successfully in wiretaps and is provided for in the Constitution and the fourth amendment of our Constitution for a search warrant.

Regarding the Undercover Review Committee, we learned that too often it has failed to monitor effectively the undercover operation. We believe, as you apparently do, that the Undercover Review Committee would be more effective if its membership were diversified. We go further and recommend that the expertise of the Civil and Civil Rights Division of the Justice Department be added to the committee.

In your bill you also address the regulation of the conduct of agents and informants. Your bill seems to imply that if high officials approve the operation, the undercover operation will proceed with due regard for people's rights.

While this might be very true sometimes, our review reflects that where the stakes are high, the opposite can occur, when stakes are very high. That is, the high-ranking officials at the FBI headquarters are inclined to defer to the field and permit inappropriate developments in an operation where the targets are perceived to be particularly important or newsworthy.

So our subcommittee recommended that Congress should set very clear limits on permissible conduct to decide, for example, whether and when it is all right to impersonate priests or reporters, to commit felonies, or to perjure oneselves. We felt that both society and the bureau needs this kind of protection, and you covered that very well in your report.

Finally, we concur that the law must be amended to provide compensation for innocent bystanders who have been hurt. We have serious doubts about the adequacy of the existing law and the attitude of litigators in the Justice Department in these cases. So far it does not give us much confidence that justice is being done. Mr. Chairman, except for the warrant requirement, our subcommittee was unanimous in our recommendations. There is agreement that the problem is real and legislation is needed. I commend you and your colleagues for taking the lead in this respect to introduce the S. 804, and I hope that it will go a long way. Thank you. Senator MATHIAS. Well, thank you very much, Mr. Edwards. I am very happy to have your recommendations and your approval of the general provisions of S. 804. There was a public perception that I think was unwarranted that the two investigations in each body of the Congress took separate routes, but I think your testimony makes it clear that the agreements were much greater than the disagreements.

You mentioned the question of requirement of a warrant, and I believe that was the principal difference that you had within your own committee and with respect to your own report, is that not so?

Mr. EDWARDS. That is correct. We made four recommendations and there was unanimous agreement on three. Three of the members dissented on the suggestion for a warrant.

Senator MATHIAS. But in other respects your committee was as united as our committee was.

Mr. EDWARDS. That is correct.

Senator MATHIAS. I thought it might be useful just to make sure that the record is full and complete to ask the ranking minority member, Mr. Sensenbrenner, to give us his views for the record. Mr. EDWARDS. A very good idea.

Senator MATHIAS. But there is no doubt in your mind, I assume, that there is a consensus within the Subcommittee on Civil and Constitutional Rights with respect to the need for legislation on the subject of Federal undercover operations.

Mr. EDWARDS. That is correct. Of the four recommendations we made, three were unanimous.

Senator MATHIAS. Could you discuss briefly the subcommittee's recommendation for a warrant requirement? I am thinking specifically about how broad an area the warrant should cover. Should it be a kind of general authorization for undercover operations, targeting a particular kind of crime in a particular area and based on certain facts that give rise to reasonable suspicion?

Or would you think it should be something narrower? Should it apply only to a proposal to offer a particular individual an opportunity to commit a specific illegal act under circumstances that would be detailed with particularity in the warrant application?

Mr. EDWARDS. Mr. Chairman, we think that the legislation requiring the warrant should be written with great care and narrowly and only after hearings. We think that the legislation should enumerate the crimes or types of operations that are included; the application for the warrant should have full details.

We think the legislation should require the criminal standard, and the criminal standard should be described. There should be a provision that ordinary methods of investigation are not enough.

There should be a time limit, and after the time limit is up, and if they wanted an extension, the law should provide that they must go back to the same judge. There should be certain officials in the Justice Department designated who could approval the warrant application.

Senator MATHIAS. The warrant concept, of course, has been subjected to two criticisms. One, that the judiciary is already overburdened and that this might involve them in a supervisory role over law enforcement investigations.

The other criticism is that it would retard police reaction to developing events, that the police would be unable to move as fast as circumstances might require. Do you have any feeling about these two criticisms?

Mr. EDWARDS. I can recall, and I'm sure you can, Mr. Chairman, that we went through the same arguments when legislation was proposed to require a warrant in wiretaps, the same objections were raised. I think the law providing for warrants and wiretaps is

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working very well, even though all of us I'm sure have real problems with wiretaps at all.

Also, I think any law requiring warrants and undercover activities is down the road apiece. This is a very controversial area, and certainly the easier reforms will be enacted before that particular requirement is enacted into law.

Senator MATHIAS. Now, in your report, you talk about the costs of undercover operations, various kinds of costs. But did you attempt to balance in your own minds the costs against the benefits, either the economic benefits or the less tangible benefits that result from the use of undercover operations?

Mr. EDWARDS. Mr. Chairman, that is a very difficult subject, and we do, from time to time, call upon the General Accounting Office to examine the claims of recoveries, fines, money saved, and so forth.

It is really very difficult. As a result of some of the undercover operations, there are outstanding lawsuits with claims against the Government of something up to $200 million. So we do not know what is going to happen with those particular lawsuits.

However, the Bureau, the Department of Justice has advised us that there also have been savings, and recoveries and fines of several hundred million dollars. None of that has been audited as yet. Senator MATHIAS. Thank you very much, Mr. Edwards. [The prepared statement of Mr. Edwards follows:]