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FEBRUARY 25, 2017 BY RAYMOND J. BATVINIS, PHD

Historical Perspective On Domestic Intelligence Collection

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I spent part of last week at the Hilton Hotel in Baltimore attending the International Studies

Association conference.

On Thursday afternoon I joined three Intelligence Community professionals for a panel

which addressed the timely topic of gathering intelligence in America entitled “Intelligence

Collection in a Domestic Environment.”

Dr. Ray Batvinis at ISA

Delivering papers were two FBI

representatives, Dr. John Fox, the FBI’s

historian, and senior intelligence analyst

Darren Tromblay. Rounding out the

group was our moderator Dr. Joseph

Helman, a historian with the O�ce of the

Director of National Intelligence.

My paper o�ered some historical and

personal re�ections based on my twenty-

�ve year (1972-1997) FBI

counterintelligence and counterterrorism

career both as Special Agent and

Supervisory Special Agent.

Set forth below are the re�ections I

o�ered the audience. I hope you �nd

them helpful.

~

Some Historical Perspective On Domestic

Intelligence Collection My role on the panel this afternoon is to put some personal and historical perspective on

the question of intelligence collection in the United States. Particularly as it impacts the

question of intrusion by law enforcement and the intelligence services on the civil liberties

of American citizens.

I want to start by brie�y describing my journey into the world of intelligence collection. I

joined the FBI as a Special Agent on July 17, 1972 just two months after the death of

legendary director J. Edgar Hoover who had been the head of the FBI for forty-eight years

and a Justice Department lawyer for seven years before that.

When I raised my right hand to take the oath of allegiance to the United States at the

Department of Justice building in Washington the Watergate break-in was just a month old.

The now famous “Smoking Gun” Oval O�ce conversation between President Richard Nixon

and his chief of sta�, H.R. Halderman during which they planned the cover–up had

occurred a mere three weeks behind. From that point forward I remained distracted from

the unfolding Watergate crisis because of my concentration on the sixteen week struggle of

new agents training followed by a transfer to Cleveland, Ohio where I began learning my

trade as a criminal investigator.

As for my �rst encounter with the Intelligence Community system it began with my transfer

to Washington DC in April 1974. After a brief stop at an applicant squad doing background

investigations for security clearances I was assigned to a foreign counterintelligence squad

where I began conducting investigations against Soviet and Bloc intelligence services.

When I �rst arrived at the Washington Field O�ce, America was four months away from

Richard Nixon’s historic resignation of his presidency in the face of certain impeachment. In

the months preceding his departure, however, news stories began emerging about

government abuses of the civil liberties of Americans. These reports, which were lost in the

louder noise of the Watergate hearings on Capitol Hill, began exposing government law

enforcement and intelligence agencies’ violation of US laws and charters by infringing on

the legitimate First Amendment rights of Americans.

In July 1974 the legendary New York Times reporter, Seymour Hersh, revealed that the

Central Intelligence Agency was surveilling Americans and maintaining dossiers on

legitimate protesters of the American involvement in the Vietnam War. Reports then began

surfacing about the National Security Agency’s monitoring of international telephone

communications of Americans without a court order.

Soon to be caught up in the controversy was the FBI charged with creating the now

infamous “Counterintelligence Program or “Cointelpro”: a series of initiatives started in the

mid-1950s to penetrate and neutralize groups ranging from the American Communist

Party to the Ku Klux Klan. Also revealed were the FBI’s warrantless intrusions into private

homes and businesses of Americans to monitor their movements, identify their contacts

and associates and collect intelligence information.

Today it is important to remind a new generation of Americans about the Senate Select

Committee formed to investigate these Intelligence Community abuses chaired by Idaho

Senator Frank Church and his counterpart on the House side led by New York

Congressman Otis Pike which exposed these abuses to the world.

And then there was the chilling e�ect of the Department of Justice convictions of former

Assistant Director of the FBI Edward Miller and Mark Felt for violations of the civil rights of

Americans in connection with the authorization of FBI agents to make illegal entries into

homes and apartments of individuals linked with domestic terrorism and opposition to the

Vietnam War.

For the �rst time hundreds of FBI agents who were acculturated into remaining

anonymous assembled in solidarity in 1978 on the steps of the US court house in

Washington DC to express their anger at the Department of Justice for what they viewed as

a malicious prosecution of two Americans who were doing their job.

The water was further muddied three years later when newly inaugurated President

Ronald Reagan pardoned both men in one of the �rst acts of his new presidency. President

Reagan argued that his predecessor, Jimmy Carter, generously pardoned thousands of

Americans who evaded the military draft by �eeing to Canada. “We can be no less

generous,” Reagan noted, “to two men who acted on high principle to bring an end to the

terrorism that was threatening our nation.”

These revelations of the extent and breadth of the Intelligence Community’s invasion of the

civil liberties caused a complete collapse in the con�dence and trust that the American

people had historically placed in the Intelligence Community.

Three senior FBI o�cials were convicted of violating the civil rights of American. Another

dozen or so FBI agents spent years and many thousands of dollars �ghting federal

prosecution. Even James J. Angleton, the secretive chief of CIA counterintelligence, who was

�red in 1974 by director William Colby, faced days of withering questions from senators

before a nationwide audience.

In 1977 a federal judge sentenced former CIA director Richard Helms to a two-year jail term

and a �ne for lying to congress about CIA involvement in the Chilean coup against Salvator

Alleande. By the end of the 1970s, the CIA, FBI and the NSA had replaced terrorists and

foreign intelligence o�cer as America’s enemies.

Another factor which went unreported was the growing suspicion and antagonism

between Bureau agents and DOJ o�cials. The question emerged that if a FBI agent was

sued for conducting legitimate investigation in pursuit of his duty would the Department

defend him. It should come as a surprise to no one therefore that the same year President

Reagan pardoned Miller and Felt, FBI Agents, for the �rst time in history, joined together to

form the FBI Agents Association. Its mission statement, then as now, was to join together

“in response to the growing recognition that FBI Special Agents needed to join together in

order to protect and advance the interest of their career.”

What I want to emphasize is that during my career I worked in the counterintelligence and

foreign and domestic intelligence side of the house. Yet during that time it is interesting to

note that as an investigator I never conducted a domestic intelligence investigation. Nor

while I supervised the foreign counterintelligence and domestic intelligence programs for

twelve years we never opened a domestic intelligence investigation nor did we ever receive

a lead regarding such matters from another �eld o�ce. I’m certain that I am representative

of every �rst line �eld supervisor and manager around the country during that period of

history. There were many reasons for this situation.

In 1976 then Attorney General Edward Levi adopted domestic guidelines to regulate

intelligence collection. Six years later Attorney General William French Smith revised these

guidelines to encourage closer investigation of potential terrorism. Smith’s concern, like

Levi’s, was that mere suspicion of terrorism “could lead to making individuals targets of

investigation more because of their beliefs than their acts.” Smith’s guidelines also took

into account the reality that potential terrorists were often members of extremist religious

organizations and that “investigation of terrorism could cross the line separating state from

church.”

Another factor was the di�ering FBI rules for law enforcement and intelligence collection.

In criminal matter agents could apply to a federal magistrate or judge for criminal warrant

authorizing technical surveillance. Before 1978 regarding intelligence collection, however,

the attorney general authorized surveillance of foreign powers and agents of foreign

powers without a warrant or review by a court.

With the passage of the Foreign Intelligence Surveillance Act, known simply as “FISA” in

1978 a court order was now required for such surveillance. This is where the confusion

began. Because FISA was unprecedented and controversial the courts began interpreting

the law to require that the technical coverage including physical searches be conducted for

the “primary purpose” of collecting intelligence information. The Department of Justice

interpreted these rulings as meaning that criminal prosecutors could be briefed on the

coverage but could not direct it. Throughout the 1980s and 1990s, the DOJ had informal

arrangements for information gathered under the FISA process, the understanding being

that they would not improperly exploit the process for their criminal investigations.

In July 1995 Attorney General Janet Reno issued new guidelines for managing information

sharing between the FBI and Department of Justice prosecutors. These procedures, while

requiring the sharing of intelligence information with prosecutors, still regulated the

manner in which the information could be shared from the intelligence side of the house to

the criminal side.

As the 9-11 Report suggests the Reno procedures were “almost immediately

misunderstood and misapplied.” What resulted was far less sharing between the FBI and

the DOJ Criminal Division than actually permitted by the guidelines. Over time these new

procedures came to be referred to as “the wall.” During these years the Department of

Justice’s O�ce of Intelligence Policy Review took control of the process and, in e�ect,

became the sole gatekeeper for the passage of FBI intelligence information to the Criminal

Division of the Department of Justice.

Though Reno’s procedures did not include such a provision OIPR, nevertheless, assumed

the role anyway arguing that its position re�ected the concerns of Judge Royce Lamberth,

then the chief judge of the FISA court. As the 9-11 Commission Report noted OIPR

“threatened that if it could not regulate the �ow of information to criminal prosecutors it

would no longer present the FBI’s warrant requests to the FISA court. The information �ow

withered.”

The confusion only deepened when one considers the fact that the Reno procedures dealt

only with sharing of FBI intelligence information between agents and criminal prosecutors.

It did not prevent FBI agents working intelligence matters from sharing information with

other FBI agents working criminal matters.

Yet constant pressure from OIPR and the FISA court built barriers between agents – even

agents assigned to the same squad. Internally this misperception was only reinforced by

FBI leadership which pressured �eld o�ce personnel arguing that too much sharing could

be a “career stopper” for an agent’s professional advancement. As a result agents in the

�eld began incorrectly believing that FISA information could not be shared under any

circumstances with agents working criminal matters.

This misunderstanding soon contributed to the belief that intelligence information could

not be shared with criminal investigators even if there were no FISA procedures involved.

As a result relevant information from the NSA and the CIA often failed to make it to

criminal investigators even when no FISA procedures were involved. What is sad to note

even today was the 9-11 Commission’s �nding that separate reviews conducted in 1999,

2000 and 2001 repeatedly revealed these self-imposed barriers to information sharing and

that the intent of Reno’s 1995 procedures were being routinely ignored.

As if this confusion was not enough new misunderstandings surfaced which included the

belief that court rules prohibited the sharing of grand jury information mixed with the

compounding e�ect of prior executive orders prohibiting the comingling of domestic

information and foreign intelligence. And �nally as the nation drew ever closer to tragic

morning of September 11, 2001 the NSA in its Bin-Laden inquiry required by prior authority

before any sharing with criminal investigators and prosecutors could take place. It was a

development which only further blocked the arteries of information sharing.

As we assemble here this afternoon we can take some comfort in knowing that many of

these problems that I have outlined have been swept away in the wake of the 9/11

disaster. Today the Domestic Investigation and Operations Guide serves as the Bible for FBI

agents and analysts conducting criminal and intelligence investigations both foreign and

domestic. Over the course of 264 pages Americans can get a sense of the profound

changes that have occurred since the tragic events of September 11th to improve the �ow

of information across the boundaries of intelligence and law enforcement pursuits.

Filed Under: Blog, Events

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