As you noted in our statement, we had a footnote that we did not request the names and identifications of any of the people making the complaints or the people complained against. We did not think that

was necessary.

Mr. MCCLOSKEY. The primary concern of the committee when we asked for the GAO investigation was, of course, not the basic human faults that exist. I suppose, in any Government agency, but the question of misconduct by FBI employees in the conduct of their duties, and particularly the five areas mentioned at one time in the so-called Huston plan-mail opening, copying of telegraphic communications, interception of telephone conversations, electronic surveillance, and I suppose more than any of the others breaking and entering without a warrant in the conduct of their duties.

Do you find in the 162 allegations, any allegations of that kind of professional misconduct?

Mr. Lowe. There were some allegations of surreptitious entry, mail openings, and wire tap, which I assume would fall in the intelligence area. We have not looked at those specific cases.

Mr. MCCLOSKEY. It is those cases which are the precise nature of this committee's concern. Can you elaborate at all on those?

Mr. Lowe. As you know, last year we did report on the FBI's domestic intelligence operations. That was the first job of any kind of substance we had done in the FBI.

Mr. MCCLOSKEY. Was that report to this committee?

Mr. Lowe. That report was to the Congress, I believe. It was at the request of the House Judiciary Committee.

Mr. MCCLOSKEY. I would like to get a copy of that report to review before we prepare our own.

Mr. Lowe. I might add that at the present time at the request of the same subcommittee of the House Judiciary Committee we are doing a followup review to see what changes have been made in the domestic intelligence operations subsequent to issuance of new guidelines by the Attorney General for the FBI to follow. That report will be issued soon. That pretty much covers the kinds of things about which we were talking here.

Mr. MCCLOSKEY. Of the 162 allegations, the fact that 21 of them resulted in disciplinary action is a pretty good record, is it not?

Mr. Lowe. Off the top of my head, I would have to say yes. However, in any case where you have a law enforcement official dealing with the public on a day-to-day basis, there are going to be some allegations that will not hold water.

Mr. MCCLOSKEY. Do we have any comparison with other police statistics or any other investigative agencies as to what percentage of complaints made actually result in the finding of some wrongdoing? Mr. Lowe. I do not have that, no, sir.

Mr. MCCLOSKEY. I cannot recall in 10 years in the Congress any constituents ever complaining about FBI misconduct. I notice you have in roughly 6 months here only six indications of congressional inquiry. Mr. LowE. That is right.

Mr. MCCLOSKEY. Do any of your other records give us any guidance on whether that one complaint out of eight being found justified is a good or bad record, indicating that there has been an assiduous inquiry by the agency that is investigating or not?

Mr. Lowe. No, we do not have anything to compare with that, Mr. McCloskey. We sure do not.

I am sure that in any police work you would find a lot of allegations of misconduct on the part of police just because they do have so much contact with the public.

Even in the business we are in, while we do not get complaints that I recall about GAO, we do get some weird letters complaining about Government officials. There are a lot of different kinds of characters wandering around out there.

Mr. MCCLOSKEY. I would appreciate it if you would do this for me. When you go back to your office if you can find in the overall scope of past GAO investigations any comparable records to which we could refer, we would like to see those.

This looks to me to bear out your opinion that this is a tightly operated organization and that it is assiduous in following up complaints against its own people.

Mr. KOSTMAYER [presiding]. I thought we might break to vote now. When we return, Mr. Quayle may question the witness. [Recess taken.]

Mr. KOSTMAYER. The meeting will come to order.

Congressman Quayle?

Mr. QUAYLE. Thank you, Mr. Chairman.

I have one general area of questions. That area is in the relationship between the OPR of the Justice Department and the OPR of the FBI.

I believe, reading through this report, that the OPR in the FBI acts as liaison. Is that the proper word?

Mr. Lowe. Yes, that is correct. It does. It is the Office of Professional Responsibility in the FBI and it acts as a liaison with the Department-level Office of Professional Responsibility.

Mr. QUAYLE. Was the OPR in the FBI established at the same time as the OPR in the Justice Department?

Mr. Lowe. It was established some time after that.

Mr. QUAYLE. When does the OPR of the FBI turn over allegations, inquiries, or complaints to the OPR of the Justice Department?

Mr. Lowe. Any time they feel that a complaint is a serious one or a complaint is against an FBI official above a certain level, then that is called to the attention of the Department-level OPR.

Mr. QUAYLE. How is "serious" defined?

Mr. Lowe. It is really not defined. I think that is part of the problem. As a matter of fact, we have had quite a few discussions among ourselves as to how you would define some of these. Since we do not seem to be able to come up with any better answer, it is serious in the judgment of the people in the FBI. They refer that case for information purposes to the Department-level Office of Professional Responsibility. The Department-level OPR then has the option to either take that case on its own or to continue to let the FBI OPR deal with

it.

Mr. QUAYLE. Do you know how many of the 162 cases had been referred to the OPR of the Justice Department?

Mr. Lowe. Twenty-five, Mr. Quayle.

Mr. QUAYLE. Twenty-five?

Mr. Lowe. Yes.

Mr. QUAYLE. Did they accept all 25?

Mr. Lowe. No, they did not. As I recall, they did not undertake their own investigation of any of these 25 cases. They were satisfied to let the FBI's Office of Professional Responsibility oversee the investigations in those 25 cases.

Mr. QUAYLE. Is there any kind of written procedure about referring cases to the Justice Department from the FBI?

Mr. Lowe. There is really no written procedure. There is an understanding between the two offices which are in constant contact with each other as to what kind of cases the Department-level OPR wants referred to it.

Mr. QUAYLE. Of the 25 cases that were referred to the OPR of Justice, none of them were accepted; is that correct?

Mr. Lowe. None of them were taken over by the Department-level OPR for investigation.

Mr. QUAYLE. They were referred back to the FBI. They said, "You can handle it;" is that correct?

Mr. Lowe. Yes. The Department-level OPR does get a report on those cases. They do get the reports after the investigation is finished. Mr. QUAYLE. That is all the questions I have.

Mr. KOSTMAYER. Mr. McCloskey?

Mr. MCCLOSKEY. Thank you, Mr. Chairman.

On a related matter, inasmuch as you were looking at intelligence practices of the FBI for the Judiciary Committee, I would like to ask this question.

We have a report from the Department of Justice which was submitted in January on the CIA mail opening cases. The Department of Justice chose not to prosecute those cases.

to

We do have a case now where the Department of Justice is prosecuting an FBI employee for allegedly illegally breaking and entering. In this Department of Justice report on the mail opening let me read you this quote. I would like to ask what you have found in the course of your investigation to differentiate between the mail opening by the CIA and the breaking and entering by the FBI-one of which was prosecuted and one which was not. I am interested in the difference in the two cases.

The Justice Department report states:

A substantial portion of the period in which the conduct in question occurred was marked by a high degree of public concern over the danger of foreign threats. The view both inside and, to some extent, outside the government was that in response to exigencies of national security the President's constitutional power to authorize collection of intelligence was extremely broad-scope. . . . Applied to the present case, these circumstances lead to reasonable claims that persons should not be prosecuted when the governing rules of law have changed during and after the conduct that would give rise to the prosecution. They also would support defenses such as good faith mistake or reliance on the approval of government officials with apparent authority to give approval.

The issue involved in these past programs in the Department's view, relates less to personal guilt than to official governmental practices that extended over two decades. In a very real sense, this case involves the general failure of the government, including the Department of Justice itself, over the period of the mail opening programs ever clearly to address and resolve for its own internal regulation the constitutional and legal restrictions on the relevant aspects of the exercise of presidential power.

The actions of Presidents, their advisors in such affairs, and the Department itself might have been thought to support the notion that the governmental power

in scope and manner of exercise, was not subject to restrictions. That, through a very recent evolution of the law and the Department's own thinking, are now considered essential.

That has also occurred apparently in the FBI with regard to breaking and entering, has it not?

Mr. Lowe. I think that is generally true, yes. I will have to speak just as a layman who reads the newspaper. I personally do not see much distinction in those cases. However, I am not familiar with the full details of the one that is now pending in the FBI to which you refer. I am not familiar with that at all. Nor am I familiar with the CIA case, except for what you read.

Mr. MCCLOSKEY. Your investigation did not cover these two areas? Mr. Lowe. No, sir.

Mr. MCCLOSKEY. I have no further questions.

Mr. KOSTMAYER. I want to ask you a rather general question which you may or may not be able to answer.

What do you think has gone wrong in the past as far as these regulations being disregarded? I am talking about alleged abuses within the Bureau.

Mr. Lowe. I think it is pretty hard to answer that question. I think it depends on who is heading the FBI and what the official instructions are from the people at the top level of the FBI.

I think times have changed substantially here in the past few years. I think it is along the lines of what Mr. McCloskey just read. I think people have become aware of the responsibilities that the FBI and the CIA have in carrying out investigations, particularly intelligence investigations.

Mr. KOSTMAYER. Despite the attitude of the people in charge, which is important, are there not regulations to take care of these problems, such as when an agent is faced with being ordered to commit an act which he regards as illegal?

Mr. Lowe. I think it should not be just a matter of the attitude of his superiors. There are regulations. I believe there is also a regulation against insubordination. It is my opinion the agent has to weigh those things. In the current climate there is a much greater chance of having those things weighed by each individual than there has been in the past.

Mr. KOSTMAYER. When the Attorney General was here I asked him a question which I will also ask the Director of the FBI when he appears before the subcommittee. The question was what kind of advice he would give to an agent faced with choosing between a charge of insubordination and a charge of violating Federal statutes. What advice would you offer?

Mr. Lowe. I believe I would take the first course, particularly in the current climate.

Mr. KOSTMAYER. If there is no objection, I will ask our counsel, Mr. Barnes, to place some questions on the record.

Mr. BARNES. Mr. Lowe, the Church committee and others uncovered a number of cases of alleged wrongdoing by FBI employees. Did you find the FBI was following up on any of the allegations administratively?

Mr. Lowe. I am really not familiar with that particular circumstance, Mr. Barnes. If you would like us to try to get that information.

for the record, we will be glad to do it. I am not familiar with that particular one.

Mr. BARNES. Yes, please do that.

[The material follows:]

The FBI's Office of Professional Responsibility has not followed up on the specific allegations developed by the Church Committee, such as allegations of illegal or improper electronic surveillance, surreptitious entries, mail openings, or COINTELPRO. However, FBI's OPR is aware of these allegations and is conducting full inquires of similar allegations which have recently been made. The Church Committee allegations have been inquired into by various components of the Department of Justice and are being considered by the Department in developing domestic intelligence guidelines.

Mr. BARNES. The sampling cases which are described in the examples you listed in the report are all instances of individual wrongdoing, individual personal conduct, as opposed to some kind of conduct in an official capacity. Did any cases of official capacity misconduct show up in your investigation?

Mr. LowE. I would classify an allegation of, say, abuse of investigative power as an official act. That would be one that showed up. I think that is something that would be a normal kind of complaint which a citizen might raise.

Mr. BARNES. For the record, would you furnish some additional examples from the cases which you looked into that were in the official misconduct areas as opposed to the personal misconduct areas?

Mr. Lowe. Yes; we will go over the list we have of the 162 to see if there are any that appear to be in that category more than the examples we used.

[The material follows:]

In a letter to the Director, a private citizen accused an agent of disrespectful treatment because he had been hung up on during a phone conversation. The agent conducting the integrity investigation interviewed the complainant and explained this could have happened by mistake. Based upon various statements made by the complainant during this interview, it appeared the complainant's real motive was to meet an FBI agent. There appeared to be no substance to the allegation, and no action was taken against the agent. A letter was sent to the complainant stating the matter had been looked into and no improprieties were apparent. In a letter to the Director, a private citizen alleged FBI agents unjustly detained and questioned him concerning a bank robbery. An affidavit signed by an agent involved, stated that detention and questioning were proper and necessary under the circumstances. He stated the subject (1) resembled the bank robber, (2) was in the same area as the bank robber, and (3) was identified by another citizen as possibly the suspect. He also stated the complainant voluntarily accompanied him to the field office. No administrative action was taken against the agent and the citizen was informed the matter had been reviewed and no improprieties were evident.

An anonymous letter to an FBI field office alleged a clerical employee was providing advance information to criminals concerning planned raids. The employee denied the allegations but admitted, however, that on one occasion, a relative who had been raided phoned her and requested her to obtain confiscated papers. The employee stated she did not look for the papers but she did search the FBI indicies for references to his name. Her search found no information existed in the indicies and she reported this to her relative.

The SAC recommended censure for the employee and the Special Investigative Division concurred. The Finance and Personnel Division recommended censure and probation since the employee (1) did not inform her supervisor of the relative's request for information, and (2) divulged information, even though the information was negative in nature. This recommendation was implemented. Mr. BARNES. Did your inquiry include any visits to field offices? Mr. Lowe. Yes. As I recall, we went to three field offices.