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Mr. DEBRULER. Yes, we file them quarterly.
Mr. INGRAM. Have there been reports or allegations of improprieties filed with the Intelligence Oversight Board ?
Mr. DEBRULER. Questions are taken up on occasion with the Department for discussion with the Intelligence Oversight Board.
Mr. INGRAM. Could you tell us, sir, how you are defining “impropriety in terms of the definition of the Executive order? It is not defined in the Executive order and I am curious to know your definition as to what impropriety is.
Mr. DEBRULER. Those things that would be criminal in nature and that type of thing.
Mr. INGRAM. Would it go beyond the criminal violation? In other words, would an impropriety strictly be a violation of domestic law or would it go beyond that in terms of an improper use of intelligence functions?
In other words, the Executive order does not define what impropriety is. I am curious as to how the Bureau is defining it.
Mi. Mintz, could you give us a definition as to what "impropriety” is under the Executive order?
Mr. MINTZ. The order talks about things that are questionable. It has been my policy to engage problems that raise questions of possible illegality. Some of the areas appear to be related to the statutes, and some of the areas appear where there are no statutory provisions. So, we make reports involving areas where the activities may be questionable, even though there is no specific statutory or case law prohibition.
Mr. INGRAM. So it is a broader definition than simply a legal violation?
Mr. Mintz. Yes.
Mr. INGRAM. If, for example, a legal attaché in a foreign embassy were involved in an intelligence-gathering operation against the foreign national, which would not be a violation of American law, would that be the type of thing that would fall within your definition of impropriety that might be reported ?
Mr. Vintz. That would be the type of thing that would be con
Mr. INGRAM. Mr. Mintz, you are an Assistant Director of the FBI, and General Counsel; I am quite concerned that the Office of General Counsel is keyed into and is aware of the activities and operations of the agency. The problem in the past is the General Counsel's Office has often been deliberately or otherwise locked out of the decisionmaking chain.
Of course, this was, I believe, to a large extent, the practice within the Bureau prior to about 1971. Is that correct?
Mr. Mintz. That is correct.
Mr. INGRAM. As an Assistant Director you sit on the Bureau's Executive Conference. I presume that you would have been in a position to know what information the Bureau was not telling the Senate Intelligence Committee during its investigation of FBI improprieties.
Could you tell us, sir, when you first learned that the 1966 prohibition against break-ins had not been observed and that many break-ins had occurred in 1972 and 1973 ?
Mr. MINTZ. I believe it was during the time of our inquiry by the Church committee.
Mr. INGRAM. Could you give us an approximate date as to when you first personally learned of that activity?
Mr. MINTZ. No; but I think we can verify it by looking at the documents. I learned of it from the submission to the committee. If you would find the documents submitted you would learn.
You must understand how that reporting was done. There was a committee established in the Intelligence Division of the FBI to find the answers to questions of the Church committee. We had liaison with the committee and worked only in a liaison capacity. The questions were received by the committee and farmed out to the appropriate source for the answers. The answers were prepared and we delivered them back to the committee.
It was in that chain where I would have learned of it.
Mr. INGRAM. If I understand you correctly, however, your first knowledge that break-ins had occurred after 1966 was at the time that the matter was reported to the Senate Intelligence Committee; is that right? Mr. MINTz. That is my recollection.
There is one other possibility. That is, when the General Accounting Office was conducting an inquiry concerning the method of conducting domestic security cases. They found some surreptitious matters involved in some cases they looked at. That was about August or September of 1975, if I recall correctly. I may have been aware of that at that time. That may have predated the response to the Church committee.
One of those two was the one.
Mr. INGRAM. I believe the GAO later complained, not only to this. subcommittee, but also to the House Judiciary subcommittee chairman, Mr. Edwards, that during their investigation of the domestic intelligence of the FBI, they had not been apprised of or shown documents which would have laid out a pattern of break-ins after 1966.
So, I assume that this had come out after the close of that investigation.
Mr. Mintz. You must make a distinction. The General Accounting Office, as I recall in their report, indicated specifically that they did uncover them in particular cases. They might not have said they discovered a pattern of activity, but what they found were indications in particular cases. They conducted a review of particular investigations. They did not conduct a general survey of all investigations.
In those particular cases which they did review they, in fact, found' some indications of surreptitious entry.
Mr. INGRAM. Had you participated in the decision by the Bureau as. to when the Senate committee would be informed of the information concerning break-ins?
Mr. Mintz. No, sir.
Mr. INGRAM. You were only apprised after the reporting had taken place to the Senate Intelligence Committee; is that correct?
Mr. Mintz. The reporting, of course, went forward through our office. We learned of it as it was reported through our office.
Mr. INGRAM. You only learned that after the fact?
Mr. MINTz. Yes. Mr. INGRAM. I have one or two final questions. Mr. Kelley, Mr. McCloskey earlier mentioned that at the time Mr. Callahan was asked to resign there was no public explanation for that firing. Generally when a high Bureau official is fired in such a manner, should there not be some public explanation or reassurances that matters the official had been involved in were in no way tainted by whatever improper actions he or she had been involved in?
Mr. KELLEY. I do not know of any precedent. But in this particular case I was guided by the Attorney General as to what could be said. There could be nothing said because it was a pending investigation.
Mr. INGRAM. I see.
When Mr. Hoover issued his directive in 1966, he did it in two forms. He appended a note to a memorandum saying that he did not want any more of this stuff indicating illegal surveillances, surreptitious entries, and so on.
Shortly thereafter he issued a memorandum of his own, again reaffirming his position. Mr. Mintz, subsequent to that, was there anything done by your office, by any office in the FBI, to make sure that the Director's mandate
in this thing was being honored ? Mr. Mintz. Mr. Hoover's memorandum, the first one you described, was dated in 1966. His subsequent memorandum was dated about January 1967. The office to which I am attached was not created until 1971.
Mr. Weiss. All right, but regardless of your own role in it, was there anything done in the FBI at that point to follow through on a directive given in very clear and strong terms by the Director of the FBI!
I ask the question really, Mr. Kelley, because the assurance that you were giving Mr. Ryan becomes sort of questionable if, in fact, directives given by the former Director were so clearly neglected and ignored.
Mr. Mintz. I think what you are asking is the essence of the problem before the Department of Justice now as to what exactly occurred during the interim of 1966 and whenever the last activity charged occurred.
I do not know the answer to that question and I am not sure that Mr. Kelley does. As far as I am aware, there is no record of activity. We are inquiring into that now.
Mr. Weiss. Director Kelley said in his statement of April 14 that a whole era is being indicted. In some way, this was permissible activity. The Director of the FBI made it very clear it was unpermissible activity.
I do not understand the rationale for saying, "Well, it is OK for this to have been done because everybody was doing it.”
Mr. Mintz. Mr. Weiss, there may be an answer to the question, but it will have to come in with regard to that investigation. I do not know the answer now.
Mr. Weiss. Well, the investigation will go into the operations of the FBI itself and whether, in fact, it is capable of policing itself.
Mr. KosTMAYER. But you were in the Office of Legal Counsel as early as 1965; is that correct? You came to the office in Washington in 1971 ?
Mr. Mintz. Yes; in 1971. Let me correct that. There was in the Training Division of the FBI an instruction unit that dealt in legal instruction. At that time I was in that unit at Bureau headquarters. It had nothing to do with policy. It only had to do with legal research and training
Mr. KOSTMAYER. So it was really not the office through which this information would come!
Mr. Mintz. That is correct. It would not come.
Mr. Ryan. Mr. Kelley, on behalf of the subcommittee, I want to thank you very much for being here and giving this committee the courtesy of your presence and that of your staff.
We appreciate your appearance. We appreciate your assistance in trying to help us work our way through this. We wish you and the Department well.
Thank you very much.
[Whereupon, at 11:55 a.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.]
APPENDIX 1.-TRANSCRIPT OF MAY 12, 1977, MEETING OF SUBCOMMITTEE
To Discuss PLANS FOR JUSTICE DEPARTMENT HEARINGS
The subcommittee met, pursuant to notice, at 10:20 a.m., ir room 2247, Rayburn House Office Building, Hon. Richardson Preyer (chairman of the subcommittee) presiding.
Present : Representatives Kostmayer, Weiss, McCloskey, Quayle, and Erlenborn.
Also present: Raymond S. Calamaro, Deputy Assistant Attorney General, Office of Legislative Affairs, Department of Justice; Lawrence M. Baskir, consultant; Timothy Ingram, Staff Director ; Richard L. Barnes, professional staff member; and Catherine Sands, minority professional staff.
Mr. PREYER. The subcommittee will come to order.
We appreciate your being here today. I know everybody has two or three other committees where they should be, but I did want to make a progress report to you and get your thinking on how we ought to proceed.
The recent Kearney-Kelley case has raised some fundamental problems. Congressman Weiss has pointed these out to us, and many other members of the subcommittee have been interested in them.
It raises questions about Mr. Kelley's role. His reply to Mr. Weiss, I think, in effect admits, perhaps, a mistake in judgment. He has pursued that role and has been rather notably quiet recently.
One question is what our subcommittee should do, if anything, concerning Mr. Kelley's activities. But it would appear that the Attorney General might have a more key role and be of more interest to this committee.
On the Kearney matter, he has said that the rule of law should prevail. He has said the right things. He did express the feeling, as I read his public statements, that there are gray areas in the whole question of what is and what is not permissible in domestic security cases.
He has raised the question of whether or not there is a need for a charter of some kind defining what can and cannot be done in domestic cases.
We have written the Attorney General raising some of the questions about that. We will ask the staff to comment, shortly, on the reply. [The text of the letter follows :)
APRIL 29, 1977, Hon. GRIFFIN B. BELL, U.S. Attorney General, Department of Justice, Washington, D.C.
DEAR MR. ATTORNEY GENERAL: Pursuant to its general oversight responsibility for the Department of Justice, this subcommittee is concerned with matters relating to Department examination of alleged illegal acts by various government investigative and intelligence agencies.
We invite you to testify on this subject at a subcommittee hearing tentatively scheduled for 10:00 a.m. on Friday, May 6, If another date shortly after that would be more convenient for you, I am sure we can arrange a mutually satisfactory time.
The subcommittee will wish to explore with you such points as:
When violations of law or executive branch policy are discovered or charged in situations involving the rights of individuals, what is the chain of responsibility within the Department of Justice for deciding whether and when to open and close investigations and/or proceed with indictments? Please attach all policy statements, regulations and guidelines used by the Department in this regard.
The process used in examining allegations that Department of Justice personnel may have known of or authorized violations of law or Departmental policy or regulations.