JUSTICE DEPARTMENT INTERNAL INVESTIGATION

POLICIES

THURSDAY, JUNE 9, 1977

HOUSE OF REPRESENTATIVES,

GOVERNMENT INFORMATION

AND INDIVIDUAL RIGHTS SUBCOMMITTEE

OF THE COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C.

The subcommittee met, pursuant to notice, at 9:05 a.m., in room 2154, Rayburn House Office Building, Hon. Richardson Preyer (chairman of the subcommittee) presiding.

Present: Representatives Richardson Preyer, John E. Moss, Michael Harrington, Peter H. Kostmayer, Ted Weiss, and Paul N. McCloskey, Jr.

Also present: Timothy H. Ingram, staff director; L. Britt Snider, counsel; Richard L. Barnes, professional staff member; and Catherine Sands, minority professional staff, Committee on Government Operations.

Mr. PREYER. The subcommittee will come to order.

We are most pleased this morning to have Attorney General Bell with us for the first in a series of hearings which can importantly affect the American public's perception of equal justice under the law. As the Attorney General and his new team begin their administration, I want to emphasize this subcommittee's intention to work with them cooperatively and not contentiously.

The subcommittee is charged with oversight of the Department. This means, of course, that we must take a continuing interest in all aspects of its operations, not just point fingers if we think something is amiss.

Thus when we invite you to join us at sessions such as today's, Judge Bell, it is in the spirit of gaining information and not in the spirit of raining accusations down on you.

I think it is interesting to note that you and I each come to our present branch of Government from the third branch, the judiciary. While you have been much higher in both of those branches than I, I hope this common experience will serve us well in the relationship between your Department and our subcommittee in the months ahead.

The fundamental American democratic principle of equal justice has taken a buffeting from events of the past several years. Even less than 3 weeks ago we heard former President Nixon still insist that the President, by his own directive, can turn a criminal act into an activity that is legal.

The Department of Justice has found itself sometimes caught in the middle on questions of how wrongdoing by Government officials.

should be treated. When no indictments are forthcoming, the Department is accused of letting wrongdoers go free, but when former FBI Special Agent John Kearney was indicted recently, the Department was accused by some of its own employees of damaging morale and not acting evenhandedly. I do not envy you your dilemma on that

matter.

Although the Kearney case and its aftermath provided some of the impetus for this set of hearings, I want to make it clear that we do not intend to try that matter in this forum. We intend to be very attentive to the need to avoid prejudicial pretrial statements about that case, and I trust all members of the committee will honor that.

The Kearney indictment, however, offers an opportunity to focus on the broader questions of how the Department proceeds in investigating allegations of wrongdoing by its employees, and also by employees of other investigative or intelligence agencies of the Federal Government.

We think it is important that light be shed on this process so that the Congress and the public can evaluate whether equality of justice extends to the agents of Government.

The Kearney indictment is the only indictment thus far resulting from disclosures of unprecedented Government eavesdropping, breakins, and other allegedly illegal activities. While again we do not wish to prejudice specific cases, the subcommittee believes it is important that Congress and the public be given some idea of the extent to which this activity is being investigated by the Department of Justice and the reasons for not prosecuting in cases which have been closed.

Regardless of whether one agrees or disagrees with the Department's decision not to prosecute in the CIA mail-opening cases, the Department is to be commended for putting on the public record its reasons for that decision.

Finally, we think the time is appropriate for an examination of the Department's policies on providing information to the Congress. Only when it is suitably informed can the Congress convey to the public its findings that the Department is pursuing justice evenhandedly, or its belief that changes must be made.

Congressional investigative activity in the Watergate and postWatergate periods has brought probably an unprecedented demand on the Department for its files, records, and cooperation. We are told that in the new administration the Department is reexamining what the policy should be on providing information to Congress. With its expertise and responsibilities for freedom of information, privacy, and Government records management, as well as its general oversight authority for the Department of Justice, we believe this subcommittee is in a unique position to assist you in framing an acceptable information access policy.

Before proceeding further, Mr. McCloskey, the ranking minority member, has joined us.

Do you have any general opening statement that you would care to make, Mr. McCloskey?

Mr. MCCLOSKEY. I do not have anything to add, Mr. Chairman. I look forward to the Attorney General's comments.

Mr. PREYER. Thank you.

Mr. Attorney General, it has been customary at this subcommittee's proceedings to ask that all the witnesses who may testify be sworn,

and we would ask that you and anyone with you who may be answering questions for you would be sworn at this time.

STATEMENT OF GRIFFIN B. BELL, ATTORNEY GENERAL, DEPARTMENT OF JUSTICE; ACCOMPANIED BY MICHAEL E. SHAHEEN, JR., COUNSEL, OFFICE OF PROFESSIONAL RESPONSIBILITY; AND ROBERT L. KEUCH, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION

Mr. BELL. I would like to say that I object to being sworn and I object to my associates being sworn. We are lawyers. We can appear in any court in the United States and give statements in our capacity as lawyers without being put under oath. But if the subcommittee insists that we be sworn, there is nothing we can do about it. We will have to be sworn, but I do object to it.

Mr. MCCLOSKEY. I agree with the Attorney General; I would not insist that he be sworn in.

Mr. PREYER. Does the subcommittee have any feeling about that? Mr. Moss. Mr. Chairman, it has been my custom for 23 years of chairing investigative committees that all witnesses from four-star generals on down have been sworn. This is to my knowledge the first instance where there has been an exception taken to that proceeding. Mr. PREYER. Well, I can understand how the Attorney General may feel. This is somewhat offensive. I think if I were in his position I would share the same feeling. However, it has been the custom of this subcommittee to swear all witnesses and I think in the interest of equality of procedure and equality of justice the Chair would ask that you be sworn at this time.

Do you swear to tell the truth, the whole truth, and nothing but the truth, on this matter before the subcommittee, so help you God? Mr. BELL. I do.

Mr. SHAHEEN. I do.

Mr. KEUCH. I do.

Mr. PREYER. Thank you very much, Judge Bell.

First let me inform the members of the subcommittee that the Department of Justice has supplied the subcommittee a partial listing of the status of cases which were brought to the attention of the Department of Justice within the last 3 years concerning allegations of wrongdoing by Federal intelligence and law enforcement agencies acting in their official capacities.

I might say a press statement that the Justice Department sent Congress a list of FBI agents that broke the law was completely incorrect. The Department has asked that the information, because of its sensitive nature, be kept confidential by the subcommittee. Until the chairman and the subcommittee staff have had an opportunity to evaluate the information, its completeness and the Department's assertion of confidentiality, we will not get into the specifics of those cases at this hearing. We will be reporting to the members of the subcommittee on this matter shortly, however.

Also, as I had requested in my letter to the Attorney General asking him to testify, the Department has provided us with copies of relevant published Department regulations and excerpts from the U.S. attorneys' manual.

Because of the number of members present, we will be operating under the 5-minute rule in which each member will be limited to 5 minutes of questioning as his or her turn comes around. I think we might have some flexibility on that.

Mr. Moss. Mr. Chairman, in view of the nature of the material just. discussed by the chairman, I would move that the subcommittee treat that material for the time being as though received in executive session. under rule XI.

Mr. MCCLOSKEY. I second the motion.

Mr. PREYER. You have heard the motion and the second. All in favor of the motion please say "Aye." Opposed? The motion is adopted. Thank you, Mr. Moss.

Judge Bell, we would be pleased if you would proceed with your statement at this time in any manner that you would like to proceed.

Mr. BELL. Mr. Chairman, I received the inquiries from the subcommittee and determined that the matter is so complex that it does not lend itself to filing a written statement. So I have not filed a statement. But I am here to answer any questions that the subcommittee has.

I am prepared to attempt to answer. I have my associates with me who may have some answers that I do not have. So we are prepared now to receive questions.

Mr. PREYER. Would you identify your associates for the record, please.

Mr. KEUCH. Mr. Robert L. Keuch, Deputy Assistant Attorney General, Criminal Division, Department of Justice.

Mr. BELL. Mr. Civiletti is out of town; Mr. Keuch is standing in for him.

Mr. SHAHEEN. My name is Michael E. Shaheen, Jr., head of the Office of Professional Responsibility, with the title of counsel.

Mr. BELL. I might say that the Office of Professional Responsibility is about 1 year old. It was created by Attorney General Levi, and all complaints, all allegations of misconduct throughout the entire sweep of the Justice Department are referred now to the Office of Professional Responsibility for investigation and recommendation. That is Mr. Shaheen's office, which is attached to my office.

Mr. PREYER. Very well. Thank you.

We are glad to have you here, Mr. Shaheen and Mr. Keuch.
Mr. Moss?

Mr. Moss. Mr. Attorney General, I am also pleased to welcome you before the subcommittee this morning. I have some questions that I would like to address to you, sir, regarding message switching.

Mr. BELL. All right.

Mr. Moss. Are you familiar with that term and its general connotation?

Mr. BELL. I have been briefed on the term, "message switching." I must say I was in Atlanta on Sunday and saw it in the newspaper and it sounds like a sinister operation to me. I do not know who thought up the rhetoric "message switching," but I have been briefed and I am prepared to answer questions.

Mr. Moss. The criminal justice system of the Nation has now become quite highly computerized while simultaneously the amount of data on individuals has burgeoned beyond any proportion dreamed up even a decade ago.