SEN. FRANK Church headed a select committee in the mid-'70s charged with investigating the intelligence-gathering activities of the government. The committee uncovered many questionable practices by the FBI, particularly in investigations of civil rights and anti-war groups, and important reforms were soon initiated by the Justice Department. In 1976, at a time when there were 4,868 domestic security cases pending in the bureau, Attorney General Edward H. Levi promulgated guidelines governing these investigations. Thousands of cases were closed immediately, and by the end of 1982 only a few dozen remained.
Early in 1983, the Levi guidelines were amended by Attorney General William French Smith, and these revisions have been the subject of some controversy and much study. The most recent and thoughtful analysis has just been published by a panel of the American Bar Association. The ABA subcommittee consists of four Washington attorneys all now in private practice -- Eric Richard, James Dick, Kenneth Reisenfeld and Adrian Steel. Each has extensive government experience in intelligence oversight, having worked with the Church committee, in the Justice Department, the FBI or the White House. Their study is comprehensive, carefully detailed and well argued, and for these reasons it is important.
The lawyers commend the Smith guidelines for upholding the idea that intelligence investigations must be conducted "subject to the rule of law," but call for some amendments to ensure the protection of individual liberties. They are concerned, for example, about field personnel's accountability to FBI headquarters in the preliminary stages of an investigation. They don't want investigations to begin on the basis of individuals' political beliefs, only on that of activities that may involve or lead to criminal conduct. They point out a need for caution in moving from a preliminary inquiry to a full investigation, for that escalation triggers the use of a greater range of investigative tools such as court- ordered wiretaps and mail surveillance. And they have advice on how and when informers should be used.
The authors point out that the FBI has adopted many of their recommendations even though it is not required to by the guidelines. American Civil Liberties Union officials agree that this is so. There should, then, be little resistance to amending the guidelines formally. Attorney General Smith hailed the ABA report as "an endorsement of the guidelines by a group of lawyers whose primary focus is civil liberties." That's a stretch, but it would not be hard to make it a fact. These recommendations should be put into practice by the attorney general.