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April 26, 1995
Honorable Arlen Specter
Judiciary Subcommittee on Terrorism,
Intelligence and Gov't Information
United States Senate
161 Dirksen Office Building
Washington, DC 20510
Dear Senator Specter:
We write on behalf of the Electronic Privacy Information
Center ("EPIC"), a non-profit research organization concerned with
the protection of privacy and civil liberties. We are particularly
interested in the preservation of Constitutional freedoms in the
evolving communications infrastructure. Increasingly, the Internet
and other digital systems facilitate the expression of political
opinions and have, in effect, become the electronic town squares
of our information society. For this reason, EPIC believes that
any expansion of federal authority to investigate political
activity and/or expression could have a profound impact upon those
networks and the future of electronic democracy.
As the Committee begins its examination of the tragic events
in Oklahoma City, we urge careful and deliberate consideration of
any proposal that would alter current guidelines governing the
investigation and monitoring of domestic political activity or the
collection and use of personal information. The Congress must be
careful not to compromise fundamental constitutional values as it
seeks to address the obvious security concerns in the wake of
recent events. As Justice Powell observed in the Keith case:
History abundantly documents the tendency of Government
-- however benevolent and benign its motives -- to view
with suspicion those who most fervently dispute its
policies. [Constitutional] protections become the more
necessary when the targets of official surveillance may
be those suspected of unorthodoxy in their political
beliefs. The danger to political dissent is acute where
the Government attempts to act under so vague a concept
as the power to protect "domestic security." Given the
difficulty of defining the domestic security interest,
the danger of abuse in acting to protect that interest
becomes apparent.
United States v. United States District Court, 407 U.S. 297, 314
In order to assess whether it is necessary to make changes in
the current policies concerning the investigation of domestic
organizations, we believe it is necessary to look closely at the
history of federal investigative authority. As you know, the
evolution of the current requirements governing the FBI's conduct
of domestic security investigations dates back to 1976. In that
year, President Ford's Attorney General, Edward Levi, issued
"Guidelines on Domestic Security Investigation," which came to be
known as the "Levi Guidelines." This directive, which recognized
the FBI's legitimate investigative needs while seeking to protect
the First Amendment rights of dissident politic organizations, was
promulgated in the wake of Watergate and the revelations of the
Senate's Church Committee investigation./1/ The Levi Guidelines
reflected the post-Watergate consensus that the investigation of
controversial or unpopular political groups had at times been
overzealous and had violated fundamental constitutional rights./2/
Seven years later, in 1983, the Levi Guidelines were
superseded by the "Attorney General's Guidelines on General
Crimes, Racketeering Enterprise and Domestic Security/Terrorism
Investigations," issued by Attorney General William French Smith
(the "Smith Guidelines"). The revised guidelines were generally
considered to be far less restrictive than the Levi Guidelines.
As FBI Director William Webster noted at the time of their
issuance, the Smith Guidelines "should eliminate any perceptions
that actual or imminent commission of a violent crime is a
prerequisite to investigation."/3/
The guidelines provide, in pertinent part, that
[a] domestic security/terrorism investigation may be
initiated when facts or circumstances reasonably indicate
that two or more persons are engaged in an enterprise for
the purpose of furthering political or social goals wholly
or in part through activities that involve force or
violence and a violation of the criminal laws of the
United States.
Smith Guidelines (reprinted in 32 Crim. L. Rep. (BNA) 3087
(1983)), Section III (B)(1). The standard of "reasonable
indication" is
substantially lower than probable cause. In determining
whether there is reasonable indication of a federal
criminal violation, a Special Agent may take into account
any facts or circumstances that a prudent investigator
would consider. However, the standard does require
specific facts indicating a past, current, or impending
violation. There must be an objective, factual basis for
initiating the investigation; a mere hunch is insufficient.
Id., Section II (C)(1).
Given the constitutional command that the government may not
suppress or punish statements advocating criminal activity unless
they pose an immediate and substantial danger to public safety,
Brandenburg v. Ohio, 395 U.S. 444 (1969), the Smith Guidelines
afford the FBI considerable leeway in pursuing investigations of
potential violent crime. In a 1984 en banc opinion interpreting
the Smith Guidelines, the Seventh Circuit Court of Appeals found
that the directive strikes an appropriate balance between First
Amendment rights and legitimate law enforcement. As Judge Posner
wrote for the court,
[the FBI] may not investigate a group solely because
the group advocates [an unpopular cause]; but it may
investigate any group that advocates the commission, even
if not immediately, of terrorist acts in violation of
federal law. It need not wait until the bombs begin to
go off, or even until the bomb factory is found.
Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1015
(7th Cir. 1984).
Thus, the current guidelines provide the FBI with ample
authority to initiate investigations of organizations and
individuals similar to those alleged to have been involved in the
Oklahoma City bombing. In reaching this conclusion, we note that
a good deal of public source material concerning paramilitary
right-wing organizations in general -- and the Michigan Militia in
particular -- has been readily available to the FBI and other law
enforcement agencies for some time. For instance, a front page
article about the Michigan Militia in the Detroit Free Press last
fall reported:
Their goal is to keep the U.S. government in check,
through threat of armed rebellion if need be. Gun control
advocates, federal firearms agents and the United Nations
are among the perceived threats. ...
Federal officials are aware of these groups, but "we
are not monitoring their growth," said Stanley Zimmerman,
head of the Detroit office of the federal Bureau of Alcohol,
Tobacco and Firearms. "It would be our preference that the
militia groups would use the power of the vote rather than
the threat of armed violent confrontation to accomplish
their goals."
"They Cite their Disgust with Government," Detroit Free Press,
October 13, 1994, at 1A.
Indeed, the Justice Department was specifically alerted to
the activities of the Michigan Militia. Morris Dees, director of
the Southern Poverty Law Center, disclosed in a recent interview
We warned Attorney General Reno in a letter last October
concerning this Militia of Michigan, the one that's
involved in this case, and pointed out that they should
be checking on them. ... [T]hese people, like Mark Koernke,
are out actually advocating the overthrow of the United
States government with individuals who are practicing and
training with explosives, with assault weapons.
ABC News, "This Week with David Brinkley," April 23, 1995.
In recent comments concerning the adequacy of the Smith
Guidelines, former Attorney General Griffin Bell and former
Assistant Attorney General Victoria Toensing have expressed the
view that the FBI possessed sufficient authority to investigate
and monitor the activities of this organization and affiliated
individuals. This conclusion is consistent with the observation
of former FBI Director Webster, noted above, that the current
guidelines "should eliminate any perceptions that actual or
imminent commission of a violent crime is a prerequisite to
investigation." As you commence your review into this matter, we
strongly urge you to consider the views of many experts who share
the opinion of these former officials.
We urge you also to give similar careful consideration to any
proposals for the modification of the wiretap statute or privacy
statutes that would diminish the freedoms that all Americans
currently enjoy. Any such proposal must be carefully drafted to
address specific and identifiable harms. We urge you also to
proceed cautiously in the area of electronic communications. Our
country is in the process of developing the communication tools
that will take us into the next century. While we share the
President's belief that irresponsible speech should be opposed by
responsible speech, we do not believe that enhanced surveillance
of lawful activity by American citizens will serve the country
Political and associational rights form the foundation of our
democratic society. As the Committee and Congress examine the
nation's contemporary security needs, the temptation to find
expedient quick fixes must be resisted. Issues as fundamental as
the ones you propose to address deserve and demand a thorough and
open national debate. We look forward to working with you and the
Committee as you consider these difficult questions.
Marc Rotenberg, Director 
David L. Sobel, Legal Counsel
cc: Sen. Fred Thompson
Sen. Spencer Abraham
Sen. Strom Thurmond
Sen. Herbert Kohl
Sen. Patrick Leahy
Sen. Dianne Feinstein
/1/ See, generally, Final Report of the Senate Select
Committee to Study Governmental Operations with Respect to
Intelligence Activities, S. Rep. 755, 94th Cong., 2d Sess. (1976).
/2/ Although some critics maintained that the guidelines were
unduly restrictive, Attorney General Levi explained that they
authorized the initiation of an investigation on the basis of a
relatively benign statement such as "The rulers have set the time
for the party; let us bring the fireworks," delivered by a group
with no known propensity for violence. Alliance to End Repression
v. City of Chicago, 742 F.2d 1007, 1012 (7th Cir. 1984) (quoting
Congressional testimony of Attorney General Levi).
/3/ Alliance to End Repression v. City of Chicago, 561 F.
Supp. 575, 578 n.5 (N.D. Ill. 1983) (quoting internal FBI