Testimony of the Center for Constitutional Rights

The Center for Constitutional Rights is a non-profit legal and educational organization dedicated to advancing and protecting the Rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1967 to aid the southern civil rights movement, the CCR soon became an important legal force in challenging government use of repressive intelligence gathering techniques. CCR attorneys litigated: United States v. District Court,[1] which resulted in a landmark decision denying the President power to authorize electronic surveillance in internal security matters without prior judicial approval; McSurely v. McClellan,[2] a damage action which challenged the use of illegally seized documents in Congressional hearings; Kinoy v. Mitchell[3] challenging warrantless electronic surveillance of an attorney in the course of a national security investigation; and Clavir v. Mitchell,[4] a case brought on behalf of victims of FBI "black bag jobs."

Over the last three years, because of our work monitoring intelligence abuses, we have become the primary source for information documenting the various surveillance and harassment p. 2 techniques presently being utilized. As this Committee is aware, in 1985, we were instrumental in bringing FBI interrogation of visitors to Central America to public attention, and we have been engaged in litigating intelligence gathering abuses by the U.S. Customs Service. (See, Heidy v. U.S. Customs Service;[5] Haase v. Webster.[6])

Today, we are pleased to be invited to testify before the Committee regarding surveillance and harassment of individuals and organizations dissenting from U.S. policies in Central America. We are most concerned by the existence, and apparent scope of the activities which will be set forth in our testimony. The political process of our country depends upon vigorous open and free debate. Democracy is endangered when dissenting points of view are suppressed.

↩ B. Unleashing the Intelligence Agencies.

Even before President Ronald Reagan assumed office, it had become apparent to us at the Center for Constitutional Rights (CCR), that it would be wise to monitor possible surveillance and harassment of political groups which were engaged in dissent from administration policies. The campaign platform of the new administration included a promise to bolster U.S. intelligence agencies, and it had received specific advice from the Heritage Foundation to the same effect.

p. 3 The potential for unleashing intelligence agencies in disregard of the Fourth and First Amendments to the U.S. Constitution became a reality with three events that occurred in 1981: President Reagan's pardoning of two ex-FBI officials who were convicted of authorizing "black bag jobs;" his signing of Executive Order 12333, which permitted intrusive investigative techniques; and the Justice Department's interpretation of a decision of the Foreign Intelligence Surveillance Court to mean that the Chief Executive had the "inherent power“ to authorize unconsented physical searches.

The Heritage Foundation -- The requested advisory from the Heritage Foundation suggested a harder line against domestic groups opposed to administration policies. It called for "presidential emphasis on the nature of the threat...the reality of subversion and emphasis on the un-American nature of much so-called dissidence." The Heritage report insisted that it was critical that investigations of political groups not be required to be linked to a criminal investigation, and asserted that the- FBI should be allowed to conduct break-ins as part of such investigations, without warrants or approval from the President or the Attorney General. According to the Heritage Foundation, surveillance of political groups requires "such standard intelligence techniques...as wire-tapping, mail covers... and at least occasionally, illegal entries."

E.O. 12333 -- Following some of the foundation's suggestions, E.O. 12333, signed in December 1981, clearly provides that domestic intelligence gathering need not be linked p. 4 to a criminal investigation. Under the labels of "foreign intelligence," "counter-intelligence" and "terrorism," the FBI and the CIA are permitted to surveil Americans, even if they are not suspected of breaking the law or acting on behalf of a foreign power. (See pp. 35, 38 infra) warrantless searches are permitted on probable cause to believe that the target of the investigation, if not the target of the search, is "an agent of a foreign power." The meaning of "agent of a foreign power" is not even defined. The locus of the search is not limited to offices, or to the premises under the control of the suspected agent, nor are the searches linked to the commission of any unlawful acts.

By the executive fiat, the Order enacts an "agent of a foreign power" exemption to the Fourth Amendment's warrant requirement, even though our law forbids such intrusions on privacy unless a warrant, issued by a neutral magistrate upon a finding of probable cause has been secured. Doing away with the warrant requirement is contrary to the congressional determination that warrants are required even in foreign intelligence investigations. This is demonstrated by Congress' enactment of the Foreign Intelligence Surveillance Act. The Order also allows for the infiltration of lawful political I organizations not only for the purpose of gathering intelligence, but also for the purpose of control.

Pardoning of Felt and Miller -- In 1980 Mark Felt, a former acting associate director of the FBI, and Edward Miller, Chief of the FBI Intelligence Division, were convicted of authorizing warrantless break-ins into the homes of citizens who were neither p. 5 suspected of any crimes nor connected with foreign agents. In April 1981 President Reagan signed an unconditional pardon for the two. His press secretary, Larry Speakes explained that the President had disagreed with the court and the jury. Upon hearing of the pardon, Felt commented: "This is going to be the biggest shot in the arm of the intelligence community for a long time."

Justice Department and the F.I.S.A. -- In June 1981 the Justice Department made an application to the Foreign Intelligence Surveillance Court for a warrant permitting the FBI to conduct a surreptitious entry and search. The court refused to give authorization on the ground that Congress had not given it jurisdiction in the area of physical searches. However, the Justice Department immediately announced that the decision meant it could return to the practice of claiming "inherent authority" within the executive branch to conduct secret entries in national security cases without court approval.

Lessons from the Recent Past -- All the fetters on intelligence agencies were being removed despite the fact that in the mid 70s, the need for reform of U.S. intelligence agencies was the highest priority on the legislative agenda. The public had been stunned by revelations of domestic abuses by the agencies, including: disruption, burglaries, electronic and physical surveillance, and mail openings, directed against political organizations engaged in lawful activities. In light of these revelations, in 1976, Attorney General Edward Levi issued guidelines for domestic security investigations authorizing very limited preliminary investigations of political groups, and permitting a full investigation of such groups' activities only "on the basis of specific and articulable facts giving reason to believe" that they were or would be breaking federal law and using force and violence. These guidelines were issued as a compromise forged by the dual pressures of an intelligence community, which insisted upon a license to engage in discredited tactics, and civil libertarians, who remembered the warning which concluded the report of the Church Committee's detailed report of intelligence abuses:

Domestic intelligence has threatened and undermined the constitutional rights of Americans to free speech, association and privacy. It has done so primarily because the constitutional system for checking abuse of power has not been applied.

↩ C. CCR'S Response

It was with this recent history in mind that we at the Center for Constitutional Rights perceived the dangers involved in President Reagan's giving the green light to intelligence agencies. In 1982 the CCR filed a lawsuit challenging the constitutionality of Executive Order 12333, on behalf of over thirty of its potential targets.[7] We saw that the investigatory authority granted by E.O. 12333 could be employed as a means of circumventing the restrictions on domestic intelligence gathering contained in the Levi and subsequent Smith guidelines. By merely alleging that domestic advocacy groups had some connection to foreign factions or nations, or that such domestic groups supported positions similar to those of such factions, government spying, infiltration, and disruption could occur practically without restraint. By denominating such investigations as falling within the area of foreign national security, the government could claim it was free from the restraints required by the Fourth and First Amendments.

We perceived a special danger of government spying and disruption as a result of the escalation of the U.S. role in Central America. By 1981 intervention was already a sharply debated question. As opposition to it grew, we perceived that the government would take measures to suppress such opposition. We were particularly worried about increased intelligence activities directed at groups dissenting from administration Central American policies because their opposition to various aspects of U.S. "foreign" policy might mean that they would be swept into investigations through the use of the label "agent of a foreign power."

At that time also we conducted a survey of these groups to find out if people were experiencing increased surveillance since the executive order went into effect. The groups, however, reported no evidence of surveillance. Soon thereafter the case on the executive order was dismissed; the court held that the plaintiffs were raising speculative claims, and it could not rule on the legality of the order unless a person came before it who claimed actual injury as a result of the order.

↩ D. Summary of CCR Findings

As it turned out, our original concerns were well founded, even if our first actions were, from the court's point of view, premature. Two years later, in 1984, when we conducted a similar survey, we discovered a growing number of incidents of surveillance, including: FBI visits, IRS audits, Customs difficulties, mail tampering, and break-ins, directed against people involved in opposing administration policies in Nicaragua and El Salvador and people active in the sanctuary movement. The Center for Constitutional Rights then formed the Movement Support Network to monitor these incidents. Today, as can be seen from the data collected over the last three years, the incidents are legion. The evidence shows that the FBI is closely surveilling the Central America dissenters and that such surveillance is a high priority for the current administration. What facts lead us to this conclusion?

1. The FBI questioned over one hundred U.S. persons after they visited Nicaragua. Agents also contacted scores of others involved in dissent from Administration Central American policies.

2. Responses to FOIA requests submitted by the CCR indicate that political groups exercising-their First Amendment rights, such as the Committee in Solidarity With the People of El Salvador (CISPES), National Network in Solidarity with the Nicaraguan People (NNSNP), the Network in Solidarity with Guatemala (NISGUA), New Institute of Central America (NICA), New England Central America Network (NECAN), and the Thomas Merton Center are the subjects of, or are referenced in FBI files.

3. Customs agents are taking a special interest in returnees from Central America: copying and seizing personal written materials, and subjecting such travelers to unnecessary questioning and verbal abuse. Copies of the personal papers are frequently sent to the FBI, and retained by it for use in its investigation of Central American protest groups.

4. An abnormally large percentage of individuals who travel to Central America, and the legal political organizations involved in Central American dissent, have been audited by the IRS. Many also report that their mail has been tampered with, that their mail has been mysteriously rerouted to the IRS, and that they are having increasing difficulties with their telephones.

5. The government has sent infiltrators into groups opposing the Administration's Central America policy in order to gather intelligence, effect policies, and even disrupt. We have data showing no less than five such infiltrations.

6. An ex-FBI informant has revealed that the homes of people associated with Dallas CISPES were subjected to FBI surreptitious entries.

7. The data on more than 58 burglaries directed against groups and individuals dissenting from administration Central American policies, indicate that the purpose of the burglaries is to gather intelligence, intimidate and disrupt groups involved in lawfully protected First Amendment activities. The burglaries were not motivated by pecuniary interest, and they follow a pattern in their choice of targets and their execution. Many of the groups targeted are the subjects of FBI investigations and the FBI claims the legal authority to engage in such "unconsented physical searches." Two FBI surreptitious entries were conducted against Dallas CISPES. The burglars, in all instances, were apparently in possession of intelligence information that enabled them to conduct entries without being caught. The type of intelligence information which appears to have been gathered, is similar to that which is included in FBI files.

What follows is a more detailed review of each of the intelligence gathering techniques directed against the Central American protest movement.

↩ II. FBI VISITS

In early 1985, we showed that the FBI was visiting or attempting to interview many people involved in the Central America dissent. The people contacted by the FBI include not only those who travel to Nicaragua, but those who oppose U.S. policy in Central America, those who visit Central American embassies in the U.S., and even people who happened to attend a meeting with speakers critical of U.S. Central America policy. In March 1985 a Detroit FBI agent, who was called about a visit he paid to a Nicaragua returnee, told our office: "We try to interview everyone who takes a trip to Nicaragua. We do it for positive intelligence gathering." That same month a Maryland man who visited the Nicaraguan Embassy was told by an FBI agent who visited him: "Anyone who pays visits to Iron Curtain country embassies gets visited by the FBI."

At this Committee's April 1985 hearings, FBI Director Webster admitted that the FBI had questioned about 100 Americans who had traveled to Nicaragua, but claimed such an activity was proper and not politically motivated. Webster refused to admit to any wrongdoing but, according to our records, FBI visits to travelers have become less frequent. An item in the May 6, 1985 issue of Newsweek said:

Stung by complaints that its efforts to gather intelligence on Nicaragua from returning Americans is a form of political intimidation, the FBI has ordered agents conducting the interviews not to express their personal views on the Sandinista government. Agents have been told to stress that the FBI is not trying to inhibit criticism of the Reagan administration or discourage travel to Nicaragua....

FBI visits to individuals involved in Central America dissent, however, are continuing. From mid-1985 to the present, we have documented 12 incidents of such visits, including the following:

--In August 1986 an FBI agent, who did not identify himself as such, called the head of the Committee on U.S.-Latin American Relations at Cornell University to request literature describing the group. The following week, he called again. This time he identified himself and requested an interview with the head of the organization. When the group's lawyer called the agent for an explanation, the agent said he wanted to find out whether the group was receiving direction from Nicaraguans in Washington, D.C.

--In June 1986 FBI agents called and then visited the workplace of a woman in California who had visited Nicaragua a few months earlier. An agent called her office and asked the receptionist if the firm did business with Nicaragua. when agents arrived at the office, they asked the receptionist to summon the employee. The receptionist refused. The agents left, but later called the employee and threatened to contact her employer if she refused to talk to them.

--In October 1985 FBI agents visited the homes and worksites of at least nine Salvadoran refugees in Houston. Agents asked about participation in "terrorist" organizations, and the shipment of money and arms to El Salvador. They threatened that refugees who did not cooperate would be turned over to the INS.

--In November 1985 a Nicaraguan-born University of California student was subjected to repeated phone calls, a visit and a lengthy interrogation by FBI agents, after being quoted in a newspaper about a student protest of a speech given by a contra leader. The FBI implied that she might be involved in smuggling arms to El Salvador. Thereafter she received two anonymous phone calls threatening that she would "pay" if she attended a Nicaraguan band concert in San Diego, and a bag of decapitated hamsters mysteriously appeared on her doorstep.

↩ III. INTELLIGENCE GATHERING AT THE BORDER:

UNITED STATES CUSTOMS SERVICE AND THE FBI

Customs agents routinely gather intelligence about travelers to Nicaragua and share this information with the FBI. Our reports show that on 17 separate occasions, between August 1984 and July 1986, Customs agents, at eight different border stations, stopped U.S. citizens returning from Nicaragua, interrogated them in detail about their trip, employment, etc., and searched, seized and/or photocopied their personal written materials. Agents also seized and photocopied the address books and personal notebooks of at least two travelers. Beginning this summer Customs agents have sometimes asked departing travelers to fill out a special form for travelers to Nicaragua. (See Ap- pendix, Ex. B.)

Customs also enters intelligence data in a Treasury computer known as TECS, the acronym for Treasury Enforcement Communication System. In all cases where Customs seized materials, and frequently where Customs copied materials, the items were turned over to the FBI. The FBI is supposed to evaluate whether or not the materials violate the subversive literature section of 19 U.S.C. S1305 and return them to Customs. However, the evidence shows that the FBI retains the materials for its own intelligence files. Some examples of these activities are:

--On August 6, 1985 a Michigan student returning from Nicaragua where he had gone with a group organized by NICA, was searched, questioned, and harassed by Customs agents at the Dallas/Ft. Worth International airport. Two customs officials went through his luggage. when they found a list of medical supplies (typed on the letterhead of the Ann Arbor group, Nicaragua Medical Aid Project), they began questioning him in a threatening way, telling him that taking medical supplies to Nicaragua was illegal. The agents opened several personal letters that he had been asked to mail by other U.S. citizens. Customs officials took the medical list and the letters out of the student's sight for some five minutes and then returned them to him. A released FOIA document demonstrates that the documents were handed over to the FBI, which in turn placed the material in FBI files. (See Appendix, Ex. C.)

--On November 6, 1984, Customs agents seized and photocopied publicly-available Nicaraguan election campaign materials, and the by then well-publicized CIA prepared assassination manual, from a political science professor returning from a trip to observe the election in Nicaragua. The copies were disseminated to an "intelligence" division of Customs, and the following information was entered under the professor's name in the Customs computer: "INTELLIGENCE: SUBJECT IN POSSESSION OF MATERIALS PERTAINING TO ELECTIONS IN NICARAGUA -- ALLEGED."

--On January 16, 1985, Miami Customs confiscated the address book, personal diary and other personal papers of a free-lance journalist returning to the U.S. from a 2 1/2 month visit to Nicaragua. The FBI was called and agents questioned the man and seized the photocopied papers. When a demand was made on the FBI agent to return the photocopies, an FBI supervisor refused saying the FBI had an interest in the individuals and organizations listed in the materials because of the unfriendly relationship between the U.S. and Nicaragua.

These incidents and a number of similar ones are the subject of two lawsuits filed by the Center for Constitutional Rights. As a result of the suits, Customs has agreed to restrict seizing and photocopying of material belonging to U.S. travelers. The FBI, however, has not agreed to the same restrictions. It still asserts that materials turned over to it only for purposes of evaluation under l9 USC §1305 can be retained. While it appears that such incidents are less frequent, Customs' abuses continue. For example:

-- In July 1986 a Customs agent at the Miami airport interrogated a woman returning from Nicaragua. While examining her books and posters, he taunted her about "Danny boy" [Ortega] being her hero. The agent seized a copy of a magazine she was carrying so that it could be analyzed "by the appropriate authorities" to determine whether it was subversive in nature. In response to a FOIA requesting who the "authorities" were, Customs provided a document saying that the FBI had been routinely reviewing such materials since prior to August 1984.

There have also been a number of incidents reporting Customs searches of luggage outside the presence of the traveler. Luggage has also been suspiciously misplaced.

This summer Customs introduced a travel form requesting information from travelers en route to Nicaragua. Among other things, the form requests pedigree information, information about previous trips, the purpose of the trip, and where the traveler will be staying. (See Appendix, Ex. B.) These questions do not relate to the enforcement of U.S. law, as neither travel nor currency restrictions are in force with regard to Nicaragua. The form does not say that the information is requested rather than required, and travelers are made to feel that they are required to fill out the form. It appears that the form is used for intelligence gathering purposes, as it serves no other conceivable purpose. An example of the use of the form is as follows:

--In July 1986 members of a study tour, sponsored by a religious group, were stopped en route to Nicaragua by Customs agents at the Miami airport. They were interrogated and searched by seven agents carrying large guns and wearing "military-style" uniforms, and required to fill out travel forms.

↩ IV. IRS, MAIL AND PHONE DIFFICULTIES

We have received reports from 12 individuals who received Internal Revenue Service audit notices. All of these people had visited Nicaragua. Six of the persons received the notices within two months of their return. For example:

--A woman from Madison, WI., who returned from Nicaragua January 7, 1985, received notice of an IRS audit 7 days later.

--A Brooklyn woman who traveled to Nicaragua in June of 1985 was notified about an IRS audit a week after her return.

Organizations involved in Central American activities have also been the subjects of audits. Among the groups audited are: Center for Development Policy, Quixote Center, and Sojourners. In addition, the IRS may be involved in the rerouting of mail to its centers as a means of examining the contents. For example:

--At least five persons also involved in dissent from administration policies on Central America have reported that they received first class mail that had been opened, rerouted, and stamped by the IRS: "Opened in Error." One of the individuals, a well-known writer, reported that her bank statement had been delayed, misdirected to an IRS Center, opened, and stamped, "Opened in Error."

--On May 10, 1986, a letter sent to the New Institute for Central America (NICA), in Cambridge, MA., was returned to the sender in Raleigh, N.C., It had been opened and stamped: "Returned to Sender, Addressee Not Known, Cambridge MA 02139" and "Misdirected by Post Office, Opened In Error, Internal Revenue Service."

We have received numerous reports from individuals and organizations who have trouble with their mail. Frequently correspondence arrives-opened or resealed with tape. For example:

--On January 23, 1987, the head of a New York Central America health rights organization received a letter that bore the return address of a person in Nicaragua, but had been mailed in Washington, D.C. The letter did not look damaged. It appeared to have been carefully unsealed and retaped. It bore the stamp: "Damaged In Handling In The Postal Service."

NICA, a group which is housed in the basement of the Old Cambridge Baptist Church in Cambridge, Mass., has reported 17 separate incidents of mail tampering. For example:

--In April 1986 two letters addressed to a travel agency in New York with NICA's correct return address were "lost" and never delivered. One of the letters contained a check for a scholarship participant's airfare to Nicaragua, the other contained an airline ticket being returned for a refund.

Individuals and organizations involved in Central America solidarity work have also reported difficulties with their telephones. These included some unexplainable incidents. For example:

--A nun who works at the Home for Peace and Justice in Saginaw, Mi., reported that in May 1986, after picking up her receiver to make a telephone call, she heard a recording of a conversation that she had minutes before with another employee of the Home.

--A woman who lives near the Thomas Merton Center in Pittsburgh, Pa., said that in October 1985, when she picked up the telephone after it rang, she heard a conversation among employees of the Merton Center. She then called the Center and they verified that what she had heard was a conversation that they were presently having at the meeting.

↩ V. INFILTRATION

Although infiltration into a targeted organization is by its nature surreptitious, substantial indications exist that the government has placed informants in several Central American protest groups. Widely known is the use of informants to infiltrate the Sanctuary movement. At the Tucson trial of sanctuary workers, the government admitted to utilizing three informants. Two paid informants infiltrated church meetings wearing electronic eavesdropping equipment. The third informant, whose name only recently came to light, is a woman named Gina Sanchez. She first appeared in San Diego where she became active in the sanctuary movement and attended board meetings of the San Diego Interfaith Task Force. She also appeared at CISPES offices - in San Diego, where she volunteered a few times, and attended organizational meetings. She later traveled to Tucson, Arizona, where she infiltrated the Southside Presbyterian Church. According to an affidavit filed in the Tucson trial, she was not an INS employee, but rather worked for "another federal agency."

A disgruntled FBI operative, Frank Varelli, has told of infiltration into CISPES in Dallas and elsewhere. Documents received under the Freedom of Information Act (FOIA) also show that an informant was possibly placed in one of the Central American Groups housed in the basement of the Old Cambridge Baptist Church in Cambridge, Mass. (See Appendix, Ex. D.)

Frank Varelli -- Frank Varelli infiltrated Dallas CISPES in 1981 under the name Gilberto Mendoza and remained active in the organization into 1984. Varelli, a full-time FBI employee, was told to infiltrate CISPES because it was considered by the FBI to be the largest group lobbying against Reagan's Central American policies. Varelli said that the "office of origin" of the investigation was Dallas, and that the nature of the investigation was counter-intelligence. Documents released to us under the FOIA verify this information. (See Appendix, Ex. E.) Varelli was told that the FBI wanted to "break" CISPES.

Varelli became a full participant in CISPES activities. He not only gave the FBI documented reports on CISPES activities, but also prepared false literature to be distributed under the CISPES name. He was told to develop a sexual liason with one of the CISPES leaders in order to compromise her reputation. The tactic of planting guns on CISPES members was suggested to him.

Varelli said that the FBI conducted break-ins into the homes of CISPES members. The agents who carried out the series of break-ins, which continued over a six-month period, showed him documents that they had either taken or photographed in the course of the break-ins. They also described the contents and physical layout of the apartments and houses.

He said that there were other FBI informants in Central American protest organizations in Miami and San Francisco, and that the informants were placed in the Committee in Solidarity with the People of Nicaragua, and in the Committee in Solidarity With the People of Guatemala.

Varelli also trained FBI agents in the techniques of infiltration at FBI facilities at Quantico. He taught the agents to learn the jargon of the groups and explained step by step infiltration techniques.

In the 3 1/2 years Varelli was spying on CISPES, he found nothing illegal or violent about CISPES or any of its members. About CISPES, he concluded that it was dominated by "religious types" who were engaged in lawful dissent.

Varelli was also the main contact between the FBI and the Salvadoran National Guard. In this context he received information from the Guard and supplied the Guard with intelligence information.

Varelli maintains that along with the FBI Intelligence Division, he prepared a terrorist photo album that included photographs, and reports on 690 individuals opposed to the Administration's Central American policies. He also supplied information about the organizations with which the individuals were connected. Among the 690 individuals that Varelli claims were listed in the terrorist album were Robert White, former U.S. Ambassador to Nicaragua, Senators Christopher Dodd (D-Conn.) and Claybourne Pell (D-R.I.), and Representative Michael Barnes (D-MD).

↩ VI. BURGLARIES

We have received 58 reports of burglary directed at people and organizations involved in opposing the Reagan Administration's Central America policies. Of these, fifteen have been directed against groups involved in the sanctuary movement.

These burglaries fit a pattern. The targets are similar in that they are individuals or organizations engaged in dissent from administration Central American policies. Many of the groups or individuals targeted are the subjects of FBI investigations, or are at least referenced and indexed in FBI files. Most significant is the fact that the burglaries appear not to be motivated by any pecuniary interest. Only in a few instances is anything of monetary value taken, although valuables, including cash, have been readily available. Uniformly, the break-ins take place when the premises are expected to be empty. The intruders thus appear to know their victims' schedules. They also appear to know the general or precise location of the documents. In all cases files are rifled, in most cases papers (most often membership or donor lists, or other important files, such as those containing the names of persons being given sanctuary) are strewn about the premises or left lying atop desks and filing cabinets. In a few instances important documents have been stolen. In most cases there is no attempt to hide the burglaries, and the entries are anything but surreptitious. Often locks and doors are broken. In a few instances, locks have been picked or keys used. Examples of such break-ins include:

--On January 4, 1987, a break-in occurred at the Arlington Street Church in Boston. Five locked offices were entered. Files and desk drawers were rifled. A file labeled "Sanctuary" appeared to have been examined. The burglars were obviously expert lock pickers and apparently knew which offices to enter. The only missing items were a padlock and $5 in petty cash, even though tools, a typewriter, and a computer were accessible. The church's vote to become a sanctuary was announced in its newsletter on January 1, 1987, and reported in the Boston Globe on January 2. Sanctuary was also the subject of the January 4, 1987 sermon.

--In November 1986 offices of the International Center for Development Policy were broken into. Files were ransacked and documents stolen from the office of a center project called the Commission on U.S.-Central American Relations. One of the documents stolen concerned a covert Southern Air Transport flight which carried arms to the contras.

--In the summer of 1986 a Washington, D.C. church-sponsored social service agency, which provides counseling, language training, housing and employment guidance to Hispanic refugees, was broken into and vandalized eight times in a period of six weeks. Security bars were bent, a deadbolt lock taken apart and bizarre notes were left. One note read, "KGB Foxred."

--In July 1986 intruders burglarized and ransacked the apartment of a Michigan woman active in the Central America Solidarity Committee. They rifled her files and threw papers and books on the floor. However, her T.V., stereo, and rent money were ignored. Two weeks earlier, the woman's name appeared in a Detroit newspaper, in a story about the arrest of 12 persons (including herself) for an act of civil disobedience.

--From November 1984 through June 1986, the offices sharing space in the basement of the Old Cambridge Baptist Church in Cambridge, Mass., were broken into eight times. The organizations subjected to the intrusions include: the Central American Solidarity Association (CASA), Central American Information Office (CAMINO), Educators in Support of ANDES, (CAPA), New England Central American Network (NECAN), and New Institute of Central America (NICA). The Church became a sanctuary a week before the first break-in occurred.

On the day of the first break-in, a break-in also occurred at the office of the First Congregation Church in Cambridge. The Congregation Church had previously housed NICA, which had moved into the Old Cambridge Baptist Church two months earlier. All the break-ins were similar and fit the pattern described above. A Cambridge police detective reported to the City Council that the burglars were "interested only in the organizational files and data" of the various organizations.

Documents received under the Freedom of Information Act reveal that almost all of the organizations housed in OCBC are indexed or referenced in FBI files. The FBI has withheld documents from these groups asserting a "National Security" exemption. In addition, the FBI has withheld OCBC files because they might "reveal the identity of an individual who has furnished information to the FBI under confidential circumstances."

--In May 1986 the offices of the North American Congress on Latin America (NACLA) were burglarized. At the time, NACLA was working on a story concerning Oliver North and the contras. There were no signs of forced entry. Desk drawers had been opened and even the contents of envelopes were examined. One wall was graffitied. Only $15 and a tool box were taken.

--In April 1986 the Brookline, Massachusetts apartment of two college art instructors, involved in cultural exchange programs with Cuban and Nicaraguan artists, was broken into. The intruders, who_entered by breaking a window, rifled file cabinets. They took computer disks, a telephone answering machine, and a beeper, used to retrieve messages from the machine, but left all other valuables including cameras and video equipment.

--On April 2, 1986, two secretaries at the United Church of Santa Fe in New Mexico discovered that the door to the church's educational area had been opened by an intruder who gouged out the wood around the deadbolt locks. Although petty cash and other valuables were available nothing was taken. Cabinets and closets were gone through and the church membership lists were left on a desk top. Many church members are vocal advocates of sanctuary and lobbied to have Santa Fe declared a sanctuary city and New Mexico a sanctuary state.

--In December 1985 Pico Rivera Methodist Church, a sanctuary church in California, was broken into and badly damaged. A window was jimmied to gain entry, and an electric saw used to make three large holes in the inside walls. Files were rifled, desks searched, and the membership roster and church tax papers were left on a desk top.

--In December 1985 a Washington, D.C. man, who is active in Central America solidarity work, found his apartment rifled and vandalized. Documents and papers relating to Central America were scattered about, and file folders had been examined. Drawers had been emptied of clothing and plants overturned, but $160 in cash and other valuables were not touched.

--In November of 1985 a volunteer at St. Williams Catholic Church, a sanctuary church in Louisville, Kentucky, entered the church to find drawers open, stacks of slides from Nicaragua scattered about, correspondence and materials on sanctuary, Central America and Witness for Peace, in disarray. A letter from Central Americans applying for sanctuary was left lying on top of a desk. There was no sign of a forced entry.

--In July 1985 the offices of the University Baptist Church in Seattle, Washington, a sanctuary church, were broken into. Nothing of monetary value was taken, but the keys to the rooms where six Central American refugees were being housed were missing. The Rev. Donovan Cook, an unindicted co-conspirator in the Arizona sanctuary case, later discovered that several personal records, including notes of telephone calls to a pastor in San Salvador, were missing. The intruders examined legal files, and a list of sanctuary movement supporters. On several occasions prior to the break-in, Rev. Cook and some of the refugees had seen a man with a walkie-talkie outside the church.

--In October of 1984 four well-dressed men, one holding a camera, which he tried to hide underneath his coat, were caught peering into the building housing Sojourners (a religious magazine). An employee who saw the men, said they acted very embarrassed and offered no real explanation for their presence at the building. The men quickly got into a plain brown sedan with a long CB-type antenna, and sped off. The employee noted the license plate and, later, with the assistance of a well-placed source, traced the Virginia tag, "G-306," to the National Security Agency (NSA). At the time of the visit Sojourners had launched two new programs: Witness for Peace, which sends Americans to observe the war in Nicaragua, and the Pledge of Resistance, which enlists grassroot support against the contra war.

A different type of break-in was described by Frank Varelli, the ex-FBI operative. Varelli claims that over a six-month period, the FBI broke into the homes of CISPES members in Dallas several times. Varelli named two of the agents involved in the surreptitious entries. He said that the agents gave him papers that had been taken, or photographed during these entries, and that they were able to describe the physical layout and decor of the homes or apartments involved.

Who is Responsible for the Burglaries?

For two years we have called for an investigation into the burglaries and the possibility of FBI involvement. This request has been based on the following factors: Many of the targeted groups are already under federal investigation; their members have been subjected to open intelligence gathering techniques carried out by the FBI; the FBI believes it has the authority to conduct break-ins, and has conducted them in the past; the burglars are not interested in money, but in information; and the burglaries remain unsolved.[8]

Until recently, most people have completely discounted the possibility of FBI involvement because the burglaries were not surreptitious, and were therefore out of character with previous FBI break-ins. The FBI has consistently denied responsibility for the burglaries. One FBI spokesperson said in December of 1985: "We are not involved in any illegal break-ins. If we did it, they wouldn't know it. We're better than that." In the past, however, there have been incidents of FBI informants who, like Timothy Redfearn in the early 70s, carried out obvious break-ins in order to supply the FBI with desired information.

Frank Varelli recently gave credibility to our call for an inquiry into possible FBI participation in the burglaries when he revealed that the FBI had been involved in surreptitious entries directed against CISPES. One possibility is that some of the burglaries are carried out by members of right-wing groups, at the behest, or with the help of local agents who are over- zealously involved in collecting information.

Another theory receiving currency suggests that the burglaries may be the work of right wing foundations that create private computerized "internal security" dossiers. Ross Gelbspan's article in the Boston Globe of January 18, 1987, quoted an unnamed source, who is an expert on right wing paramilitary groups, and a CIA consultant, as saying that the break-ins could well be financed by a number of well-endowed right-wing organizations. We know that a number of right-wing groups collect intelligence data. For example, the Western Goals Foundation was given secret computer intelligence files stolen from the Los Angeles police department's Public Disorder Intelligence Division. Western Goals used the material to create files on as many as 6,000 people.

Information has surfaced on a possible Western Goals-NSC connection. The head of the Western Goals is Carl Russell Channell, and until 1984, retired Army Major General Singlaub was a member of the foundation's advisory board. The Corvill (Mass.) Sun reported on December 14, 1986, that Channell had received funds from Oliver North. Robert White, whose offices were burglarized, speculated that the break-in at his office might be the work of anti-communist vigilantes: "There's a whole private network that's been built up...to reinforce what Oliver North has been doing.

The FBI has a policy of not looking into the manner in which information supplied to it is obtained. The Attorney General's Guidelines for Foreign Intelligence Collection (Part VI.) authorizes the receipt of information that is secured by private parties engaged in burglaries or other illegal activities.

↩ VII. INFORMATION GATHERED UNDER THE FOIA

Freedom of Information Act requests were made on behalf of over 50 Central America related individuals and organizations which reported harassment incidents. The few documents we have received thus far indicate wide ranging investigations of many of the requesters.

The three basic obstacles to gathering such information are the withholding of acknowledged files, the deletions in the documents received, and the lengthy delays in the processing of requests. For example:

-- Ten CISPES related requests were made in June 1986. Most of these requests are still pending. In July we were informed that 17 volumes of the Dallas and headquarters CISPES FBI files had been sent to headquarters for processing. In following up on this request, we were told first that the documents were transferred to the Declassification Review Committee, and then informed that the files had been sent to the Department of Justice. We were told it might be at least another year before we would receive any files.

--The largest portion of the documents are being withheld under a claim that release of the material would constitute a threat to national security. We do not know whether it is the information or the source of the information that requires the protection afforded by the national security exemption.

FBI documents reveal that the investigation of CISPES is systematic and comprehensive. A 1984 document, captioned CISPBS, shows that the investigation is still active and that Dallas is the office of origin, i.e., the office in charge of the investigation. The report indicates that at least 23 other local FBI offices are involved in the investigation. [See Appendix, Ex. E.]

Perhaps our most significant discovery is that CISPES is being investigated under a classification designated "Foreign Counter-Intelligence-Terrorist," or what is otherwise designated as an FBI "199" file. Such a designation shows that the investigation of CISPES is being carried out under Executive Order 12333 governing counter-intelligence investigations. This type of investigation carries with it extremely intrusive investigative techniques, which include unconsented physical searches, and infiltration and disruption of investigation targets.

An earlier CISPES document was filed under a different classification, domestic security, a "IOO" file. A domestic . security investigation is much more restricted than a "199" investigation (e.g., unconsented physical searches are not permitted), and the latter category has been subjected to intense congressional scrutiny. The classification change with regard to CISPES may well be a result of an FBI desire to utilize broader investigative techniques, rather than being based upon any changes in the activities of the target.

↩ VIII. RECOMMENDATIONS

1. THE GATHERING OF INTELLIGENCE ABOUT AND INVESTIGATION OF GROUPS AND INDIVIDUALS OPPOSED TO ADMINISTRATION CENTRAL AMERICA POLICIES SHOULD BE STOPPED:

a. FBI visits should be authorized only when linked to investigations related to violations of law;

b. Customs and the FBI must be prohibited from using the border search exception to the Fourth Amendment to gather intelligence;

c. IRS and U.S. Postal Service intelligence gathering and harassment directed at administration enemies must be stopped;

d. Infiltration of domestic groups engaged in lawful political activity should not be permitted;

e. Unconsented physical searches should not be permitted without a warrant issued on probable cause by a neutral magistrate.

Gathering Intelligence -- The gathering of intelligence about domestic organizations without a specific connection to a criminal investigation leads inevitably to the existence of "thought police." A prime example of this ‘activity is the investigation of CISPES. CISPES is the largest domestic organization lobbying against U.S. intervention in Central America. The FBI has been investigating CISPES for at least five years. It has utilized a wide range of intelligence gathering techniques, and yet it has not come up with criminal activity. Moreover, FBI techniques have not been limited to intelligence gathering, but have extended to harassment, disruption, and suggestions of entrapment. These latter activities are similar to those carried out by the FBI under the discredited COINTELPRO program.

Once the FBI was engaged in the investigation of CISPES, it began to investigate scores of other groups with which CISPES had contacts or affiliations. The CISPES investigation provided a window through which the FBI gathered information on the broadest spectrum of opposition groups.

The FBI carries out such investigations under the protection of Executive Order 12333. The order is in clear conflict with the protections afforded by the First Amendment to the U.S. Constitution because it confuses the current foreign policy of the administration with the legal definition of such terms as "terrorism" and "foreign agent." Changing definitions of who is, and who is not a "freedom fighter," and therefore not a "terrorist," should not be given legal significance. The choice of a target of domestic investigation has become totally politicized. Determinations about whether or not a group is associated with a foreign power or group should not be left to the executive branch because the decisions of that branch are necessarily political and changing, and have been shown time and again to result in the persecution of "enemies."

FBI Visits -- Even short of full-scale investigations, it is improper for the FBI to call or visit the workplace of an individual, or to visit an individual because his or her name appears in an article describing a legal protest, or because he or she visits an "enemy" country or embassy. The FBI should not be permitted to question such people. As can be seen from the data we have collected, none of the people visited were involved in criminal activities. (See, Appendix, Ex. A.) They were, rather, engaged in the lawful exercise of their First Amendment rights. These visits cannot be expected to have other than an intimidating affect on lawful dissent. The law says, however, that such visits are illegal, only if they are carried out for a wrong purpose, such as intimidation. Such visits are so likely to be abused, that they must be severely regulated or outlawed. We can argue back and forth with the FBI about whether the purpose of these visits is to gather information or to intimidate. The FBI admits that nothing of much intelligence value was secured as a result of the visits, and that the visits were unrelated to any findings of criminality. We believe that there is no question but that these visits should be stopped--if only to set the public at ease and prevent the achievement of a goal contained in a 1970 FBI document: the visits "enhance the paranoia in these circles and will further serve to get the point across that there is an FBI agent behind every mailbox."

Border Searches -- Congress has given Customs limited authority to examine certain types of documents, under limited circumstances. These rules concern the enforcement of various import/export laws, and the importation of pornography and seditious literature. Up until very recently, Customs, under the guise of enforcing the seditious literature statute, has seized and copied personal material, including address books and letters, which were brought to this country by returning Central American travelers. As a result of CCR lawsuits, Customs has adopted new regulations that we hope will sharply reduce such practices, however, some seizures may still occur. The FBI, which routinely benefits from Customs seizures because they are frequently given copies of the seized documents, refuses to be bound by certain rules that Customs has accepted. (See Appendix, Exhibit C.) The FBI has refused to be bound by the prohibitions on photocopying and on the retention of files. This avenue of intelligence gathering abuse must be stopped.

Customs should not be permitted to use the form it often distributes to travelers to Nicaragua. (See Appendix, t Ex. B.) The form is not relevant to any law and is just a means of gathering intelligence which might be shared with the FBI.

IRS and Postal Service Misconduct -- In the 60s and early 70s there were many revelations concerning the use of IRS audits to punish "enemies." Mail covers and openings were routinely used to gather intelligence information. Today there is evidence that such practices are occurring again. According to Postal Service statistics, the total number of mail covers increased to 8,597 in 1985, from 4,379 in 1978. National Security mail covers more than tripled between 1978 and 1985. These activities contain so many opportunities for abuse, and for infringement of basic constitutional rights, that they most certainly should be vigorously scrutinized by appropriate congressional committees.

Informants -- Is is possible to regulate the use of informants? At this juncture, activists in the Central America protest movement have absolutely no protection against the FBI's use of this technique. Executive Order 12333 focuses on gathering foreign intelligence. "Foreign intelligence" is defined to include "information relating to the capabilities, intentions and activities of foreign powers, organizations or persons," including anything that a foreigner is doing. Under such a definition, any organization or person who has contact with a foreign person or organization may be victimized by an FBI foreign intelligence investigation. Countless others might also be’ swept into investigations through casual associations. The right of privacy is lost by the placement of informers as part of these investigations.

Informers, moreover, are not merely monitors of activities. They can become involved in the development of organizational policies, and the intricacies of personal lives. Frank Varelli demonstrates the dangerousness of the government's use of informants, particularly against groups involved in activities protected by the First Amendment. Varelli was much more intrusive than a wiretap (for which a warrant would have been required). Varelli did not simply gather information for the FBI. His activities extended to participation and possibly disruption. He was asked to compromise reputations and even to plant evidence of crimes. He did prepare false literature to distribute in the name of CISPES. This type of activity must cease.

Burglaries -- The mystery of the burglaries remains unsolved. It is critical to understand that unconsented physical searches are, in the view of this administration, a valid investigative technique. Shockingly, most of the burglaries that we have reported could conceivably be justified under Executive Order 12333. The order says that the Attorney General can approve the use of any intelligence gathering techniques for which a warrant would be required, if he determines "that there is probable cause to believe that the technique is directed against a foreign power." The obvious problem here is that there is no requirement for a finding of criminality and no definition of "foreign power" or "directed against a foreign power."

2. CONGRESS SHOULD INVESTIGATE AND SEEK THE APPOINTMENT OF A SPECIAL PROSECUTOR TO LOOK INTO:

a. The allegations of FBI wrongdoing made by Frank Varelli, including the use of informants, disruption tactics, the indexing of names of hundreds of Americans, the keeping of a terrorist photo album, the furnishing of intelligence information to Salvadoran death squads, and the carrying out of unconsented physical surveillance;

b. The intelligence activities being conducted under Executive Order 12333, including the possible misuse of the counter—intelligence classification to on investigate the lawful activities of American citizens;

c. The burglaries directed against groups and individuals opposed to the administration's Central American policies.

There is clear federal authority to investigate the burglaries that have been carried out against organizations and individuals dissenting from U.S. policy in Central America. The evidence to date raises a strong presumption that the burglaries are aimed at interfering with, intimidating, and disrupting the exercise of fundamental First Amendment rights to speech and to petition for redress of grievances. The burglaries are not petty crimes made for gain -- nothing of value is taken. Rather files, mailing lists and other organizational papers are examined or found missing. Even FBI Director Webster admits that there is a "pattern" to the incidents.

Considering these circumstances it is surprising that a full federal investigation has not yet been launched. Federal statutes make such interference with First Amendment rights a crime. Title 18 U.S.C. §241 makes it criminal if "two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise of any right or privilege secured to him by the Constitution or laws of the United States or i because of his having exercised same..." The statute covers both private conduct to deprive persons of fundamental constitutional rights and conspiracies involving federal or state officials. Thus, even if it were true that the burglaries are being carried out by private, right-wing groups, a federal investigation is long overdue. The foot-dragging that has taken place, apparently at the behest of the Justice Department, makes one wonder whether or not the Department wants this intimidation to end.

We think this Committee should insist on a full scale federal investigation of these burglaries. The FBI, after a great deal of adverse publicity, has finally begun, a probe of the burglaries at the offices of the Center for International Development Policy, in Washington, D.C., and those directed against Dallas CISPES. The justification for the former investigation is that there is a special federal interest in the Center for International Development Policy because it supplies information to Congress. It is difficult to see why this rationale could not be applied to many of the other Central America organizations that have been broken into, as they too spend much of their time lobbying Congress.

The FBI has a conflict of interest in carrying out an investigation of the burglaries involving Dallas CISPES. FBI agents are alleged to have committed the burglaries. The FBI, even before beginning this investigation, has leaked stories to the media to the effect that the CISPES burglaries were the illegal acts of a rogue agent. In light of this, how can we expect the FBI to investigate itself?

The memory of the U.S. public is short. In order to uncover the past illegal burglaries committed in the 60s and 70s by the FBI, it took a major public scandal before investigations into the FBI began. For these reasons, Congress itself must conduct a full probe of the FBI's involvement and, if necessary, request a special prosecutor.

3. AN IMMEDIATE AND COMPLETE DISCLOSURE OF THE FOIA FILES RELATING TO INDIVIDUALS AND ORGANIZATIONS INVOLVED IN THE CENTRAL AMERICAN MOVEMENT SHOULD BE MADE:

a. The CISPES files should be released immediately;

b. An investigation should be had into the misuse of classifications to deny production of documents or to delete portions of documents.

Footnotes:

[1] 407 u.s. 297 (1972).

[2] 426 F.2d 644 (D.C. Cir. 1970).

[3] 31 F. Supp. 379 (S.D.N.Y. 1971); 67 F.R.D.1 (S.D.N.Y. 1975).

[4] 76 Civ. 1071 (S.D.N.Y. 1976).

[5] Civ. No. 86-2365-JSL(BX).

[6] 608 F. Supp 1227 (D.D.C. 1985).

[7] United Presbyterian Church v. Reagan, SS7 F.Supp. 6 (D.D.C. 1982). The Committee In Solidarity With The People of El Salvador (CISPES) was one of the plaintiffs. Little did we know that by the time we filed the suit, CISPES had already been targeted for investigation under E.O. 12333.

[8] Only two arrests related to burglaries have been made by local police. According to police, a suspect confessed to a break-in at the Pico Rivera United Methodist Church, but he was never tried because the "off the record" confession could not be used in court. The police said that the suspect claimed that "all he takes is money." In Boston two men were convicted in October 1986 of the 7th break-in into the Old Cambridge Baptist Church. The men were not connected to any of the other break-ins.

One Boston Police official was quoted as saying about OCBC, "this particular church has a lot of street people hanging around there, and they keep saying CIA or FBI involvement in this. Well maybe they have something to hide there, and that's why they're so upset. If they could tell us what they've got in those file, then maybe we'd have something to investigate."

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