The MacNeil/Lehrer Report; Possible FBI Indictment

ROBERT MacNEIL: Good evening. The New York Times reported today that a second senior figure in the FBI may be indicted in connection with alleged illegal break-ins, wiretaps and mail openings in the early 1970`s. The newspaper reported that Attorney General Griffin Bell has been advised to seek a criminal indictment for perjury against J. Wallace LaPrade, head of the FBI`s New York regional office. His indictment would deepen the morale crisis already evident in the ranks of the Bureau, a crisis threatening the high level of discipline and leading to what some insiders call a mood of revolt.

That crisis stems from the indictment last March of John Kearney, former FBI New York Supervisor, who retired in 1972.Kearney was charged with using illegal methods while investigating the Weather Underground, a group believed responsible for terrorist acts during the Vietnam War. When Kearney was arraigned on April 14, he and his wife were greeted by an extraordinary display. Some 300 FBI agents crowded the steps of the U.S. Courthouse in Foley Square in New York to applaud Kearney and demonstrate solidarity. Finally, one special agent, Patrick Connor, stepped forward to read a statement on behalf of the others.

PATRICK CONNOR: This assembly, though impressive, is a mere token of the support you enjoy throughout the entire nation. John, we are confident that when the whole truth is before the American people and their voices heard, your vindication will be assured.

JOHN KEARNEY:I certainly want to express my appreciation for the fine turnout today and the moral support which this has displayed, and I also want to thank not only the Bureau agents but everyone outside who has come to my support. Thank you very much.

MEMBER OF THE PRESS: Mr. Kearney, are you being made the scapegoat here?

MacNEIL: That demonstration was prompted by anger in the rank and file over the first indictment of an agent for an act committed in the line of duty in the history of the Bureau. Jim?

JIM LEHRER: Robin, it`s generally believed by those within the FBI and without that there would have been no grand jury investigation, no indictments if J. Edgar Hoover was still alive. One way or another, he just wouldn`t have allowed it to happen. Hoover dominated the image and the reality of the FBI for the forty-eight years he ran it; it was only after his death in 1972 that the Bureau`s troubles really began, although many of them stem from activities performed during the Hoover era. And that Hoover era and the aura that went with it are symbolized in the Bur eau`s massive new Washington headquarters building named after him. It remains one of this city`s major tourist attractions. Last year more than one-half million people took the tour, highlighted always by the display of marksmanship performed by a working FBI agent with a Thompson submachine gun.

Much of the FBI legend stems from the crime wave of the 1930`s: tales of G- men in pursuit of Al Capone, Babyface Nelson and John Dillinger. They dominated the newspapers as well as people`s imaginations, and their faces provide a kind of rogues` gallery of the past in one corner of the headquarters building. There`s also a careful of weapons confiscated when the FBI agents finally closed in on those illustrious mobsters. But as I said, the man synonymous with the golden days of the Bureau was, of course, J. Edgar Hoover. The desk from which he ruled remains on display. They say no Attorney General and no President dared question him because they feared his power and his prestige.

The FBI tour presents many of his and the Bureau`s past accomplishments; but what does the public think now, in light of the most recent revelations about the FBI? We asked some people who took the tour last Friday:

YOUNG MAN:I have lots of respect for them. They know their job -- they do it right.

FIRST MAN: In my neighborhood they were never superheroes.

WOMAN: I think the FBI is great, and I`m glad J. Edgar Hoover is no longer with the FBI. But I think they`re not sticking together with this particular incident with this special agent. I think they should back him in every way and manner they can.

YOUNG WOMAN: You have to be concerned about abuse of power, but you also have to say, "Well, let`s see what we can do;" and I hope that after Mr. Hoover and after the abuses of Watergate and other things that people will be more careful. But I think that, you know, to get the criminal, if you have to wiretap and if it`s within the law... you know, you go ahead and do it. And I think people today feel that the criminal is the one that`s protected and that we`re all innocent bystanders.

SECOND MAN: They should have an in-service investigation of acts that are not within the line of duty, but I think that certainly they have to have a degree of latitude to perform properly.

LEHRER: The current FBI prosecutions raise many legal questions as well as those of public image. Charles Morgan, Jr., a well-known Washington lawyer, has handled many constitutional, civil rights and civil liberties cases. He is President of the Fund for Constitutional Government and a member of the American Civil Liberties Union`s National Board and Executive Committee. Mr. Morgan, should FBI agents such as Mr. Kearney and others be held legally accountable for what they did?

CHARLES MORGAN: Yes; which is not to comment upon Mr. Kearney`s particular guilt or innocence. In that case I`d have no judgment because I don`t know the facts, but any person who works for the federal government or who doesn`t work for the federal government is liable to prosecution for violations of federal law.

LEHRER: What about the argument that was raised by one of the women on the tapes, that the important thing is to catch the criminals and that some latitude is necessary for FBI and other law enforcement people?

MORGAN: The important thing is, of course, to catch criminals, but the important thing also is to abide by the Constitution; and the men who wrote the Bill of Rights and the Constitution knew quite well that they were making it more difficult for law enforcement. Those are just the rules we operate by, and people have to abide by those rules.

LEHRER: Are you concerned at all about what these prosecutions are doing to FBI morale and -discipline?

MORGAN: Well, I`m concerned not with respect to discipline; no, I think they have no effect on discipline. I think with respect to morale that it would bother some and not bother others. But morale is my concern; certainly I`m concerned about the Bureau, but as far as the prosecutions and that being a defense to a prosecution, I suppose if you go after a major corporation and indict a vice president for price fixing, it affects morale. Morale is no defense in the United States, whether it`s public or private.

LEHRER: And you don`t think there should be any kind of special situation for law enforcement versus, say, a corporation or any private citizen?

MORGAN: No, I think it should operate in this country quite differently and quite the opposite. Law enforcement officers are supposed to know what the law is, and they enforce it; and they must be above Caesar`s wife -- that`s the basis of law enforcement. And under that circumstance it seems to me that they should certainly abide by the law at least as much as the average citizen and should not have any rights above that citizen.

LEHRER: What about the argument that the FBI has been unfairly singled out in this regard, that a decision was made by the Justice Department not to indict or to prosecute CIA agents who may have committed illegal acts in similar or comparable situations and also the additional argument that President Carter did pardon the draft resisters, et cetera?

MORGAN: Well, he pardoned some of those draft offenders -- the amnesty there -- and of course, Richard Nixon was pardoned also. With respect to the argument of the FBI being singled out unfairly, I doubt that "unfairly" is the proper word; but being singled out, I certainly think that they are by the fact of the indictment itself. Should they have been singled out over other federal law enforcement agencies? No. I thought Attorney General Levi and others should have prosecuted CIA agents or whoever violated the law -- it doesn`t matter. I also thought the same thing, of course, with respect to the Cubans in the Watergate case and the others. They shouldn`t be prosecuted if the others higher up were not; and I think that that`s a valid criticism of any indictments in this country.

LEHRER: Any thoughts about why the FBI was singled out?

MORGAN: I think because the indictments remain, and I think because Mr. Levi let the charges go when he was Attorney General with respect to the CIA. I don`t know the reasons for that exactly -- I may know some of the reasons about that, but I don`t intend to go into them because I wouldn`t know them accurately enough to portray them. I don`t agree with them.

LEHRER: All right. Robin?

MacNEIL: How is all this viewed in the FBI itself, and what is it doing to the Bureau`s effectiveness? No active FBI agents could accept our invitation to appear on this program. Quinn Tamm is a former Assistant Director of the Bureau, and his son is now an active agent. Mr. Tamm, why shouldn`t an FBI agent be indicted for an illegal act?

QUINN TAMM: I think this question of indictment of FBI agents goes far beyond the agent and the small individual represented by the first indictment. In order to present my case, might I point out that I`m rather unique in the fact that I am speaking in defense of the FBI because of my previous relationship with J. Edgar Hoover, the Director, and the fact that I was the first person, probably, in this country to actively criticize and oppose J. Edgar Hoover for some of the things he was doing. But I have a great and tremendous respect for the FBI organization and the people in it. I think they are being singled out; I can`t understand why, but I noticed that the Department of Justice on January the fourteenth offered all sorts of explanation as to why they had not prosecuted CIA for the same, identical reasons or crime that the FBI is now being accused of in the same period of time.

MacNEIL: Can I suggest one reason why the prosecution might be going ahead which is commonly mentioned, and that is that the FBI has been a bureau nominally under the Department but very difficult for the Department to control in the past and this may be a way of re-establishing that control? Is that a plausible reason?

TAMM: I think it was a plausible reason years ago when Hoover was alive, but I do not think it`s a plausible reason now. I think that the FBI is completely and totally under the control of the Attorney General and the Department of Justice. But that goes back to the point that the FBI agents who are now being accused of these crimes were doing them under order from the officials in the government. And the position taken by the Department of Justice in the CIA case was the fact that there was no firm program delineating the extent to which people could go in cases of national security or foreign threats; and for a variety of reasons of that type the Department decided not to prosecute CIA agents. And they said in part: "In such circumstances prosecution takes on an air of hypocrisy and may appear to be the sacrifice of a scapegoat, and to reach down into the middle of the echelon of the FBI and to ignore the upper echelon of government." And this goes into the White House, it goes into the Attorneys General, it goes into the Congress and the Senators.

MacNEIL: Is this a way of getting at the higher-ups, by starting with the middlemen?

TAMM: No, I don`t think that it is a way of getting -- are you going to prosecute the people in the White House? Are you going to prosecute the Attorney General? Hoover reported faithfully, off the record, to the House Appropriations Committee every single item that he was doing in the FBI; and the Senators and the Congressmen knew what he was doing, the Attorney General knew what he was doing, and the White House was aware of all these activities. There were no specific guidelines for the FBI to follow in cases of this type, and these people were acting in good faith. The morale of the agents is poor; it would have to be poor. They feel very, very strongly that they were doing something, they had no intent to commit a crime; they were ordered to do certain things and they figured that those orders came from people in authority. Now they feel that they should be defended by the Department of Justice; they`re not going to be. They feel that they are being denied equal justice under the law, which I think is engraved in the top of the Justice Building.

MacNEIL: By "being defended by the Department of Justice," you mean the federal government actually paying their legal fees, in this case.

TAMM: They have in most instances in which there has been prosecution of government employees.

MacNEIL: And they`re not in this case.

TAMM: They are not in this case, and it is necessitating agents spending their life savings to protect themselves for things they thought they were doing that were right and that were ordered.

MacNEIL: Could I just ask you, to what degree is the morale of the Bureau being undermined by this state of affairs? Is it interfering with the Bureau`s efficiency and ability to do its work?

TAMM: I think it will interfere to this extent: law enforcement is a rather dangerous occupation, and in order to enforce the law and in order to make cases and do things you have to take chances. Now, if you make a mistake as a law enforcement officer, you should expect support and help and assistance and understanding from the people that are responsible for your being in the government. These FBI agents didn`t learn on their own how to wiretap, how to open mail; they were taught it by the federal government. And they thought under the circumstances in which it existed that they were doing the right thing. And it is affecting the morale; it is especially affecting the morale in the New York office now where this supervisor of a squad -- way down in the echelon of the FBI -- and I don`t think this is an approach to getting to the people at the top.

MacNEIL: Thank you, sir. Jim?

LEHRER: The FBI indictments have ramifications for the whole intelligence community. David Phillips is a retired CIA officer and President of the Association of Former Intelligence Officers. He is the author of a new book called Night Watch, which probes some of the problems of personal ethics and morality faced by intelligence officers. Mr. Phillips, how do you view the prosecution of these FBI agents?

DAVID PHILLIPS: Mr. Morgan has mentioned laws, yes; and he`s mentioned the Constitution, yes. There`s no dispute. Intelligence officers should go to jail just as anyone else does if they violate the law. The problem is the interpretation of these laws. The problem for intelligence people and people in the FBI is the degree to which the rules of the game have changed. Historically speaking, that change has been rather rapid. Pre- Watergate, people who were involved in conducting espionage overseas or ferreting out terrorists here or fighting criminals played hardball. There was a lot of applause; the fans liked it, especially that small group of men who threw the first ball at the beginning of each season.

LEHRER: You mean the President of the United States.

PHILLIPS: I mean the Presidents of the United States. Now there has been such a change; and I must say, to be frank, that people in intelligence, certainly people in the FBI and the CIA, must be confused and dismayed, not that there are new laws -- we need them -- but at the interpretations that have been made recently in some cases by the Department of Justice. Now, I cite two examples. According to the Associated Press of yesterday, under the Freedom of Information Act a man named Cox wrote to the FBI and asked for a copy of their instruction manual. After considerable deliberation it was decided that Mr. Cox should be sent 998 pages of the classified FBI manual. Mr. Cox`s occupation? He`s an inmate of the federal prison at Marion, Illinois, serving thirty-five years for bank robbery and narcotics violations. Disturbing. Another example: at just about the same time that Mr. Kearney learned that he was going to be indicted, the Department of Justice announced that an ex-CIA officer named Philip Agee, a renegade who has been abroad for half a dozen years committing all sorts of sordid mischief, was informed by the Department of Justice that he could return to the United States and did not have to fear prosecution. I think that explains the problem.

LEHRER: All right; to the specific thing then: you do not believe that these FBI -- well, let`s talk about ... your background is CIA.

PHILLIPS: That`s correct.

LEHRER: And the CIA was in effect gotten off the hook on this deal. What`s your interpretation of that?

PHILLIPS: I think that probably the technical reason is that the CIA in that case was talking about operations that had something to do with foreign affairs, and it was much easier to do that. I do not think that double standard should apply. I think that, as the Attorney General said only the other day, the FBI desperately needs a charter. We all know that the intelligence community overseas needs its regulations. We have to know what`s right and what is wrong. So I don`t agree on that double standard.

LEHRER: All right; let`s open it up to a basic question, gentlemen, that you raised, Mr. Tamm, and you touched on, Mr. Morgan, and that I`m about to ask you to touch on to start it, Mr. Phillips, and that`s this question of an individual -- intelligence agent, FBI agent - is given an order from on high to do something that he knows is illegal. What should he do in that situation?

PHILLIPS: If the law is clearly spelled out, he should say no; he should quit. He should tell his supervisor to go to hell. Up until now, that`s not the way it`s been. There has been a defense -- some people call it the Nuremberg business -- that you do what you`re told. Actually, I think we might worry more in the future if people in our intelligence agencies and our FBI did things that they weren`t supposed to. But yes, it has been fashionable, until recently, to do what you were told. Sometimes the things you were asked to do were distasteful, even repugnant; but people who work for the FBI and in the intelligence services believe that they work in dark alleys and have a special job to do, and someone has to do it.

LEHRER: What do you think of the Nuremberg defense in this particular case, Mr. Morgan?

MORGAN: I think that the first attribute of the Nuremberg defense is that someone be given an order; and in these cases that we`re talking about, as I understand it, there is no order in writing. The last order was from J. Edgar Hoover that there not be those things euphemistically known as "black bag jobs" -- burglaries. Now, in this particular instance I know of no order upon which a -Nuremberg defense could be based. Every bit of public information has been that there`s no order in existence; exactly the contrary was what people thought the law was with respect to Mr. Hoover`s interpretation or Mr. Gray`s or the Bureau generally.

LEHRER: Mr. Tamm, do you think it`s conceivable that those agents in New York could have done that on their own without orders from on high?

TAMM: Absolutely not. It was impossible in the manner in which the FBI is set up, and this occurred in a period, incidentally, when Hoover was the Director of the FBI. The period involved in this particular case -- the Kearney case -- I understand is 1970 to 1972, and Hoover was alive in those years. There is no way that an agent of the FBI would undertake a project such as this without his immediate superiors in the New York office knowing about it, without the supervisory staff at the headquarters in Washington, without the Assistant Director in charge of that section, and without J. Edgar Hoover knowing about it. Because I can assure you that nothing went on in the FBI that Hoover didn`t know about.

MORGAN: I agree with that; in all probability that`s correct Of course, you can`t just -- you know, we don`t know; but in all probability that`s correct. But in fact, you can`t have a Nuremberg defense unless somebody comes in and says, "I was under orders." And we don`t have that in any of these cases.

TAMM: This question of the Nuremberg defense, of course, is ...

MORGAN: Not that it`s applicable, anyway.

TAMM: It`s not applicable because of the different circumstances. It`s an absolutely atrocious and outlandish thing to compare these two cases -- the Nuremberg trials and this case -- because of the fact that the people that were being tried in the Nuremberg case were charged with the murder of thousands and thousands of people. Actually, the FBI, in this particular case, the agents involved were trying to protect innocent victims from being murdered, from being maimed, from their houses being destroyed; and this was an information-seeking project. And I can tell you, I`m just absolutely as certain as I`m sitting here that the Congress knew about what the FBI was doing with regard to wiretaps, with regard to mail covers, or mail openings, that the White House knew about that.

MORGAN: Every bit of evidence before the Senate Select Committee and otherwise is that they didn`t know about mail openings until the revelations were made in recent years, and that they didn`t know about black bag jobs. That doesn`t mean that some members of Congress didn`t know, and it doesn`t mean that a few people didn`t know; but the public generally did not know and did not approve of people burglarizing folks. I just don`t agree with that.

TAMM: Every time that Mr. Hoover went before the House Appropriations Committee in off-the-record discussions, not on-the-record discussions, he told the House Appropriations Committee, then headed by Congressman Rooney...

MORGAN: I agree with that.

TAMM:...everything that the FBI was doing; he was proud of his black bag jobs, wiretaps and the information that he was getting. The Presidents knew about it. Why don`t we prosecute people in the White House? Why do we reach down and pick out the FBI?

LEHRER: Isn`t the theory, of course, that that is the scheme here -- the Justice Department wants to go to the middle-level FBI agents, and they in turn will testify against the next rung and they`ll go up the ladder? That`s what`s been in the paper, and that`s been the theories.

MORGAN: Let me make one thing clear, too, before Mr. Phillips comes in. I understand that FBI agents are dedicated and that they`re decent, good citizens, and that they`re there to enforce the law and that they have the finest of motives; I`m not attributing anything evil to their motives. And I`m not even going into this particular case. But I do know that you have to have law enforcement under law. Now, if a President or if someone higher up ordered someone to do something or had prior knowledge of a criminal act and encouraged them to go do it, then I agree they ought to be indicted, if the lower-down FBI agent is being indicted; and if the lower-down FBI agent is indicted and is going to raise the defense that he was authorized, he`d better come up with some authorization.

TAMM: I feel very strongly that the guidelines have to be furnished for the operation of this type...

LEHRER: That`s exactly what Robin wants to pursue now, is that whole question of guidelines and the future from this point on. Robin?

MacNEIL: Yes; Mr. Tamm, I was going to ask you, what kind of guidelines, and who should make-them?

TAMM: Specifically, by the Attorney General; that the Department of Justice should govern the operation of the FBI and the manner in which it can operate and what it can do and what it cannot do. And in this period, from about 1953 to 1972, there were no specific outlines covering this type of investigation; there have only been recently guidelines of this type laid down in criminal cases. If the guidelines are there, the FBI agents will follow them, with no problem, no trouble. This is what we need: we need something, and we need something to protect the street agent, the man on the street doing the investigation, who has to decide in a moment`s notice whether what he does is right or wait for five years to see what the Supreme Court does about it.

MacNEIL: But Mr. Phillips, with your experience in this kind of work, too, although overseas, when it comes down to questions of national security, whether at home or overseas, isn`t there a different psychology about it that other means are permissible, and isn`t that psychology -- whatever the present concern about legality -- going to continue to pervade that work?

PHILLIPS: I believe that for someone working in a very difficult situation that they`re liable to say to themselves, "This is an instance where for the common good I perhaps won`t break this regulation, but I certainly need to bend it a little bit." I think it boils down to the fact that we do need these laws, we need guidelines; but they have to be consistent with the problem. I mentioned before that hardball was played; now it`s softball. But people who work for the FBI and the intelligence services can`t be Rebecca at Sunny brook Farm. They have tough problems to do, and as long as the question of intent is there -- and this seems to come up in the legal phrases a lot -- if the intent is correct and if the law is clearly written, they should obey it and be able to do their jobs well.

MacNEIL: Do you agree the Attorney General should draw up these guidelines, or somebody else?

PHILLIPS: I think certainly the Attorney General should draw them up for the FBI. I believe, however, it`s the Congress that is working on the ones for the overseas intelligence community. I think the Congress, working with the Executive, should draw them up.

MacNEIL: Mr. Morgan, do you think there should be such guidelines?

MORGAN: We have guidelines; we have a Constitution, we have statutes. I don`t mind having more guidelines, that`s all right with me, but all these references to hardball and everything -- the question is not what game you`re playing; the question in hardball is, which side of the foul line are you on, whether you`re in the left field or right field? And guidelines aren`t going to tell you that. Rule books exist. We`ll have another one; that`s fine. I know the FBI will abide by it, I believe.

MacNEIL: Finally, gentlemen, is the FBI function seriously at risk, with the morale problem of the moment, the possibility of further indictments, a lame duck director with no new director so far selected -- is it seriously at risk, or is this something that`s just going to blow over after the emotions have cooled? What do you think, Mr. Tamm?

TAMM: I don`t think it`s going to blow over. I think that the morale of the FBI is probably at an all-time low. I think that it is going to have a material effect on the street agent, especially the ones that are out doing the work, because of their reluctance to take a chance, to do something that would be of value in the solution of a very mean or dirty criminal case; and I do think firmly that it will have an effect, and I think I will wait and see what effect the appointment of a new director will have on the FBI.

MacNEIL: Thank you all, gentlemen, very much indeed, and good night, Jim. That`s all for tonight. We`ll be back tomorrow night, when -- fresh news permitting -- we`ll look at America`s new search for an African policy. I`m Robert MacNeil. Good night.