In 1976 and again in 1977, the Justice Department decided not to prosecute anyone for the Central Intelligence Agency’s illegal surveillance and mail openings. The report issued in 1977 reveals the Justice Department’s highly flawed reasons, which were based on internal inconsistencies, factual errors, the omission of highly relevant and well documented facts. Among other things, the Justice Department claimed that prosecution would not serve to prevent such questionable or outright illegal surveillance from happening again – the law itself would. However, this decision ultimately helped set the stage for modern surveillance programs and created the conditions that were revived by 9/11 and exposed by the Snowden disclosures.
It depends on what your definition of “illegal” is
The 57 page report begins with a surprising assertion – the Justice Department disagreed with everyone about the mail opening program being illegal. According to the Justice Department, “it would be mistaken to suppose that it was always clearly perceived that the particular mail opening programs of the CIA were obviously illegal.” Saying that they disagreed with everyone is not hyperbole – even CIA admitted that the programs were illegal.
However, it was well documented at that point that the programs were illegal, and even those carrying out the programs believed so. Specifically, both the Directors of both the FBI and CIA submitted a document in 1970, three years before the programs were officially terminated, stating that the programs were illegal. Several days later President Nixon withdrew authorization for the programs, which continued nevertheless. As noted by the Church Committee, “Throughout [the 20 year] period CIA officials knew that mail opening was illegal, but expressed concern about the “flap potential” of exposure, not about the illegality of their activity.”
Most unforgivable is the fact that this is one of the reports cited by DoJ in their decision not to prosecute anyone at CIA. This knowledge didn’t prevent the report from calling the knowingly illegal, premeditated decisions by CIA as “good faith mistakes or reliance on the approval of government officials with apparent authority to give approval.” The best that DoJ could claim, based on this, was that some CIA officials believed the programs were legal and authorized. The same cannot, however, be said for the people running the programs or for CIA Director Helms or FBI Director Hoover. Moreover, the DoJ already had testimony from the CIA officials running the programs wherein the officers acknowledged knowing the programs were illegal.
We won’t prosecute because it was partially DoJ’s fault
One of the Justice Department’s most egregious reasons for not prosecuting CIA is because it was partly the fault of the Justice Department, and so prosecuting CIA “[would take] on an air of hypocrisy and may appear to be the sacrifice of a scapegoat.” The report does not discuss the possibility of resolving this potential hypocrisy by prosecuting or further investigating anyone at the Justice Department for these failings.
The statute of limitations had passed. Kind of.
The Justice Department was very quick to claim that, with one exception, the projects were outside the five year statute of limitations that would allow them to prosecute. This statement was deliberately disingenuous and misleading on several points. Most significantly, the report acknowledges elsewhere that if any of the acts that were part of a conspiracy were committed within the last five years, then the entire project and conspiracy can be indicted.
The significance of this cannot be overstated, as it not only would have allowed the Justice Department to prosecute for the entire “East Coast Project” but for the “West Coast Project”, also known as Project WESTPOINTER, as well. The Justice Department became aware of Project WESTPOINTER within the five year statute of limitations, and submitted their first recommendation not to prosecute for Project WESTPOINTER before the statute of limitations had passed. In other words, recommended that there be no prosecutions for Project WESTPOINTER, waited until prosecution became impossible, and then used that impossibility to justify not prosecuting anyone for Project WESTPOINTER.
Exaggerated evidence Eisenhower knew and approved
According to the Justice Department, they were unable to determine whether or not President Eisenhower had been informed of and approved the CIA mail opening program. However, they claim that there is “evidence suggesting that President Eisenhower had knowledge of and had approved the CIA’s East Coast operation.” With one exception of an unnamed source, all of this “evidence” is actually speculation.
- “One high level official stated that no substantial CIA operation would have been undertaken without at least tacit White House approval.”
- “…the opinion that the CIA mail operation was the type of operation that would have been cleared with President Eisenhower by Allen Dulles.”
- Another official “said it is ‘inconceivable’ that Allen Dulles would have embarked on any program as sensitive as the East Coast mail intercept without first informing the President.”
Only one unnamed “former close associate of Mr. Dulles” offered any evidence that the President had been informed – through a third hand report. “In about 1960 he was officially advised by a Dulles assistant that Mr. Dulles had informed President Eisenhower of the CIA’s mail intercept project.” The Justice Department doesn’t offer any evidence that they found the assistant to corroborate this. Being hearsay, it’s unlikely that this statement would have even been admissible at trial.
What about plausible deniability?
The Justice Department speculated that the lack of evidence could be the result of plausible deniability, and that the paperwork never existed or was previously destroyed to protect the President. This would be a defense that could be raised at trial, but one which the Department could easily poke holes in. After all, a CIA memo from several years early referenced the Agency’s proud claim that plausible deniability was dead, and transparency would reign.
That time CIA Director tried creating plausible deniability re: concept of plausible deniability. (CA=Covert Action) pic.twitter.com/INVSrSBW7E
— Michael Best (@NatSecGeek) September 7, 2016
Of course, that was a lie – but one which the Department could have easily used to its advantage, if it’d had even the slightest desire to do so.
The President didn’t have the authority, but that’s okay.
On this subject, the Justice Department says it best.
The outright lie about Nixon
In order to justify not prosecuting former President Nixon or the Directors of the FBI and CIA, the Justice Department had to tell an outright lie – that they had “no direct evidence which suggests that former President Nixon was ever specifically informed of the mail opening projects.” This is simply not true. From the Church Committee report, published before the Justice Department first officially decided not to prosecute anyone and referenced in this report:
There is no international free speech
According to the Justice Department, one reason the mail opening program might not result in convictions was because “those who send or receive mail crossing the border of the United States do not enjoy the same expectation of privacy as those sending or receiving domestic first-class mail.” The Department explained that “The expectation of privacy in the contents of international mail therefore cannot easily be equated to-the expectation of privacy in domestic mail.” This sentiment has cropped up again and again in mail intercept programs, particularly for modern electronic surveillance.
On an interesting note, the Justice Department explained that one reason the expectation of privacy is different is because customs officers are entitled to open international mail to look for pornography.
The most important quote, however, comes at the end where the Justice Department declares that the idea of free speech itself may not apply to international communications. “The international exchange of ideas, especially with citizens of potentially unfriendly powers, may be on a different footing from the domestic exchange of ideas.” Significantly, the Justice Department didn’t limit it to “unfriendly powers”, but instead used the broadest interpretation possible – “potentially unfriendly powers.”
The unjustified belief
Towards the end of the report, the Justice Department tries to justify their decision not to prosecute with what they admit was an “unjustified belief.” According to the Justice Department, “these concerns unquestionably affected perceptions of the government and of presidential power to respond by using covert activities. … A trial of this case therefore would open a searching inquiry into the perceptions of a generation of Americans; it would be, as Professor Wechsler put it during the course of his consultation with the Department, to ‘indict an era’ and would raise fundamental jurisprudential questions concerning the application and use of the criminal law.”
Of course, we need to examine fundamental questions about the application and use of criminal law as it applies to crimes committed by the government. Extralegal programs may be necessary, especially in the short-term, but they’re only justifiable if there is true accountability and judgment after the fact. It’s when that opportunity is denied that the extralegal definitively crosses the line of corruption and becomes illegal.
The Nuremberg defense is…valid?
One of the odder moments in the report is when the Justice Department claims that even if it’s an illegal order, it would be wrong to prosecute someone for following it. “If the potential defendants in fact had a reasonable belief that they were acting pursuant to lawful presidential authorization, a prosecution so many years later could appear to be a vindictive kind of second-guessing.” Rather than a trial, the Justice Department thought the best course of action would be “the enunciation of a clear interpretation of the Constitution and the criminal law that stands from this time forward as a barrier against such activity, whether by rogue individual officials or by the creation of an illegal policy.”
There probably won’t be anymore mass-surveillance anyway
“One of the purposes, if indeed not the primary purpose, of the criminal law is not merely to punish past wrongdoing but to prevent wrongdoing in the future. If the present prosecution were the only way, or even an effective way, of achieving, that result, it might be considered desirable…” In light of that sentiment, one has to wonder how the NSA surveillance programs would have developed if there had been prosecutions.
Would the Patriot Act have been examined more closely? Would CIA and NSA made sure Congress was more aware of and better understood their programs? To a degree, it’s almost certain. Instead, the Justice Department opted for better legal structures and institutional changes – something we’re still struggling with nearly forty years later.
The Angleton Angle
James Jesus Angleton isn’t mentioned in the report from the Justice Department, but as Jefferson Morley correctly points out, he’s the “chief beneficiary” of the report. He examines the memo in detail in his upcoming book about Angleton, and was kind enough to provide two quotes that excellently summarize how Angleton benefited from the report.
Angleton was fortunate indeed. No one was more responsible for the questionable activities under review. He had inherited a tiny mail-opening program in 1955 and vastly expanded it. He had admitted to the Church Committee that the LINGUAL program was illegal. His deputy, Jim Hunt, wrote a memo, saying the CIA had no legal defense for it.
Yet the Justice Department attorneys had to think about the practicalities of making a case. Indicting Angleton would assure lengthy and difficult disputes about the admission ofsecret documents (blandly described as “the unavailability of important evidence as evidence.”) Angleton was sure to argue that he had presidential authorization via DCIs Dulles, McCone, and Helms.
Jefferson Morley also agrees with my belief that this helped set the stage for future illegal surveillance programs, creating an implied shield against accountability for many in the intelligence agencies.
The Justice Department’s decision not to indict Angleton for violating the law with LINGUAL set a precedent and sent a message that would endure in the U.S government: that the secret intelligence arm of the government could intercept, without warrant or stated cause, the private communications of Americans without legal consequences….
The turning point that wasn’t
Had the Justice Department decided to prosecute, we would be looking at a very different world today. Even a failed prosecution would have sent the message that the potential for legal consequences was there. Instead, it reinforced the attitude of some in national security circles that they didn’t have to worry about the legal ramifications – only a public relations “flap.”
It’s a mistake the Justice Department seems to keep making – but it doesn’t have to.
Below, you can read the Report of the Department of Justice Concerning Its Investigation and Prosecutorial Decisions with Respect to Central Intelligence Agency Mail Opening Activities in the United States.