The foregoing actions undertaken by just three agencies of the federal government against the Black Panther Party illustrate not only the nature and extent of tactics the government will employ to crush dissident groups, but the seriousness with which the Party was perceived as a potential threat to those in power. There is no dispute that the Party suffered from more hostile and severe government acts directed against it than any domestic political organization in the twentieth century, including the Communist Party. While the FBI rationalized that it took these neutralizing steps against the BPP in order to curb its violent propensities, the truth is that what the bureau felt most threatening were survival programs providing free breakfasts to school children and other constructive services. No single feature of the Panthers made them so feared or disliked by the government; many organizations possessed either a revolutionary ideology, community service, or a willingness to engage in legal struggle to achieve their goals. It was the combination of all of these features, pitched to a group that had been historically and systematically excluded from full participation in democratic capitalist America, that made the Party different, and dangerously so. GOOOO
Not surprisingly, many of the tactics worked, in the sense that the Party lost members, leaders, and supporters (financial and otherwise). Reports of the BPP's demise, though, have always been premature. Of equal importance is the claimed halt to these practices by the government once they had been publicly exposed. The COINTELPRO was officially terminated for security reasons in 1971, though the Bureau continues many of the same activities under different rubrics. Instead of recanting the obvious abuses it engaged in, the FBI, through Director Clarence Kelley, proclaimed that—"for the FBI to have done less under the circumstances would have been an abdication of its responsibilities to the American people."
A more apologetic tone was struck by the IRS when, on August 9, 1973, Commissioner Donald Alexander announced that the Special Service (SS) group would be abolished. He stated that "political or social views, 'extremist' or otherwise, are irrelevant to taxation."
Once again, however, the function of the SS group was merely transferred to the Intelligence Division of IRS.
The CIA responded to revelations about its unlawful domestic counterintelligence operations by destroying documents, rationalizing its activities as necessary for national security, and, ultimately, asking for a new charter that would, under the extraordinary conditions supposedly existing in the 1960s, permit CIA intervention in limited situations.
The danger inherent to democracy in any official abuse of constitutional rights of a minority is, to be sure, always theoretically recognized:
Getting racketeers on a VA [Veterans Administration] application is like getting civil rights workers for speeding," says Howard Glickstein, who was in the Civil Rights Division of the Department of Justice [under Robert Kennedy]. This time it's the Mafioso, but next time it could be the Black Panthers or Goldwater supporters.
The gap between theory and practice is, however, rarely closed; witness the history of American Indians, the Communist Party, and the Wobblies.6 What closed this gap, and temporarily saved the Party from political annihilation, was the publicly revealed expansion of some of these reprehensible tactics to traditionally accepted power groups and their leaders. This is, as an eminent constitutional scholar has noted, an almost inevitable result.
The controls and apparatus necessary for the restriction of a**ociational expression— investigations, files, informers, constant surveillance—are incompatible with a free society. Restriction of a**ociational expression is likely to become, in practice, an effort to suppress a whole social or political movement. History and experience warn us that such attempts are usually futile and merely tend to obscure the real grievances which society must, if it is to survive, face squarely and solve.
The veracity of the above observation is proved by the case history of the war against the Panthers. The original White House Enemies List contained but a few names, and the SS group within IRS began by focusing on twenty-two organizations. Both were soon added to by the administration, and included liberals within the Republican Party as well as leaders of labor, business, academia, and, as the Watergate break-in revealed, even the Democratic National Headquarters. This transference of hostile and illegal government actions from organizations which pose fundamental challenge to the prevailing order to groups not ideologically at odds with democratic capitalism was certainly related to the period of the 1960's. The anti-war movement coalesced, or at least intersected and occasionally joined, with the civil rights, Black community, and student movements to worry those who saw their role as "maintaining the existing social order, and . . . combating those who threaten that order. "8 Yet these circumstances are not so unique as to defy repetition or at least the perception of [the] same by "federal law enforcement officers [who] look upon themselves as guardians of the status quo. " Should this happen, there is, as former Senator Sam Ervin acknowledged, "no real a**urance that these programs would not be resumed."10 That the "existing social order" will be threatened again is certain; the real question is what will be the future results. Fear that these agencies would in fact be far more dangerous without some constraints than those groups and individuals they surveil has led to legislation and higher governmental discussion about the FBI, the CIA, and other intelligence agencies fostered by them.
Revelations of extensive governmental misconduct in the Watergate affair, and widespread charges of illegal FBI and CIA spying on Americans in violation of law, existing charters, and the Constitution caused the U.S. Senate to establish a special Select Committee to study Governmental Operations with Respect to Intelligence Activities in 1975. Prior to that time, White House administrations and the intelligence agencies had succeeded in stopping all attempts to create congressional intelligence committees to share oversight powers with the Appropriations and Armed Services Committee, which had only minimal supervision over the agencies.
The task of the Senate select committee (better known as the Church Committee after its chairman, Senator Frank Church of Idaho) was to determine "the extent, if any, to which illegal, improper, or unethical activities were engaged in" by the intelligence agencies. The Select Committee was also authorized to investigate specific charges of illegal domestic surveillance by the CIA, domestic intelligence and counterintelligence operations carried out against Americans by the FBI, and the origins and implementation of the Huston Plan.
When the Select Committee issued its Final Report on April 23, 1976, it had constructed a documented record of abuse that was far more extensive than that which was known or even imagined when the investigation began. "We have seen segments of our Government adopt tactics unworthy of a democracy and occasionally reminiscent of the tactics of totalitarian regimes." Specifically criticizing the FBI COINTELPRO operation, the Select Committee said,
... the chief investigative branch of the federal government [FBI], which was charged by law with investigating crimes and preventing criminal conduct, itself engaged in lawless tactics and responded to deep-seated social problems by fomenting violence and unrest.
After concluding its work, the Senate Select Committee unanimously recommended that Congress develop and enact a comprehensive intelligence charter to curb and control intelligence activities and create a body of statutory law that would prevent future intelligence abuses:
The Committee is not satisfied with the position that mere exposure of what has occurred in the past will prevent its recurrence. Clear legal standards and effective oversight and controls are necessary to ensure that domestic intelligence activity does not itself undermine the democratic system it is intended to protect.
In March 1976, the Senate created a permanent Select Committee on Intelligence. In February 1978, the committee introduced S.B. 2525, the National Intelligence Reorganization Act of 1978. In the House of Representatives, a counterpart bill, H.R. 11245, was introduced.
S.B. 2525/H.R. 11245 included many of the Church Committee recommendations, but also contained numerous proposals at odds with those recommendations. For example, the legislation authorized the CIA to investigate Americans overseas under a noncriminal code of "clandestine intelligence activity." It included powers to engage in certain COINTELPRO types of activities, including violations of law, and the use of counterespionage to prevent violence. Although the bill established judicial warrants for wiretapping and break-ins, it authorized judges to issue warrants for intelligence breakins in instances of less than probable cause to believe a crime had been or was about to be committed.
Following strong opposition from the intelligence agencies and their supporters in Congress, S.B. 2525/ H.R. 11245 died at the end of 1978 and was not reintroduced in 1979. Then, on January 23, 1980, President Carter in his State of the Union message called for removing unwarranted restraints on the CIA. Describing the effect and importance of Carter's remark, David Wise, coauthor of The Invisible Government and author of The American Police State, said:
... In that brief moment, one could easily visualize the agency rising from the ashes of intelligence reform. The CIA's timing is flawless. In the present hawkish atmosphere in Washington, intelligence reform has become almost a dirty word, an X-rated idea whose time has come—and probably gone.
On February 8, 1980, S.B. 2284/H.R. 6588, the National Intelligence Act of 1980, was introduced in Congress as the successor to the 1978 National Intelligence Reorganization and Reform Act. The name change was fitting because reform has been eliminated from major parts of the legislation. The new bill:
1. authorized counterintelligence and counterterrorism investigations directed against Americans at home and abroad under noncriminal, broad standards;
2. permitted the use of informants and undercover agents in groups suspected of criminal activity;
3. authorized unspecified COINTELPRO techniques against any American suspected of participating in secret intelligence activity or who might threaten to engage in violent activity for political motive;
4. established court warrants for national security mail opening and physical searches in the United States directed at Americans, under guidelines of less than probable cause to believe a crime is involved and without requiring notice to the person(s) or group(s) who are subjects of the search;
5. failed to provide a mechanism for citizens whose civil liberties have been violated to seek redress.
As did its predecessor, S.B. 2284/H.R. 6588 met opposition from the intelligence agencies, some members of Congress, and the Carter administration. Consequently, on April 18, 1980, the Senate Intelligence Committee moved to abandon charter reform for the CIA and immediately held legislative sessions on "an abbreviated new proposal." The committee said it would not hold hearings on the substitute for fear that any further debate would prevent the bill from being enacted this year.19 The following day, April 19, the committee agreed to drop its previous demand for prior congressional notice of all CIA covert operations.
The shortened S.B. 2284, which was described by some in the news media as a compromise, was approved by the Senate Intelligence Committee on May 8, 1980. The bill established a broad congressional right to monitor the nation's intelligence activities, focusing mainly on the oversight of the CIA. The revised S.B. 2284 provides the Senate and House Intelligence Committees with the sole authority to oversee the intelligence community, in effect repealing the Hughes-Ryan Amendment of 1974 that allowed eight congressional committees to hear reports on covert activities. The bill also creates a complex reporting procedure that requires the president to keep the two committees "fully and currently" informed of a wide variety of activities. However, the legislation recognizes and encourages the declaration of an inherent presidential right to avoid such reporting in some situations.
Senator Edward Kennedy has introduced legislation called the FBI Charter (S.B. 1612/H.R. 5030). There is considerable debate by civil liberties groups as to whether S.B. 1612 will prevent future COINTELPRO types of actions by the FBI or whether it would, in fact, authorize the bureau legally to carry out activities that were formerly illegal. The bill:
1. authorizes FBI investigations of terrorism, defined as acts of violence;
2. outlaws investigations of individuals and organizations solely because of their political or religious views;
3. permits wiretapping, mail opening, and the use of undercover agents under certain circumstances;
4. permits the use of journalists, clergymen, and others as informants who, although they cannot initiate crimes, can participate in crimes to protect their covers;
5. provides new FBI exemptions from the Freedom of Information Act, including a statutory ban on the release of the names of FBI informants;
6. permits increased access to credit and insurance records of citizens, without securing subpoenas;
7. fails to provide a mechanism for citizens whose civil liberties have been violated to seek redress.
Due to the current 1980 presidential election campaign, no action has yet been taken on S.B. 1612/H.R. 5030. Lobbying efforts, however, continue (see, e.g., Appendix D).
With the CIA unleashed and the possibility that the Kennedy bill, if enacted, will do the same for the FBI, it would seem that the actions described in this study by government agencies to destroy the Black Panther Party and other dissident groups may, in the future, become entrenched in the U.S. government. Tom Wicker has noted that the new CIA charter will more than ever make the agency into an "invisible government. "23 Former CIA agent Philip Agree, who is now literally a man without a country because of his public revelations of illegal CIA activities, has uncovered the core of the problem surrounding CIA abuses, actions that can be equally applied to the FBI and other intelligence agencies:
... the main concern is not really with the CIA, but with the people who run the U.S.—the CIA acts as their instrument—these are the people who run the multinational corporations, who own the banks, who control the traditional political process, the professionals who service all of them and the military-industrial interlock. This relatively small group of people have a need for the CIA and what it's been doing over the years. And until changes occur in the U.S. in terms of political power and economic control, there will be a need for the CIA from the point of view of this small minority.
The philosopher George Santayana warned, "Those who cannot remember the past are condemned to repeat it." If illegal government abuses as have occurred in the past against the Black Panther Party and other dissident groups are legalized in the future, as now seems likely, the western world will not be "safe for democracy."