The actual opening of mail is something which we have offered some information and an exhibit, which I would particularly like to address your attention to. At the back of exhibit 10, a letter addressed to a so-called underground newspaper in Berlin, which came from the reference library of the College of South Carolina requesting information about and a subscription to this underground newspaper. This letter was intercepted, as apparently were many going to this newspaper, and opened by Army Intelligence, and photocopied, and it has been made available to us through Senator Weicker whose investigator obtained it.

The last subject in the area of information collection is undercover agents, and we have offered an exhibit with respect to this subject. And I do not know whether time permits going into it, but I would like to say at least that undercover agents, when they operate freely in political or religious or social organizations, involve the most intrusive and unpredictable kinds of information gathering, because what they obtain is almost always directly related to how involved they are in the organization and whether or not they can move the organization in a direction that it may not want to go, which is a question that certainly will not be addressed by the investigative agency in deciding to use the undercover agent.

We find in many cases that undercover agents are recruited when there is sort of a Sword of Damocles over their head and they are in trouble with the investigative agency.

For example, one investigative agency in Germany, we see on page 3 of the confidential document, that is in this exhibit, exhibit 11, "the source is interested in performing well for the U.S. Intelligence as this would show favorably on his record and somewhat overshadow his article 15." This was a serviceman who had been the subject of disciplinary proceedings and wanted to make good, so to speak, and was therefore willing to perform as an undercover man in a religious group that was the subject of investigation by military intelligence. All of this was without any form of warrant procedure or other kind of control from the outside.

And I think that I would like to give Professor Friedman an opportunity again to comment briefly on this subject before quickly moving to the last subject, which is the recordkeeping and dissemination.

Mr. FRIEDMAN. I think again I just would like to make a few brief comments about this kind of activity, the keeping of bank records, credit information, toll records, and informers. One problem is existing legislation does not prohibit the Government from engaging in this kind of activity and from retaining these kinds of records.

Now, the new Privacy Act of 1974 has an encouraging provision, section 552 (a) (e) (7), which says that each agency that maintains a system of records shall maintain no record describing how any individual exercises rights guaranteed by the first amendment unless expressly authorized by statute or by the individual about whom the record is maintained, or unless pertinent to and within the scope of an authorized law enforcement activity.

So, presumably, Lori Patton, who was exercising her first amendment right to find out about the Socialist Workers Party, there should

be no records maintained about her, except the FBI has insisted what it is doing is a part of an authorized law enforcement activity; namely, maintaining cover on what they consider to be a criminal organization; namely, the Socialist Workers Party. It comes back to that kind of judgment all over again.

And second: The real danger is that these records stay in the Government. It is not like there is a piece of information which goes in and goes out. They are a permanent part of a man's file.

This material on Mr. Kenyatta, on who he wrote checks to, 5, 6 years ago, is part of his dossier, or whatever the FBI wants to call ithis file, his references. It stays there.

The toll records that Mr. Forcade makes, the comments they pick up in other areas, it is part of the Government record, since the FBI is exempt from the provisions of the Privacy Act that require an individual to have access to his records and can make comments on it. The FBI keeps this material here, and we now know Clarence Kelley says he cannot destroy it, because of the requirements of the National Archives Act, which says that Government records cannot be destroyed unless an archivist takes a look at them.

So, the danger is both in the scope of the materials collected, and the fact that it stays in the man's file and since existing legislation neither forbids the collecting of this information nor does it permit, we are told, the destruction of the information, when it does not serve a legitimate law enforcement activity, the kind of danger that exists, I think, can be illustrated not only by some of these cases, but what happened in the Ellsberg case. What happened there is how did they ever get to his psychiatrist to begin with? They went to his bank records, and a friendly bank teller there let the FBI look at his list of checks, and they found periodic checks made to a Dr. Fielding. And then they knew that Dr. Fielding was someone he frequented very often, and they went to Dr. Fielding, asked him questions which he refused to answer.

The material went back to Washington, and it was sent up to the White House, to the Plumbers. Then the Plumbers used the information gathered by the FBI through the bank examination, examination of the bank records, and that is why they were able to focus on Dr. Fielding as a good target for what they engaged in.

So again, we see this kind of mushrooming effect, where one piece of information leads to other information, and it is available there in FBI records. And there is not adequate control on its maintenance, and on its availability to other organs of Government who might misuse it.

Mr. DRINAN. Mr. Chairman, I have a point that I think is very relevant. It may not be new to you, but Mr. Silberman, the Deputy Attor ney General, wrote to me January 27, 1975:

Please be assured that it is the policy of this Department, including the FBI, that all requests for information relating to the counterintelligence program which are submitted under the Freedom of Information Act are being afforded prompt response.

Now, would you feel that this is something that could be further implemented or exploited if they admit that the counterintelligence program, and that is the subject of exhibit 17 here, that all of that

information is, in fact, available under the Freedom of Information Act, and maybe that could be analogized or could be stretched?

Mr. SHATTUCK. I would like to answer that, Congressman, if I may, because I think I have information that reflects on whether or not that is a fact. In one case, Kenyatta v. Kelley, we have had pending now, for approximately 6 months, discovery requests pertaining to whether or not these individuals were targets of Cointelpro. Repeatedly, we have been told that our requests are being given expedited consideration, et cetera, but nothing has been forthcoming.

And, of course, this is civil litigation where we have considerably more leverage than one would have if one were just a member of the public seeking access to information under the Freedom of Information Act.

I am not at all sanguine about whether or not we are going to find very much out about Cointelpro unless Congress really takes hold of this subject and tries to get this material out of the FBI. I get the distinct impression that the disclosures on Cointelpro are being very well managed, and that the real facts that relate to people like Kenyatta are just not going to come out.

Mr. DRINAN. As you may know, another subcommittee of this Judiciary Committee, Mr. Edward's Committee, on February 20 will have Mr. Clarence Kelly and the Attorney General, and I am sure this issue may come up. Thank you.

Mr. KASTENMEIER. Yes. I might also say that our sister Subcommittee on Constitutional Rights has general oversight jurisdiction over the Federal Bureau of Investigation in terms of recordkeeping, data banks, arrest records, and has been looking into the Cointel program. Both this subcommittee and our sister subcommittee have more or less coexisting interests in the same subject matter.

You may proceed, sir.

Mr. FRIEDMAN. I am going to discuss exhibit 13, which is the complaint that we filed on behalf of Allard K. Lowenstein, a former Congressman. There were two actions filed in the Eastern District of New York, one on behalf of Peter Eikenberry, who was a candidate for the Democratic nomination in the 14th Congressional District against John Rooney in 1970, and then Mr. Lowenstein, when he ran against Mr. Rooney in 1972.

And we had secured-there was a published account to the effect that Mr. Rooney, who at that time was the head of the Appropriations Committee that had responsibility over the FBI, had asked the FBI for assistance during the primary campaign, and in checking with Mr. Eikenberry, it turns out, whose case is a little clearer, while he was in college he had once been arrested for drunkenness, some 20 years before he ran for office, and he also had dropped out of an ROTC program in college. And 20 years later, he is running in a primary election in New York against Mr. Rooney, and Mr. Rooney refers to him in public as a fugitive from justice from Ohio. And Mr. Eikenberry could not understand how it was that Mr. Rooney had found that out. He speculated maybe some old enemy of his from college had sent along this information.

And then a newsman, talking to a source within the FBI, later discovered that, in fact, because Mr. Rooney had been very helpful to

the FBI, that some agents looked into their records, dug out this old arrest record and supplied it to Mr. Rooney. And he referred to these two episodes.

Mr. Lowenstein also had a history of numerous political involvements, and Mr. Rooney was very well aware of them. Now, the only information we have been able to secure on those two cases was an affidavit submitted last week in the court action up in Brooklyn in which John A. Mintz, the Assistant Director of the FBI, and head of the Office of Legal Counsel, admitted that there are references in FBI files to both Mr. Eikenberry and to Mr. Lowenstein, but he claims that there is no indication in the records that they came as a result of an inquiry by Mr. Rooney, which we would hardly expect anyhow. But, they did admit that there are references to these two individuals.

Now, Mr. Lowenstein was a Congressman. We know from Mr. Gray's testimony before the Senate Judiciary Committee that the FBI did make a practice of gathering information on nonincumbent candidates so that if the person, the nonincumbent person won, the FBI would be aware of something about his background. And he admitted that this came from public sources, and in addition, from investigative files, which were undefined. But, Mr. Eikenberry is one step removed. He was never a candidate in the general election. He was a candidate only in the primary.

Now, what business does the FBI have gathering information about him, which is still in the files of the FBI?

Again, we are trying to continue to run this information down. We have received some information to the effect that Mr. Lowenstein traveled through Southeast Asia three times between when he was a Congressman, once before he was a Congressman, and information about his visits to, we are not quite sure which one, but information about his visits was collected by the CIA and sent back to Washington, and some of this information eventually found its way into Army files. Now, I am not sure whether this was when he was a Congressman or before that time, but this is another area where information is transmitted from one organization to another and ends up in some kind of a permanent file with respect to that individual. And when we are talking about candidates for Congress, or the Congressmen themselves, it is a particularly dangerous enterprise and we hope in the litigation to try and find out more about this.

Mr. SHATTUCK. We will conclude by briefly, because I know the hour is late, summarizing some of the information in the latter exhibits here, 12, and 14 through 17, which relate to the recordkeeping and dissemination practices of these investigative agencies.

First, let me highlight some of the facts that we have discovered about the FBI's recordkeeping in the Jabara case, which I have discussed before. We now know, as a result of a court order, ordering discovery in the case over an assertion of privilege by the Government over all of this information-the opinion of the court is at the front of the exhibit-we now know that Jabara's speeches were regularly monitored over a period of 7 years, apparently because he was an outspoken advocate of pro-Arab positions on Middle Eastern policy, and the actual information about his speeches is now contained in sum

mary form within the FBI files, and is set forth in considerable detail in the answers to these interrogatories.

Just a typical report to show you the kind of information it is, Jabara said, and I am reading from the FBI's report on the November 1972, 5th Annual Convention of the Association of Arab-American University Graduates of which Jabara was then president, and he said he is essentially an Arab, but they are a group with common interests, such as black Americans, young people, civil-libertarians, and he stated that during the past year the group had successfully established a dialog with some of the leaders and members of the black community, evincing support for their demands and participation, et cetera. And he talks about "affirming that we will not be thwarted in our struggle against racism, and we have the right to speak against Americans and to dissent from the U.S. policy which is disastrous for the Middle East," and that is all in Jabara's file. And to date we have no reason, we have no way of knowing precisely why.

The most that the FBI will say is that he is of interest to them because of organizations at which he has spoken, or meetings at which he has appeared, or what have you. All of which are, I might add, public meetings in which certainly no clandestine activity of any kind is being conducted.

Now, we also know that there is a great deal of intermingling of material in Jabara's file about persons with whom he associated, and that is again in circumstances not involving a criminal investigation. But we know that the FBI has collected information about Jabara from, of all sources, Zionist organizations in the United States, whom they had every reason to know were, of course, very hostile to Jabara's view about a whole variety of things.

They had previously denied they had collected information from such organizations, but they now admit that they have.

We know of 145 separate communications with people outside of the FBI by FBI agents about Jabara, and we know that since this suit was filed in November of 1972, the investigation of Jabara has not only continued, but it seems to have stepped up. There are 38 interceptions of his conversations which have taken place over wire taps since then, and they have collected information about 17 of his speeches.

Now, I would like to conclude by giving you several examples from exhibit 15 about what Mr. Friedman was talking about earlier, judgments that are consistently made by these investigative agencies about what is to be investigated and what is not, what kind of information should be recorded about people in the interests of national security and what should not, and judgments we see made are repeatedly absurd in some instances, embarrassing in others, but in so many cases, we see the kind of information collected that is just downright frivolous and should never have been put into any file, and is very damaging once it is.

For example, in the FBI file on Thomas King Forcade, which is the first document in exhibit 15, we have a full page which was classified confidential by the FBI containing a retyped copy of an article written by Forcade in his infamous underground newspaper, the Beach Blanket News. And the article, you can read it for yourself,