a contention, or to be nagged by the suspicion that a copy of the papers was deliberately sent to the embassy as justification for the break-in-a routine tactic for a Hunt or Liddy?

But another serious difficulty plagues this argument. If any government agency would know about the Russian Embassy's mail, it would be the FBI, which deploys an incredible arsenal of surveillance weapons against the embassy. And where would the embassy's receipt of such material serve a vital function? Obviously there is one place where such evidence would be invaluable: at the Pentagon Papers trial before the U.S. District Court on June 18, 1971, and the argument on appeal on June 22. At both of these proceedings the government had a chance to offer support for its key contention that publication of the papers had threatened our national security, especially through the channel of foreign relations. The government could have made such proof in open court or, if it was necessary to protect sensitive national security matters, in camera. When the plumbers' contention was made public in May of this year, an inquiry was addressed to then U.S. Attorney, Whitney North Seymour, Jr., seeking verification. In a letter dated May 5, 1973, he replied as follows:

I have since looked into the matter and am relieved to be able to report that apparently neither this office nor the court was deceived as to the information available to the government at the time of the Pentagon Papers proceeding here. I have not been permitted to see the actual reports, which are classified, but I have been advised by an official in Washington that the FBI had no information concerning the possibility of the Soviet Embassy having possession of the papers at the time we presented our arguments to the District and Circuit Courts. I should add that I have not been able to learn the actual extent or scope of the papers that may have come into the embassy's possession.

As national security transmutes common crime into noble acts, so at the same time the actors are changed from criminals (perjurers, forgers, burglars and the like) into patriotic heroes. That is why in his testimony Hunt sounds aggrieved that an ungrateful nation did not reward him more generously with "support money," or perhaps, as in one of his thrillers, "take care of its own." In this view, of course, the victims of his acts become villains, subversives with no rightful claim to legal redress.

"National security" has been used, not merely to gild a single isolated caper; it is the trademark, the signature as it were, of President Nixon himself. Small wonder that national security has become the Administration's chief justification for resisting an effective investigation into its own affairs. In his May 22nd statement, the President used the term twenty-three times and "security" by itself thirteen times.

The standard model of this cover evades or represses dissent by claiming that it threatens our bargaining position abroad or that now is not the time, when negotiations are in so delicate a state, to rock the boat. Such covers have been used for a variety of purposes, from defusing the peace movement to braking the impeachment drive. Reliance on them naturally increases with the intensification of the President's domestic difficulties. The more he is without honor in his own country, the more he

THE NATION/November 19, 1973

becomes a "prophet" abroad. This process ultimately gives Nixon such a stake in foreign conflict that he is tempted to provoke them. Certainly a persuasive case can be made for the view that this motivation contributed to the President's unilateral decision to call a worldwide military alert in the middle of the night of October 2425, when the movement to impeach him was cresting. To the obvious danger of such provocation must be added the loss of credibility involved in crying wolf.

The activation of the plumbers and the burglary required the fabrication of yet another cover. What bothered many Americans more than the question of power was the fact that President Nixon had by-passed the FBI. But the Administration had prepared for this contingency. It would appear that the formation of the plumbers was forced on the Administration because J. Edgar Hoover was sabotaging the Ellsberg investigation. Ehrlichman testified that Hoover wouldn't allow his agents to interview Ellsberg's father-in-law, Louis Marx, because he was an old friend of Hoover. But documentary evidence established that Hoover and Marx had met only once, thirty years earlier. In addition, Marx had, in fact, been interviewed by bureau agents before the plumbers were commissioned by the President. Nor was that all. FBI agents had twice sought interviews with Dr. Fielding, once on July 20, 1971, and again on July 26. Moreover, on August 3 Hoover had written Krogh fully committing the FBI to the Pentagon Papers investigation and, as we have seen in the memo of August 11, Krogh informed Ehrlichman of Hoover's communication that the Ellsberg investigation had the highest bureau priority. Covers come in all colors and sizes-even in reversible models. In 1971, the bureau's asserted apathy served as an Administration pretext for by-passing it. But, in the 1972 Watergate cover-up, the bureau was too active for the Administration's purposes and fear of leaks was used to conceal the Administration's sabotage of its investigations. The CIA, which in 1971 permitted itself to be compromised and used as a foreign intelligence cover, was reluctant to perform the same role in 1972, either for Watergate itself, or the Mexican (money-laundering) connection.

The Huston plan concentrated on student radicalism, an area in which Huston himself, a former national leader of Young Americans for Freedom, was considered an expert. Depicting the campuses as "the battleground of the revolutionary protest movement," he recommended the recruitment of informers in college groups, along with burglary, wiretaps and mail covers. Like Ehrlichman and others, Huston thought that the mere pronouncement of national security, unchecked by any judicial evaluation, was sufficient to put the President beyond the reach of the law.

Mardian, appointed to head the ISD in November 1970, took over the war on radicals. His unit had especially close ties to Sullivan's FBI Division 5, and it is not surprising that it was to Mardian that Sullivan turned in the summer of 1971, to forestall the use by Hoover of the "Kissinger wiretap" tapes for blackmail purposes. Mardian was a red hunter of the old school, a mind of the 1950s with a provincial outlook somewhat

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unpalatable to the more "philosophically" conservative Huston, who once turned up his nose at a job offer from Mardian. But what Mardian lacked in finesse he more than made up in zeal. With the operational support of Division 5 and the collaboration of his field marshal, Guy Goodwin, he launched a series of grand jury probes against the Weatherman faction of SDS which served both as a cover for intelligence gathering and as a directly punitive attack on radical witnesses.

The first of the seven grand juries against Weatherman was called in Detroit. On July 3, 1970, acting solely on the testimony of an informer, Larry Grathwohl, it returned an indictment charging thirteen individuals with conspiring to bomb military and police installations in Cleveland, Detroit, Milwaukee and Los Angeles. Fifteen unindicted co-conspirators were also named.

The first major grand jury attempt by Goodwin to stage an extensive investigation occurred in Tucson in October 1970. In the course of those proceedings five individuals subpoenaed from Los Angeles were jailed for seven months for refusing to testify. On October 20, the grand jury indicted one John Fuerst for transporting explosives in interstate commerce. Fuerst had been named in connection with an overt act set forth in the Detroit indictment, although he was neither indicted nor named as a co-conspirator by the Detroit grand jury. The testimony before the Tucson grand jury makes it quite clear that it was primarily concerned with Fuerst, but that did not prevent it from developing a detailed and comprehensive picture of West Coast radical activities. The "cover" use of Fuerst for fishing purposes was emphasized by the fact that no additional indictments were issued after

Fuerst's original indictment, despite the subsequent testimony of five witnesses.

In November 1972, another ISD grand jury was COGvened in Cleveland. On November 29, a California woman subpoenaed to testify there was given limited (use) immunity and then interrogated about bombings in Cleveland in 1970, involvement with SDS in Cleveland and her knowledge of various people in the area. She admitted knowing some of the people she was asked about, but was unable to answer most of the questions, and so testified. The focus of this grand jury was the Weatherman underground and again Fuerst was used as a cover for an extensive interrogation about activities charged in the Detroit indictment as "overt acts." Indeed most of the evidence gathered in Cleveland was developed for use in the Detroit trial.

In fact it was only a week after the appearance of the California witness before the Cleveland grand jury that a Detroit panel handed up a new indictment against fifteen people in Weatherman, superseding the original indictment with similar charges now fleshed out with evidence gathered by the grand juries in other areas.

The superseding indictment in Detroit did not put an end to this seesaw process. Early in January 1973, the Cleveland grand jury subpoenaed two witnesses, one of whom had testified in November. In this round of questioning she was presented with a rerun of the earlier questions, despite the fact that it was the same grand jury. The second Cleveland witness refused to answer a number of similar questions on the ground that they were based on illegal wiretaps. In response, the government dropped her subpoena rather than disclose its

sources. On January 10, two days later, indictments were handed down in Cleveland against three of the Detroit defendants. These indictments were based on the testimony of an FBI agent; the two witnesses had been called solely for the purpose of developing information to aid in the prosecution of the new Detroit indictment.

The Cleveland indictments were simply moves in a game. The acts listed in these indictments are identical to those charged by the Detroit grand jury. In an effort to provide a justification for the grand jury probe and to mask its true purpose the prosecution "indicted" three individuals who were underground and thus unlikely to come to trial. It is also noteworthy that the indictments were returned only two days after the Detroit defendants sought to intervene in the Cleveland proceedings on the ground that the Cleveland grand jury was being improperly manipulated to develop evidence for use in Detroit.

Another grand jury proceeding which was activated to develop testimony for use in the Detroit trial began in Madison, Wis., in February 1973 when two women, each named as an unindicted co-conspirator in the Detroit indictment, were subpoenaed. By a familiar coincidence, one of the witnesses was asked about activities which are described as overt acts in the Detroit indictment. When she refused to testify, the government sought a grant of immunity from prosecution and an order compelling her to testify. At the immunity hearing, the judge asked the government what the purpose and scope of the grand jury's inquiry was. The government refused to answer, insisting that it had no obligation to reveal the purpose of the grand jury's activity. The judge then refused to grant immunity or to order testimony. He ruled that the Internal Security Division attorney was abusing the grand jury process.

Still another front in the grand jury offensive against the SDS radicals was opened in the fall of 1972 in San Francisco with a volley of eleven subpoenas for a group of individuals, most of them strangers to one another, scattered all over the United States and Puerto Rico. From the questions asked in San Francisco by Goodwin and his assistant, it became clear that this investigation sought information about links between fugitives and techniques for the protection and support of persons in the underground. Subjects covered included mail drops, welfare and food-stamp acquisitions, transportation, housing arrangements and travelers' checks. Some questions were asked about the bombing of a San Francisco police substation in February 1970. Even at the time, however, police and the local press did not attribute the bombing to Weatherman. It was generally believed to have been an isolated event with no organizational link. An intensive investigation for more than two years had yielded no suspects. The questions about the bombing seem to have been a smear technique, attempting to link the witness with terrorism, with the expectation that the questions would be made public when read at the subsequent immunity and contempt hearings.

Other questions involved a San Francisco residence, referred to in the Detroit indictment as having been rented by one of the defendants for the illegal purpose of storing explosives. Again, a deliberate abuse of the grand jury

THE NATION/November 19, 1973

process. But when a number of Detroit defendants sought to intervene, the government insisted that the development of evidence was not the "sole or dominant purpose" of the investigation. The San Francisco proceedings were marked by abrasive confrontations between the prosecutors and the witnesses. In many instances the witnesses were sharply limited in consulting counsel.

One witness, John Davis, brother of Chicago conspiracy defendant Rennie Davis, challenged his subpoena on wiretapping grounds. The government admitted that it had wiretapped Davis, but denied that the information which it had garnered was used to prepare either the subpoena or the questions. A hearing was then held to determine possible taint-whether the questions asked of Davis were based on wiretaps-and the government submitted approximately 250 pages of logs of wiretapped conversations, and 2 pages of questions. The logs indicated that Davis had been "overheard" on numerous occasions in 1969, when he used telephones in the national office of SDS.

On June 1, 1973, three days before Davis' next scheduled appearance, the government dismissed the subpoena. Davis and another witness who had been subpoenaed in October but never questioned, commenced a civil suit asking an injunction to prevent the grand jury from questioning witnesses until the National Commission on Individual Rights is in operation. The commission was created in the 1970 Organized Crime Control Act, the same Act which created "use" immunity. It has never met because President Nixon has failed to appoint the seven members he is required to name. Minutes before the witnesses were to appear in court as plaintiffs, the government scrapped the subpoenas and contended that the civil suit was therefore moot.

In all, seventeen witnesses were called in the San Francisco probe, beginning in September 1972. Of these only four actually testified, and one other was jailed for thirty days for refusing to testify, although his conviction was later reversed on appeal. Another witness was also held in contempt, but was ultimately not required to testify because the government refused to comply with a court order that he receive a transcript of his testimony. The subpoenas of the other witnesses were dismissed.

After all the smoke had cleared, only one person-a fugitive Detroit defendant-was indicted as a result of the grand jury's work. Indeed, despite the government's disavowals, the main purpose of the San Francisco proceeding appears to have been, once more, to dig up evidence for Detroit. None of the four witnesses who testified knew anything at all about the indicted defendant; his indictment was thus the result of information already in the government's possession.

Like Watergate itself, the grand jury sessions described here and in the January 1972 article form a pattern. It does not mean too much to discover that this or that grand jury was driven to excess by a zealous prosecutor, that rudeness and overreaching deprived a particular witness of his or her rights, or that in an isolated instance the subpoena power was used to collect evidence for trial after the indictment was returned. In exercising its proper function in good faith, a grand jury

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may step over a line; it is an abuse inherent in all institutions whose boundaries are not rigidly fixed. The remedy for such infractions is judicial redress or more scrupulous public servants. But the "whole" which here is so much greater than the sum of its parts is usurpation of power, the planned and manipulative rigging of an instrumentality for reasons unrelated to its basic purpose.

Nothing so clearly demonstrates this use of the grand jury for intelligence purposes as the government's repeated failure to remove from subpoenas and interrogations the claimed taint of illegal tapping. There is hardly a grand jury proceeding-Boston, San Francisco, Vermont, Cleveland, Harrisburg and Detroit, to name only a few-where subpoenas have not been dismissed because of alleged warrantless tapping. The August 11, 1971 plumbers' memorandum to Ehrlichman about the Ellsberg project, contains the notation, "It seems unlikely that Barnet, Raskin and Gifford will be called [as grand jury witnesses] because they have been overheard." (This last term is a modest entry in the surveillance dictionary of euphemisms.) In the Detroit case, the sheer bulk of the secret tap logs is staggering: 12,000 overhearings for nine months and this from only one source, SDS headquarters in Chicago. In many cases, as in Seattle and Detroit, the government balks at disclosing the contents of the taps; it then seeks dismissal out of sheer embarrassment, claiming that national security would be "compromised" by further disclosure, or insisting that the challenged practice took place in hot pursuit of "foreign intelligence," an allegation almost invariably based on proofs so tortured as to make Ehrlichman's defense of the President's power to burglarize Dr. Fielding's office a model of persuasive reasoning. Rather than permit a profanation of the sleepless struggle to protect us from foreign foes, the government drops the case. The fact is that the Administration has failed utterly to develop a "foreign intelligence" sanction for domestic surveillance -catnip for every spy master since Walsingham. In 1970 the President commissioned the CIA to ferret out the foreign support for domestic protest, only to be told that it was an empty burrow. This report made his claimed need for otherwise illegal surveillance factually improbable and, irony of ironies, his détente policy made it politically incredible.

Two Hats for Mardian

Lawyers for the Detroit Weatherman defendants, in preparation for a "taint" hearing ordered in a sweeping ruling by Judge Damon Keith last June, have uncovered powerful evidence that the ISD grand juries are a link in a surveillance network. Investigation corroborates documents submitted by John Dean to the Watergate prosecutor and Ervin committee (some of them were classified and only partially released to the press) that in the fail of 1970 the operational aspects of the Huston plan, from wiretaps to break-ins, were implemented by a White House-sponsored agency which had two covers: it was located in the Department of Justice as a part of the Internal Security Division and it claimed to be nonoperational, merely a conduit for intelligence generated by others. Its cover name was the Intelligence Evaluation Committee (IEC), but despite its interagency format

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(FBI, NSA, CIA, DOD, etc.), its de facto chief was Robert Mardian, who wore two hats: law enforcement and intelligence. Both operations were directed at the same organizational targets-SDS, Panthers, VVAW. Weatherman, etc. The linkage is plainly demonstrated by the admitted "almost daily" use of highly restricted ISD intelligence files by CREEP's security chief, McCord, and by the fact that the lawyers for groups targeted by the ISD for law enforcement were, as we shall presently show, systematically afflicted by office burglaries and fires. Also revealing is the unusually close relationship between ISD litigation chief, Guy Goodwin, and intelligence sources. For example, he maintained continuous contact at the investigative level with Larry Grathwohl, an FBI informer in the Detroit case, and with informer William Lemmer in the Gainesville (VVAW) case. The Gainesville case, at the trial stage, provides an extraordinarily vivid illustration of the willingness of the ISD to get into bed with the most squalid informers and provocateurs. This promiscuity contrasts with the conventional role of the prosecutor, which is to test and evaluate data developed by investigators. But most important is the dominant use of ISD grand juries as an investigative tool and as a means, by compelling testimony through grants of immunity, of laundering evidence that has already been illegally obtained through intelligence.

What is less clear are the mechanics of the plan. Who organized the burglaries, mail interceptions, wiretaps and similar intrusions? Who designated the targets, recruited the operatives and instructed them what to look for? Although the FBI has, through a single affidavit of agent Calvin Clegg in Washington, denied that it "possesses" (ie., as of the summer of 1973) records reflecting such capers, it is the prime suspect as chief wiretapper-a very expensive, labor-intensive form of surveillance. Its field operatives certainly included urban red squaddersthat is a matter of record-possibly recruited by New York City BOSS veterans, Caulfield and Anthony Ulasewicz. [See "New York's Red Squad: BOSS Is Watching" by Claudia Dreifus, The Nation, January 25, 1971.] Ulasewicz himself may have lent a hand from 1970 to 1972, a period when he admits being busy in intelligence matters which he can no longer recall. Since at least 1970, the bureau has developed and funded a program, furthest advanced on the West Coast, for acquiring intelligence through paid informers run by local police units. This collaboration, quite visible when a particular organization (SDS, Venceremos, Revolutionary Union) becomes a priority target, permits the FBI to harvest the fruits of illegal surveillance while preserving "deniability." There are also indications of interagency sharing of intelligence resources made available by the Treasury Department's Alcohol, Firearms and Tax Division, an agency with which first Liddy and then Caulfield had important ties during the period in question. Urgently needed in this context is a thorough Congressional probe to fix responsibility for this shocking (and foolish) attempt to use law enforcement as a cover for intelligence, an "option" which even Tom Charles Huston thought would come to a sticky end.

The ISD, understandably enough, could hardly afford the airing that Judge Keith had ordered. On October 13, the

THE NATION/November 19, 1973

prosecution, having stalled and thrashed about for more than four months in an effort to evade compliance with the judge's order, finally threw in the national-securitycum-sensitive-foreign-intelligence towel and moved for dismissal. Detroit thus joined the series of cases which the ISD's Goodwin lost, largely because of a fatal clash between covert intelligence practices and the norms of law enforcement.

From 1970 until 1973, more than fifteen cases are reported in court documents of burglaries on the premises of lawyers for radical groups and individuals, and in a few instances on those of their clients. According to an affidavit filed by Weatherman lawyer Gerald Lefcourt, his office was twice burglarized; first in the fall of 1970 and again in the winter of that year. On April 12, 1970, a fire, classified "suspicious," occurred at his Manhattan office. Lefcourt said one of his files on Mark Rudd had been scattered about the office. Two burglary attempts were made at Lefcourt's New York City home between the spring of 1970 and the spring of 1971. Nothing was taken in the second break-in, so police were not notified. Of the first, Lefcourt says, a television set was found in the building lobby and was taken to a police precinct station, where he went to claim it.

At the San Francisco office of attorney Michael Kennedy, burglars rifled files and scattered them about. The San Francisco police confirmed the break-in. During another burglary of his office, his briefcase was rifled. On August 19, 1971, the People's Law Office in Chicago was burglarized. Police confirmed the crime, and that items stolen included an electric typewriter, $50 in a cashbox and a shotgun. In a burglary at the law offices of Henry diSuvero on June 8, 1972, files were rifled. In addition, the offices or homes of other attorneys, including Charles Garry, Melvin Greenberg, Jeffrey Haas, Carol Scott, Lee Holly, Carl Maxey and Michael Lerner (counsel pro se in the Seattle 9 case), were entered under circumstances marked by a common pattern: the rifling or theft of files, with nothing else of value being taken.

An example of attempted mail interception is supplied by the July 23rd affidavit of a Chicago postman:

I have been assigned to the Lincoln Park Station of the Chicago Post Office since 1968 as a mail deliverer. Part of my duties were to deliver mail to 2242 N. Bissell Street.

I was aware that members of the People's Law Office staff including Jeffrey H. Haas, Courtney Esposito, Liza Lawrence and G. Flint Taylor, Jr. were living at and receiving mail at that address.

On several occasions I was approached by men in plain clothes outside of 2242 N. Bissell Street who showed me badges which were sometimes of the Chicago Police Department and sometimes of the Federal Bureau of Investigation.

These plain clothed officers asked questions of me about inhabitants of said house, took pictures of said house and watched said house.

On several occasions I was approached and offered a job by some of these plain clothed police which I declined to accept.

All of this occurred in the Spring and Summer of

1971.

THE NATION/November 19, 1973

Another insight into the modus operandi of the ISD network can be gained from two incidents, both involving attempts to develop evidence for the Detroit case. On April 24, 1970, the Chicago apartment of Martha Real, the cousin of Detroit defendant Mark Real, was searched illegally by Chicago's red squad Weatherman expert. Maurice (Maurie) Dailey. During this search, many items were seized, including Martha Real's personal address book, two sealed addressed letters, and alleged contraband consisting of several firearms. After the material was suppressed by the court as illegally seized, the record of her arrest was also expunged, pursuant to the court's order. The illegally seized items were then turned over to federal authorities and on July 9, 1970, Martha Real was subpoenaed by the Detroit grand jury.

When Miss Real first appeared before the grand jury she invoked her Fifth Amendment privilege in response to all questions. Thereafter, U.S. prosecutor Guy Goodwin and his colleagues successfully applied for an order granting her immunity from prosecution and requiring

'When We Fail to Make the Criminal Pay for His Crime, We Encourage Him to Think That Crime Will Pay." testimony. Goodwin then questioned Miss Real about the contents of the sealed and addressed letters illegally seized in Chicago, about other physical evidence illegally seized there, and about what was said in a tapped telephone conversation with a defendant in the Detroit case. That indictment recites an overt act which almost certainly was based upon material obtained from the illegal search and wiretap. In addition, by inducing Judge Keith to grant immunity, the prosecution made him an unwitting accomplice to laundering the illegally obtained evidence by compelled grand jury interrogation derived from this tainted source.

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