Page:Durham Report.pdf/43

This page has been proofread, but needs to be validated.
a foreign power and that his own conduct is assisting or furthering such activities.[1]

The Report goes on to explain how the earlier surveillance of Martin Luther King, which was justified based on his association with members of the Communist Party, would not meet this standard:

An illustration of the “knowing” requirement is provided by the case of Dr. Martin Luther King. Dr. King was subjected to electronic surveillance on “national security grounds” when he continued to associate with two advisers whom the Government had apprised him were suspected of being American Communist Party members and by implication, agents of a foreign power. Dr. King’s mere continued association and consultation with those advisers, despite the Government’s warnings, would clearly not have been a sufficient basis under this bill to target Dr. King as the subject of electronic surveillance.

Indeed, even if there had been probable cause to believe that the advisers alleged to be Communists were engaged in criminal clandestine intelligence activity for a foreign power within the meaning of this section, and even if there were probable cause to believe Dr. King was aware they were acting for a foreign power, it would also have been necessary under this bill to establish probable cause that Dr. King was knowingly engaged in furthering his advisers’ criminal clandestine intelligence activities. Absent one or more of these required showings, Dr. King could not have been found to be one who knowingly aids or abets a foreign agent.

As noted above, however, the “knowing” requirement can be satisfied by circumstantial evidence, and there is no requirement for the Government to disprove lack of knowledge where the circumstances were such that a reasonable man would know what he was doing.[2]

The King excerpt underscores the need for the target to be knowingly furthering the criminal clandestine intelligence activities of those whom he is aiding, but it also explains that such knowledge may be inferred.

2. Protection of First Amendment activities

In enacting FISA, Congress recognized that “there may often be a narrow line between covert action and lawful activities undertaken by Americans in the exercise of their [F]irst [A]mendment rights.”[3] FISA thus includes a provision similar to the one found in the AGG-Dom and prohibits any U.S. person from being “considered … an agent of a foreign power solely upon the basis of activities protected by the [F]irst [A]mendment.”[4] The House Report explains that “[t]his provision is intended to reinforce the intent of the committee that lawful

  1. ↑ Id. at 44 (emphasis added).
  2. ↑ Id. at 44–45 (emphases added).
  3. ↑ House Report at 41.
  4. ↑ 50 U.S.C. § 1805(a)(2)(A); cf. AGG-Dom § I.C.3.

33

This article is issued from Wikisource. The text is available under Creative Commons Attribution-Share Alike 4.0 unless otherwise noted. Additional terms may apply for the media files.