Washington — After more than two years of delay, two former Federal Bureau of Investigation officials are going to trial this week in a case aimed at halting FBI "black bag" tactics such as breaking into homes to search for information.
The case is considered to be the most significant challenge yet to the FBI because the defendants, W. Mark Felt and Edward S. Miller, were second and third in command of the bureau during 1972-73. It is also the first court action since congressional investigations in 1975-76 unveiled a litany of FBI burglaries and warrantless wiretaps.
The US Justice Department charges that Mr. Felt and Mr. Miller interfered with the constitutional guarantee against unreasonable search when they ordered nine secret break-ins of homes in New York and New Jersey in 1972 and 1973. The residents of the homes included relatives and friends of fugitive members of the Weather Underground, a radical antiwar group.
Felt and Miller have publicly admitted that they ordered the "surreptitious entries" but are expected to argue that they acted under direct orders from their superior, then acting FBI director L. Patrick Gray, and even from the President. Mr. Gray, who was originally charged alongside the two defendants, has denied knowing about the nine burglaries, and he is now charged separately.
Felt and Miller also are expected to claim that the Weathermen posed such a threat to the national security that the FBI was legally correct to search homes without a warrant.
To prove their case, lawyers for the two have listed possible witnesses ranging from former attorneys general to former President Richard Nixon to testify in the trial.
But the controversy that has delayed the trial for more than two years since the criminal indictments were handed down in April of 1978 centers around secret intelligence documents that the defense plans to use to prove its arguments.
To prepare for the trial, the government has had to review top secret records to determine what information can be aired in open courtroom without jeopardizing US security.
Among their supporters, the Society of Former Agents of the FBI has already poured $1.2 million into paying legal fees for Felt, Miller, Gray, and other agents who have been investigated during the past five years.
Henry W. Anderson, president of the society, said this week that such warrantless break-ins were once "standard procedure" for the FBI in dealing with matters of national security, adding of the Weathermen, "it is difficult to appreciate the pressures the FBI was under to apprehend this group at that time."
An FBI spokesman says that guidelines set in 1976 by the US Attorney General have sharply curtailed domestic spying by the FBI. He said that during the early 1970s "domestic security was a top priority" but that today bureau targets center on organized crime, white collar crime, and foreign counterintelligence.
FBI watchers concur that the arrival of William Webster as bureau chief marks a change in direction, but they warn that the change might not be permanent.
"The case has become a kind of symbol of the thrust to monitor the FBI and pose limists on its operation," says FBI scholar Frank Donner, author of "The Age of Surveillance."
"I think there has been a decided change for the better," said Mr. Donner. "The question is whether we can make it stick." He added that if Felt and Miller are acquitted, it would signal a "relaxation of concern" about intelligence-gathering in the US.