■swh

?3 -4 l WIRETAPPING AND ELECTRONIC SURV EILLA NCE

‘

;,>

'

ER"

,KV'C U M E N T S

, Storage 

g

■ Ht

 H E A R IN G S

KA NS AS STAT E UNiV trtS IT Y

BEFORE THE

SUBCOMMITTEE ON COURTS, CIVIL LIBE RTIES, 

AND THE ADMINISTRATION OE JUSTICE

Ez zzZo

■----- o

B- -□

5 = o

1---- 1=1

~ r-A

?------ rA

~ ----- <

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

NIN ETY-T HIR D CONGRESS 

SECOND SESSION

ON

H .R . 1597, H .R . 7773, H .R . 97 81 , H .R . 98 15 , H .R . 99 73 , 

H .R . 10 00 8, H .R . 10 33 1, H .R . 11629, H .R . 11 83 6, a n d 

H .R . 13 82 5

RELATING TO WIRETAPPING AND ELECTRONIC SURVEILLANCE

APR IL 24, 26, AND 29, 1974

Ser ial No. 41

Printed for the use of the Committee on the Judiciary
7
WIRETAPPING AND ELECTRONIC SURVEIL LANCE

H E A R IN G S

B EF O R E T H E

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, 

AND THE ADMINISTRATION OF JUST ICE

O F T H E

COMMITTEE ON THE JUDICIARY

HOUSE OF REPR ESEN TATIVES

NIN ETY-T HIR D CONGRESS 

SECOND SESSION 

ON

H.R . 1597, H .R. 7773, H.R. 9781, H .R. 9815, H.R. 9973, 

H.R.10008, H.R . 10331, H.R . 11629, H.R . 11836, and 

H.R . 13825

RELATING TO WIRETAPPING AND ELECTRONIC SURVEILLANCE

APR IL 24, 26, AND 29, 1974

Serial No. 41

Printed for the use of the Committee on the Judiciary

U.S. GOVER NM ENT P R IN T IN G O FFIC E

;35-391 W ASH IN GTO N : 1974
COMMITTEE ON THE JUDIC IARY

PET E R W. ROD INO , 

HA RO LD D. DO NO HU E, M as sa ch us et ts 

JA CK B RO OK S, Tex as

RO BE RT W. KAST EN M EI ER , Wisc on sin 

DON ED WA RD S, C al ifor ni a 

W ILLI AM L. HU NG AT E, M isso ur i 

JO HN CON YERS, J r., Michig an 

JO SH UA EI LB ER G, Pen nsy lv an ia 

JE RO M E It. WAL DI E, Cal ifor ni a 

WAL TE R FL OW ER S, Alaba ma 

JA MES It. MANN, So ut h Car ol in a 

PA UL S. SA RB AN ES , M ar yl an d 

JO HN F. SE IB ERLIN G, Ohio 

GE OR GE E . DA NI EL SO N, Cal ifor ni a 

RO BE RT F. DR IN AN , M as sa ch us et ts 

CH AR LE S B. RA NG EL , New York 

BARBARA JO RD AN , Tex as 

RAY T HO RN TO N, A rk an sa s 

EL IZ ABET H HO LTZM AN , New York 

WAY NE OW ENS, U ta h 

ED WA RD ME ZV INSK Y, Io wa

J r., New Je rs ey , Ch airm an

ED WA RD HU TC HI NS ON , Mi chiga n 

RO BE RT Mc CL OItY, Il lin oi s 

HE NR Y P. SM IT H III , New Y ork 

CH ARL ES W. SANDM AN, J r., N ew Je rs ey 

TOM RA IL SB AC K, Illin oi s 

CH ARL ES E. WIG GI NS , Cal ifor ni a 

DA VID W. DE NN IS, In dia na 

HA MILTO N FIS H . J r., N ew York 

WILEY MAYNE, Iow a

LA WRE NC E J. HOG AN, M ar yl an d 

M. CA LD WEL L BU TL ER , V irgi ni a 

W IL LI AM S. CO HE N, Ma ine 

TREN T LO TT, Miss issip pi 

HA RO LD V. F ROEHLI CH , W isc on sin 

CARLO S J. MO ORHE AD . C al ifor ni a 

JO SE PH J . MAR AZ ITI, New Je rs ey 

DELB ER T L. LA TT A, Ohio

J ero me M. Zei fm an , Ge neral Co unsel

Garner J . Cli ne, Assoc ia te G eneral Co un sel

Herb ert F u c h s, Co un sel

H erb ert E. H of fm an , Co unsel

Willia m P. Sha tt uc k, Co unsel

II. Chr isto ph er Nolde, Co un sel

Alan A. P ar ke r, Co unsel

J ames F . F alco, Co unsel

Maurice A. Barboza, Co unsel

F ranklin G. P olk , Co uns el

T ho ma s E . Mooney, Co unsel

Mic ha el W. Blo mme r, Co unsel

Alex ander B. Cook, Co unsel

Con st an ti ne J. Gek a s, Co un sel

Alan F. Cof fe y, J il, Co unsel

Subcommittee on Courts, Civil Liberties, and tiie Administration of

J ustice

RO BE RT W. KAST EN M EI ER , W isco ns in, Ch airm an

GE OR GE E. DA NI EL SO N, Cal ifor ni a 

RO BE RT F. DR INAN , M as sa ch us et ts 

WAYNE OW EN S, U ta h

ED WA RD M EZ VINS KY , Iowa

TOM RA IL SB AC K, Illin oi s 

HE NR Y P. SM IT H III , New Y ork 

U II A R I. E S W. SA NDM AN , J r., N ew Je rs ey 

W IL LI AM S. CO HE N, Main e

Herb ert F u c ii s, Co unsel

Willia m P. Dix on, C ounsel 

Bruce A. Leh m an, Co un sel

T ho ma s E. Mooney, Ass oc ia te Co un sel
C O N T E N T S

Text of— Page, IL R. 159 7.................................. 3

II. It. 7773................... ........... ......................... .............................. " 4

II.It. 9667__________ j

II.It. 9698_________________ 3

H.It. 9781.............. . ............. . ................... ......... ........... ............. 5

II .lt . 9815____ 

6

H.R . 9 9 7 3 .. .____ ______ ______ ___________ ____________ ' 8

II.It . 9949________ 8

H.It. 10008____ 8

H.It. 10331______________________ q

H.It. 11629______________________________________ 9

H.It. 11838........................... . ......... . ......... ........................... ‘ ‘ jo

H.It. 13825_______ ________ _________________ _______ ____ "Z 10

Testimony of—

Andrews, Robert, assistant general counsel, Departme nt of D efense .. 155

Bender, William J., adm inistrative director, Constitutional Litigation

Clinic, Rutgers University School of Law_____________________ 236

Caming, William, attorney, American Telephone & Telegraph Co___ 178

Cleveland, William, assistant director, Federal Bureau of Investigation .------ --------------------------------------- ----------------- ---------------- 203

Cooke, Hon. David O., Dep uty Assistant Secretary of Defense for 

Administration, accompanied by Joseph A. Liebling, Dep uty 

Assistant Secretary of Defense for Security; and Robert Andrews

Assistant General Counsel, Departme nt of Defense____________ Z 155

Decker, Andrew, inspector, Federal Bureau of Investigatio n_______ 203

Fried man, Leon, and John Sha ttuc k, American Civil Liberties Union,

New York_______________________________________________ 83

Halperin, Dr. Morton, former National Security Council staffer____ 113

Leibling, Hon. Jos. A., Deputy Assistant Secretary of Defense for

Security, Department of Defense______________________________ 155

Long, Hon., Clarence, a Representative in Congress from the Sta te of

Ma ryland________________________________________________ 54

Maroney, Kevin T., Departm ent of Ju stice_______________________ 124

Miller, Hon. Edward S., Deputy Associate Director, Federal Bureau 

of Investigation, accompanied by William Cleveland, Assistant 

Director; and Andrew Decker, inspector, Federal Bureau of In ­

vestigation________________________________________________ 203

Nelson, Hon. Gaylord, a U.S. Senator from the Sta te of Wisconsin__ 15

Petersen, Hon. Henry E., Assistant Attorney General, Criminal 

Division, accompanied by Kevin T. Maroney and Philip White

Dep artm ent of Ju stice________________________________ ____ 124

Sha ttuc k, John, American Civil Liberties Union, New York_______ 83

Turner, William, of California; former FBI Agent, priv ate investigator, and autho r of several books, including “How to Avoid

Electronic Surveillance’’____ ____ ___________________________ 63

White, Philip, Dep artm ent of Justi ce___________________________ 124

Additional information—

Agency report from Department of T ran spo rtation_______________ 274

Cooke,Hon. D. O., Deputy Assistant Secretary for Defense, le tter dated 

Apr. 19, 1974, to Hon. Robert W. Kastenmeier, Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of

•Justice.____ ______________________________ ______________ 167

Excised copy of a memorandum of John Mitchell furnished to the

District Court by Mr. Calhoun, dated Jul y 14, 1969____________ 247

Kastenmeier, Hon. Rob ert W., Chairman, Subcommittee on Courts,

Civil Liberties, and the Adm inistration of Justice, letter dated 

Apr. 10, 1974, to Hon. James R. Schlesinger, Secretary of Defense,

Depar tment of Defense_____________________________________ 166

(iii)
IV

Additional inform ation—Continued 

Nelson, Hon. Gaylord:

Congressional Record Reprint, dated Feb. 4, 1974, on Surveil- Page 

lance Practices and Procedures Act of 1973—Am endm ent___ 41

Newspaper Articles:

Warrantless Wiretaps, The Capital Times, Madison, Wis.,

Feb. 7, 1 9 7 4 .. ................... . ........... ................... ................... 49

The President and Privacy, The Washington Post, Feb. 9,

1974______________________________________ ______ 50

No Warrants, No Taps, New York Times, Feb. 17,

1974______ _____ _____ ________ ______ ___________ 51

“Natio nal Security” Taps, The Washington Post, Mar. 21,

1974__________________________ _________ ____ ___ 52

Section Analysis of Surveillance Practices and Procedures Act of

1973, S. 2820_________ 33

Prepared state ments—

Bender, William J _______________________________________ 249

Caming, William________________________________________ 197

Cooke, Hon. David O____________________________________ 175

Friedman, Leon_________________________________________ 100

Long, Hon. Clarence D___________________________________ 62

Halperin, Dr. Morton____________________________________ 119

Miller, Hon. Edward S___________________________________ 206

Nelson, Hon. Gaylord____________________________________ 29

Petersen, Hon. Henry E __________________________________ 146

Shattuck , John __________________________________________ 100

Turner, William_________________________________________ 80

Stateme nts submitted for the Record—

Abzug, Hon. Bella, a Representative in Congress from the 

State of New York..... ........... ................... ........... ......... ............... 253

Kemp, Hon. Jack, a Representative in Congress from the State 

of New York_________________________________ ____ ___ 257

Lapidus, Dr. Edith J _____________________________________ , 259

Mink, Hon. Patsy T., a Representative in Congress from the

State of Haw aii_______________________________________ 257

Hearing dates—

April 24:

Friedm an, Leon_____ ________ 83

Halperin, Dr. Morton ____________________________________ 113

Long, Hon. Clarence__________________________ 54

Nelson, Hon. Gaylord_________________________ 15

Shattuck, John _______________________________ 83

Turner, William______________________________ 63

April 26:

Andrews, Rob ert____________________________________ 155

Caming, William____________________________________ 178

Cooke, Hon. David O________________________________ 155

Liebling, Hon. Jos. A________________________________ 155

Maroney, Kevin T ___________________________________ 124

Petersen, Hon. Henry E ______________________________ 124

White, Philip_____________________________________________ 124

April 29:

Bender, William J _________________________________________ 236

Cleveland, William________________________________________ 203

Decker, Andrew___________________________________________ 203

Miller, Hon. Edward S._ _____ ______________ ______ - ........... 203
WIRETAPPING AND ELECTRONIC SURVEILLANCE

WEDNESDA Y, AP RI L 24, 1974

H ouse of Representatives,

SU BC OM MITT EE ON CO UR TS , C lV IL LI BER TI ES ,

and the Administration of J ustice of the

Committee on th e J udiciary,

Washington, D.G.

The subcommittee met at 10 a.m., pursu ant to call, in room 2141, 

Rayburn House Office Building, Hon. Robert W. Kastenmeier 

(chairman) presiding.

Present: Representatives Kastenmeier (presidin g), Danielson, 

Drinan, Mezvinsky, Railsback, Smith, and Cohen.

Also Present: Bruce A. Lehman, counsel, and Thomas E. Mooney, 

associate counsel.

Mr. Kastenmeier. The subcommittee will come to order.

Other members of the subcommittee will be joining us shortly. 

The Chair would like to make a statement relative to the hearing 

which we have before us today.

Privacy is an essential element in the American ideal of liberty, 

a basic righ t recognized by the fourth amendment to the Constitution. As Justice Brandeis wrote, each individual’s righ t to privacy 

is “the most comprehensive of rights, and the right most valued by 

civilized men.”

Within the last several years many citizens have begun to fear 

tha t this basic right is being steadily eroded bv the use of modern 

electronic technology to eavesdrop on conversations. Unfortunately, 

increasing numbers of Americans have begun to fear tha t GovernA ment is more interested in intru ding into their private lives than

in acting to protect their privacy. A basic purpose of these hearings 

is to examine the trend toward privacy invasion and to determine 

what should be done to reassert the right of the individual to be 

M free of Government surveillance.

Until passage of the Omnibus Crime Control and Safe Streets 

Act of 1968, the only Federal statute on wiretapping was section 

605 of the Federal Communications Act of 1934, which prohibited 

interception and divulgence of conversations transmitted by wire. 

The Department of Justice interpreted section 605 to mean tha t the 

law was violated only if an intercepted conversion was divulged to 

outsiders, and the question was never decided by the Supreme 

Court. It was not until the 1968 act tha t Congress enacted a comprehensive statute on wiretapping and electronic surveillance.

(1)
2

Tha t statute, title III of the Omnibus Crime Control and Safe 

Streets Act, actually extended official wiretapping by authorizing 

frequent and prolonged eavesdropping by Federal and State investigators. Jt also authorized, for the first time, the use of wiretap' 

evidence in criminal trials. In the 6 years since the enactment of 

title II I we have witnessed an intensive, widespread, but perhaps 

avoidable encroachment on some of our most necessary rights.

These hearings are not the first congressional effort to examine 

privacy invasion by electronic eavesdropping. Between 1934 and 

1967 at least 16 sets of congressional hearings on wiretapping were r

held. From 1965 to 1971 former Congressman Corneillius Gallagher 

conducted numerous hearings on privacy invasion as chairman of 

the Special Subcommittee on Privacy of the House Committee on 

Government Operations. However, in 1972 the House defeated a 

resolution sponsored by Congressman Gallagher to establish a Select 

Committee on Privacy, Human Values, and Democratic Institutions.

The then chairman of the Judiciary Committee, Congressman Celler 

took the position tha t the entire subject of privacy was within the 

jurisdiction of this committee even though Congressman Gallagher 

tried without success to assure Chairman Celler tha t the proposed 

select committee would not encroach on the Judiciary Committee’s 

recognized jurisdiction in the area of bugging, wiretapping, and 

surveillance.

In scheduling these hearings this subcommittee is reasserting the 

Judiciary Committee’s longstanding involvement with the problems 

of privacy invasion and electronic surveillance.

Of course, we are not alone in our examination of this sensitive 

subject. Within the last few weeks, two subcommittees of the Senate 

Judiciary Committee and one subcommittee of the Senate Foreign 

Relations Committee have begun joint hearings on warrantless 

wiretapping and electronic surveillance.

In addition, there are two independent commissions which are 

authorized to consider the problem. Public Law 90-351 established 

a National Commission for the Review of Federal and State Laws 

Relating to Wiretapping and Electronic Surveillance. Recently, 

Congressman Railsback of this subcommittee and I were appointed 

as two of the House Members on this Commission. Congressman 

Edwards of California and Congressman Steiger of Arizona are 

the other House Members.

Public Law 91-452 established another Commission, the National 

Commission on Individual Rights, which also has a mandate to 

consider w iretapping and electronic surveillance. I am also a member of that Commission. Unfortunately, this Commission cannot 

function presently as the President has failed to appoint its public 

members.

Undoubtedly, these two Commissions will serve a useful purpose 

in undertaking a full scale reappraisal of the problem of privacy 

invasion bv electronic eavesdropping. However, the growing public 

concern in this area requires that we not wait for the result of the 

Commission’s findings to exercise our oversight in this sensitive area.

Within the last year numerous reports have appeared in the press 

describing abuses of wiretapping and electronic surveillance on the
pa rt of tlie Federal Government. Only last week this issue of illegal 

Government wiretapping was raised in a Federal court in Minnesota 

in prosecutions arising out of the incident at Wounded Knee. Recent 

testimony before the Senate Judiciary Subcommittee on Constitutional Rights revealed tha t U.S. military intelligence units had 

tapped telephones of American citizens living in Europe who were 

organized to support Senator George McGovern’s 1972 campaign 

for the Presidency. In addition, there have been numerous reports 

of wiretapping of members of the press, advisors to Presidential 

candidates and even members of Congress. These reports emphasize 

the need for immediate Subcommittee consideration of Government 

eavesdropping activities.

The procedures used within the Department of Justice to approve 

wiretapping requests have also been questioned. In litigation presently pending before the Supreme Court, the Justice Department 

has admitted tha t former Attorney General John Mitchell’s executive assistant actually reviewed and signed wiretap requests in spite 

of the fact that the law requires that such requests be signed by the 

Attorney General or a designated Assistant Attorney General. This 

failure by the Attorney General to observe the law could compromise hundreds of prosecutions of organized crime figures who were 

wiretapped under such procedures.

That reported abuses of wiretapping and electronic surveillance 

have generated public concern is reflected by the fact that over 30 

members of Congress have sponsored legislation which would restrict 

currently authorized eavesdropping. This legislation is currently 

pending before this subcommittee.

In view of the public and congressional concern about eavesdropping, the subcommittee has an obligation to find out the facts about 

this much publicized subject. Hopefully, these hearings will provide 

some of those facts. I feel very strongly tha t the all-too-clever techniques of modern electronic eavesdropping require the vigilance of 

the Congress to protect the right of the individual. This most insidious invasion of privacy demands full recognition and certain 

action.

We must also recognize the needs of investigative agencies for 

the best techniques available in the fight against organized crime 

and in the protection of our national security. I thin k that most 

citizens want our law enforcement agencies to be well equipped to 

perform their investigative responsibilities within the limitations 

imposed by the Constitution.

We will be hearing from a varietv of witnesses representing both 

those who have been under surveillance and those who have conducted surveillance.

[The bills are as follows:]

[H. R. 1597, 93d Cong., 1st sess.]

A BILL To ame nd certa in Federal law re latin g to the interce pti on of wire and oral 

com municatio ns

Be it enacted by the Senate and House of Representative of the United,

States of America in Congress assembled. Th at section 2511 of title 18 of the 

United States Code is amended by add ing at the end thereof the follow ing:

“ (4) Notwith standing any other law or provision of law, whoever, actin g 

und er color of law. intercepts or discloses any wire or oral communication,
with respect to which a judge or justice of the United States or a Senator or 

Member of Congress is a party, without the writte n authorization of the President (specifically authorizing the particular interception or disclosure) shall 

be fined not more tha n $20,000 or imprisoned not more tha n ten years, or both.”

[H. R. 7773, 93d Cong., 1st sess.]

A BILL To amend tit le XII of the Organized Crime Control Act of 1970, and for 

other purposes

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, Th at title X II of the Organized Crime 

Control Act of 1970 ( 84 Sta t. 922, 900) is amended as follows:

(a) The heading of the title is amended to read:

“Title XII—National Commission on I ndividual Rights and Personal

Security”

(b) Section 1201 is amended by adding “and Personal Security” after the 

word “Rig hts”.

(c) Section 1204 is amended to read as follow s:

“Sec. 1204. It shall be the duty of the Commission to conduct a comprehensive study and review of Federal court decisions, laws, and practices relating 

(1) to special gran d juries authorized und er cha pter 216 of title 18, United 

States Code, dangerous special offender sentencing und er section 3575 of title 

18, United States Code, bail reform and preventive detention, no-knock search 

warrants, the accum ulation of data on individuals by Federal agencies as au thorized by law or acquired by executive action, and (2) the conduct of stop and 

frisk arrests, searches and seizures, interrogation s, appellate review by the 

prosecution, lack of mutual pre tria l criminal discovery, self-incrim ination and 

prosecutor comment on failure to testify, the conduct of lineups, disclosure of 

info rmants’ identities, fingerprinting and photography, and trial delay, finality 

and collateral review of Fed eral and State criminal proceedings. The Commission may also consider other Federal court decisions, laws, and practices which 

In its opinion may infringe upon the individual rights of the people of the 

United States to liberty or to personal security. The Commission shall dete rmine w’hich legal rules, law’s, and practices are needed, which are effective, 

and whether they infringe upon the individual rights of the people of the 

United States to libe rty or to personal security.”

(d) Section 1207 is amended to read as follows:

“Sec. 1207. (a) The Commission or any duly authorized subcommittee or 

member thereof may, for the purpose of carryin g out the provisions of this 

title, hold such hearings, sit and act at such times and places, adm inister such 

oaths, and require by subpena or otherwise the attendance and testimony of 

such witnesses and the production of such books, records, correspondence, 

memorandums, papers, and documents as the Commission or such subcommittee or member may deem advisable. Any member of the Commission may 

adm inister oaths or affirmations to witnesses appearing before the Commission 

or before such subcommittee or member. Subpenas may be issued under the 

signatu re of the Chairman or any duly designated member of the Commission, 

and may be served by any person designated by the Chairman or such member.

“ (b) In the case of contumacy or refu sal to obey a subpena issued under 

subsection (a) by any person who resides, is found, or transa cts business within 

the jurisdiction of any district court of the United State, the distric t court, at 

the request of the Chairman of the Commission, shall have jurisdiction to issue 

to such person an order requ iring such person to app ear before the Commission 

or a subcommittee or member thereof, the re to produce evidence if so ordered, 

or there to give testim ony touching the matter under inquiry. Any failure of 

any such person to obey any such order of the court may be punished by the 

court as a contempt thereof.

“ (c) The Commission is an ‘agency of the United States’ under subsection 

(1) of section 6001 of title 18, United States Code, for the purpose of gra nting 

immunity to witnesses.

“ (d) Each department, agency, and instrumentality of the executive branch of 

the Government, including independent agencies, is authorize d and directed
to furnish to the Commission, upon request made by the Chairman, on a reimbursable basis or otherwise, such statistical data, reports, and other information as the Commission deems necessary to carry out its functions under this 

title. The Chairman is further authorized to call upon the departments, agencies, and other offices of the several States to furnish, on a reimbursable basis 

or otherwise, such statistical data, reports, and other information as the Commission deems necessary to carry out its functions under this title.”

(e) Section 1208 is amended to read as follows:

“Sec. 1208. The Commission may make interim reports and recommendations 

as it deems advisable, and it shall make a final report of its findings and recommendations to the President of the United States and to the Congress at 

the end of three years following the date of enactment of this amendment to 

this section. Sixty days afte r the submission of the final report, the Commission shall cease to exist.”

[H. R. 9667, 93d Cong., 1st sess.]

A BILL To amend title 18 of the United States Code to require the consent of all 

persons whose communications are Intercepted under certain provisions relating to certain types of eavesdropping

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, That section 2511(2) of title 18 of 

the United States Code is amended by striking out paragraphs (c) and (d), 

and inserting in lieu thereof the following:

“ (c) It shall not be unlawful under this chapter for a person to electronically 

record or otherwise intercept a wire or oral communication where all parties 

to the communication have given prior consent to such interception unless 

such communication is intercepted for the purpose of committing any criminal 

or tortious act in violation of the Constitution or laws of the United States 

or of any State or for the purpose of committing any other injurious act.”

[H. R. 9698, 93d Cong., 1st sess.]

A BILL To amend titl e 18 of the United States Code to prohibit the interception of 

certain communications unless all parties to the intercepted communication consent

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, That section 2511 of title 18 of the 

United States Code is amended by—

(1) striking out, in subsection (2)(c ), “or one of the parties to such 

interception” and inserting in lieu thereof “, but only if all of the parties 

to the communication have given prior consent to such interception.” ; and

(2) striking out, in subsection 2(d ), “or where one of the parties 

to the communication has given prior consent to such interception” 

and inserting in lieu thereof but only if all of the parties to the 

communication have given prior consent to such interception,”.

[H. R. 9781, 93d Cong., 1st sess.]

A BILL To amend certain sections (authorizing wiretapping and electronic surveillance) 

of titl e 18 of the United States Code

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, That the Congress finds and declares 

tha t—

(1) Widespread wiretapping and electronic surveillance, both by private 

persons and Government agents, l>oth under color of law, and without pretense of legal excuse or justification, has seriously undermined personal 

security and often violated fundamental constitutional rights, including the 

rights to free speech, press, and association, the rights to due process and 

equal protection, and the right to privacy.

(2) Complexities and defects in current Federal law have aided those who 

engage in wiretapping and electronic surveillance, and current Federal law 

has not provided adequate safeguards against corrupt abuses of communications 

technology.
(3) No person, in any branch of the Federal Government, in however high 

an office, or in any other governmental or private position should be authorized 

either explicitly or implicitly to violate the constitu tional rights of persons by 

eavesdropping on priv ate conversations through wiretap ping and electronic 

surveillance.

(4) The end of prosecuting those who violate the law does not justify wrongdoing on the pa rt of the Government.

(5) The peculiar susceptibility of wiretapping and electronic surveillance 

to misuse in the furtheranc e of partisan political goals rend ers wiretapping and 

electronic surveillance a particu larly dangerous tem ptation to Government 

officials, and the chance of its misuse outweighs any potential benefits which 

might otherw ise be found in it.

Sec. 2. Title 18 of the United States Code is amended—

(1) by striking out in section 2511(1) “Except as otherwise specifically 

provided in this cha pter any person who—” and inse rting in lieu thereo f 

“Whoever—” ;

(2) by inserting immediately after subparagraph (d) of section 2511(1), 

but before “shall be fined” the following new subp aragraph :

“ (e) willfully intercep ts or records any wire or oral communication without the consent of all the parties to such communication” ;

(3) by striking out “or” at the end of section 2511 (1) (c) and by 

inserting “or” at the end of section 2511(1) (d) ;

(4) by striking out sections 2511(2) (a) (ii),' (b ), (c), and (d) ;

(5) by striking ou t section 2511(3) ;

(6) by striking out section 2512(1) “Except as otherwise provided in 

this chapter, any person who willfully—” and inserting in lieu thereof 

“Whoever—” ;

(7) by striking out section 2512(2) ; and

(8) by striking out sections 2516, 2517, 2518, 2519, 2510(9).

[H. R. 9815, 93d Cong., 1st sess.]

A B IL L To en force th e firs t am en dm en t an d fo urt h am en dm en t to th e C onst itution, 

an d th e co nst itutional ri g h t of pr iv ac y by pr oh ib itin g an y civil or m ilitar y officer of th e 

Uni te d S ta te s or th e m ilitia o f an y Sta te from us in g th e Ar me d Fo rces of th e Uni ted 

S ta te s or th e m ilitia of an y S ta te to exerc ise su rv ei llan ce of ci vi lian s or to exec ute th e 

civi l law s, an d fo r oth er pu rp os es

Be it enacted by the Sena te and House of Representatives of the United Sta tes

of America in Congress assembled,

Section 1. This Act may be cited as the “Freedom from Surveillance Act of

1973”.

Sec. 2. (a) Chap ter 67 of title 18, United States Code, is amended by adding 

at th e end thereof the following new sections:

“§1386. Use of the Armed Forces of the United States for surveillance prohibited

“ (a) Except as provided in subsection (b) of this section, whoever being a 

civil officer of the United States or an officer of the Armed Forces of the United 

States employs any pa rt of the Armed Forces of the United States or the 

militia of any State to conduct investigations into, maintain surveillance over, 

or record or maintain information regarding, the beliefs, associations, or 

political activities of any person not a member of the Armed Forces of the 

United States, or any civilian organization, shall be fined not more tha n 

$10,000, or imprisoned not more than two years, or both.

“ (b) The provisions of this section shall not apply to the use of the Armed 

Forces of the United States or the militia of any Sta te :

“ (1) to do anything necessary or app ropriate to enable such forces or 

militia to accomplish their mission after they have been actually and 

publicly assigned by the President to the tas k of repelling invasion or 

suppressing rebellion, insurrectio n, or domestic violence, pursuant to the 

Constitution or section 331, section 332, or section 333 of title 10 of th e 

United States Code; or

“ (2) to investigate criminal conduct committed on a miliary installa tion 

or involving the destruction, damage, theft, unlawful seizure, or tre spass 

of the property of the United St ates ; or
7

“ (3) to determ ine the sui tability for employment or for retention in 

employment of any individual actually seeking employment or employed by 

the Armed Forces of the United States or by the militia of any State, or 

by a defense facilit y; or

“(4) whenever the militia of any State is under the command or control 

of the chief executive of th at Sta te or any other appropriate authorities of 

th at State.

“ (c) As used in this section, the term —

“ (1) ‘Armed Forces of the United States’ means the Army, Navy, Air 

Force, Marine Corps, and Coast G ua rd ;

“ (2) ‘militia ’ has the same meaning as th at set forth in section 311 of 

title 10, United States Cod e;

* “ (3) ‘civil officer of the United States’ means any civilian employee of 

the United St at es ;

“ (4) ‘surveillan ce’ means any monitoring conducted by means which 

include but are not limited to wiretapping, electronic eavesdropping, overt 

and covert infiltration, overt and covert observation, and civilian

* inform an ts;

“ (5) ‘defense fac ility’ has the same meaning as th at set forth in 

section 782(7) of title 50, United Sta tes Code.”.

(b) The analysis of cha pter 67 of such title is furth er amended by adding 

at the end thereof the following new item :

“1386. Use of Armed Forces of the United States for surveillance prohibited.”. 

Sec. 3. (a) Title 28, United States Code, is amended by adding after chapter

171 the following new chapter:

“Chapte r 172.—ILLEGAL SURVEILLANCE

“Sec.

“2691. Civil actions, generally ; illegal surveillance.

“2692. Special class actio ns; illegal surveillance.

“2693. Venue.

“§2691. Civil actions, gene rally; illegal surveillance

“ (a) Whenever any person is aggrieved as a result of any act which is

prohibited by section 1386 of tit le 18, United States Code, such a person may 

bring a civil action for damages irrespective of the actuality or amount of 

pecuniary injury suffered.

“ (b) Whenever any person is threatene d with injury as a result of any act 

which is prohibited by section 1386 of such title , such a person may bring a 

civil action for such equitable relief as the court determines may be appropriate 

irrespective of the actuality or amount of pecuniary injury threatened.

“§2692. Class action ; illegal surv eillance

“Whenever any person has reaso n to believe th at a violation of section 1386 

of title 18, United States Code, has occurred or is about to occur, such person 

may bring a civil action on behalf of himself and others similarly situated

* against any civil office of the United States or any milita ry officer of the Armed 

Forces of the United States to enjoin the planning or implementation of any 

activity in violation of that section.

“§ 2693. Venue

* “A person may bring a civil action under this cha pter in any dis trict court of 

the United States for the dis trict in which the violation occurs, or in any distri ct cou rt of the United States for the dis trict in which th e violation occurs, 

or in any dis trict court of the United States in which such person resides or 

conducts business, or has his prin cipa l place of business, or in the Distric t 

Court of the United States for the District of Columbia.”.

(b) The analysis of pa rt VI of such title 28 is amended by adding immediately after item 171 the following new item :

“172. Illegal su rveilla nc e________________________________________ 2691”.

(c) Section 1343 of title 28, United States Code, is amended by redesignating 

paragraph (4) as paragraph (5) and by inserting immediately after par agr aph 

(3) the following new paragra ph :

“ (4) To recover damages or to secure equitable or other relief under 

chapter 172 of this title
Sec. 4. The civil actions provided by the amendments to title 28, United 

States Code, made by this Act shall apply only with respect to violations of 

section 1386 of title 18, United Sta tes Code, as added by this Act, arising on 

or after the da te of enactment of th is Act.

Sec. 5. (a) Section 1385 of title 18, United States Code, is amended by 

strikin g out “the Army or the Air Force” and inse rting in lieu thereof the 

following: “the Armed Forces of th e United State s”.

(h) (1) The section heading of section 1385 of such title is amended to read 

ns follows :

(2) Item 1385 of the analysis of ch apter 67 is amended to read as follow s: 

“1385. Use of Armed Forces of the United States as posse com itatus.”.

[H. R. 9973, 93d Cong., 1st sess.]

A BILL To amend title 18 of the United States Code to require the consent of all 

persons whose communications are intercepted under certain provisions relatin g to certain types of eavesdropping

Be it enacted by the Senate and House o f Representatives of the United States

of America in Congress assembled, Th at section 2511(2) of title 18 of the 

United States Code is amended by striking out paragraph s (c) and (d ), and 

inserting in lieu thereof the following:

“ (c) It shall not be unlawful under this cha pter for a person to electronically 

record or otherwise intercept a wire or oral communication where all parties 

to the communication have given prior consent to such interception unless such 

communication is intercepted for the purpose of committing any crim inal or 

tortious act in violating of the Constitution or laws of the United States or of 

any State or for the purpose of commiting any other inju riou s act.”.

[H. R. 9949, 93d Cong., 1st sess.]

A BILL To clarify the meaning of certain provisions of the Criminal Code relatin g to 

unlaw ful interception of communications and other provisions of law

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, Th at section 2511 of tit le 18, United 

States Code, is amended by adding the following new sentence to the end of 

paragraph (3) the reo f: “Nothing contained in this paragraph shall be deemed 

to auth orize the President, or anyone acting or purp orting to act on his behalf, 

to engage in burg lary or any other illegal act th at is not proh ibited by this 

chapter.”.

Sec. 2. Nothing contained in any provision of law heretofore or her eafter 

enacted by the Congress shall be deemed to authorize the President, or anyone actin g or purporting to act on his behalf, to engage in burg lary or any 

other illegal act t ha t a sta tut e of the Congress does not expressly and explicitly 

authorize th e President or his delegate to engage in.

[H. R. 10008, 93d Cong., 1st sess.]

A BILL To amend title 18 of the United States Code to require the consent of all 

persons whose communications are Intercepted under certain provisions relating to certain types of eavesdropping

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, Th at section 2511(2) of title 18 of 

the United States Code is amended by striking out paragraph s (c) and (d), 

and inserting in lieu thereof the follow ing:

“ (c) It shall not be unlawful under this cha pter for a person to electronically 

record or otherwise inte rcept a wire or ora l communication where all partie s 

to the communication have given prior consent to such interception unless such 

communication is intercepted for the purpose of commiting any criminal or 

tortious act in violation of the Constitution or laws of the United States or 

of any State or for the purpose of committing any other injurious act.”
[H. R. 10331, 93d Cong., 1s t sess.]

A BILL To amend titl e 18 of the United St ates Code to req uir e th e conse nt of all 

persons whose com munica tions are Interc epted under ce rtain provisions re latin g to 

certa in types of eavesdropping

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, Th at section 2511(2) of title 18 of 

the United States code is amended by striking out paragr aph s (c) and (d ), 

and inserting in lieu thereof the following:

“ (c) It shall not be unlawful under this cha pter for a person to electronically 

record or otherwise inte rcep t a wire or oral communication where all parties 

to the communication have given prior consent to such interception unless such 

communication is intercepted for the purpose of committing any criminal or 

tortious act in violation of the Constitution or laws of the United States or 

of any Sta te or for the purpose of committing any other in jurious a ct.”.

[H. R. 11629, 93d Cong., 1st sess.]

A BIL L To enfo rce the firs t amendment and four th amend ment to the Co nstitution and 

the constitutiona l righ t of privac y by proh ibiting any civil or m ilitary officer of the 

United St ates or the militia of any St at e from usi ng the Armed Forces of the United 

St ates or the militia of any St ate to exercise sur veillance of civilia ns or to exec ute the 

civil laws, and for othe r purpose s

Be it enacted by the Senate and House of Representatives of the United

Sta tes of A merica in Congress assembled,

Section 1. This Act may be cited as the “Freedom From Surveillance Act of

1973”.

Sec. 2. (a) Chapter 67 of title 18, United States Code, is amended by adding 

at th e end thereof the following new sect ion s:

“§ 1386. Use of the Armed Forces of the United State s for surveillance prohibited

“ (a) Except as provided in subsection (b) of this section, whoever being a 

civil officer of the United States or an officer of the Armed Forces of the 

United States employs any pa rt of the Armed Forces of the United States or 

the militia of any Sta te to conduct inve stiga tions into, maintain surveillance 

over, or record or maintain information regaarding, the beliefs, associations, or 

political activities of any person not a member of the Armed Forces of the 

United State s, or of any civilian organization, shall be fined not more than 

$10,000, or imprisoned not more than two years, or both.

“ (b) The provisions of this section shall not apply to the use of the Armed 

Forces of the United States or the militia of any State—

“ (1) when they have been actu ally and publicly assigned by the President to the task of repelling invasion or suppressing rebellion, insurrection, 

or domestic violence pursu ant to the Constitution or section 331, section 

332, or section 333 of title 10 of the United States Code; or 

“ (2) to ivestigate criminal conduct committed on a military installatio n 

or involving the destruction, damage, theft, unlawful seizure, or trespass of 

the prop erty of the United States ; or

“ (3) to determine the suitability for employment or for retention in employment of any individual actu ally seeking employment or employed by 

the Armed Forces of the United States or by the militia of any State, or 

by a defense facility ; or

“ (4) whenever the militia of any Sta te is under the command or control 

of the chief executive of that State or any other appropriate autho rities of 

th at State.

“ (c) As used in this section, the term —

“ (1) ‘Armed Forces of the United Sta tes’ means the Army, Navy, Air 

Force, Marine Corps, and Coast Guard ;

“ (2) ‘militia’ has the same meaning as that set forth in section 311 of 

title 10, United States Code;

“ (3) ‘civil officer of the United Sta tes ’ means any civilian employee of 

the United St at es ;

“ (4) ‘surveillance’ means any monitoring conducted by means which 

include but are not limited to wiretapping, electronic eavesdropping, overt
10

and covert infiltration, overt and cove rt observation, and civilian 

inf orma nts ;

“(5) ‘defense fac ility’ has the same meaning as that set forth in section 

782(7) of title 50, United Sta tes Code.”.

(h) The analysis of cha pter 67 of such title is fu rth er amended by adding 

at th e end thereof the following new item :

“1386. Use of Armed Forces of the United States for surveillan ce prohibited.”.

Sec. 3. (a) Title 28, United States Code, is amended by adding after chapter 

171 the following new ch ap ter:

“Chapter 172.—ILLEGAL SURVEILLANCE 

“Sec.

“2691. Civil actions, generally ; illegal surveillance.

“2692. Class a ction; illegal surveillance.

“2693. Venue.

“§2691. Civil actions, gen erally; illegal surveillance

“ (a) Whenever any person is aggrieved as a res ult of any act which is prohibited by section 1386 of title 18, United States Code, such a person may 

bring a civil action for damages irrespective of the actuality or amount of 

pecuniary inju ry suffered.

“ (b) Whenever any person is threatened with injury as a result of any act 

which is prohibited by section 1386 of such title, such a person may bring a 

civil action for such equitable relief as the court determines may be appropriate 

irrespective of the ac tuality o r amount of pec uinary injury threatened.

“2692. Class action; illegal surveillance

“Whenever any person has reason to believe th at a violation of section 1386 

of title 18, United States Code, has occurred or is about to occur, such person 

may bring a civil action on behalf of himself and others similarly situ ated 

against any civil officer of the United States or any military officer of the 

Armed Forces of the United States to enjoin the planning or implementation of 

any activity in violation of tha t section.

“§ 2693. Venue

“A person may brin g a civil action under this cha pter in any distric t court 

of the United States or the distric t in which the violation occurs, or in any 

distric t court of the United States in which such person resides or conducts 

business, or has his principa l place of business, or in the District Court of the 

United States for th e D istr ict of Columbia.”.

(b) The analysis of pa rt VI of such title 28 is amended by adding immediately after item 171 the following new item :

“172. Illegal su rveilla nc e________________________________________ 2691".

(c) Section 1343 of title 28, United States Code, is amended by redesignating 

paragraph (4) as par agr aph (5) and by inse rting immediately after pa ragrap h (3) the following new paragraph :

“ (4) To recover damages or to secure equitable or other relief under 

chapter 172 of this title

Sec. 4. The civil action s provided by the amendments to title 28, United 

States Code, made by this Act shall apply only with respect to violations of 

section 1386 of title 18, United States Code, as added by this Act, aris ing on or 

after the date of enac tment of this Act.

Sec. 5 (a) Section 1385 of title 18, United States Code, is amended by 

striking out “the Army or the Air Force” and inserting in lieu thereof the 

following: “the Armed Forces of the United States.”

(b )(1) The section heading of section 1385 of such title is amended to read 

as follow s:

“§ 1385. Use of Armed Forces of the United Sta tes as posse com itatus”.

(2) Item 1385 of the analysis of chap ter 67 is amended to read as follows : 

“1385. Use of Armed Forces of the United States as posse comitatus.”.
11

[H. R. 11838, 93d Cong., 1st sess.]

A BILL To amend sections 2516 (1) and (2) of titl e 18 of the United States Code 

to assu re th at all wiretaps and other interceptions of communications which are authorized under tha t section have prior court approval

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, That section 2516(1) and (2) of title 

19 of the United States Code are amended in both instances—

(1) by striking out “an order authorizing or approving” and inserting 

in lieu thereof “an order giving prior authorization to” ; and

(2) by striking out “when such interception may provide or has provided” 

and inserting in lieu thereof “when such interception may provide”.

(H. R. 13825, 93d Cong., 2d sess.]

A BILL To establish administrative and governmental practices and procedures for 

certain kinds of surveillance activitie s engaged in by the 'administrative agencies and 

departments of the Government when executing thei r investigative, law enforcement, 

and othe r functions, and for other purposes

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, That this Act may be cited as the 

“Surveillance Practices and Procedures Act of 1974”.

Sec. 2. The Congress hereby finds and declares that—

(a) Recent events have uncovered abuses by certain administrative agencies, departments, and other units of the Government, when engaging in certain 

surveillance practices, including the use of wiretaps, for investigative, law 

enforcement, and other purposes.

(b) Those almses referred to in subsection (a) have undermined and/or 

threatened to undermine the individual’s right to privacy and other constitutional rights and liberties.

(c) The public has expressed deep concern that abusive practices and procedures by governmental agencies, departments, and/or other units of the Government when engaging in surveillance activities for investigative, law enforcement, and other purposes, may continue to undermine and /or threaten to 

undermine the individual's right to privacy and other constitutional rights 

and liberties.

(d) There is a need for the administrative agencies and departments of 

the Government to engage in certain surveillance practices and procedures in 

order to properly and satisfactorily execute their lawful investigative, law 

enforcement, and other functions.

(e) Congress should establish practices and procedures to be followed by 

.the administrative agencies, departments, and other units of the Government 

when engaging in certain surveillance activities so as to reconcile the interest 

of the Government in properly and satisfactorily executing its investigative 

law enforcement, and other functions with the interest of the Congress and 

the public in protecting the integrity of the individual’s right to privacy and 

other constitutional rights and liberties.

(f) The need for the practices and procedures described in subsection (e) 

is particularly acute in cases involving the use of wiretaps and other electronic surveillance by the administrative agencies, departments, and other 

units of the Government when executing their investigative, law enforcement, 

and other functions.

Sec. 3. (a) Section 2510(10) of title 18, United States Code, is amended by 

deleting after “Code;” the following: “and”.

(b) Section 2510(11) of title 18, United States Code, is amended by adding 

after “directed” the following: “ ; and”.

(c) Section 2510 of title 18, United States Code, is amended by adding immediately afte r subsection (11) the following:

“ (12) ‘foreign agent' means any person who is not an American citizen 

or in the process of becoming an American citizen and whose first allegiance is to a foreign power and whose activities are intended to serve the 

interest of that foreign power and to undermine the security of the 

United States.”.
12

Sec. 4. (a) The first sentence of section 2511(3) of title 18, United States 

Code, is amended by inse rting immediately after “measures” the following: 

“against foreign powers and foreign agents, pursu ant to the procedures delineated in section 2518A,”.

(b) Section 2511(3) of title 18, United States Code, is amended by deleting 

the second sentence.

(c) Section 2511(3) of title 18, United States Code, is amended by striking 

out the third sentence and adding in lieu thereof the following: “Notwithstanding any other provision of this chapter, neither the contents, nor the evidence 

derived therefrom, of any wire or oral communication intercepted through 

application of this subsection shall be received in evidence or otherwise disclosed in any tria l, hearing, or other proceeding in a Federal or Sta te court, 

except in civil proceedings against foreign agen ts.”.

Sec. 4A. Section 2516 of title 18, United States Code, is amended by deleting 

subsection (a) ; subsection letters “ (b )”, “ (c )”, “ (d )”, “ (e )”, “ (f)”, and “ (g )” 

of section 2516 shall be deleted and the respective subsections shall be identified 

as “ (a )”, “ (b )”, “ (c )”, “ (d )”, “ (e )”, and “ (f)”.

Sec. 5. (a) Chap ter 119 of title 18, United States Code, is amended by adding 

immediately after section 2516 thereof the following new sec tion:

“§2516A. Authorization for intercep tion of wire or oral communication in na ­

tional security cases

“The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal 

judge of competent jurisdiction for, and such judge may gran t in conformity 

with section 2518A of this chapter, an order authorizing or approving the 

interception of wire or oral communications by the Federal Bureau of Investigation, or any Federal adm inistrative agency, department, or other unit having 

lawful responsibility for the investigations of the offense as to which application is made, when—

“ (1) there is probable cause to believe th at the individual (s) whose 

oral or wire communications are to be intercepted has committed or is 

about to commit an offense punishable by death or by imprisonment for 

more than one year under—

“ (a) sections 2274 through 2277 of title 42 of the United States 

Code (relati ng to enforcement of the Atomic Energy Act of 1954), or

“ (b) one of the following chapters of thi s tit le: chapter 37 (re lating to espionage), chapter 105 (relating to sabotage), and cha pter 115 

(relati ng to treason) ; and

“ (2) such interception will probably provide or has provided evidence 

concerning the commission of that offense.”.

(b) Chapter 119 of title 18, United States Code, is amended by adding immediately after section 2518 thereof the following new sec tion:

“§2518A. Procedure for intercep tion of wire or oral communication relating to 

national security

“ (1) Each application for an order authorizing or approving the interception 

of a wire or oral communication under section 2511(3) or section 2516A of this 

chapter shall be made in writin g upon oath or affirmation to a judge of competent jurisdiction, or, in cases involving section 2511(3), a judge on the Federal Distric t Court for the District of Columbia, and shall sta te the applicant’s 

authority to make such application. Each application shall include the following 

inf orm ation:

“ (a) the identity of the investigative or law enforcem ent officer making 

the application, and the officer authorizing the application ;

“ (b) a full and complete stateme nt of the facts and circum stances relied 

upon by the applicant, to justify his belief that an order should be issued, 

including (i) a description of the natur e and location of the facilities 

from which or the place where the communication is to be intercepted, (ii) 

a description of the communications, with as much par ticularity as is possible and practical, sought to be intercepted, (iii) the identity of the person, if known, whose communications are to be intercepted, and (iv) in 

cases involving application of section 2516A, details as to the particular 

offense that has been, is being, or is about to be committed;
13

“ (c) a detailed statement as to whether or not oth er investigative procedures have been trie d and faile d or why they app ear to be unlikely to 

succeed if tried or to be too dangerous;

“ (d) a stateme nt of the period of time for which the interception is 

required to be maintained. If the natur e of the investigation is such th at 

the authorization for interception should not automatically termin ate when 

the described communications have been first obtained, a description of 

fac ts establishing probable cause to believe that additional communications 

of the same type will occur th er ea fter ;

“ (e) a full and complete statem ent of the facts concerning all previous 

applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of 

interceptions of, wire or oral communications involving any of the same 

persons, facilities, or places specified in the application, and the action 

taken by the judge on each such application; and

“ (f) where the application is for the extension of an order, a statem ent 

setting forth the results thu s fa r obtained from the interception, or a 

reasonable explanation of the failure to obtain such results.

“ (2) The judge may requ ire the applicant to furnish add itional testimony 

or documentary evidence in supp ort of the application. Bu t in no event may 

authorization or approval of any wire or oral communication be gra nted unless 

the applicant furnishes evidence, independent of his and others conclusory 

opinion, that such interception shall serve one of the purposes set for th in 

section 2511(3) or section 2516A above.

“ (3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral 

communications within the ter ritorial jurisdic tion of the court in which the 

judge is sitting, or, in cases involving section 2511(3) when application has 

been made to a judge on the Fed eral District Court for the District of 

Columbia, anywhere within the terri toria l jurisdictio n of the United States, 

if the judge determ ines on the basis of the facts subm itted by the applicant 

that—

“ (a) there is probable cause for belief th at the interception is necessary in order to gain information serving one of the purposes set forth 

in section 2511(3) or section 2516A;

“ (b) there is probable cause for belief th at pa rticular communications 

concerning one of the purposes set forth in section 2511(3) or section 

251GA will be obtained through such interc eption s;

“ (c) normal investigative procedures have been tried and have failed 

to appear to be unlikely to succeed if tried or to be too dangero us; and

“ (d) there is probable cause for belief th at the facilities from which, 

or the place where, the wire or oral communications are to be intercepted 

are being used or are about to be used by the subject whose wire or oral 

communications are to be intercepted.

“ (4) Each order auth orizing or approving the interception of any wire or 

oral communication shall specify—

“ (a) the identity of the person, if known, whose communications are 

to be interc epted ;

“ (b) the natur e and location of the communications facilities as to 

which, or the place where, autho rity to intercep t is granted ;

“ (c) a description of the type of the communication sought to be intercepted ;

“ (d) the identity of the agency authorized to inte rcep t the communications, and of the person auth oriz ing the app lication; and

“ (e) the period of time during which such interception is authorized, 

including a state ment as to whether or not the interception shall automatically term inate when the described communication has been first obtained.

“ (5) No orde r entered under this section may auth orize or approve the 

interception of any wire or oral communication for any period longer than 

is necessary to achieve the objective of the auth orization, nor in any event 

longer than fifteen days. Extensions of an order may be granted, but only 

upon application for an extension made in accordance with subsection (1) of

35-391— 74
this section and the court making anew the findings required by subsection (3) 

of this section. In making this new finding under subsection (3), the judge 

shall, in cases involving section 251 GA, require the applicant to furnish add itional information and evidence independent of th at relied upon in gra nting 

the intia l order and which, stand ing alone, would satisfy the requirements of 

subsection (3). The period of extension shall be no longer tha n the auth oriz ing 

judge deems necessary to achieve the purposes for which it was granted and 

in no event for longer tha n ten days. Every orde r and extension thereof shall 

be executed as soon as practicable, shall be conducted in such a way as to 

minimize the interception of communications not otherwise subject to interception under this chapter, and must term inate upon attainment of the authorized 

objective, or in any event in fifteen days.

“ (6) Whenever an order authorizing interception is entered pursu ant to 

this chapter, the order shall require reports to be made to the judge who issued 

the order showing what progress has been made toward achievement of the 

authorized objective and the need for continued interception. Such report shall 

be made at such inte rvals as the judge may require.

“ (7) The contents of any wire or oral communication intercepted by any 

means authorized by section 2511(3) or section 2516A shall be subject to the 

requirements of section 2518(8) (a). Applications made and orders gra nted 

under this chap ter shall be sealed by the judge. Custody of the applications 

and orders shall be wherever the judge directs.

“ (8) Notwithstanding any other provision of this chapter, any individual, 

other than a foreign agent, whose wire or oral communications have been 

intercepted through application of section 2511(3) or section 251GA shall, not 

less than thirty days after the expiration of a judicia l order authorizing such 

interception, be furnished a copy of the cou rt or de r(s), and accompanying application (s), under which such interception was authorized or approved, and 

a complete and accu rate transc ript or other record of the intercepted communication, such tra nscri pt or record to also include the da te(s) and tim e(s ) 

at which such interception occurred: Provided, That, upon application of the Attorney General, or any Assistant Attorney General specially designated by 

the Attorney General, the judge who authorized or approved the interception 

may lwstpone the disclosure of such interception if he is satisfied th at the 

individual whose communications have been intercepted is engaged in a continuing criminal enterprise or conspiracy and disclosure of the interception 

will endanger vital national security interests, such postponement to be as 

long as the judge deems necessary: And provided further, That any intercep ­ tion. disclosed pursuant to this subsection and which involves application of 

section 2511(3), need not disclose the foreign power or agent whose wire or 

oral communications were intended to he intercepted, nor those facilitie s at 

which the interception was intended to or did take place.

“ (9) (a) Notwithstanding any other provision of thi s chapter, any aggrieved 

person in any tria l, hearing, or proceeding in or before any court, department, 

officer, agency, regulatory body, or other autho rity of the United States, a State, 

or a political subdivision thereof, may move to suppress the contents of any 

intercepted wire or oral communication, or evidence derived therefrom, on the 

grounds that—

“ (i) the communication was unlawfully intercepted;

“ (ii) the order of authorization or approval under which it was intercepted is insufficient on its face;

“ (iii) the interception was not made in conformity with the orde r of 

auth orization or approv al: or

“ (iv) subsection 2511(3) requires such suppression.

Such motion shall be made before the tria l, hearing, or proceeding unless there 

was no opportunity to make such motion or the person was not aware of the 

grounds of the motion. If the motion is granted, the contents of the intercepted 

wire or oral communication, or evidence derived therefrom, shall be treate d as 

having been obtained in violation of this chap ter.

“ (b) In addition to any other righ t to appeal, the United States shall have 

the right to appeal from an order grantin g a motion to suppress made under 

paragraph (a) of this sulvsection, or the denial of an application for an order 

of approval, if the United States attorney shall certify to the judge or other 

official granting such motion or denying such application that the appeal is
15

not taken for purposes of delay. Such appeal shall be taken within thirty days 

after the date the orde r was entered and shall be diligently prosecuted.”.

Sec. 6. (a) The analysis of cha pter 119 of title, 18 United States Code, is 

amended by inserting immediately after the item

“2516. Authorizatio n for interception of wire or oral communications.” 

the following new item :

“2516A. Authoriza tion for interception of wire or oral communications in 

national security cases.”.

(b) Such analysis is furth er amended by inserting immediately after the item 

“2518. Procedure for interception of wire or oral communications.” 

the following new item :

“2518A. Procedure for interception of wire or oral communications rela ting to 

national security.”.

Sec. 7. Section 2519(1) is amended by inserting immediately after “2518,” 

the following: “or section 2518A.”.

Mr. Kastenmeier. Our first witness this morning has long expressed his concern on this subject and is a chief sponsor of Senate 

legislation to require court approval for all wiretapping and electronic surveillance, including national security wiretapping. I am 

pleased to welcome a fellow member of the Wisconsin Delegation 

and my good friend Senator Gaylord Nelson.

TESTIMONY OF HON. GAYLORD NELSON, A U.S. SENATOR 

FROM TH E STATE OF WISCONSIN

Senator Nelson. Mr. Chairman, and members of the committee, 

there is a Democratic Conference at the Senate side tha t I need to 

get to, so if it is all right with the chairman, I would ask tha t my 

full statement be printed in the record as so read, and then I would 

like to submit for the record some materials in support of the 

statement.

The first item is a statement which details the history of abuses 

in the use of warrantless wiretaps for so-called “national security 

cases,” and the second item is a section-by-section analysis of the 

Surveillance Practices and Procedures Act to prohibit warrantless 

wiretaps. It shows quite clearly tha t every section of the bill is fully 

supported by historical and legal precedents. Finally, I would like 

to submit some newspaper columns and editorials which discuss the 

importance of a bill to prohibit warrantless wiretaps.

Mr. Kastenmeier. Without objection, your 11-page statement will 

be received and made a pa rt of the record and the additions you have 

described will also be received.

| 'fhe documents referred to appear at p. 29.]

Senator Nelson. Mr. Chairman it seems to me the time is long 

past due for congressional action to check the dangerous abuses of 

government wiretapping and other surveillance activities.

The need for action, and therefore the importance of this subcommittee’s inquiry, are quite clear. Uncontrolled government wiretaps and other surveillance activities constitute an intolerable threat 

to fundamental constitutional rights and liberties. Individual free-
dom—the cornerstone of our democratic system—is but an illusion in a society where the government can invade an individual’s privacy at will.

Until recently, most of the public did not appreciate the inherent 

dangers of government snooping. Now the public understands tha t 

government snooping poses a real thre at to everyone, regardless of 

his or her station in life. Now 77 percent of the public favors legislation to curb the abuses of government wiretapping and spying.

Hearings by the Senate Watergate Committee and other congressional bodies as well as reports by various periodicals exposed 

in great detail how the government could and did invade the privacy 

of law-abiding individuals. Reference to just a few recent examples 

is sufficient to illustrate the magnitude of dangers of government 

snooping:

Now, Mr. Chairman, I list a series of examples, all of which have 

been either publicized in the papers or presented to committees on 

either the House or Senate side, so I will not read them into the 

record.

For many years constitutional authorities and other citizens have 

repeatedly expressed alarm over the rapidly expanding practice of 

governmental invasions of privacy bv wiretapping, data collection, 

and other forms of surveillance. In 19G7 T made a speech on the floor 

of the Senate on this issue and in 1971 introduced legislation to 

establish a joint congressional committee to control Government 

snooping.

Mr. Chairman and members of the committee, this specific proposal th at is before the committee today refers to warrantless wiretaps. Tha t is just one step that needs to be taken by the Congress 

to protect the constitutional rights of citizens. There is a further 

step which the Congress must also take up at some subsequent date, 

and that is a step that will insure th at the Constitution and the law 

are complied with. I have introduced legislation on our side on this 

issue. This legislation proposes creation of a joint committee of the 

House and Senate, a bipartisan committee with equal representation 

by each party. Each year every agency of the Government which has 

or asserts any power or authority to spy—such as the military intelligence, the FB I, and others—must come before that committee and 

present to that committee, either publicly or in executive session, a 

record of all of the wiretaps and surveillance of any kind tha t was 

performed by that agency, the legal justification for it, and the 

purpose of it. All of this would be presented under oath with the 

penalty of perjury, of course. The purpose of this would be to enable 

the people’s representatives to guarantee tha t the Constitution and 

the statutes are complied with and furthermore, Mr. Chairman, for 

the Congress to be informed as to what kind of activities are engaged 

in by these agencies so th at we may decide if further legislation is 

necessary.

I think tha t piece of legislation is critical to assuring compliance 

with any other legislation tha t we pass and to assure compliance 

with the fourth amendment of the Constitution.
17

The bill entitled “Surveillance Practices and Procedures Act of 

1973“ is before the subcommittee and has been introduced on both 

sides by myself in the Senate and by the chairman of this subcommittee in the House of Representatives.

The bill is a direct response to wiretap abuses in so-called national 

security cases. Last May it was revealed tha t in 1969 the White 

House bypassed established procedures and authorized wiretaps on 

the telephones of 17 Government officials and newspapermen. The 

purported basis of these taps was a concern that sensitive information 

was being leaked to reporters by Government officials. The Government, however, did not obtain a judicial warrant before installing 

the taps. The Government alone decided whom it would tap and 

for how long.

Subsequent investigation showed that some of the Government 

officials tapped did not have access to sensitive information. It was 

also learned tha t two of the taps were maintained after the individuals involved had left Government service and joined the 

Presidential campaign staff of Senator Muskie. In none of the 

cases was the individual suspected of having violated the law.

These are not isolated incidents. Warrantless taps based on socalled national security reasons were placed on the telephones of 

newspaper columnist Joseph Kraft in 1969 and in 1971 on friends 

of a Navy yeoman suspected of passing sensitive information to 

the Joint Chiefs of Staff. Again, none of these individuals was 

even suspected of having violated the law.

The use of so-called national security taps, however, has not 

been confined to the present administration. Democratic and Republican administrations since the 1930’s have used such taps to spy 

on law-abiding individuals. Various government reports indicate t hat 

since that time thousands of individuals have had their telephone 

conversations intercepted for so-called national security reasons.

From the very beginning, those sensitive to civil liberties recognized the dangers of warrantless wiretaps. Such taps enable the 

Government to exercise unchecked and unreviewed power over the 

individual. There is no opportunity for a court, the Congress, or the 

public to demonstrate that the taps are unreasonable. Fo r th is reason, 

Supreme Court Justice Oliver Wendell Holmes called them dirty 

business. In my view, such taps are also clearly unconstitutional.

To understand the basis of this opinion it is necessary to examine 

the language and judicial interpretation of the fourth amendment. 

Tha t amendment states quite simply t h at:

“The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, shall 

not. be violated, and no warrants shall issue, but upon probable 

cause, supported bv oath or affirmation, and particula rlv describing 

the place to be searched, and the persons or things to be seized.”

Tha t language is clear and unequivocal. I t allows for no exception.

One need not be an historian or a lawyer to understand the essential purpose of this amendment. Tt is intended to protect, the individual’s privacy from unreasonable invasions by the Government.
18

To afford this protection, the amendment contemplates tha t a 

neutral court—not the Government—will determine whether any 

search and seizure planned by the Government is reasonable. Othe rwise the Government would be both advocate and judge of its own 

case.

The fourth amendment thus limits the power of the Government.

Like the other amendments in the Bill of Rights, it reflects the 

framers’ intention that individual liberty, rather than unrestrained 

governmental power, be the hallmark of our political system. In his 

dissent in the 1928 Olmstead case Supreme Court Justice Louis „

Brandeis articulated the importance of the fourth amendment in our 

scheme of government:

The makers of our Constitution undertook to secure conditions favorable to 

the pursu it of happiness. They recognized the significance of man’s spiritual 4

natu re, of his feelings and of his intellect. They knew that only a pa rt of the 

pain, pleasure and satisfac tions of life are to be found in material things.

They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as aga inst the Government, the 

right to be let alone—‘the most comprehensive of rights and the rig ht most 

valued by civilized men. To protect th at right, every unjustified intrusion by 

the Government utpon the privacy of the individual, whatever the means employed, must be deemed a violation of the fourth amendment.

The fourth amendment’s protections apply to all Government 

searches and seizures. Xo exception is made for national security 

cases or any other kind of circumstance.

When the Constitution was drafted in 1787. our country was only 

11 years old. The, new American citizens had recently concluded a 

long war with England to preserve their country’s independence.

That, independence was not entirely secure. The threat of foreign 

attack and subversion remained ever present. Despite the existence 

of this threat, the Founding Fathers adopted the fourth amendment 

and made no exception to its application.

Tn the 19G7 Berger and Katz cases, the Supreme Court held that 

the fourth amendment applies to wiretapping for criminal purposes. 

Tn effect, these decisions required the government to obtain an 

approving judicial warrant before it. could install a wiretap in a 

criminal investigation.

Tn the 1972 Keit h ca$e the Court, by an 8-0 vote, decided further 

that the Government could not wiretap individuals without a judicial warrant even when the individual's activities threatened the 

Nation’s “domestic security.” Again, the Cou rt made clear that wiretaps must, adhere to the safeguards delineated bv the fourth 

amendment: ,

“Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, the broader spirit now shields private 

speech from unreasonable surveillance.

The Supreme Court has not yet decided whether the fourth amendment’s protections apply to cases involving the activities of foreign 

powers and their agents. Tn the Keith case, the court, stated explicitly that, it did not consider those situations where American 

citizens have a “significant connection” with foreign powers and 

their agents.
19

Because the Court lias not ruled on these “national security” taps,, 

the present administration maintains that it may install warrantless 

wiretaps in certain situations. In a September 1973 letter to Senator 

William Fulb righ t, chairman of the Senate Foreign Relations Committee, then Attorney General Elliot Richardson stated tha t the 

administration would continue to install warrantless wiretaps against 

American citizens and domestic organizations if the administration 

believes their activities affect “national security” matters—although 

“national security” is never defined.

< Mr. Richardson’s comments apparently still reflect administration

policy. Last January the Justice Department reported tha t it had 

authorized three warrantless wiretaps for national security reasons— 

an average week’s quota according to the Department. The Depart-

* ment did not explain to anv neutral party such as the Court the

justification for the taps or identify the subjects of the taps.

The continued use of warrantless wiretaps for so-called national 

security reasons underscores the need for congressional action. People 

in our country should not be afra id to speak to one another on the 

telephone, never knowing whether the Government is listening or 

how the Government might use any information obtained. Every 

citizen should be assured that the privacy of his or her telephone 

conversations will not be invaded unless a neutral court first determines tha t the invasion is justified pursuant to the Constitution.

The Surveillance Practices and Procedures Act is designed to 

provide that assurance. The bill includes three principal provisions.

First, before it could wiretap American citizens for national 

security reasons, the Government would have to obtain a iudicial 

warrant based on probable cause tha t a specific crime has been or 

is about to be committed. This provision would thus protect an 

individual’s privacv against unjustified national security wiretaps.

Second, before the Government could wiretap a foreign power or 

its agents, it would have to obtain a judicial warrant based on the 

belief tha t the tap is necessary to protect national security interests. 

The warrant standards for foreign powers and their agents would 

thus be less rigorous than those required for American citizens. This 

warrant requirement will in no wav undermine the government’s 

ability to protect against foreign attack or subversion; the government will be able to wiretap foreign powers and their agents anv 

time there is a need for such surveillance and the need is presented

w

to the court.

The justification for this second warrant procedure is plain. The 

Government’s desire to wiretap should be reviewed by a court in all 

instances.

Third, every American citizen wiretapped would bo informed of 

the surveillance with 30 days afte r the last authorized interception. 

This provision would assure every wiretapped American citizen the 

opportunity to protect against violations of his or her constitutional rights. The disclosure of the wiretap could be indefinitely 

postponed, however, if the Government satisfies the court tha t the 

person wiretapped is engaged in a continuing criminal enterprise
20

tha t would involve, for example, organized crime activities, or tha t 

disclosure would endanger national security interests.

The need for legislation such as this should be beyond dispute. 

Warrantless wiretaps—whether for “national security” reasons or 

other purposes—pose a grave danger to individual rights of speech 

and privacy. Such taps invest the Government with an absolute 

power over th e individual. They enable the Government to prv into 

an individual’s private affairs without justification. They foster the 

reality of an Orwellian state in which the government becomes a 

monster to be feared rath er than a servant to be trusted.

That is not the kind of government envisioned bv our Founding 

Fathers. The underlying and fundamental permise of our Constitution is tha t all Government power is limited by checks and balances. 

This is no less true of the Government’s power to protect “national 

security.” That power is not so absolute that it can excuse infringements of the right to privacy and other constitutional liberties. Tt 

would indeed be ironic if the government could invoke “national 

security” to violate those individual freedoms which the government. is obligated to defend.

Mr. Chairman, I think T have covered everything that needs to be 

covered on mv testimony.

Mr. Kastknmf.ter. Thank you. Senator Nelson, for your very compelling testimony. T have just a couple of questions.

While it may be said tha t one could determine what is crime in 

the Federal svstem and what is not a crime, are you satisfied tha t 

there is any definition as to what constitutes “national security” or 

“national security interest” for these purposes?

Senator Nelson. There is none. Tn the past, national security has 

been what the users of the wiretap considered national security to be. 

So during the Vietnam war and during the demonstrations, the National Council of Churches was invaded by military intelligence 

people, and all kinds of people were spied on if they attended a 

demonstration where no crime was committed and where no violence 

occurred. For some unknown reason the government believed these 

people must threaten the national security. As a result they were 

spied on or wiretapped.

If you allow th at gaping hole to exist, you have simply destroyed 

the intent of the fourth amendment and you have given unlimited 

power to the government under the statute to do wiretapping.

Mr. K astenmeter. Yes, what you propose to do is bring all wiretapping into a situation where a warran t is required, whatever its 

definition ?

Senator Nelson. T th ink tha t the language of the fourth amendment is so clearly spelled out tha t there is absolutely no exception 

under any circumstances. T don’t th ink you can leave any exception.

There should be no problem with “national security” matters because espionage and treason are in fact crimes. They are spelled out 

as crimes.

If some Government agency believes tha t there is a m atter involving the security of this country which justifies a wiretap, all this 

proposal says and all the Constitution says is tha t you must go to 

a court. I t will authorize the wiretap upon oath or affirmation show-
21

ing probable cause. After all, if the Government does not have to 

make a showing of probable cause, it has a license to spy on everybody. And there is no way to leave a little crack open without it 

bursting the whole dam.

Mr. Kastenmeier. Wha t sanction would you recommend for officials who, notwithstanding the existence of the requirement for a 

warrant, might nonetheless wiretap, feeling that the reason is such 

a compelling one t hat they would resort to both legal wiretapping 

or illegal wiretapping, similar to the “plumbers’ ” unit?

Senator Nelson. I don’t remember what the provisions are, but tha t 

is a criminal offense.

Mr. Kastenmeier. Do you think we ought to concern ourselves 

especially with government officials who conduct wiretapping unauthorized by law ?

Senator Nelson. I don’t think that officials are above and beyond 

the reach of the law. And of course, people can do things illegally 

and commit crimes and we may not know it. That is one of the reasons that I would want a bipartisan committee to call before it, at 

least annually, the head of the F BI, look at his records and put him 

under oath in order to be sure tha t he doesn’t dare perjure himself. 

I would then call the head of the FB I in New York and Chicago 

and Los Angeles and put them under oath. Then next I would call 

the head of the FB I from Milwaukee and Miami and Houston and 

put them under oath so tha t a t all times you are having a h alf dozen 

people under oath respecting the activities of tha t agency. Congress 

can thus be assured that somebody who is dishonest and in a position 

of power is required to testify under oath. Congress can also be 

assured tha t there will be additional testimony tha t might expose the 

dishonest agent.

I would do th at with respect to military intelligence and all other 

intelligence. I think tha t gives you a pretty good guarantee.

For example there is no reason fo r somebody to risk going to jail 

for the purpose of spying on citizens participa ting in Ea rth Day 

ceremonies in 1970 to express their concern about the deterioration 

of the environment. Nor is there any reason for the Government to 

involve the National Council of Churches’ meetings, as was testified 

before Senator Er vin ’s committee, and listen to the discussion of these 

very fine people who were doing nothing criminal and who happened 

not to like the war that we were involved in.

I don’t thin k that anybody is going to risk going to jail in order 

to spy illegally upon a perfectly decent citizen, particularly since, 

if there is probable cause that somebody threatens the national security or probable cause th at a crime is being committed or probable 

cause tha t shows some citizen is involved with a foreign agent, the 

court warrant would be issued.

And the reason you can’t make any exception is tha t the exception 

becomes the rule.

Mr. Kastenmeier. I take it tha t the scope of your bill is wiretapping, electronic surveillance? Does it also involve other surveillance, 

common surveillance ?

Senator Nelson. This bill is limited specifically to warrantless 

wiretaps.
22

Mr. Kastenmeier. Would tha t cover electronic eavesdropping?

Senator Nelson. Yes

Mr. Kastenmeier. But not other forms of surveillance?

Senator Nelson. No, not other forms of this surveillance.

Mr. Kastenmeier. The examination conducted by the Joint Committee annually, would that be in executive session, in secret session, 

or would tha t be public?

Senator Nelson. I thin k the committee would have to decide that. 

It should probably be left up to the authority of the committee. There 

are obvious cases which you don’t want to disclose. And really, the 

purpose is not to disclose for publication in the paper. The purpose 

is to disclose to the Congress, to the other branch, what is going on 

so tha t we are sure the law is complied with.

The details of who might have been surveilled aren’t always the 

important thing so fa r as publicity is concerned. If there are violations or wholesale violations, obviously the Congress would do somethin g about it and probably disclose it. But if it involved organized 

crime or things such as that, obviously they wouldn’t and shouldn’t.

Mr. K asteneier. My last question is, I take it you accept the need 

for wiretapping and electronic surveillance philosophically but only 

under conditions which you have described, th at is, under warrant?

Senator Nelson. Yes, I accept what the Found ing Fathers said 

tha t upon probable cause under Oath or affirmation presented to a 

court, that then a warrant may be issued. I think the government 

needs that. You need to have a neutral party deciding whether or not 

the Fourth Amendment to the Constitution is being complied with. 

And I then would want the third branch of the government do its 

annual oversight to be sure tha t the other two branches are complying with the Constitution.

Mr. Kastenmeier. I yield to the gentleman from California, Mr. 

Danielson.

Mr. Danielson. Thank you, Mr. Chairman. And thank you, Senator Nelson. I infer from your answers to Mr. Kastenmeier’s questions 

that, you do ascribe to the provisions of the Fourth Amendment 

which, as I read them, at least would permit wiretapping under certain carefully defined circumstances.

In looking at your three points, the major points of the Surveillances Practices and Procedures Act, I note tha t you have restricted 

the bill to wiretapping. As I understand it, you are excluding the 

implantation of a microphone, for example-----

Senator Nelson. No, we include it.

Mr. Danielson. Your definitions would include that?

Senator Nelson. Yes, electronic devices of all kinds.

Mr. Danielson. All right. You also, however, seem to tie it only 

to national security reasons, or national security interests.

Senator Nelson. Pardon? I missed the first part.

Mr. Danielson. You seem to restrict the authorized wiretapping to 

national security reasons, or national security interests.

Senator Nelson. No, the other way around; this is aimed at being 

sure tha t this vague phrase “national security” doesn’t except wiretaps from the provisions of the Fourth Amendment.
23

Mr. Danielson. Then you do not intend to exclude—and let me 

use the ter m here for referenc e “a uth ori zed wi retapp ing”—you do 

not intend to exclude wiretapping for the purpose of investigating 

crimes, in other words, again assuming you got the warrant issued 

upon probable cause and so forth?

Senator Nelson. Title II I of the act and the Constitution covers 

crime. I wouldn't exclude anything.

Mr. Danielson. You say you would not exclude anything?

Senator Nelson. No. I thin k anything involving electronic surveillance, wiretapping—and I am using “wire tapping” in its broadest 

term —none of tha t should be excluded from the provisions of the 

Fourth Amendment.

Mr. Danielson. No, tha t was not the thrust of my question.

Senator Nelson. Oh, I misunderstood.

Mr. Danielson. Let me restate it. I would fully agree with you on 

that. I don’t think tha t there is any way we can, even if we wish, 

get away from the Constitution, and I don’t wish to.

However, on page 8 of your presentation in the next to the last 

and the last paragraphs, and then again on page 9, in each of your 

explanations you say the bill can change three principal provisions: 

first, before one could wiretap American citizens for national security 

reasons, the Government would have to obtain a judicial warrant; 

second, before the Government could wiretap a foreign power or its 

agents, it would have to obtain a warran t; and the like. And you 

refer to “national security” in each instance.

Do you intend by referring to “national security” to exclude the 

possibility of a lawful wiretapping for a nonnational security 

purpose?

Let’s say a felony investigation, which does not involve national 

security, such as an investigation of a kidnapping or extortion or 

bank robbery or narcotics peddling or some such thing, where would 

tha t fit into wiretapping? There is no national security involved, in 

other words, just criminal law.

Senator Nelson. No, they are covered in title III of the act now.

Mr. Danielson. In other words, you do not intend to restrict this 

to national security?

Senator Nelson. No, what we intend it to do is to cover what is 

called “national security”.

Mr. Danielson. Well, I favor that.

Senator Nelson. No, we do not intend it to exclude anything.

Mr. Danielson. I thought you meant tha t but I was not sure from 

your presentation.

Senator Nelson. Yes.

Mr. Danielson. Thank you.

Mr. Kastenmeier. I f the gentleman from California would yield? 

The premise is tha t no one denies tha t for purposes of investigating 

a crime, a warrant is required for wiretapping. That is presently the 

law. The exception claimed by those in the Federal Government is 

in the area of “national security” and a warrant is not required for 

certain national security matters. And Senator Nelson’s bill covers 

tha t and says th at in that area too, a warrant shall be required.
24

Mr. Danielson. Which I am very pleased to support. However, I 

can’t quite agree with my chairman th at no one would disagree. There 

are many people who feel that there should be no wiretapping almost 

under any circumstances, including the violations of criminal law.

Mr. Kastenmeier. The only poi nt I was ma kin g is th at presen tly 

the law requires a warrant for any Federal or State wiretapping. 

The only exception claimed by the government presently is in the 

area of national security, and that is the purpose of Senator Nelson’s 

bill, to make sure that tha t type of tap as well must be authorized 

by warra nt; is that correct?

Senator Nelson. That is correct and tha t is the only issue involved 

here that has not been to the Supreme Court. They ruled on what 

is called “domestic security” and tha t is covered clearly.

Air. Kastenmeier. Yes.

Senator Nelson. But the assertion of the right to a warrantless 

wiretap as an exception to the Constitution or as not being covered 

by the Constitution hasn’t been to the Supreme Court. I think clearly 

if it went there, you wouldn’t need this statute. If it went there, I 

am sure there is no way tha t the Court could logically rule other 

than th at warrantless wiretaps are in fact unconstitutional, tha t they 

are prohibited by the Fourth Amendment. But the issue hasn’t gotten 

there and I don’t know whether it will.

Mr. Danielson. I don’t either. But you know when we pass new’ 

legislation, it always has an impact on previous legislation, and I 

think it is a valuable contribution to this record to make it clear.

Senator Nelson. I agree.

Mr. Danielson. To make it clear tha t you are talking only about 

national security and you do not intend to restrict or in any way 

limit the existing law’s relative to nonnational security wiretapping.

Senator Nelson. You stated it exactly correctly.

Air. Danielson. AVhich I fully agree should be governed and I 

hope are governed by the fourth amendment. Thank you so much.

Senator Nelson. Thank you.

Air. Kastenmeier. I would like to recognize the gentleman from 

New York, Air. Smith. And the Chair should a t the outset state tha t 

we are pleased to have Mr. Smith here. The Republican members of 

our subcommittee are in a formal caucus on a very important issue 

and may be here a bit later, bu t in any event I am pleased the gentleman from New York could attend.

Air. Smith. Thank you, Mr. Chairman. Senator Nelson, thank you 

very much for coming here today and giving us the benefit of your 

testimony. You have given us a lot of food for thought and I don’t 

have any questions, but it has been a good presentation, and thank 

you.

Senator Nelson. Thank you very much, Congressman.

Air. Kastenmeier. The gentleman from Alassachusetts, Air. Drinan.

Air. Drinan. Thank you very much Senator Nelson, I will reveal 

my biases immediately by stating that I and some others have filed 

a bill to abolish all wiretapping. And the preamble says th is : “The 

chance of its misuse outweighs any potential benefits which might 

otherwise be found in it.”

So I assume that you have concluded tha t Olmstead was correctly decided ?
Se na tor Nelson. N o, Olm stead went th e oth er way. Olmstead said 

the fo ur th amend ment didn ’t cove r wi ret appin g. I th in k the y were 

cle arly wro ng.

Mr. Drin an. D o you think wire tapp ing can be pe rm itted at all by 

the fo urth amend ment?

Senator Nelson. Pardo n ?

Mr. D rin an. In exam ining th e fo ur th amend ment I hav e gr ea t dif ­

ficulty in un de rst an ding how wire tapp ing of any na ture can come 

within th at pro vis ion because in the la tter par t of t he fo ur th am end ­

ment, th at is quo ted on page 5 of yo ur fine testim ony , it says th at 

those who wa nt wi retapp ing mu st pa rti cu la rly describe the place to 

be searched and the person or th ings to be seized.

An d I have the fundam ental difficulty th at the four dissen ters in 

Olm stead had, th at all wi retapp ing cannot comply wi th th at par ­

ticu lar req uirement.

An d your testim ony says th at the Fe de ral Government ha s to go 

to a court to get th is warrant, bu t I don’t un derst and how anybody 

who wa nts wi retapp ing can pa rti cu la rly describe the place and the 

pers ons or th e things to be seized.

Senator Nelson. Of course at th e tim e the fo ur th amend me nt was 

adopted , the re were no telephones a nd hence no wi ret aps; bu t I th in k 

th at u nreaso nab le searches and seizures cove r wiretaps and elec tron ic 

surv eillance. I take it th at you are say ing th at in fact the y don’t 

pe rm it it?

Mr. Drin an. I am saying, Senator , th at in the Sur veillan ce Pra ctices and Procedures A ct th at you have proposed, there is no des criptio n or way by whi ch the Fe de ral Gover nm ent can comply with the 

fourth amend ment. You have inc lud ed no thing as to how the y sha ll 

pa rticul arly describe the place to be searched and the persons or 

thing s to be seized.

And I say th at fundam ental ly they ca n’t do th at. I f the jud ge 

gives them a war rant—and all jud ges give wa rra nts whenever they 

are asked—they sim ply are in vio lation of the fourth ame ndm ent. 

Now this is my position, and you haven't come to th at pos itio n, bu t 

how would you a nsw er tha t difficulty?

Senator Nelson. I think the Con gressm an can make a reasonable 

arg um ent as he has. Bu t when you go to the court, you have to describe 

whose conversation you wa nt to wi ret ap, you hav e to describe 

the prem ises th at you wa nt to wi ret ap, and you have to give the 

pro bab le cause fo r the wiretap. You are making a different ar gu ­

ment. You are argu ing it is a vio lation to use it at all, even wi th a 

court orde r, correct ?

Mr. Drin an. Yes.

Senator Nelson. A nd th at is a reason able arg um ent . I don’t think 

the cou rt wou ld uphold it, bu t t he n th at doesn’t mea n you are wrong.

Mr. Drin an. Be fore it might not. I t m igh t be diffe rent now.

Senator, is the re any em pirical evidence th at F edera l jud ges will, in 

fac t, be very caref ul and scrupulo us in gr an tin g the warrants th at 

are requ ested?

Senator Nelson. Well, t he law req uir es them, and the bil l requires 

them to be in compliance with the fo ur th amendment. I t is perfe ctly 

cle ar th at it is very common, pa rti cu la rly in the lower cou rts, for
26

them to just issue a wiretap order upon request. And I suspect that 

very frequently there is no reasonable probable cause that would 

stand up if tested.

So you have the law and you have the Constitution violated by 

failure to require strict compliance with the law.

Mr. Drinan. And your bill provides no remedy, no sharpening of 

the standards for Federal courts.

Senator Nelson. Yes, i t does. And I commented, as the Congressman may recall, earlier, tha t we also need the third branch of the 

government involved. The Constitution says the government has to 

go to the court and show probable cause. Now you have the executive 

branch and the courts involved. I have introduced legislation which 

will now’ involve the Congress by its annual oversight, perhaps in 

executive session. By calling representatives of the Government before it, Congress can require those who have requested warrants 

to justify those requests. Then we can have oversight over the judicial branch and the executive branch to see whether or not they are 

in compliance with the Constitution and the specifics of this statute.

Mr. Drinan. But Senator, we really have no oversight over the 

courts. If they continue to hand out warrants like green stamps as 

they nowT do, then the situation will continue despite your bill.

Senator Nelson. The bill requires that the court must require independent evidence to support the assertion of probable cause; b ut anyway the 001114; doesn't initiate a request. If you have oversight by 

the Congress of everyone w’ho initiates the requests and you put 

them under oath and you make them come in and show’ the jurisfication tha t they give the courts, we will find out every single year any 

particular case where they were in violation. Of course, if they didn't 

have probable cause, the court also was acting in violation of the 

Constitution. But at least we’ve got control over part; at least we’ve 

got oversight over the activities of the executive branch. And if they 

continue to violate the law’, we will just have to up the penalty.

Mr. Drinan. They w’ill make another exemption, Senator, on the 

ground tha t the enforcement of the law, particularly in national security really requires that w’e have wiretapping. And I assume on that 

premise you would say tha t the Federal Government should be able 

to get a w arrant to intercept and to read the mail going to the Russian Embassy ?

Senator Nelson. The court has already ruled on that.

Mr. Drinan. I know.

Senator Nelson. And the court has ruled tha t the fourth amendment covers wiretaps in criminal cases and domestic security cases 

and tha t you have to present probable cause for it. And they have 

ruled that wiretaps and electronic surveillance involves unreasonable 

searches and seizures.

Now what the Congressman I think is saying is tha t provision 

ought to be modified.

Mr. Drian. Would you say tha t the Federal Government should 

have the power to get a warran t to read the mail of Joseph Kraft ?

Senator Nelson. Not if there wasn’t probable cause.

Mr. Drinan. But if there is probable cause, they can get a warrant 

to read the mail?
27

Senator Nelson. Let's not use my friend Joseph Kra ft’s name. 

Let's use Mr. X. If there is probable cause to believe tha t an individual is involved in a treasonous activity with a foreign power and 

has access to information involving the security of the United States, 

and that is presented to the court upon oath and affirmation, and the 

probable cause is clearly demonstrated, then I think under the four th 

amendment, and for the protection of the security of the country, the 

Government should be able to conduct surveillance, wiretaps, and 

examine the mail. But they have to describe what they seek and why.

Mr. Drinan. Senator, does your bill really add anything to the 

law that the Berger decision, the Katz decision and the Keith decision 

don't already say that the law is?

Senator Nelson. Those decisions did not touch the question of 

national security.

Mr. Drinan. Xo, the Keith decision did, eight to nothing. You 

quote it here.

Senator Nelson. Not national security. Domestic security.

Mr. Drinan. So you go beyond the Courts decision to a point tha t 

they haven’t touched?

Senator Nelson. There are no clear distinctions between “domestic” and “national security.” The problem is this administration— 

and it has been violated in the same way in the past—asserts that 

here is a so-called national security case and therefore we can have 

a warrantless wiretap. That apparently is what they did in the 

Joseph Kra ft case. If the Government says the national security is 

threatened, whatever t hat may be, then it asserts tha t the provisions 

of the fourth amendment are not applicable.

This bill is limited to making it clear tha t there is no such thing 

as a warrantless wiretap described under the umbrella of national 

security assertion.

Domestic security has been to the Supreme Court, but not national 

security.

Mr. Drinan. But Senator, you are putting all of your faith and 

hope to dispose of this problem in the Federal Courts, are you not? 

You think that they are going to be tougher. And I am just suggesting that there is no empirical evidence a t all from our recent history 

to suggest tha t the Federal courts are going to be tougher with 

prosecutors. They will give the warrants, and we will have the same 

thing by a different name.

Senator Nelson. The bill specifically requires them to require the 

submission of independent evidence showing probable cause.

Mr. Drinan. Is tha t a new element of the law, though? You said 

“independent evidence,” but already in the United States Code they 

have to have the equivalent. You are not adding anything to the 

standards bv which Federal judges are to give out warrants.

Senator Nelson. That is incorrect. We are adding the new s tandard to cover the argument concerning national security. But in addition, and I repeat, you need the thir d branch to have oversight to 

be sure tha t the court does comply.

If the Government comes before this bipartisan committee to discuss a wiretap issue, and it is shown that there was no probable 

cause, it will be demonstrated tha t the law has been violated. I don't
28

think the Federal judges are going to want to be exposed year after 

year as in violation of the law.

Mr. Drinan. It will take a lot of years though before we really 

have oversight and expose them, as you say.

Senator Nelson. I would like to pass the bill next year and then 

we would have oversight.

1 f you pass a law, you are going to have oversight. Then the handful of Federal judges, or other judges, who are likely to be careless 

with the standards will pay more attention to the standards of 

probable cause or know that they are going to be exposed by a bipartisan committee of the Congress for not upholding their oath of 

office.

Mr. Drinan. You have faith in the Congress tha t we can expose 

a body of judges. We haven’t been too successful, I am a fraid Senator.

One last question. You say, for some reason I don’t understand, 

Senator, tha t this individual who has been wiretapped without his 

knowledge or consent would be informed 30 days afte r the unauthorized interception. There is a very large escape clause there. So I 

think tha t under present and probably future practices of the Department of Justice, this man or woman would never really know th at 

his phone had been tapped over a period of time.

Why did you use the arbitrary time of 30 days? Why not the next 

day or the next hour? And don’t you think this is going to be subject to terrible abuse; that disclosure of wiretapping is going to be 

postponed if the Government tells the court tha t the person being 

wiretapped is engaged in a continuing criminal enterprise or that 

disclosure would endanger national security interests? I mean, here 

we go again, we’ve heard tha t before.

Senator Nelson. That is incorrect. And I repeat again, it is also 

necessary to pass the oversight bill. With respect to the disclosure 

requirement, the purpose is to let the citizen know th at he has been 

wiretapped and I think he ought to know. However, if it involved 

a continuing criminal activity, then the court could postpone disclosure upon petition of the Government based on independent evidence. The Government would have to say, “We don't want to 

expose our wiretap because it is part of organized crime,” or the 

Government may assert national security and explain what it is. The 

court could then say “All right, we won’t disclose it.” But again, it 

is necessary to have legislation t hat makes all of this come under the 

oversight of the Congress.

Mr. Diunan. All right. Thank you. Senator. I still go back to your 

major fundamental premise. You assume that wiretapping is a useful 

and a necessary law enforcement device; yet many law enforcing 

people say that it is not. that it is an unnecessary device, and it is 

not really useful. I think the burden is on those who would justify 

electronic wiretaps as necessary for law and enforcement purposes, 

to justify it. It is a terrible scandal, as you pointed out eloquently 

here, and T don’t think the scandal is going to go away just by 

shifting it a little bit so that federal judges have that responsibility.

Senator Nelson. Now Congressman, I haven’t testified at all about 

its usefulness or its value. Maybe it is valueless. T have testified only 

that wiretapping is covered by the provisions of the fourth amendment. As to its merits, it may be quite valueless. I don’t know.
29

Mr. Drinan. I am saying you assume that it is valuable because 

you go to all of these precautions.

Senator Nelson. I am sorry, I don’t assume that. The courts have 

said that wiretapping in domestic security cases and criminal matters 

is covered by the fourth amendment. I am saying tha t all of this 

activity is covered by the fourth amendment.

You are making a second argument that it is useless and valueless 

and that you shouldn't have it at all. That may be true, but I am saying this is the status of the law and I want every wiretap covered 

by the fourth amendment. That is all I am arguing here today.

Now if the Congressman comes up with legislation tha t says that 

this is all valueless and too dangerous an invasion of privacy and 

ought to be prohibited, then we ought to look at tha t in hearings 

and debate it; but that is a different question.

Mr. Drinan. I hope you will support such legislation in the 

Senate. Thank you.

Senator Nelson. You get it over to our side, and I might.

Mr. Kastenmeier. Senator, on behalf of the committee I want to 

express my appreciation to you for the contribution you have made 

today and for the legislation you have introduced in this field. 

Thank you very much.

Senator Nelson. Thank you very much, sir, and gentlemen.

[The documents ref err ed to at p. 15 follow :]

Sta te m en t by Gaylord Nel so n, a U.S. Sena tor

The time is long pa st due for Congressional action to check the dange rous 

abuses of governm ent wiretappi ng and oth er surveillan ce activities. Indeed, 

continued i nactio n by Congress in thi s area would l>e inexcusable.

The need for action, and therefore the imp ortance of this subcomm ittee’s 

inquiry, are clear. Uncontrolled governm ent wir etap s and oth er surveillance 

activ ities cons titute an into lerab le th reat to fund ame ntal constitutiona l righ ts 

and liberties. Individu al freedom—the cornersto ne of our democratic system — 

is but an illusion in a society where the government can invade an individual’s privacy at will.

Until recently , most of the public did not appr ecia te the inhe rent dang ers of 

government snooping. Now the public und erst and s th at government snooping 

poses a real th reat to everyone, regardless of his or her stat ion in life. Now’ 

77% of the public favo rs legislation to curb the abuse s of government wire ­

tapping and spying.

The explanation for this shi ft in public opinion is easy to unde rstan d. The 

Wat erga te scand als and oth er events have underscored the dange rs of government snooping in a dra matic fashion.

Hearings by the Senat e Wat erga te Committee and othe r Congressional 

lKxlies, as well as reports by various jcri odi cals, exposed in sordid det ail howT

the government could and did invade the privac y of law-abiding indiv iduals. 

Reference to just a few recent example s is sufficient to illu strate the magn itude of dang ers of govern ment snoop ing:

On April 14, 1971, it was revealed th at the FB I had conducted general su rveillance on those who par ticipate d in Ea rth Day celebrations in 1970. These 

activ ities involved tens of thousa nds of citizens, sta te governors, rep rese ntatives of the Nixon adm inist ratio n, and members of Congress. As the one who 

planne d th at first Ea rth Day, I cannot imagine any valid reason for spying on 

indiv iduals exercising the ir constituti onal rights of speech and assembly in a 

peaceable manner. There is still no sati sfactory explanation of the surveillance. 

Nor is ther e a ny gua ran tee it could n ot be repented in the future.

A 1973 Senate subcommittee report detailed the extensive spying secretly 

conducted by 1500 agents of the U.S. Army on more than 100,000 civilians in 

the late 1960’s. This surveillance was directed princ ipall y ait those suspected 

of engaging in politica l dissent. No one in the Congress knew about this

35-391—74
30

spying. No one in the executive branch would accept responsibility for it. 

Again, there is no guarantee th at this sorry episode could not be repeated. In 

fact, a Senate committee learned recently that in the las t three yea rs—after 

the adm inistration assured the public that the military would no longer spy 

on civilians—the U.S. Army has maintained numerous surveillan ce operations 

on civilians in the United States. And an arti cle in The New Republic magazine of March 30, 1974 detailed the U.S. Army's use of wiretaps, infiltrators, 

and other surveillance techniques to spy on American citizens living abroad 

who supported the presidential candidacy of George McGovern. The Army’s 

spying, was reportedly so extensive that it even intercepted a letter from a 

college liba rian in South Carolina who requested information about a German 

publication :

On December 5, 1973, Retired Rea r Admiral Eugene LaRoque revealed the 

existence of a secret unit in the Pentagon which engages in the same kind of 

activities conducted by the White House “plum ber s";

Testimony before the Senate Wa terg ate Committee and the Senate Judiciary 

Committee documented White House efforts to use confidential tax retu rns of 

thousands of individuals to spy on and liarrass its “enemies.”

For many years Constitutional author itie s and other citizens have repeatedly 

expressed alarm over the rapidly expanding practice of governmental invasions 

of privacy by wiretapping, data collection, and other forms of surveillance. In 

1907 I made a lengthy speech on the floor of the Senate on this issue and in 

1971 introduced legislation to establish a joint congressional committee to 

control government snooping. In this session of Congress I have introduced 

three sep ara te bills designed to remedy the abuses of government spying. One 

of these measures—a bill to proh ibit the use of w iretaps withou t approval of a 

a judicial wa rra nt in so-called “national security” cases—has been introduced 

in the House by the Chairman of th is subcommittee.

Because this last bill, entitled the “Surveillance Prac tices and Procedures 

Act of 1973,” is presently before the subcommittee, the rem aind er of this 

testimony will be devoted to a discussion of it.

The bill is a direct response to wire tap abuses in so-called “national security” 

cases. East May it was revealed th at in 19(19 the White House by-passed established procedures and authorized wiretap s on the telephones of seventeen 

government officials and newspapermen. The purported basis of these “taps” 

was a concern th at sentitive information was being leaked to repo rters by 

government officials. The government, however, did not obtain a judicial warran t before installing the taps. The government alone decided when it would 

tap and for how long.

Subsequent investigation showed that some of the government officials tapped 

did not have access to sensitive information. It was also learned th at two of 

the taps were maintained after the individual involved had left government 

service and joined the presidential campaign staff of Senator Muskie. In none 

of the cases was the individual suspected of having violated the law.

These were not isolated incidents. Wa rrantless taps based on so-called 

“national secu rity” reasons were placed on the telephones of newspaper columnist Joseph Kr aft in 1969 and in 1871 on friends of a Navy yeoman suspected of 

passing sensitive information to the Joint Chiefs of Staff. Again, none of 

these individuals were even suspected of having violated the law.

The use of so-called “national secu rity” taps, however, has not been confined 

fo the present administration. Democratic and Republican administrations 

since the 1930's have used such taps to spy on law-abiding individuals. Various 

government reports indicate that since that time thousands of individuals have 

had the ir telephone conversations intercepted for so-called “national security” 

reasons.

From the very beginning, those sensitive to civil liberties recognized the dangers of warrantless wiretaps. Such taps enable the government to exercise 

unchecked and unreviewed power over the individual. There is no opportunity 

for a court, the Congress, or the public to demonstrate that the tap s are unreasonable. For this reason. Supreme Court Justice Oliver Wendell Holmes 

called them “dirty business.” In my view, such taps are also unconstitutional.

To understand the basis of thi s opinion it is necessary to examine the 

language and judicial interpreta tion of the Fou rth Amendment. Th at amendment states quite simply th a t:
31

“The right of the people to be secure in the ir persons, houses, paper s, and 

effects, aga inst unreasonable searc hers and seizures , shall not he violated, and 

no wa rra nts shall issue, hut upon probable cause, supported by Oath or affirmation, and par ticula rly describing the place to he searched , and the persons 

or tilings to he seized.”

One need not lie an hist oria n or a lawyer to und erstand the essen tial pu rpose of tliis amendment. It is intend ed to pro tect the individual’s privac y trom 

unrea sonable invas ions by the government. To afford this protection, the amend ­

ment contemplates th at a neu tral cou rt—not the government—will determ ine 

whet her any search and seizure plann ed by the government is reasonable. Otherwise the govern ment would he both advocate and judge of its own case.

The Fo urt h Amendment thus limits the power of the government. Like the 

othe r amendments in the Bill of Rights, it reflects the Fra me rs’ inten tion th at 

indivi dual liberty, rather tha n unr estrained governmental power, be tlie hallmark of our political system. In his dissent in the 1928 Olmstead case Supreme 

Court Jus tice Louis Bran deis art icu lated the impo rtance of the Fo urt h Amendment in our scheme of gov ernmen t:

“The makers of our Constitutio n unde rtook to secure conditions favorable 

to the pu rsu it of happiness. They recognized the significance of man ’s spir itua l 

natu re, of his feelings and of his intellect. They knew th at only a pa rt of the 

pain, plea sure and satisfac tion s of life are to be found in ma teri al things. 

They sough t to prot ect Americans in the ir beliefs, the ir thoug hts, the ir emotions, and the ir sensations. They conferred, as aga inst the Government, the 

righ t to be let alone—the most comprehensive of rights and the rig ht most 

valued by civilized men. To prote ct th at righ t, every unju stifiable intrusio n by 

the Government upon the privacy of the indivi dual, whatever the means em­ ployed, must be deemed a violation of the Fou rth Amendment.” [Em pha sis 

add ed].

The Fo urt h Amendment’s prote ction s apply to all government searc hes and 

seizures. No exception is made for national secur ity cases or any other kind 

of circumst ance. The absence of any expressed exceptions, moreover, cannot be 

inte rpre ted as an overs ight or a fail ure of the Foun ding Fa the rs to appreciate 

fut ure developments in which world affa irs would be overshado wed by tlie 

nuclear sword of Damocles.

When the Constitutio n was dra fted in 1787, our country was only 11 years 

old. The new American citizens had recent ly concluded a long war with England to preserve their coun try’s independence. Th at independence was not entire ly secure. Tlie th reat of foreign att ack and subversio n remain ed ever present. 

Despite the existence of this tre at, the Foun ding Fa the rs adopted the Fou rth 

Amendment and made no exception to its applica tion.

In the 1967 Berg er and Katz cases, the Supreme Court held th at the Fo urt h 

Amendment applies to wiret appin g for crim inal purposes. In effect, these decisions requ ired the government to obtain an approving judicial wa rra nt before 

it could ins tall a wire tap in a crim inal investigatio n.

In the 1972 Keith case the Court, by an 8-0 vote, decided fu rth er that the 

governm ent could not wire tap indi vidu als withou t a judi cial wa rra nt even 

when tlie indi vidual’s activitie s thre atened the nation's “domestic secu rity.” 

Again, the Court made clear that wir etaps must adhere to the safe gua rds delineated by the Fo urt h Amendment:

“Though physical entr y of the home is the chief evil aga ins t which the 

wording of the Fou rth Amendment is directed, the broader sp iri t now shields 

priv ate speech from unreas onable surve illance.”

The Supreme Court has not yet decided whe ther the Fou rth Amendment’s 

protec tions apply to cases involving the intellig ence activitie s of foreign powers 

and the ir agents. In the Keith case, the Court stat ed explici tly th at it did not 

consider those situ atio ns where American citize ns have a “signific ant connection” with foreign powers and the ir agents.

Because the Court has not ruled on these “nationa l securit y” taps, the pre ­

sent adm inis trat ion maintai ns that it may ins tall wa rra ntless wire taps in 

certain situation s. In a September 1973 let ter to Sena tor Willia m Fulbrig ht, 

Chair man of the Senate Foreign Rela tions Committee, then Attorney General 

Ellio t Richardson stated th at the adm inistration would continue to install 

wa rran tles s wire taps aga inst American citize ns and domestic orga niza tion s 

if the adm inis trat ion believes the ir activities affect “nationa l sec urity” ma tter s.
32

Mr. Richardson’s comments apparently still reflect adm inistration policy. 

I^ast Jan uary the Jus tice Departmen t reported th at it had authorized three 

warrantless wiretap s for national security reaso ns—an average week’s quota 

according to the department. The departm ent did not explain to any neu tral 

party the justification for the taps or identify the subjects of the taps.

The continued use of warran tless wiretap s for so-called “national security” 

reasons underscores the need for Congressional action. People in our country 

should not be afr aid to speak to one ano ther on the telephone, never knowing 

whether the government is listening or how the government might use any information obtained. Every citizen should be assu red th at the privacy of his 

or her telephone conversations will not be invaded unless a neutral court first 

determines that the invasion is justified.

The Surveillance Prac tices and Procedures Act is designed to provide th at 

assurance. The bill includes three principal provisions.

First, before it could wiretap American citizens for national security reasons, 

the government would have to obtain a judicial wa rra nt based on probable 

cause that a specific crime has been or is about to be committed. This provision wouid thus protect an individual’s privacy aga inst unjustified national 

security wiretaps.

Second, before the government could wire tap a foreign power or its agents, 

it would have to obtain a judicial wa rra nt based on the belief that the tap 

is necessary to protect national security interests. The wa rra nt standard s for 

foreign powers and the ir agents would thus be less rigorous than those required 

for American citizens. This wa rra nt requirement will in no way undermine the 

government's ability to protect against foreign attack or subversion ; the government will be able to wire tap foreign powers and their agents any time there 

is a need for such surveillance.

The justification for this second w arr ant procedure is plain. The government’s 

desire to wiretap should be reviewed by a court. There should be no exceptions. 

Otherwise the exceptions may be stretched to sanction an unreasonable invasion 

of an individual’s privacy—a situatio n which would violate the rights and 

liberties guaranteed under our Constitution.

Third, every American citizen wire tapped would be informed of the sur ­

veillance within 30 days aft er the last authorized interception. This provision 

would assure every wiretapped American citizen the opportunity to protect 

against violation of his or her constitu tional rights. The disclosure of the 

wiretap could be postponed however, if the government satisfies the court 

tha t the person wiretapped is engaged in a continuing criminal enterprise 

or that disclosure would endanger national security interests.

The need for legislation such as this should be beyond dispute. Warrantless 

wiretaps—whether for “national secu rity” reasons or other purposes—pose 

a grave danger to individual rights of speech and privacy. Such taps invest the 

government witli an absolute power over the individual. They enable the 

government to pry into an individual's private affairs without justification. 

They foster the reality of an Orwellian state in which the government becomes 

a monster to be feared rather than a servan t to be trusted.

That is not the kind of government envisioned by our Founding Fathers. 

The underlying and fundamental premise of our Constitutio n is that all government power is limited by checks and balances. This is no less tru e of the 

government’s pow'er to protect “national security.” That power is not so 

absolute th at it can excuse infringements of the right to privacy and other 

constitutional liberties. It would indeed be ironic if the government could 

invoke “national security” to violate those individual freedoms which the 

government is obligated to defend.

The public apparen tly agrees that invocation of “national security” cannot 

excuse violations of constitutional rights and liberties. A recent Ha rris opinion 

poll found that 75% of the public believes that “wiretapp ing and spying under 

the excuse of national security is a serious thr ea t to people’s privacy.”

More than 20 years ago, Justice Felix Frankfute r voted with a majority 

of the Supreme Court to condemn as unconstitutional President Truman's 

seizure of the steel mills, an action which that Presiden t also tried to justify 

in terms of “national security.” In explaning his vote, Justice Frankfute r observed th at :
33

“The accretion of dangerous power does not come in a day. It does come, 

however slowly, from the gene rative force of unchecked disregard of the restrictions tha t fence in even the most disinterested assertion of autho rity .”

The observation is equally true of warrantless wiretaps in so-called “national 

security” cases. Over the past few decades, the use of these taps has generated 

an unchecked power in the executive branch. The dang er has now been exposed. In wiretapping, as in other matters, unchecked power can be and 

often is exercised in an arb itrary and abusive fashion.

It is not a question of good faith. Even the best of intentions can lead 

individuals—and their government—astray. If Congress wan ts to insure respect 

for constitutional limitations and constitutional liberties, it should not rely 

on the good will of government officials; it should enact legislation which defines clearly the government’s obligations and the individual’s rights. This 

is at leas t one lesson of Watergate. Time will tell how well Congress has 

learned the lesson.

Section Ana ly sis ok th e Surv eillan ce P ractices and Procedures Act of

1973—S. 2820

SECTION 1

This section identifies the bill as the “Surveillance Practic es and Procedures 

Act of 1973.”

SECTION 2

This section consists of findings and declarations by Congress. It is stated 

that recent events have exposed abuses by governmental agencies and dep artments when engaging in certain surveillan ce practices, including the use of wiretaps. It is stated furth er th at these abuses have undermined an d/or threate ned 

the individual’s constitutional right to privacy and other constitutional rights 

and liberties. Because of these past violations of constitutional righ ts and 

liberties, and because the possibility of fut ure violations has rightly aroused 

public concern, it is declared that Congress should establish practices and 

procedures so as to reconcile the intere st in protectin g constitutional rights 

and liberties with the intere st in enabling the government to execute its 

investigative and law enforcement responsibilities. The section concludes that 

the need for these practices and procedures is partic ularly acute in cases involving the use of wiretaps by the government.

SECTION 3

This section amends section 2510 of title 18, United States Code, by adding 

a definition for the term “foreign agen t.” A foreign agent is defined as an individual who is not an American citizen, whose first allegiance is to a foreign 

power and whose activities are intended to serve that foreig n power and to 

undermine the security of the United States.

SECTION 4 ( a )

This subsection amends subsection 2511(3) of title 18, United States Code. 

It empowers the President to authorize wiretap s aga inst foreign powers and 

their agen ts when necessary to protect the natio n against actu al or potential 

attack or other hostile acts, to obtain foreign intelligence information essential 

to the security of the United States, or to protect national secu rity inform ation 

aga inst foreign intelligence activities. In authorizing these wire taps, the President must adhere to the procedures delineated in section 2518A (described 

below).

Comment.—Read in conjunction with section 2518A, this subsection requires 

the President to obtain a judicial warrant before wire tapping foreign powers and 

the ir agents. The wa rra nt must be based on evidence, establishing probable 

cause, tha t the information derived from the wiretap will serve at least one 

of the thre e national security purposes described above.

Under the present wording of section 2511(3), both the government and 

numerous courts have maintained th at the government can conduct wire taps
34

without a judicial wa rra nt if the info rmation sought would, in the government’s eyes, serve one of the three national security purposes. (See, for example, United States v. Brown, 484 F.2d 418, 426 (otli Cir. 1873; United States

v. Clay, 430 F.2d 165, 171-72 (1970), rev'd on other grounds 403 U.S. 698 (1971).)

These warrantless wiretaps, however, often pose a fundame ntal danger to 

the individual rights and liberties gua ranteed by our Constitution. Foremost 

among these threatene d rights and liberties are those protected by the Fou rth 

Amendment. That amendment provides th a t:

“The right of the people to be secure in the ir persons, houses, papers, and 

effects, aga inst unreasonable searches and seizures, shall not be violated, and 

no w arrants shall issue, but upon probable cause, supported by Oath or affirmation, and partic ularly describing the place to be searched, and the persons or 

tilings to be seized.”

The amendment thus protects the individual’s privacy* from unreasonable 

invasion by the government. To protect individual privacy, the amendment 

contemplates that a neu tral court or magistrate—not a government intent upon 

pursuing an inve stiga tion—must determine whethe r any search planned by 

the government is reasonable. (Sha divide v. City of Tampa, 407 U.S. 345, 354 

1972) ; Johnson v. United States, 333 U.S. 10, 13-14 (1948).)

The Supreme Court has made clear that the amendment’s “protection reaches 

all alike, whether accused of crime or not, and the duty of giving it force is 

obligatory upon all.” (IVee/fs v. United. States, 232 U.S. 383, 391 (1914).) 

Even foreign agents engaged in espionage enjoy some protection under the 

Fou rth Amendment. (Abel v. United State s, 362 U.S. 217 (I96 0).)

The greatest dangers of warrantless wire taps for so-called “nati ona l secu rity” 

reasons are to the constitutional rights and liberties of American citizens. 

Reports by congressional committees and others have demonstrated that such 

wire taps were often by the government to engage in surveillances of American 

citizens whose activ ities bore no reasonable relationship to this nation ’s security.

These abuses underscore the need to have a neu tral court review all “national 

secu rity” wire taps to insure tliat they are used for lawful purposes. The 

Fou rth Amendment does not except “nationa l security” cases from the scope 

of its protection. Nor should there be any exception for “national secu rity” 

cases. Otherwise it is possible—if not likely—tha t the power to conduct wa rrantless wire taps can be used again to violate the constitutional righ ts and 

liberties of American citizens. Section 4( a) of the bill minimizes th at possibility by requiring the government to obtain an approving judicial wa rra nt before it can wire tap foreign powers or the ir agents.

The wa rra nt procedure does not impose any unconstitutional restric tion on 

the President's constitutional powers as Chief Executive, as Commander-inChief of th e Ar me d Force s, or as th e N at io n's ch ief fo reign policy officer. To 

beg in w ith , th e fu nd am en ta l prem ise of our C on stitut io n is tl ia t th er e are no 

ab so lu te {lowers in an y bran ch of th e go ve rn m en t—all powe r is “fen ced ab out.” 

(B erge r. Congress \. The Supreme Court 8-15 (I960).)

Congress has the Constitutional power to define the limits of the President’s 

wiretap authority. In the Keith case (United States v. United States District

Court, 407 U.S. 297 (1972)), the Court stated explicitly that Congress has 

the power to establish stan dards under which wire taps could be authorized— 

even if those standard s restricted the President's powers. (See esp. 407 U.S. 

at 338, n.2, White, J., concurring opinion.) No court has held to the contrary. 

Indeed, in sustaining presidential authority to conduct warran tless wiretaps, 

courts have placed prim ary reliance on United States v. Curtiss-Wright, 299 

U.S. 304 (1936), and Chicago d Southern Ai r Lines, Ine. v. Waterman Steamship Co., 333 U.S. 103 (1948)—two cases which involved autho rity delegated 

to the Presiden t by laws enacted by Congress. (See Youngstown v. Saicycr, 343 

U.S. 579. 635, n.2 (1952) (Jackson, J., concurring opinion.) Thus, the courts 

have not upheld the Presiden t's powers to exceed limitations imposed by 

Congress.

(b) This subsection deletes the second sentence of subsection 2511(3), title 

18, United States Code. That sentence states th at nothing in the subsection shall 

limit the President’s authority to tak e measures which he deems necessary to 

protect the government from violent overthrow or other clear and present 

da ng ers.
35

Comments.—This, second sentence is ambiguous and, in light of the clarifying 

provisions of this bill, unnecessary. The ambiguity derives from the fact that 

the sentence does not confer or recognize any presidential pow er; it merly 

states that if the President has certain inherent constitutional powers, subsection 2511(3) will not disturb tha t power (Keith, supra, 407 t’.S. at 303- 

308.)

From this construction, some individuals have maintained th at the second 

sentence might tole rate the President's authorization of warran tless wire taps 

aga inst American citizens and others whom the government believes pose a 

threat to the nation's security.

The provisions of this bill make clear, however, th at government cannot 

use warrantless wire taps under any circumstance. The bill also provides that

* wire taps to protect national security can be authorized by a court only when 

certain criteria are satisfied. (See Secs. 4 (a) and 5( a) .) In view of this clarification, and since the second sentence does not constitute an affirmative grant 

of power, it should be deleted.

(c) This subsection amends subsection 2511(3) of title 18, United States

■ Code, so that information obtained from foreign i>ower or foreign agent wire ­

taps cannot be used in criminal proceedings but can be used in civil proceedings 

aga inst foreign agents.

Comment.—All aliens—even those engaged in espionage—enjoy Fourth 

Amendment protections in at least criminal matters. (Abel, supra. See Weeks,

supra.) Therefore, if the government wishes to use wire tap information in a 

criminal prosecution, it must follow the stricter standard s delineated in section 

5 of the bill. However, the inform ation gained from foreign power or foreign 

agent wiretaps could be used in deportation proceedings or other civil proceedings. (Abel, 362 U.S. at 237.)

SE CT ION 4 A

This section amends section 2516, title 18 of the United States Code to remove 

“national secu rity” crimes from the list of crimes for which a wiretap could 

be authorized under section 2518 or title 18.

Comment.—This section is purely a technical one to separate “national 

secu rity” crimes from other crimes and make them subject to the procedures 

of section 2518A as delineated in section 5(b ) of the bill.

SE CT IO N 5 ( a )

This section creates a new section, (2516A), in title 18, United States Code. 

The section provides tha t the Attorney General, or a specially designated 

Assistan t Attorney General, may seek court authorization for a wiretap pu rsua nt to section 2518A when (1) there is probable cause to believe a par ty 

has committed, is committing, or is about to commit a specific “national security” crim e; and (2) the wire tap sought will probably provide evidence concerning the commission of that crime.

* Comment.—This subsection permits the government to obtain court autho rization for a wire tap when there is probable cause to believe tha t the wire tap 

will produce evidence concerning the commission of a crime. This subsection 

does not in any way limit the President’s power to obtain court auth orization 

under a less rigorous standard when the subject of the wiretap is a foreign 

power or foreign agent. (See Sec. 4( a) .)

Subsection 5(a) merely codifies the protections afforded to individuals 

under the Fou rth Amendment. That amendment proh ibits government searches 

and seizures which are unreasonable. A long line of Supreme Court decisions 

has held that in most circum stances a search must be supported by a wa rra nt 

in order to be reasonable. (Coolidge v. New Hampshire, 403 U.S. 443 (1971) ; 

Vale v. Louisiana, 399 U.S. 30, 34-35 (1970) ; Cliimel v. California. 395 U.S. 

752, 762 (1969) ; Camara v. Municipal Court, 387 U.S. 523. 528-29 (1967) ; 

Chapman v. United States, 365 U.S. 610, 613-15 (1961) ; Johnson v. United

States, 333 U.S. 10, 13-14 (1948); Agncllo v. United States, 269 U.S. 20. 32 

(1925).) Moreover, in most cases the wa rra nt must be based on probable cause 

th at a crime had been or was about to be committed. (Brinegar v. United

State s, 338 U.S. 160. 175-76 (1949) ; llu sty v. United States. 282 U.S. 694, 700-01 

(1931) ; Dumbra v. United States, 268 U.S. 435, 439, 441 (1925) ; Boyd v. United
36

State s, 116 U.S. 616 (1886). See Lasson, The History and Development of the Fourth Amendm ent to the United Stutcs Constitution, 106-121 (Da Capo Press 1970).) As the Supreme Court stated in Beryer v. New York, 338 U.S. 41. 59 (1967), “The purjmse of the probable cause requirement of the Fou rth Amendment [is] to keei) the state out of constitutionally protected areas until it has 

reason to believe tha t a specific crime as been or is being committed, . . .” 

Noncriminal wa rra nts have been sanctioned only for social welfare purposes, 

such as in housing inspections. (Camara, supra.)

The Fou rth Amendment protections also apply to invasions of privacy 

achieved through wiretapping. (Berger, supra; Katz v. United State s, 389 U.S. 347 (1967).) Under these decisions, the government must obtain a wa rrant before it can wiretap an individual’s telephone.

The Supreme Court also held, by a unanim ous 8-0 vote, th at the government 

cannot wiretap without a wa rra nt even when the object is to gather intelligence 

about individuals whose activities threaten “domestic secu rity.” In fact, the 

Court stated that the warrant requirement is even more imp ortant when the 

real object of the wiretapping is intelligence-gathering. In such cases the 

government may have a tendency to view’ as “security threats” those who are 

critical of government policies. According to the Court, the judicial wa rra nt 

would help insu re tha t intelligence-gathering does not become an excuse for 

the government to suppress or punish constitutionally-protected speech :

"The price of lawful public dissent must not be a dread of subjection 

tr an unchecked surveillance power. Nor must the fea r of unauthorized 

official eavesdropping deter vigorous citizen dissent and discussion of government action in private conversation. For priv ate dissent, no less than 

open public discourse, is essential to our free society.” 407 U.S. at 314. 

See Stan ford v. Texas, 379 U.S. 476 (1965).

'I'he Court reserved judgment though, for those situatio ns where American 

citizens have a “significant connection” with foreign powers or the ir agents.

The Fou rth Amendment's protections against wiretapping should not be 

suspended merely because the citizens' activities may involve foreign intelligence activities or otherwise affect “national security.” As noted al>ove. the 

amendment itse lf does not provide an exception for cases involving “national 

security.” Indeed, many thoughtful individuals have declared that no exception can he made for national security cases. In arguing that the Fourth 

Amendment's protections apply to national security cases. Supreme Court 

Justice William O. Douglas stated that “there is, so far as I understa nd constitutio nal history, no distinction under the Fourth Amendment between types 

of crimes.” (Ka tz, 389 U.S. at 360 (concurring opinion).)

Whatever the interpre tation placed on the Fourth Amendment, however it 

is clear the Congress has the constitutional power to estab lish reasonable 

stan dar ds for authorizations of wiretaps. (Keith, supra; Katz, supra. See generally Youngstown, supra, 343 U.S. at 587, 589. 645-46.) The provisions of 

section 5( a) are reasonable and are consistent with the letter as well as the 

spirit of the Fou rth Amendment.

(b) This subsection establishes a new’ section 2518A in title 18. United 

States Code. This new’ section, in turn, delineates a procedure by which the 

government can obtain a court wa rra nt for a wire tap in a case concerning 

“national security.” Essentially, the procedures parallel those contained in 

existing law for w’iretaps for domestic crimes. (18 U.S.C. § 2518.) In certain areas, the new’ section 2518A includes new provisions which eliminate 

many of the constitutional infirmities and practical problems of existing 

procedures. (I t should be remembered that the Supreme Court has not vet 

ruled on the constitutionality of existing wire tap procedures.) Generally, the 

standard s incorporated within section 2518A conform with the guidelines issued 

by the Supreme Court in Berger, supra, and refined in subsequent cases. (b )(1) This subsection provides that applications for an orde r authorizing 

a wiretap under title section 2511(3) or section 2516A can be made to a judge 

of competent jurisdiction. The subsection provides furth er that in orders involving auplication of section 2511(3)—wiretaps on foreign pow’ers or their 

agents—the apnlication can. nt the government's discretion, alwavs ho made 

to a bulge sitting on the Federal District Court in the District of Columbia : 

the section thu s enables the government to limit the number of lodges who 

wou’d have access to inform ation rela ting to the need to wiretap foreign powers 

or the ir agents.
37

The subsection also specifies the information which must be furnished to 

the judge by the applicant. The information required includes (1) the facts 

which justify the need for the wiretap, (2) descriptions of the location where 

the wire tap should be installed, (3) descriptions with as much par ticula rity 

as is possible of the communications sought to be intercepted, (4) the identity, 

if known, of the i>erson(s) whose communications would be intercepted, and 

(5) in cases involving application of section 2516A, the particular crime which 

has been, is being, or will be committed. (NOTE: In cases involving application of section 2511(3)—wiretaps on foreign powers or the ir agents—the 

government need not establish that the commission of a crime is involved in 

order to obtain auth orization for a wire tap.)

« The subsection specifies furth er that the applicant must provide information

as to why use of a wire tap is more appro priate tha n some oth er investiga tive 

technique. The applicant must also sta te the length of time for which the 

wiretap should l>e maintained, whether any other applications have been made 

to wiretap the same location or the same persons and, if so, whether such

• previous applications were approved. If the application is for an extension of

an existing wiretap authorization, the application must sta te the results 

obtained or explain the failure to obtain the results sought.

Comment.—With few exceptions, the procedures delineated in the subsection 

para llel those included in the existing wiretap application procedures. (18 

U.S.C. §2518.) To the extent changes are made, they are designed to require 

gre ate r si>ecificity by the applicant in describing the information sought and 

the purpose for which such information will be used.

The increased specificity is necessary in orde r to insu re th at wiretaps conform with the protection afforded by the Fourth Amendment. Th at amendment 

provides th at wa rra nt permitting searches by the government shall “par ticularl y [describe] the place to be searched, and the persons or things to be 

seized.’’ In the words of the Supreme Court,

“The requirement that wa rra nts shall partic ula rly describe the things to 

be seized makes general searches und er them impossible and prevents the 

seizure of one thin g under a wa rra nt describing another. As to wh at is to be 

taken, nothing is lef t to the discretion of the officer executing the warrant.”

J/arron v. United Staten, 275 U.S. 192. IfHi (1927). Accord: Stanford, supr a;

Krcm cnv. United States, 353 U.S. 346 (1957).

The amendment thus seeks to res trict government invasions of individual 

privacy to the minimum necessary. (See Silverthorne Lumber Co. v. United

States, 251 U.S. 385 (1920).

/W iret ap s, of course, pose a special problem. When placed on a particular 

telephone, they permit monitoring of all telephone conversations, rega rdless of 

whether or not the conversation overheard is necessary or even releva nt to 

the purposes for which the wire tap was installed. Wiretap s are, in effect, a 

broad dragne t which allows government surveillance of all who use the tapped 

telephone, however innocent or innocuous the use. A s Justice Dougles observed 

in Keith, supra. / “Even the most innocent an d'r an do m caller who uses or 

telephones into a tappe d line can become a flagged number in the government's data bank. See Laird v. Tatum, 1971 Term, No. 71-288.” (407 U.S. 

at 326.) Indeed, litig ation in wire tap cases has demonstrated th at use of wiretaps resu lts in government surveillan ce of vast numbers of irrele vant conversations. (See. for example, United Sta tes v. La Gorgn. 336 F. Supp. 190. 195-97 

(W.D.Pa. 1971); United States v. Scott. 331 F. Supp. 233 (D.D.C. 1971); 

United States v. Sklaroff, 323 F. Supp. 296 (C.D. Fla. 1971).) Fo r thi s reason, 

the Supreme Court has emphasized the special precautions a cou rt should 

take before approving any wiretaps:

“The need for partic ula rity and evidence of reliability in the showing required when judicial authorization of a search is sought is especially gre at 

in the case of eavesdropping. By its very na ture eavesdropping involves an 

intrusion on privacy that is broad in scope. As was said in Osborn v. United

State s, 385 U.S. 323 (19661, the ‘indiscriminate use of such devices in law 

enforcem ent rais es grave constitutional questions under the Fourth and Fifth 

Amendments and imposes a heavier responsibility on this Court in its supe rvision of the fa irness of orocedures . . .’ A t 329, n. 7.”

Berger. 388 U.S. at 56.

In other words, unnecessary invasions of individual privacy cann ot be entire ly justified by reference to some pressing government need. As the Suorem e 

Court stated in Berger, supra, “we cannot forgive requirements of the Fourth
38

Amendment in the name of law enforcement.” (388 U.S. at 62.) Nor can 

those requirements he forgiven in the name of "national security.” (See 

United States v. Brown, 484 F.2d 418, 427 (1973) (Goldberg, J., concu rring 

opinion).)

Therefore, in view of these special problems related to government searches 

accomplished thro ugh wiretaps, care should he taken to insu re th at the invasion of individual privacy is restricted to the minimum necessary. Subsection (b )(1) provides th at care.

(b) (2) This subsection states tha t the judge to whom application is made 

may require additional materials to support the application. The subsection 

stipulates furth er that the judge may not rely on conclusory opinions in 

ruling that a wiretap is justified under eith er section 2511(3) or section 

2516 A.

Comment.—This subsection i>arallels the exis ting provision in 18 U.S.C. 

§2518(2). The stipulation concerning reliance on conclusory opinions is little 

more tha n a reaffirmation of the Fou rth Amendment's protections. The 

amendment sanctions searches supported by a wa rra nt Iwised on probable 

cause. The probable caus e requirement—if it is to afford any real ixrotection 

for individual privacy—cannot be satisfied by a government official’s mere 

assertion th at the wire tap is justified. (Giordenello v. United States, 357 U.S. 

480 (1958) ; Byars v. United States, 273 U.S. 28 (1927). See Ayuilar v. Texas,

378 U.S. 108, (1964).) The government must be required to show wtih some 

independent evidence th at its opinion is not mere conjecture but grounded in 

fact. Otherw ise wiretap procedures could sanction the kind of unrea sonable 

searches prohibited by the Fou rth Amendment.

(b) (3) This subsection provides that a judge may authorize a wire tap within 

the territori al jurisdiction of his court. The subsection provides fu rthe r that 

if. in cases involving foreign powers or their agents, application has been 

made to a judge in the Federal District Court for the Distric t of Columbia 

(see subsection (b )(1) above), the judge may auth orize a wiretap anywhere 

within the territori al jurisdiction of the United States. In either case, au thorization may be g ranted only if the judge determines that (1) there is probable 

cause to believe that the information sought will serve one of the purposes 

set forth in section 2511(3) or section 2516A ; (2) there is probable cause 

to believe that, the communications to be intercepted will provide the information soug ht; (3) the wire tap is the most appropriate investigative technique by which to obtain the information sought; and (4) there is probable 

cause to lielieve th at the facilities (i.e. teletphone) to be intercepted will be 

used for the communications to be intercepted.

Comment.—This subsection essentially ]>a rail els the existing provision concerning authorization of wiretaps. (18 U.S.C. §2518(31.) The only change is 

to peirmit a Federal judge in the Distric t of Columbia to auth orize a wiretap anywhere with in the territori al jurisdiction of the United States in cases 

involving application of section 2511(3) (wireta ps on foreign powers or their 

age nts). The reason for this change is explained in the section analysis of 

subsection (b )(1) of the bill.

(b) (4) This subsection states th at each court order authorizing a wire tap 

shall specify (1) the identity of the person, if known, whose communications 

are to be intercepted; (2) the location of the facilities to be wiretap ped; (3) 

a description of the communications to be inter cepte d; (4) the identity of the 

agency authorize d to conduct the inte rcep tion; and (5) the period of time 

for which the wire tap is authorized.

Comment.—This subsection parallels existing provisions concerning court 

orders au thorizi ng wire taps for dom estic crim es. (18 U.S.C. §2 51 8(4).)

(b) (5) This subsection provides that wire taps may be authorized for as 

long as the cou rt deems necessary hut in no event longer than fifteen (15) 

days. The subsection provides fu rth er that the judge may auth orize an 

extension of the wirre rtap for as long as ten (10) days if the judge concludes 

that the wiretap still meets the criteria set forth in subsection (b) (3) of the 

hill. In all cases—except those involving wiretaps of foreign powers or their 

agents under section 2511(3)—this conclusion can be draw n only if the 

government makes a de novo showing th at the extension of the wiretap satis ­

fies the crite ria delineated in subsection (b) (3).

Comment.—Tn larg e part, this subsection paralle ls existing provisions 

concerning the duratio n of wiretap s and the granting of extensions. (18 

U.S.C. §2518(5).) Two changes have been made, however.
39

First, the maximum time for initial wir etap orde rs is fifteen (1 5) days 

inst ead of thi rty (3 0) . Second, excep t in cases concerni ng wir eta ps of foreign 

powers or the ir agents, the bill provid es th at a wire tap can be exten ded only 

if the re is a new (de novo) showing by the governm ent th at the wir etap will 

continue to meet the sta tutory crit eria.

These changes reflect the concern s expressed by the Supreme Court in 

Bcryer, supra, and in Kat s, supra. In Berger, the Court strong ly condemned 

a sta te statut e which allowed wiretail s to be installed for 60 days on a single 

showing of probable cause by the government. The Court declared th at wiretap s of any extensive length would be unco nsti tutiona l because such lengthy 

tap s amo unt to gene ral search es proh ibited by the Fou rth Amendment. (388 

U.S. a t 57-59 .) In Kats , the Cou rt aga in suggested th at wire taps of long 

dur atio n wrould run afoul of the Fo urt h Amendment.

The basi s of the Court’s concern here is clear. A wir etap per mit s a monitoring of all telephon e conversations, however innocuous. Under thi s bill, a wiretap would be irerm itted only af te r a showing th at it will serve a legitim ate 

government purpose. If the info rma tion soug ht is not obtain ed after a limited 

period of time (i.e. 15 da ys ), a serio us quetsio n arises as to w’hether the wiretap is the kind of unreasonable search proh ibite d by the Fo urth Amendment. 

Reso rt to the cou rts should be requ ired at that i>oint to insu re th at the wiretap still satisfies the sta tuo ry cri eria defined in subsection (b ) (3 ) . Moreover, 

it should not be enough for the government to simply request an extension of 

the wire tap. Otherwise a single showing of probab le caus e could just ify 

main tenance of a wire tap on a law- abiding citizen for an indef inite period of 

time—a res ult violative of the Fo urt h Amendment.

The cons ideration s are somewhat diffe rent in situ atio ns involv ing surv eillance of foreign powers or th eir agents. Unlike most situ atio ns involving 

American citize ns and others, foreign intellig ence wire taps often includ e 

lengthy surveill ance s of embassies and those whose sta tus as a foreig n agent 

is clear.

These kind s of wir etaps should not be discouraged when they are designed 

to serve a legit ima te public purpose. Consequently the govern ment should not

have to make a new showing to jus tify an extens ion of a wir etap on a foreign 

power or foreig n agent.

The Congress has the cons titution al power to establish diffe rent wire tap 

sta ndard s for different situa tions . The only requirement is th at the different 

sta nd ard s be reasonably related to the differences in the situ atio ns. As the 

Supreme Court stated in Keith, supra .

“Different sta nd ard s for wiretap orders may be compatib le with the Fou rth 

Amendment if they are reason able both in relat ion to the legitim ate need of 

Governm ent for intellig ence information and the prote cted rig hts of our 

citizens. Fo r the wa rra nt application may vary according to the governm ental 

int ere st to be enforced and the na ture of citizen rights deser ving protec tion.’’

407 U.S. at 322-2 3.

Under thi s reasoning , stan dar ds for extens ion of wir etap s on foreign powers 

or the ir agen ts can be con stitu tional even though those sta nd ard s are less 

rigorous tha n the stan dar ds applicable to othe r situa tions .

(b ) (6 ) This sul>section requires the govern ment to make repo rts to the 

auth oriz ing judge concerning the progress of the wiretap. The repo rt shall 

be ma de as often as the judge requires.

Comment.—The progress repo rt—which is optiona l under exis ting wire tap 

proced ures (18 U.S.C. § 2 5 1 8 (6 )) —is made compulsory to insu re tha t the 

judge is kept informed of the prog ress made and th at the wiret ap ord er is 

impleme nted in a lawf ul manner.

(b ) (7 ) This section sta tes th at the contents of any wiret ap information 

shall be subj ect to the requ irem ents of Section 25 18 (8 ) (a ), a provision concerning the recor ding and stora ge of wi ret ap infor mation. The section also 

provides th at the judg e shall seal the orde rs gran ted and prov ide for the ir 

safe custody.

Comment.—Thi s section merely provid es for the app licab ility of housekeeping procedures contain ed in exis ting law for other kind s of wiretap s.

(b ) (8 ) This subsection provides th at any indiv idual —except a foreign 

agent—whose conve rsatio ns are intercep ted by a wir etap aut hor ize d und er 

thi s bill should l>e furn ishe d a copy of the court order aut hor izin g the wiretap, a tra ns cript of the interc epted conversions, and the dat es on which such 

inter ception occurred. This infor mati on shall be furnish ed wit hin th irt y (3 0)
40

days after the last court-authorized interception occurs. In no event, however, 

need the government disclose the identity of a foreign power or foreign wiretapped pursu ant to Section 2511(3). Moreover, the disclosure of the wiretap 

can he postponed if the government satisfies the judge that the individual 

tapped is engaged in a contin uing criminal enterprise or that disclosure 

would endanger national secu rity interests. The judge would have the discretion to determine the length of any postponement.

Comment.—Existing law concerning wire taps for domestic crimes provides th at a wiretap must he disclosed only prior to the use of wiretap information as evidence in a legal proceeding. This provision offers litt le protection for the individual tapped for natio nal security reasons.

In most cases, those wiretapped for national security reasons are not 

prosecuted in a legal proceeding. (See Laird v. Tatum, 408 U.S. 1 (1972).) 

In those cases wiiere prosecution is initiate d, the government usually aba ndons the case father tha n disclose the wiretap. (See, for example, Salpukas, 

“Weatherm en Case is Dropped by U.S.,” N.Y. Times, Oct. 16, 1973, P. 1.). In 

eith er case, individuals involved are usually deprived of an opportunity to 

seek redre ss in cou rt for violations of the ir Constitutional rights.

This result conflicts with the original understanding of how constitutional 

rights would be safeg uarded. From the beginning, it was presum ed th at 

individuals who w’ere the subject of a government search would learn about 

it. (Berger, 3S8 U.S. at 60. See Lasson, The History and Development of the

Fourth Amendment to the United States Constitution, Chapters 3 & 4.) 

Having knowledge of the government search, to the individual could have his 

day in cou rt to argue th at the search infringed on his rights. In proposing 

adoption of the Bill of Rights in the first Congress, James Madison acknowledged this fundamental role of the courts in protecting constitutional ri ght s:

“Independent trib unals of justice will consider themselves in a pecu liar 

manner the gua rdians of those righ ts; they will be an impenetrable bulw ark 

against every assum ption of powTer in the Legislative or Exe cutive; they will 

l»e naturally led to resist every encroachment upon rights expressly stip ulated 

for in the Constitution by the Declaration of Rights.”

1 Annals of Congress 440 (1789).

This role is equally imp orta nt in protecting constitutional righ ts aga inst 

natio nal security wire taps. As Circuit Court Judge Goldberg explained in 

United States v. Brown, supra.

“It remains the difficult but essential burden of the courts to be ever vigilan t 

so th at foreign intelligence never becomes a pro form a justificatio n for any 

degree of intrusio n into zones of privacy guaranteed by the Fou rth Amendment.”

484 F.2d at 427 (concurring opinion).

It is beyond dispute, then, thnt an individ ual’s constitutional rights to 

privacy and speech can he violated by national secu rity wiretaps. A viola ­

tion is no less real or dangerous because the government does not prosecute 

the individual tapped.

It is obviously impractical to provide advance notice of the wire tap to the 

individual who is the object of the surveillance. As the Supreme Court observed in Katz, 389 U.S. at 355, n.16, advance notice might “provoke escape 

of the suspect or the destruction of critical evidence.” Such concerns have 

litt le force after the wiretap is completed and removed. Therefore, except in 

“exigent circumstances” (Berger, 388 U.S. at 69), an individual should be 

informed of completed natio nal security wiretaps of his conversatio ns so 

th at there is an opportunity for legal redress even if the government does not 

prosecute.

Subsection (b) (8) of the bill achieves thi s constitutional purpose. Tt provides for disclosure of natio nal security wir etaps after the tap has been 

removed. Disclosure could be postponed only when the authorizing judge is 

satisfied that the individual tapped is engaged in a continuing criminal enterprise or that disclosure would endanger national security interests. This discretion for postponement would insure th at imp ortant national security 

interests are not compromised unnecessarily.

(b) (9) This subsection provides that any aggrieved person may prevent 

the use of wiretap information as evidence aga inst him in any legal proceeding if such information was obtained unla wfully or is being used, in an 

unlawful manner. The subsection also provides the government with a right
41

for immediate appeal to a higher court if the presiding judg e should prevent 

the use of wiretap inform ation.

Comment.—This provision simply paralle ls existing law concerning the 

use of information obtained from wiretaps for domestic criminal purposes. 

(18 U.S.C. §2518(10).) This section is in pa rt a codification of Supreme 

Court decisions that evidence secu red by the government as a res ult of an 

unconstitutional search is ‘•poisoned” and cann ot be used in a legal proceeding. 

(Weeks, supra. See Alderm an v. United States, 304 U.S. 165 (1009).)

section o

This section provides for the codification of the bill's two new titles, 251GA 

(application for wiretaps for national security purposes on those other than 

foreign powers and the ir agen ts) and Section 2518A (procedures for obtaining a cou rt orde r authorizing a wiretap for national security purposes).

SECTION 7

This section provides th at certain information concerning wire taps autho rized under the new Section 2518A shall be reported to the Administrative 

Office of the United States Courts within thirt y (30) days of the las't authorized 

interception.

Comment.— The existing law provides th at all wiretap s for domestic criminal 

purposes must be reported to the Administrative Office of the United States 

Courts. (18 U.S.C. §2519(1).) Wireta ps authorized under the new section 

2518A also sh ou ld be re po rted so th a t th ere ca n be ac cura te reco rd s of all 

wiretaps. There should be no concern that this reporting requirement will in any 

way compromise sensitive information. Pa st experience has demonstrated tha t 

any confidential information tra nsm itted to the Administrative Office remains 

confidential.

[From the Congressional Record, Feb. 4, 1974] 

Surveillance Practices and Procedures of 1973—Amendment

AM EN DM EN T NO. 96 0

(Ordered to be printed and referred to the Committee on the Jud iciary .)

INDIVID UAL PRIVACY AND THE NATIONAL SECURITY

Mr. Nelson. Mr. President, the time has come to end the wiretap ping abuses 

perpetrated in the name of national security. These national security taps today 

are not authorized by a judicial wa rra nt. The Government is, therefore, free 

to determine whom it can tap and when it can tap.

Warrantless taps pose a grave danger to fundame ntal constitu tional liberties. Recen t events dem onstrate th at the individual's right to privacy has been 

and made continue to be violated by the Government’s use of such wiretaps. 

Often they reflect nothing more than a desire to pry into an individual’s pri ­

vate affairs. Generally they are not supported by concrete evidence to justify 

the invasion of an individual’s privacy. And alwa ys they escape the scrutiny of 

the courts, the Congress and the public at large because the Government is 

not requ ired to disclose their existence unless it prosecutes the individual involved—a rare occurence in the history of nation al security wiretaps.

Congress should act now to end this intolerab le situation. Every American 

citizen should be assured that his privacy will not be invaded unless a court 

has determined th at the invasion is justified.

Las t December I offered a bill (S. 2820) which would provide this assurance. 

The bill would proh ibit the use of warrantless wire taps aga inst American 

citizens in national security cases. The basis of this legislative proposal is 

clear.

The fou rth amendments to the U.S. Constitution prohibits Government invasions of a citizen’s privacy without a judicia l warrant. Supreme Court decisions make clear, moreover, that the fou rth amendment protections generally 

apply to Government wiretaps.

Despite the clear meaning of the fou rth amendment, the Government continues to auth orize wire taps without a judicia l wa rrant. A couple of weeks ago
42

the Justice Departm ent reported that it had auth oriz ed thre e wa rran tles s wiretaps for national security cases.

The danger of wa rra ntless wiretaps is not confined to the crim inal and 

truly subversive eleme nts with out our society. Warr ant les s wiretajis are a serious threa t to everyone, regard less of his or her station in life. Many disting ­

uished Americans, for instance, have been among those subje ct to nationa l 

security wireta ps.

Those wiret apped in recen t years include Dr. Martin Lut her King, Jr., who 

was wrongly suspected om being a Communist dupe in the early 1960's; Joseph 

Kra ft, the syndi cated newspaper columnist; 17 newspa permen and Government officials who were suspected of leaking or reportin g sensitive infor mation 

in 1969— despite the fact th at some of those tapped did not even have access 

to such inf orma tio n; congressional aides who knew reporte rs involved in the 

publication of the Pent agon Pa pe rs; and only las t week the Washington Post 

revealed four more wa rran tles s wire taps conducted by the White House 

“plumbe rs” in 1972 aga ins t frien ds of a Whit e House official suspected of passing information to the Chair man of the Joint Chiefs of Staff of the U.S. 

Armed Forces.

These and othe r incide nts show th at often national security wire taps have 

been used to prote ct an adm inis tration from adverse publicity rat her tha n to 

prote ct the Nation aga inst foreign att ack or subversion.

The abuses of warra ntless wiretaps have righ tly arous ed concern among the 

public. Numerous opinion im>11s indica te th at more tha n 75 percent of the people now favor legisla tion to curb Government power to wireta p.

The vas t majority of the public instinctively recognize th at lack of control 

breeds an official sta te of mind tha t condones the Government's invasion of a 

citizen’s privacy. Thi s official att itu de is a dange rous threa t to freedom. It led 

to Wate rgate and other illegal acts of political espionage.

It is incumbent upon Congress to adopt measures to preve nt future abuses 

and allev iate public concerns. S. 2820 provides Congress with a timely opportuni ty to meet its responsibility.

The basic purpose of the bill is to gua rantee th at the individual's con stitutional righ ts and liberties do not fall prey to national security wire taps. It 

would indeed be ironic if the Governm ent’s invocation of “nati onal securit y” 

could justify a violation of those con stitu tional rights and liber ties which the 

Government is supposed to make secure.

After the bill was introduc ed, comments from legal scholars and other au ­

thor ities thro ughout the country were solicited by my office. The ir responses, 

as well as the addition al mat eria ls which they brou ght to our atte ntio n, were 

considered carefully. Th at consideration, in turn, has made clear th at certain 

amendm ents are both necessary and app ropriate to insu re th at the bill stri kes a 

proper balance between constitu tional libe rties and legitimate national secur ity 

needs.

Accordingly, I am introducin g those amendments today. These amendments 

effect three basic changes in the bill.

First, before the Government could wir etap American citizens in national 

secur ity cases, it would have to obtain a judicia l wa rra nt based on prolmble 

cause that a specific crime has been or is about to be committed. This change 

would help prote ct an individual's con stitu tional rights aga inst national security wireta ps.

Second, before the Government could wire tap a foreign power or its agents, 

it would have to obtain a judic ial wa rra nt based on the belief that the tap 

is necessary to prot ect natio nal security inte rest s. The wa rra nt stan dar ds for 

foreign powers and the ir agents would thus be less rigorous tha n those required 

for American citizens. This wa rra nt requirem ent will not in any way und ermine the Governm ent’s ability to prote ct aga ins t foreign atta ck or sub ver sion; 

the Government will be able to wiretap foreign powers and the ir agents any 

time ther e is a need for such surveillance.

The justif icatio n for this wa rra nt proced ure is plain . The Government’s desire to wiretap should be reviewed by a court. Ther e should be no exceptions. 

Otherwise the exceptions may be s tretch ed to sanction an unreas onable invasion 

of a citizen's priva cy—a situation which would viola te the righ ts and liberties guaranteed to every citizen under our Constitutio n.

Third, every American citizen wiretap ped would be informed of the surv eillance within 30 days after the last authorize d interc eption . This change would
43

assure every wiretapped American citizen the opportunity to protect against 

violations of his constitutional rights. The disclosure of the wire tap could be 

postponed, however, if the Government satisfies the court that the person wiretapped is engaged in a continuing crim inal enterprise or that disclosure would 

endanger national security interests.

These amendm ents are essential to achieve the bill’s stated purposes. Mr. 

President, I, therefore, ask that the amendments be referre d to the Jud icia ry 

Committee so that the committee can consider them when it reviews the bill. 

I. TH E SCOPE OF THE FOURT H AMEN DM EN T’S PROTECTION

To apprecia te the dangers of wa rrantless wiretaps, it is first necessary to 

understand the scope of the Fourth Amendment’s protection. That amendment 

provides that—

"The right of the people to be secure in the ir persons, houses, papers, and 

effects, aga inst unreasonable searches and seizures shall not be violated, and 

no wa rrants shall issue, but upon probable cause, supported by oath or affirmation, and particu larly describing the place to be searched, and the persons 

or things to be seized.” This amendment thus res tric ts the Government's power over the individual. 

As Jam es Madison observed, this amendment, as well as the other amendments in the Bill of Rights:

"Lim it and qualify the powers of Government, by excepting out the gra nt of 

power those cases in which the Government ought not to act, or to act only 

in a particular mode. 1 Cong. -Journal 483 (Jun e, 1789).”

In this light, the basic purpose of the fourth amendment is clear. It is 

designed to protect each citizen's privacy from unreasonable invasion by the 

Government.

The fourth amendment was borne from the American Colonies’ bit ter experience with the ir British rules. The English King's officers—armed with 

nothing more than a general wa rra nt and a desire to suppress political dissent—frequently entered an individual’s home and rummaged through his 

personal effects. Those warrants, and the indiscrim inate searches which they 

sanctioned, quickly became a subject of dread among the American Colonies. 

See N. Lasson, “The History and Development of the Fourt h Amendment to 

the United States Constitution,” cha pter 3 and 4 (1937).

In dra fting a constitution to govern the ir new nation, the American citizens 

were concerned that there be no resurrec tion of those indiscriminate searches 

by the Government. The fourth amendment was, therefore, adopted to meet 

that justified concern.

The fourth amendment’s protection is twofold. On the one hand, it precludes 

unreasonable invasions of an individual’s privacy by the Government. On the 

other hand, the fourth amendment guarantees that that privacy can be invaded 

only when there is a judicial wa rra nt based on probable cause. The fourth 

amendment’s twofold protection was aptly summarized in a recent issue of the 

Arizona Law Review:

“The fourth amendment was intended not only to establish the conditions 

for the valid ity of a warrant, but also to recognize an independent right of privacy from unreasonable searches and seizures. Justice Fra nkfurte r, dissenting 

from the (Supreme) Court’s decision in Harris v. United States, inte rpre ted 

• (t) he plain import of this (to be) * * * that searches are ‘unreasonable’ unless authorized by a warrant, and a wa rra nt hedged about by adequate safeguards.’ ”

"Note.—‘Warran tless Searches in Light of Chimel: A Return to the Original 

Understanding,’ 11 Ariz. L. Rev. 455, 472 (1969).”

It is quite clear, moreover, that the fourth amendment's protections were not 

to be suspended in cases of national security. When the fou rth amendment was 

adopted, our Nation was only 11 years old. Foreign threats to the Nation’s 

newly won independence remained ever present. Yet the fou rth amendment provides for no exception to its application. The compelling conclusion is that the 

amendment should be applicable to all situation s, includisg cases involving 

national security crimes. This conclusion is supported by innumerable constitutio nal scholars, including Justice William O. Douglas, who has sta ted:

“There is, so fa r as I understand constitutional history, no distiction under 

the Fou rth Amendment between types of crimes. Katz v. United States, 389 

U.S. 347, 360 (1967) (concurring opinion).”
44

Our Founding Fathers, of course, did not contemplate the advent of telecommunications. Consequently, the amendment does not expressly include wiretaps of telephones with in the ambit of its protection. But there is no question 

tha t the constitutional righ t to privacy in no less imporant in cases where the 

Government liste ns to a telephone conversation than when it physically ente rs 

an individual’s home.

In the 1967 decision of Berger against New York and Katz aga inst the 

United States, the Supreme Court held th at the fourth amendment therefore 

generally requires the Government to obtain a judicial wa rra nt before it can 

wiretap a citizen’s phone. In issuing the Katz decision, the Supreme Court 

made clear that—

“The fourth amendment protects people, not places.”

The soundness of the Berger and Katz decisions have been reaffirmed repeatedly by the Supreme Court. See, for example, Alderman v. United States,

394 U.S. 165 (1969). Most recently, in United, States v. United Sta tes District

Court (407 U.S. 297 (1972)), commonly referre d to as the Keith case, the 

Court held that the Government could not wiretap American citizens without 

a judic ial warrant—even when the citizens’ activities threaten ed the domestic 

security of the Nation. Again, the Court made clea r that wire taps must adh ere 

to the safeguards delineated by the fou rth amend ment:

“Though physical entry of the home is the chief evil against which the wording of the Fourt h Amendment is directed, its broader spirit now shields private 

speech from unreasonable surveillance.”

The Supreme Court has not yet decided whether the fourth amendment's 

protections apply to cases involving foreign powers and their agents. In the 

Keith case, the Court stated explicitly that it did not consider those situatio ns 

where American citizens have a “significant connection” with foreign powers 

and their agents.

Because the Court has not ruled on these “nationa l security” wiretaps, the 

present adm inistration maintains that it may install warrantless wir etaps in 

certain situation s. In a September 1973 letter to Senator William Fulbrig ht, 

chairman of the Senate Foreign Relations Committee, then Attorney General 

Elliot Richardson stated that the adm inistration would continue to install 

warran tless wiretap s against priv ate citizens and domestic organizations if the 

adm inistration believes that their activities affect national security matters.

Mr. Rich ardson’s comments apparen tly still reflect adm inistration policy. 

A couple of weeks ago the Justice Departm ent reported that it had authorized 

three warrantless wiretaps concerning national security matters.—See N.Y. 

Times, January 16. 1974, p. 18. col. 1—The Jus tice Depa rtment did not indicate 

whether the wire taps included surveillance of American citizens. And that is 

precisely the problem of national security wiretaps.

The discretion to determ ine when such wa rrantless wiretaps are justified and 

properly executed has been the sole province of the executive branch. There 

lias been no opportunity for the Congress, a court, or any other public body 

to examine the exercise of that discretion in orde r to prevent abuses. The resu lts 

are not surprising. Warran tless wire taps have produced and continue to produce 

the very evils which the fourth amendment was designed to eliminate.

II . TH E HISTOR Y OF WARRANTL ESS WIR ETA PS

Warrantless wiretaps were first employed early in the 26th century. Almost 

from the very beginning constitutional scholars and law enforcement officials 

recognized the serious dangers of warrantless wiretaps. In an early surveillance case, the venerable Justice Oliver Wendell Holmes referred to warrantless wiretap s as “dirty business.” Olmstead v. United States, 277, U.S. 438, 470 

(1928) (dissenting opinion.)

Tn 1931. J. Edgar Hoover, who by then had been FBI direc tor for 7 years, 

commented th at —

“While [the practice of warran tless wiretap s] may not be illegal. I think 

it is unethical, and it is not perm itted under the regulations by the Attorney 

General.”

In 1939 Mr. Hoover wrote to the Harva rd Law Review that he believed 

wiretapning to be “of very litt le value” and that the risk of “abuse would fa r 

outweigh the value.”
45

By 1939, however, pervasive reservations about wiretapping had inspired 

enactment of a law by Congress. In 1934, Congress passed the Communications Act. Section 605 of that act prohibits the “interception and divulgence” 

or “use” of the conte nts of a wire communication. From the moment of ena ctment, the provision seemed to erect a tota l prohibition to wiretapping and 

tlie use of information obtained from wiretapping. See Nardnne v. United

State s, 308 U.S. 338 (1939); Nardonc v. United State s, 302 U.S. 379 (1937).

. Tins, at least, was the interpreta tion of civil libe rtarians acquainted with the

legislative history. Indeed, subsequent efforts in the 1940k and 1950's to 

legalize cer tain kinds of wiretapping were repeatedly rebuffed by those in 

Congress who feared the consequences which wiretapping would have for 

civil liberties. See Theoh aris and Meyer. “The ‘National Security’ Justification 

for Electronic Eavesdropping: An Elusive Exception,” 14 Wayne L. Rev. 749 

(1968).

On the eve of World War II, however, President Fra nklin D. Roosevelt 

became convinced that use of warrantless wire taps would be necessary to 

protect the Nation aga inst the “fifth column” and other subversive elements. 

a Roosevelt, therefore, instructed his Attorney General, Robert Jackson, to

auth orize wiretap s a gainst subversives and suspected spies.

But Roosevelt was not insensitive to the risks which wire tapp ing could 

have for constitu tional rights and liberties. In a memorandum to Jackson 

dated May 21, 1940, Roosevelt indicated th at he was awa re of section 605 and 

had read the Supreme Court's interpretive decisions. Roosevelt basically 

agreed w ith the restriction s a gain st w iretap pin g:

Under ordinary and normal circum stances wiretapping by Government 

agents should not be carried on for tlie excellent reason that it is almost 

bound to lead to abuse of civil rights.

Roosevelt consequently instructed Jackson—

“To limit these investigations so conducted to a minimum and to limit them 

inso far as possible to aliens.”

Roosevelt's sensitivity to the dangers of warrantless wiretap s did not 

necessarily rescue their legality. Many legal scholars have suggested that 

until enactment of title III of the Omnibus Crime Control and Safe Streets 

Act of 1968, all wiretapping was illegal. See. for example, Navasky and 

Lewin, “Electronic Surveillance.” in hearing s before Senate Subcommittee on 

Administration Prac tices and Procedures (U.S. Senate, 92d Cong., 2d sess., 

pp. 173-74, 180 (Ju ne 29, 1972). Theoharis and Meyer, for instance, observed 

that until 1968:

“All wiretapping violated the absolute ban of section 605 of the Federal 

Communications Act of 1934, and all oth er electronic eavesdropping which 

resulted in trespass of a constitutionally protected area was prohibited.”

The questionable legality of wire-tapping did not deter its use after World 

War II. In the 1950's and the 1960’s the Government's reliance on warrantless 

wire taps mushroomed. No precautions were taken, though, to minimize the 

dangers to civil lilierties recognized by Roosevelt. Concern for “national 

security” consequently led to the use of warra ntless wiretap s aga inst political

• dissidents—including Dr. Martin Luther King, Jr., who was wrongly suspected 

of being an unw ittin g dupe of the Communists.

The use of wa rrantless wiretaps had become a monster with its own momentum. Even the Presiden t did not always know the full extent to which such 

taps were used. Thus, upon learning of the taps on Dr. King and others,

• Preside nt Lyndon Johnson became irate.

On Jun e 30, 1965, Johnson issued a direc tive placing severe restric tions 

on the use of wa rrantless wiretaps. Johnson initially made clear his general 

opposition to warra ntless wiretaps:

“I am strongly opposed to the interception of telephone conversatio ns as a 

general investigative technique.”

Johnson nonetheless ordered that wiretap s la? perm itted in natio nal security 

cases—but only with the specific authorization of the Attorney General. Johnson apparently believed, in good faith , that authorization of warra ntless wiretaps by the Attorney General would prove to be an adequate safeg uard for the 

individual’s constitutional right to privacy and other constitutional liberties.

35 -3 91— 74------ 4
46

Sadly, but not unexpectedly, Johnson's belief proved to be illusory. Recent 

events have demonstrated that warrantless wiretaps—no ma tter how benign 

the Government’s motives—cannot insure the san ctity of the individual's right 

to privacy. Reference to the examples cited in my statem ent of December 17, 

1973—S23026—makes this cle ar:

"On December 5, 1973, Eugene La Roque, a retired rear adm iral in the U.S. 

Navy, revealed that the Pentagon currently has a unit which is authorized 

to engage in the same kind of surveillance activities conducted by the “Plumbers 

Unit” in the White House. The purported basis of these activities is a need 

to protect "national security.” Rea r Adm. LaRoque emphasized that there is 

currently no procedure for Congress, the courts, or the public to determ ine 

the scojte—or lawfulness—of the Pentagon un it’s surveillance activities.

“In a report issued in October 1973, a House subcommittee found th at certai n White House officials invoked natio nal secu rity considerations to make 

the CIA their "un witting dui>e” in the burg lary of Daniel Ellsberg's psychiat rist's offices and in other unlawful surv eillance activities.

"Recently it was learned that in 1969 the adm inistra tion installed warran tless 

taps on 13 government officials and 4 newsmen for the purp orted reason th at 

these individuals were leaking or publiishing sensitive foreign intelligence 

information. In virtually all the cases there was little or no concrete evidence 

to justify the taps. In many cases the evidence shows that the individual 

tapped did not even have access to such information. Indeed, in at least two 

cases the tap s were continued after the individual had left Government 

service and had joined the Presiden tial campaign staff of Senator Muskie.

“In 1969 the White House authorize d the burglary of the home of newspai>er columnist Joseph Kr aft so that a wa rrantless tap could l>e installed. 

The alleged basis for this action was again national security. But the re was 

and is no concrete evidence to establish th at Mr. Kraft was acquiring or 

repo rting any information which compromised our national security.

“Testimony before the Senate Waterga te Committee revealed th at the 

White House authorized wa rra ntless wire taps “from time to time” when it 

was conducting an independent investigation of the publication of the “Penta ­

gon pape rs” in 1971. The tap s were placed on numerous citizens, including 

aides of Members of Congress, whose only connection with the “Pentagon 

pap ers” was a personal relationship with some of the repo rters involved. 

Again, the taps were justified on natio nal security grounds and, again, there 

was and is no concrete evidence to support the need for the taps.

“In 1970, the White House conceived and dra fted a broad plan which proposed warran tless wiretapping, burglary, and other insidious surveillance 

practices. The staff ass istant responsible for the plan sta rte d in a memorandum to the Preside nt th at certain aspects were “clearly illegal.” Nonetheless, 

the plan was approved on the basis of national secu rity, only to l>e scrapped 

shortly afte rward when FBI Director J. Edg ar Hoover objected.”

In addition to these abuses, the Washington Post disclosed las t week four 

more warantless wire taps conducted by the White House “plumbers” in 1972 

ag ain st American citizens. The presumed basis for these tai>s -was again 

national security. But there was no involvement of foreig n powers or their 

agen ts. Nor were the taps in any way necessary to pro tect our Nation from 

foreign attack or subversion. The taps were instead justified on the grounds 

th at a White House official was distribu ting cer tain information to the Cha irman of the Joint Chiefs of Staff of the U.S. Armed Forces. In orde r to stop 

this distribution, the “plumbers” believed it necessary to wiretap the official's 

friends.

These abuses of warra ntless wire taps underscore the wisdom of the fourth 

amendment's protections. It would be naive to assum e th at the Government 

can make a disinterested judgment as to whether a planned search by Governm ent agen ts is reasonable. The Government cann ot properly lie worth 

advocate and judge of its own.

Our Founding Fathe rs recognized this problem and adopted the fourth 

amendment. That amendment contemplates that a distinterested court will 

decide whether searches desired by the Government are reasonable. See, for 

example, the Keith case; Coolidpe v. New Hampshire, 403 U.S. 443 (1971). The 

need for this disinterested judg men t is no less necessary in cases involving the 

natio nal security than it is in other cases. This essential point was advanced 

eloquently by Justice Douglas in th e Katz ca se :
47

“Neither the President nor the Attorney General is a magistrate. In matters 

where they believe national security may be involved they are not detached, 

disinterested, and neu tral as a court or magistrate must l>e. Under the separa ­

tion of powers created by the Constitution, the Executive Branch is not supposed to be neutral and distinterested. Rather, it Should vigorously inve stigate 

and prevent breaches of national security and prosecute those who violate the 

jiertinen t federal laws. The President and the Attorney General are properly 

interested iairties, cas t in the role of adversary, in natio nal security cases. 

They may even be the intended victims of subversive action. Since spies and 

saboteurs are as entitled to the protection of the Fourth Amendment as sus ­

pected gamblers like i>etitioner, I cannot agree that where spies and sabo teurs 

are involved adequate protection of Fourth Amendment righ ts is assured when 

the Presiden t and Attorney General assume both the positions of adve rsaryand-prosecutor and disinterested, neutral mag istrate. 3S9 U.S. at 359-60 (concurring opin ion).”

In short, regardless of how beneficient the Government’s intentions, wa rrantles s wiretaps—whether in “national secu rity” cases or in any oth er kind 

of case—pose serious dangers to the right to privacy as well as other constitutional righ ts and liberties.

II I. AM ENDMENTS TO PROTECT AGAINST WIR ETAP ABU SES IN NATIONAL SECURITY CASES

The history of warrantless wiretaps for “nation al secu rity” cases demonstrates the need for corrective action. For too long Congress has closed its eyes 

to the abuses of those wiretaps—perhaps in the hope th at the country would 

be better served if implicit tru st were placed in the executive branch to safe ­

guard constitutional rights. The history underlying the fou rth amendment 

should have given Congress pause before being so trusting.

But whatever the rationale for past inaction, the Waterga te scan dals make 

clear that Congress must act now to insure the preserva tion of precious constitutio nal rights—especially the right to privacy. Invocation of “national 

security” should not enable the Government to wiretap without regard to tra ditional constitutional limitations. These amen dments provide Congress with an 

opportunity to assure the sanctity of those limitatio ns.

The amendm ents effect three basic changes in S. 2820, the bill offered las t 

December.

First, before the Government could wiretap American citizens in national 

security cases, it would have to obtain a judicial wa rra nt based on probable 

cause th at a crime had been or was about to lie committed. The crime involved, 

moreover, would have to be one affecting this Nation’s security. Such crimes 

include those under the Atomic Energy Act, treason, espionage, and sabotage.

This change merely reasserts the tradition al safeguards provided by the 

fourth amendment. Th at amendment states th at the Government cannot invade 

an American citize n's privacy without first obtaining a judicial warrant based 

on probable cause. The history of the amendment suggests that, except in 

certain matters—such as housing inspections—the “probable cause” requ irement must relate to the commission of a crime. See, for example. Wym an v. 

James, 400 U.S. 309 (1971) ; Camara v. Municipal Court, 387 U.S. 523 (1967).

The history of th e f ourth amendment also underlies the need fo r p rior judicial 

authorization for national security wiretaps. In United States aga inst Brown, 

Circuit Judge Goldlierg explained the importance of the court's role in sup ervising such wiretaps:

“It remains the difficult but essential burden of the courts to be ever vigilant, 

so that foreign intelligence never liecomes a pro forma justification for any 

degree of intrusio n into zones of privacy guaranteed by the Fourth Amendment. 

484 F. 2d 418, 427 (1973) (concurring opinion).”

The Wa terg ate scan dals should teach us that the courts cannot car ry this 

essential burden unless prior judicial approval is required for national security 

wiretaps.

The amendments offered today provide a second basic change: Before it can 

wire tap foreign powers or their agents, the Government would have to obtain a 

judicial warran t. This wa rra nt would lie issued if the Government satisfies a 

judge only that the wir etap is necessary to protect the national security. The 

Government need not establish that the commission of a crime is involved. The 

standard s for foreign power taps, therefore, would he less rigorous tha n the 

standard s applied for American citizens.
48

This second change is to insure th at the power to wiretap foreign powers is 

not abused in a manner which infringes on the righ ts of American citizens. A 

power to conduct warrantless wire taps for foreign powers and the ir agents 

might enable the Government to violate the constitutional rights and liberties 

of American citizens. The recent past provides many occasions when legal restrictions on Government wiretapping have been ignored or misinterpreted. 

Those abuses, in fact, have inspired deep public concern that individual privacy 

can be violated at any time by Government wiretaps. Public opinion polls reveal 

that more than 75 percent of the public now favo rs a curb on the Government’s 

power to wiretap.

Many of those most familiar with foreign power wiretaps sha re this concern. 

Former Attorney General Ramsey Clark, for example, recently testified at a 

congressional he ar in g:

“Certainly there should be absolutely no use of wiretap or electronic surveillance without a cou rt order under any circumstances . . . Foreign as well as 

domestic.”

Morton Halperin, a former member of Secretary Henry Kissinger’s National 

Security Council staff, is another individual who shares this view.

There should be no concern that a requirement of judicial wa rra nts for foreign power wiretaps 'will underm ine the security of this Nation. Courts will be 

most responsive to legitimate requests for foreign power ta ps; as a result, there 

will be no restric tion on the Government’s ability to protect the Nation aga inst 

foreign attack or subversion. Moreover, the implementation of title II I of the 

Crime Control Act—which requires judicia l auth orization for domestic criminal 

wiretaps—de monstrates that judges will jealously guard any sensitive information made ava ilab le to them.

In short, judicia l wa rra nts for foreign power wiretaps will have no adverse 

consequences for this Nation’s security. Indeed, form er Attorney General Clark 

has testified th at the impact of such wa rra nts on national security “would be 

absolutely zero.”

The third basic change provided by the amendments concerns national security wire taps on American citizens. Within 30 days after the last authorized 

interception, the Government W’ould have to disclose the existence of the sur ­

veillance to those citizens tapped. This disclosure could be postponed, however, if the Government satisfies the cou rt th at the individual involved is 

engaged in a continuing criminal enterprise and that disclosure would endanger 

natio nal security interests. This option for imstponement would prevent disclosures from undermining the Government’s ability to protect the Nation 

against foreign attack or subversion.

This change again merely codifies the tradition al safeguards afforded by the 

fourth amendment. From the beginning, it was assumed that the cou rts would 

protect the individual’s right to be secure from unreasonable searches by the 

Government. In proposing adoption of the fou rth amendment and the other 

amendm ents in the Bill of Rights, Jam es Madison outlined thi s role to be 

played by the courts :

“Independent, trib unals of justice will consider themselves in a peculiar manner th e guardia ns of those rights ; they will be a n impenetrable bulw ark against 

every assumption of power in the Legislative or Executiv e; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the 

Constitutio n by the decla ration of rights. 1 Conf). Journal 440 (June, 1789).”

The courts could gua rd the right to privacy in one of two ways. Either the 

courts could refuse to issue a warrant authorizing a Government search; or 

the courts could respond to an individual's complaint that the Government had 

conducted an unco nstitutional search.

The la tte r response of course presumed that the individual would know that 

the Government had in fac t conducted a search. In the early days of our 

Republic the Government agents would generally knock at the individual’s 

door, present the wa rra nt, and conduct the search. Having knowledge of the 

search, the individual could complain to a court th at the warrant was insufficient—or, perhaps, th at the Government executed the search despite the lack 

of a warrant. This opportunity to complain existed even when the American 

colonies suffered und er British rule. Indeed, if the colonials were not informed 

of the indiscriminate searches conducted by the British, they w’ould have had 

no basis to believe th at adoption of the fourth amendment was necessary. See N 

Lasson. “The History and Development of the F ourth Amendment to the United 

States Constitutio n,” chapters 3 and 4 (1937).
The advent of telecommunications has changed all this. Warrants can be 

issued and searches conducted without the subject ever learning of them. 

Unless the Government decides to prosecute the individual tapped, it need not 

make any disclosure to the individual at any time. For this reason, few of the 

American citizens tapped for national security reasons in the las t few decades 

have ever learned o f the Government’s surveillance—even though in some cases 

it continued for years. The fou rth amendment’s protection aga inst Government invasion of individual privacy is weakened if a citizen can be kept ignorant of Government 

wiretaps. Without knowledge of those wiretaps, the individual is stripped of 

all opportunity to complain to a court that they have violated his rights. Telecommunications have enhanced considerably the Government s power to 

snoop on its citizen s; telecommunications should not become an excuse to avoid 

constitutional safeguards.

IV. CO NC LU SION

For decades the Government has used warrantless wiretaps to serve its view 

of the national security. These wiretaps liave alwa ys posed a fundamental 

danger to the freedoms g uaranteed by ou r Constitution. The Waterga te scandals 

and other events have e xcised tha t dang er in a dramatic and clear fashion.

We should not fail to heed the warning signs. Constitutional provisions empowering the Government to protect the Nation's security were never thought 

to justify the subversion of individual freedoms afforded by other constitu tional 

provisions. As Judge Ferguson declared in the United States aga inst Smith, a 

case concerning the use of warrantless wiretap s for national security purpo ses :

“To g uarantee political freedom, our forefathers agreed to take certain risks 

which are inhere nt in a free democracy. It is unth inkable that we should now 

l>e required to sacrifice these freedoms in orde r to defend them. 321 F. Supp. 

424, 430 (1971).” Congress cann ot and should not tolerate governmental violations of the individual’s constitutional right to privacy by wiretaps or any other means. Th at 

right to privacy, as well as other constitutional liberties, are the cornerstone 

of our democratic system. If those rights and libe rties are eroded, the very 

fabric of our constitutional system is imperiled. Congress should, therefore, 

act now to protect our cherished rights and liberties from abusive national 

security wiretaps.

[Fr om the Ca pit al Times, Feb. 7, 1974]

Warrantless Wiretaps

One of the gre at mysteries of the U.S. Congress is how much speed it can 

generate to enact dubious proposals into law, while perm ittin g worthwhile legislation to crawl along like refrigerated sorghum.

One of the most ridiculous charades in recent times was the speedy ena ctment of a day ligh t saving bill in the middle of the winter as a supposed salve 

to the energy crisis.

Wisconsin’s Sen. Gaylord Nelson has introduced a vitally needed bill aimed 

at banning warrantless wiretaps for national security purposes. But watch how 

slowly that the Nelson bill will work its way forward, despite the sordid 

revelations of the existence of the White House “plumbers” and the Waterga te 

scandal. In introducing his proposed ban. Nelson said that the secu rity “taps’’ which 

are not authorize d by judicial wa rra nt often reflect nothing more than a 

government desire to pry into an individual’s pr iva te affairs.

It need not be pointed out to the knowledgable that the Fourth Amendment 

prohibts government invaasion of a citizen’s privacy without a judicial wa rra nt: The Supreme Court has made it clea r that the amendment’s protection 

extends to wiretapping.

The Nixon adm inistration has taken upon itself the right to violate the 

Constitutio n and determ ine for itself when to order a warrantless w iretap .

“Although the vast majority of the public will never be the object of a tap. 

they instinctively recognize the lack of control breeds an official sta te of mind 

th at condones the government’s invasion of a citize n's privacy.” said Nelson in 

introducing his proposal. “This official att itu de is wrong and dangerous. It led 

to W atergate and other illegal a cts of political espionage.”
Revelations that are an outgrowth of the Watergate investiga tions indic ate 

distressingly that the danger of warrantless wiretap s is not confined to crim inal and truly subversive elements within our society. A prime example of the 

abuse was the tapping of Joseph Kra ft, an outstand ing syndicated newspaper 

columnist.

•'Public opinion polls indicate that more than 75 per cent of the people now 

favo r legislation to curb government power to wiretap.

Nelson's proposed ban is long overdue. We hope it does not get buried in the 

morass of molasses th at seems to e ntra p oth er worthwhile proposals.

(Senator Gaylord Nelson has introduced legislation to require the government 

to obtain court approval before it can wiretap in national security cases. The 

following editorials discuss the importance of this legislation)

[F ro m th e W as hi ng to n Pos t, Fe b. 9, 197 4]

The President and Privacy

(By Tom Braden)

President. Nixon said the other day th at “personal privacy is a cardinal 

principle of American liberty’’ and that “electronic snoojiers have lef t Americans deeply concerned about the privacy they cherish. The time has come,” he 

added, “for a major initiativ e.”

Coming from a man whose administration has been notable for wiretapping, 

mail covering, breaking and entering and spying, it was, at first blush, a surprising statement.

But only at first blush. The tex t reveals th at the President wasn’t talk ing 

about any of these blatant invasions of privacy. He was talk ing about the 

accumulation of electronic data on consumers by cred it card companies, banks, 

department stores and other businesses. Without takin g anything away from 

Mr. Nixon's laudable desire to regu late in this area , it still seems necessary to 

put the question, "Wh at about the Fou rth Amendment?”

Ju st las t weeki Atty. Gen. William Saxbe said he had initiate d three new 

natio nal security wiretaps. Naturally, Saxbe did n't say who was being wiretapped, whether the tap s were being placed upon Americans or foreigners. We 

may never know. No law requires Saxbe or any subsequent attorney general to 

tell us. No law requires an attorney general to say what he means by “national 

security.”

Sometimes we are told the numbers. Tn 1972, testimony l>efore the Senate 

revealed that 97 “national security” wiretap s were in operation during the 

yea r 1970. Since then, we have been given good reason to suspect that a lot of 

these tai>s were not placed for the national secu rity but in order to spy on 

White House enemies. The Watergate investiga tions have determined that 17 

newspapermen and government officials were wiretapped during 1909, and 

many of the ta ps were not removed until much la ter.

Ju st las t week it was revealed th at four more wire taps were conducted by 

the White House plumbers during 1971 aga inst friends of a White House 

official.

All of this is in direct contradiction to the Fou rth Amendment which declares 

it “the right of the people to he secure in the ir persons, houses, papers and 

effects against unrea sonable search and seizu re.” The Supreme Court has ruled 

that wiretap ping is a “physical entry into a house.”

The Founding Fathe rs never envisioned that a physical entry into a house 

could be made without a wa rrant issued upon probable cause and “particularly 

describing the place to be searched.” But not one of these “national security” 

wire taps has been authorized by a wa rra nt. Recent attorney s general and 

Presidents have tapped whomever they wanted to tap. Whether the tap was 

in the inte rests of natio nal security or in the inte rests of politics or in the ir 

I»ersonal interest s has been left to the ir own consciences.

Thus. Robert Kennedy tapped Martin Luther King—appar ently at the insistence of J. Edgar noover. Lyndon Johnson is alleged to have tapped members of his Cabinet, and Richard Nixon has widened the “physical entries” to 

include the press. Under Mr. Nixon, the prac tice seems to have l>een so widespread that the President and his attorney general delegated their authorities.
51

H. R. (Bob) Haldem an, John Ehrlichman and even Henry Kissinger were 

perm itted to make nominations for wiretapping targets, and Mr. Nixon may 

not have seen the final list of those to be spied upon.

So the President is right when he talk s about invasions of privacy as a 

growing danger, and Sen. Gaylord Nelson (D-Wis.) has introduced a bill which 

may fix his mind upon the aspect of privacy which he ignored.

Nelson's bill would require the government to seek a warjrant before a 

“national secu rity” wire tap could be authorized or installed. Thus, an indeismdent third par ty would be able to check upon the |>ower which successive 

Presidents and atto rneys general have used with such frequency.

If the President is really concerned about privacy, he will endorse Nelson's 

bill.

[F ro m th e New York Time s, Feb. 17, 197 4]

No Warrants, No Taps

(By Tom Wicker)

The Intern al Revenue Service’s summons for certain records of telephone 

calls from the Washington Bureau of The New York Times Illu strate s how a 

Government that is e ither careless, callous or expansive can stretch wh at might 

appear to be a harmless or even useful power into something different and 

threatening.

The I.R.S., it seems, has the statutory autho rity to obtain by civil summons 

the telephone records of persons it is investigating for tax fraud or delinquency. 

Most telephone companies have been routinely acquiescing in such summonses.

But the I.R.S. is not investigating The Times or any member of its Washington Bureau—althou gh the I.R.S. also issued a summons for, and received, 

records of long-distance calls placed from the home telephone of David 

Rosenbaum, one of The Times' Washington reimrters. Instead, it app ears that 

the I.R.S. may be investigating the possible leak of some information from one 

or more of its employes to Mr. Rosenbaum. Last year, he was working on a 

story—never published—about a possible I.R.S. investigation of a major 

contributor to Richard Nixon’s re-election campaign.

The point is th at the statutes in question do not appear to grant the I.R.S. 

authority to obtain The Times’ or Mr. Rosenbaum's telephone records for the 

purpose of maintaining its own inte rnal security. Perh aps worse, when first 

asked al>out the matter, Donald C. Alexander. Commissioner of the I.R.S., said, 

“I know nothing of this.” Does tha t mean that lower-level officials can routinely 

authorize actions that app ear to violate the law and offend the Fir st and Fourth' 

Amendments? Since the I.R.S., under challenge, has returned The Times' records, 

the agency appears to have at least tacitly conceded tha t it had no legal right 

to them.

This stretching of authority into are as it was not intended to reach is a 

relatively old story in government. It lends particular i>oint to a measure 

introduced by Senator Gaylord Nelson of Wisconsin that would ban all “warrantless” wiretapping and give American citizens a chance to fight back if the 

Government has i ts electronic ear on them.

In 1968, Congress authorize d the Attorney General to go into court and 

obtain wa rra nts to tap the telephones of certain persons who could be shown 

to be crim inal suspects. This measure was aimed primarily at organized 

crime; it did not requ ire the Government to seek wa rra nts before placing taps 

on persons or organizations for “national sec urity” reasons.

I When the Nixon Administration took office. Attorney General John Mitchell 

began authorizing—without warrants—numerous wiretaps on persons and 

organizatio ns suspected of threatening “domestic security” ; in effect, tins 

“Mitchell doctrine” perm itted the Government to tap the phone^of anyone it 

could even remotely link to domestic or national security matters. -

In 1972. the Supreme Court, in the so-called Keith case, barred warrantless 

taps for “domestic security” : but again, the Court did not rule on the question 

of wire taps for “foreign intelligence” purposes, which meant that the Government could continue warrantless tapping of foreign embassies, agen ts of 

foreign governments and the like. This left a significant loophole in the Fourth 

Amendment righ ts of American citizens, who still could be tapped without a
wa rra nt if their activities caused the Government to consider them possible 

agen ts or dupes of foreign governments.

In September, 1973, in fact, Attorney General Elliot Richardson wrote 

Senator J. W. Fulbrig ht that the Government was contin uing warran tless tapping of citizens and organizations whose activities it believed could affect 

national security. His successor, William Saxbe, said he authorized three wa rrantles s “national security” taps his first week in office—whether aga inst 

foreign embassies or American citizens he did not make clear.

Senator Nelson's bill would close this final loophole by requ iring the Government to go into Federal court and get a judicial warrant for every wire tap it 

wanted to install. If a tap were to be requested on the phone of an American 

citizen, the Government would have to show "probable cause” th at a crime was 

alwmt to l>e committed; if the request was for a tap on. say, a foreign embassy, 

only a national security reason would have to be adduced. And any American 

citizen tapped after issuance of a court o rder would have to be informed of the 

tap w ithin thirty days, unless the Government obtained a court-ordered delay.

There is no reason to suppose that judges would not issue wiretapping wa rrants when justified, or that they would the rea fter disclose natio nal security 

information th at might have been presented to them. But there is every reason 

to believe that the Nelson bill would give needed contem porary meaning to 

the Fourth Amendment's guarantee of “the right of the people to be secure 

in their persons, houses, papers and effects, aga inst unreasonable searches 

and seizures. . . .”

[F ro m th e W as hi ng to n Pos t, Mar. 21. 19741 

(By Gay lord Nelson)

‘National Security' Taps

Civil rights lead er Martin Luther King, Jr., newspaper columnist Joseph 

Kra ft, former Nixon presidential aides William Satire and John Sears, former 

National Security Council staff members Morton Halperin and Anthony Lake, 

former congressional aide Dunn Gifford, and boxer Muhammed Ali—these 

citizens have something in common. Their telephone conversations have been 

wiretapped by the federal government for so-called “national secu rity” reasons. 

And they are merely a handful among thousands.

In each case the government acted without obtaining a judicial wa rrant 

approving of the “tap .” The government therefore did not explain to a court 

the justificatio n for the surveillances. Nor did the government voluntarily 

inform any of the individuals involved that their telephone conversations had 

been secretly intercepted. Most of those tapjted never learn about it.

Despite the righteous indignation of congressional representatives, lawyers, 

and the public, warrantless wiretapping continues. Last Jan uary the Justice 

Departm ent reported that in one week it had authorized three warrantless 

wir etaps in national secu rity cases—an average week’s quota according to 

the department. The departm ent did not indicate whethe r the taps included 

surveillances of American citizens. Nor did the departm ent indic ate the basis 

for believing the taps necessary. And tha t is precisely the problem.

Warrantless wiretap s give the government an unreviewed and unchecked 

power to invade a citize n's privacy. The government alone determines whom 

it should tap and when it should tap. Neither a court, nor the Congress, nor 

the individual involved has an opportunity to demonstrate tha t there is no 

justification for the tap.

Because they escape scrutiny by anyone outside government, warran tless 

wir etaps are a dangerous and fundamental ass ault on the individual's right to 

privacy and other civil liberties. They pose a threat to the freedom of every 

citizen, regardless of his or her station in life. In a 1928 surveillance case 

Supreme Court Justice Oliver Wendell Holmes called warrantless wiretap s 

“dir ty business.” In 1931. J. Edgar Hoover—who by then had been FBI 

director for seven years—called them “une thica l” (his position softened in 

lat er yea rs).

Warrantless taps also are. in my view, unconstitutional. The Fou rth Amendment explicitly provides th at every citizen should be free from government 

searches and seizures that are not authorized by a judicial wa rrant. There is 

no exception for “nationa l security” cases. The basic notion underlying the
53

Amendment is th at a neu tral cou rt—not a government blinded by its lawful 

inve stiga tory responsibilities—should decide whether any search contemplated 

by the governm ent is reasonable.

In the 1967 Ka tz and Berger decisions, the Supreme Cou rt held th at the 

Fou rth Amendment’s protections apply to government wireapping. The Court 

also held in the 1972 Keith case th at the government could not wiretap American citiz ens without a judicial warrant even when the citiz en's activities 

thr eaten “domestic security.” The Court reserved judgm ent, however, for 

those cases in which American citizens have a “significant connection” with 

foreign powers and their agents.

Because the Court has not yet decided, this latte r question, th e present admin istratio n maintains that the government can, without a wa rra nt, tap 

American citizens and others whose activities involve foreign affairs. It was 

on this basis th at the Jus tice Department authorized three warra ntless wiretaps last Jan uary.

Congress should not tole rate the continued use of these wa rra ntless w iretaps 

for so-called “national security” purposes. It is indeed ironic for the government to invoke “national secu rity” to violate those constitutional rights and 

liberties which the government is obligated to defend. Any remedial legislation should include at least four basic elements.

Fir st, before the government could wir etap American citizens for national 

security purposes, it should have to obtain a judicial warrant based on probable cause that a crime had been or was about to be committed. This provision 

would simply recognize the rights guaranteed to every citize n by the Fourth 

Amendment.

Second, before the government could wiretap foreign i>owers (i.e., embassies) 

or their agents, it should have to obtain a judicial wa rra nt l>ased on a belief 

that the surveillance is necessary to protect natio nal security. The wa rra nt 

standard s for foreign power tap s should thus be less rigorous tha n those 

applied to American citizens.

The justification for this second provision is plain. The government’s desire 

to wiretap should be reviewed by a court. There should be no exceptions. 

Otherwise the exceptions could be stretched to sanction an unreasonable 

invasion of an American citizen’s privacy. This second warrant requirement 

would in no way undermine the government’s ability to protect aga inst foreign 

attack or subversion; the government would be able to wiretap foreign 

powers and their agents any time there is a real need.

Third, every American citizen wire tapped should be informed of the surveillance within 30 days after the last authorized interception. Tliis would 

afford the individual an opportunity to protect against violations of his constitutional rights. The disclosure of the wiretap should be postponed, however, 

if the government satisfies the cou rt that the person wiretapped is engaged in 

a continuing criminal enterprise or th at disclosure would endanger national 

security interests.

Fourth, there should be continuing congressional oversight of wiretaps and 

other surveillance activ ities engaged in by the government. At lea st once a 

year, representativ es of the government should testify, under oath, l>efore a 

joint congressional committee alxuit the ir surveillan ce activ ities. In this way, 

Congress can determ ine whether the government is complying fully with the 

laws and whether additional legislation is needed to protect individual privacy.

A number of Senators have joined me in introducing two hills (S. 2820 and 

R. 2738) which incorporate these basic elements. Other bills migh t be able to 

improve on these measures. But in any event, the need for congressional action 

is clear. A citiz en's constitutional rig ht to privacy should not exLst at the sufferan ce of some government official’s definition of “national security.”

Mr. K astenmeier. The Chair would like to observe, while he is not 

a witness, the presence of General Kenneth Hodson who is Executive Director of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, which is about to undertake its work. Both Congresssman 

Railsback and I serve on the Commission and we wish General 

Hobson the best on his undertaking.
Twould like to call on my colleague, from Maryland, Congressman 

Clarence Long. Congressman Long is the author of legislation which 

would make illegal the practice of secret electronic monitoring and 

recording of conversations, under certain conditions.

1 am pleased to greet my friend and colleague. Congressman 

Clarence Long.

TESTIMONY OF HON. CLARENCE LONG, A RE PR ES EN TA TIVE IN 

CONGRESS FROM THE STATE OF MARYLAN D

Mr. L ong. Thank you, Mr. Chairman. I am very pleased to have 

this opportunity to speak to the distinguished subcommittee about 

the need to protect the right of an American citizen to have his 

personal and private communications remain private.

The disclosure last summer of the White House practice of recording the conversations of important officials of the Government, 

diplomats, and even White House staff members—secretly and 

without their knowledge—shocked the entire Nation. The White 

House bugging, however, is only the tip of the iceberg. Throughout 

the country, persons who have assumed tha t their private conversations were private have l>een rudely awakened by the widespread 

incidence of uncontrolled eavesdropping.

My bill. II.R. 9667, would amend title 18, section 2511 of the 

States Code to require the consent of all parties to a conversation 

before it may be recorded or otherwise intercepted.

It is important to emphasize “all parties.” If there are a halfdozen people in the conversation, they must all be notified that 

whatever they say is being electronically recorded. As the law now 

stands, if only one of the parties knows, there would be no violation.

My bill would make such bugging punishable by fines ranging 

from $10,000 and up to 5 years in jail, and violators would also be 

subject to civil suits. The courts would, of course, retain the power 

to authorize wiretaps for investigations involving criminal activities, 

or national security.

I think there was a very useful colloquy between the gentleman 

from Massachusetts and Senator Nelson on the question of National 

Security wiretaps. I want to leave that area open.

All T am saying is that, under my bill, a conversation could be 

recorded by the police under a court warrant pursuant to a criminal 

investigation.

Now. as Mr. Drinan has pointed out. the courts may unduly issue 

warrants. But I don’t think a court would have ever issued a warrant 

to allow the President to tane the conversations of the people with 

whom he was conversing. There are manv otlmr instances in which 

courts are unwilling to issue warrants. Therefore. I think mv bill 

wo’dd be very useful.

Twenty-five of my colleagues have joined me in sponsoring this 

measure.

T want to point out that mv home State of Maryland has. since 

1956. had an official policy of protecting private communications 

which could well serve as a model for the Nation.
55

The Maryland statute provides:

The interception and divulgence of a private communication by any person 

not a party thereto is contrary to the public policy of this State, and shall 

not be permitted except by court order in unusu al circum stances to protect the 

people. It is furth er declared to be the public policy of this State that the 

detection of the guilty does not justify investigative methods which infringe 

upon the liberties of the innocent.

U.S. District Court Judge Gesell recently pointed out tha t legally 

sanctioned snooping has become it common practice which has been 

able, under the present Federal law, to proliferate without judicial 

supervision.

I would like to put in the record an excerpt here from Judge 

Gesell’s statement.

Mr. Kastenmeier. Without objection, tha t excerpt will be received and made a part of the record.

[The statement of Judg e Gesell follows:]

Informers, in return for government promises or hoj>e of favors, are equipped 

with recording devices and sent into the homes and offices of tiieir friends 

and confidants to try to trap their words on tape * * * . Many individuals, 

without an y knowledge of tlie government, secretly tape their own conversations with others for ulte rior purposes and use casu al remarks to extort or 

intim idate * * * 360 F. Supp. 994.

Mr. Long. The time has come to protect individual citizens against 

unrestricted wiretapping, spying and surveillance.

I might point out that we all talk informally in ways tha t are 

very different from the way we would talk if we knew that the 

world were listening. So this legislation is important not merely 

in cases where life or liberty is involved, but in other cases as well.

A recent Harris poll confirms the timeliness of such legislation. 

By 77 to 14 percent the public favors passage of a law forbidding 

such intrusions into their private lives. The Watergate affair may 

have acted as a trigg er to public opinion, as Mr. H arris pointed out, 

but there has been a widespread and underlying shift towards 

greater protection of the constitutional right to privacy.

The President himself has now recognized the need for a new law. 

In his State of the Union message, the President told the Congress 

that we need “a new set of standards that respect the legitimate 

needs of society, but that also recognize personal privacy as a 

cardinal principle of American liberty.”

Tt is my hope that this subcommittee will report favorably on 

this legislation, which deals with one aspect of the privacy issue 

which you are considering in a much wider context. Thank you.

Mr. Kastenmeier. Thank you very much. You have touched on 

an area which is certainly part of the general problem. I take it 

tha t you would contemplate wiretapping in only two situations: 

One in which wiretapping is authorized bv warrant through the 

courts, and the other is the situation in which all parties consent?

Mr. Long. That is right.

Mr. Kastenmeier. Consent in advance to the recording of the 

conversations?

Mr. L ong. Yes.

Mr. Kastenmeier. Do you have reason to believe that you yourself may have been a victim of eavesdropping?
56

Mr. Long. No, I have no reason to believe that. I never felt I 

was important enough for anybody to do this to me.

Mr. Kastenmeiek. You know there are Members of the Congress 

as well as many other people who feel and presumably have knowledge 

of the fact, that they have been the subject of such types of wiretapping or electronic eavesdropping. The argument is made that some 

people or entities desire to record conversations to protect themselves 

by having an exact account of the conversation. But it is your view 

that any such reason is outweighed by the fact that another person 

did not know of the conversation being recorded. And that that 

person’s rights outweigh the desire, of the person who is recording 

the conversation for purposes of some form of protection or official 

account ?

Mr. Long. I am not quite certain tha t I understand the gist of 

your question.

Mr. Kastenmeiek. I am asking whether you can contemplate any 

good reason why. other than through a court warrant, a person or 

an entity with his own consent should be able to record a conversation even without the knowledge of another person?

Mr. Long. I tried hard during the draftin g of this bill and T 

couldn’t think of any such reason. It is always possible. T suppose, 

that you can come up with an exceptional situation. We all know 

that such cases require a balance of rights and privileges.

T don't think there are any absolute rights or privileges written 

anywhere in our law. There are always conflicts.

1 suppose a person could argue that he could obtain a better historical record of what people are really thinking and saying if they 

didn't know they were being recorded. If he is writing a Ixiok. for 

example, he may think that if he can get people to speak very frankly, 

then he would get a much better book than if the people were told 

in advance th at their words were being recorded.

T realize that somebody might think that. I don't think he would 

be justified in inflicting such recording on unsuspecting people.

Mr. Kastenmeiek. I yield to the gentleman from California. Mr. 

Danielson.

Mr. Danielson. Thank you, Mr. Chairman. Mr. Long, would you 

tell me please what you mean by the word “intercept” in your bill?

Mr. Long. Record.

Mr. Danielson. You talk about to record or otherwise intercept.

Mr. Long. In doing this I simply used the language of the bill 

itself.

Mr. Danielson. Yes, I know. I have looked at your bill and I 

assume that all of these different versions of the bill are the same. 

But it says “electronically record or otherwise intercept a wire or 

oral communication” and tha t appears in the printed bill as well 

as in your presentation.

Mr. Long. There is a definition of “intercept” in the bill. I don’t 

have it.

Mr. Danielson. I have here, for example, H.R. 9973, which is 

one of your bills, and starting with subparagraph (c) on line 6 it 

states: “It shall not be unlawful under this chapter for a person to 

electronically record or otherwise intercept a wire or oral communication” et cetera.
57

I was just wondering what you really had in mind by the word 

“intercept” as used in your bill?

Mr. Long. As I say, we have taken tha t language from the present 

law. I can supply the definition for the record.

It is my understanding this means to record. It is a legal term.

Mr. Danielson. That is all you have in vour mind, to record?

Mr. Long. Or otherwise get it on record or eavesdrop.

It is somewhat broader than recording. That is to say, it would 

include a situation in which people simply listen in on a private 

conversation, people outside holding their ear up to the wall and 

listening to the converastion of others with the assistance of some 

mechanical device.

Mr. Kastenmeier. If the witness would yield, perhaps the Chair 

could help in the definitions of “wire interception” and “the interception of oral communication”.

The definition, as used in Public Law 90-351, is tha t “intercept” 

means, “the acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or any 

other device.”

As used in your bill, I assume it is consistent with that definition?

Mr. Long. Right.

Mr. Danielson. You do not restrict it to a surreptitious type of 

interception in other words?

You are talkin g about a situation even where all of the parties 

may be consenting?

Mr. Long. If all of the parties are consenting, then it is not 

unlawful.

Mr. Danielson. Except for an unlawful purpose, correct?

Mr. Long. Except for an unlawful purpose.

Mr. Danielson. Suppose you and I had an office, and within our 

office we had a sensitive microphone which was affixed somehow or 

another to a recording device so tha t when people came in to visit 

with us you and I would know that the conversation was being 

recorded if we turned on the switch, although those people visiting 

us would not bq aware of tha t fact. Tha t would be an interception 

within the meaning of your bill?

Mr. Long. Right.

Mi-. Danielson. And it would be the sort of conduct that would 

be unlawful under your bill unless the other party to the conversation consented in advance?

Mr. Long. Exactly. And my understanding would be, if all parties 

had knowledge that what they said was being recorded and intercepted, and they continued to speak, this would be implied consent.

Mr. Danielson. Right.

Mr. Long. I can give you another example which frequently hap ­

pens with me. A constituent calls me and asks me to do something 

for him and I immediately put a secretary on the line to write down 

all of the information: what the persons wants, what he needs done, 

what relatives he needs to have helped, how old they are, what their 

background is—details tha t I can't remember. We tell the person 

that somebody is on the line.

Mr. Danielson. Right.
58

Mr. Long. And somebody is listening. But it would be possible, 

in many cases, not to let him know that this is being taken down. 

Aly bill would cover such situation.

Mr. Danielson. 1 was going to lead into that. That is the old 

practice of advising your client tha t you are going to put the 

secretary on the extension to make notes?

Mr. Long. Right.

Air. Danielson. That situation would be included within your bill?

Mr. L ong. Exactly.

Mr. Danielson. And would be either lawful or unlawful depending upon whether or not this consent was obtained?

Mr. Long. Exactly. And I see no harm in that.

Mr. Danielson. 1 do not myself. Being mindful of the fact tha t 

today the state of the art in making recording devices is very far 

advanced, and it is a simple matter to make a tape of almost any 

type of a conversation, be it on the telephone or otherwise, I want 

you to address yourself to the practical aspects of it, though. 

Almost anyone today for less than $50 can buy a rather effective 

tape recorder plus a little device tha t will attach with a suction 

cup to the telephone and make a relatively good tape recording.

Air. Long. I understand the recorders doift always work that well.

Air. Danielson. Of course neither you or I have ever tried it, 

so we don't really know. But let me ask you this. Do you think as 

a practical matter that this could very well be enforced? It is just 

about as common today for people to have a tape recorder as it is 

to have a radio, for example. They are most common and most 

widespread.

Air. Long. Of course, there are many more laws on the books 

than it is possible to enforce, and in many cases there would be 

conversations which nobody would particularly care about one way 

or the other. But I do think there would be a real deterrent effect 

upon a person who proposed to use such recordings for some malicious or unlawful or otherwise injurious use.

Air. Danielson. Right.

Air. L ong. I certainly ■wouldn’t want to do it. I would want to be 

very careful about obeying the law.

Air. Danielson. I think you are absolutely right. If nothing else, 

it would make such conversations, since it would be unlawful in the 

first place, it would make them inadmissible in evidence which 

would have a deterring effect. I can see value there.

But as a practical matter, I should think it might be difficult to 

police if you were really trying to go out and police it thoroughly.

Air. Long. I think this is true of almost all of our laws. If we 

could enforce all of our laws, there wouldn’t be enough jails to hold 

all of the criminals.

Air. Danielson. Let me change slightly here.

Suppose afte r a conversation, in the same situation described in 

my first example, after the visitor leaves the person with the microphone and the recorder in his office, dictates into the recorder the 

substance of the conversation as well as he or she remembers it or calls 

in the secretary and dictates the same thing. Do you see any objection 

to that sort of recording of the conversation ?
59

Mr. Long. Are you speaking of a situation in which there had 

been a conversation involving several people and they all were informed in advance?

Mr. I )anielson. Even if they have not. Let me recast the situation. 

You have a conference in your office, you and three other persons, 

fact's say A, B, and C. And after the conference—and this is an 

important matter—after the conference they go home and you 

either call in your secretary or pick up your dictating machine and 

dictate a memorandum of what was said by whom, and about what. 

Now you have no objection about tha t I guess?

Mr. Long. No, of course not, because the person’s own words 

could not be used against him. He could point out that he was not 

present when the memorandum was dictated and he could challenge 

the other party's recollection or understanding of what went on.

Mi-. Danielson. In other words, he is in a position to deny it?

Mr. Long. Exactly.

Mr. Danielson. But he is not in a position to deny it if it is 

recorded ?

Mr. Long. No, if it is recorded, all of his words are laid out 

before him.

Mr. Danielson. Right. How do you answer the argument tha t 

some people advance of, well, the recording is obviously a far more 

accurate recasting of what was said. In fact, it isn’t a recasting; 

it is a playback, so therefore, it is far more accurate than any 

subsequent memorandum ever could be?

Mr. Long. I think such recordings can be very useful, very valuable. And I see no objection to recording just as long as everybody 

in the conversation knows what is taking place. Basic fairness justifies such a requirement.

Mr. Danielson. I tend to agree with you, but I think what we 

are talking about is what some people call the sporting theory, in 

other words, for Heaven’s sakes, don’t have an advantage over the 

other guv. I tend to agree with you.

What we are really saying is the more accurate account of the 

conversation is the recording but we must not use it because it gives 

the secret recorder an advantage that the other person does not have.

Mr. Long. My proposal in no way stops any recording. It simply 

requires notice to all parties th at what they say is being taken down 

or intercepted. Thereafter, whatever they say is a matter of record.

Mr. Danielson. I think you have a pretty good point here. Thank 

you so much.

Mr. Long. You're very welcome.

Mr. K astenmeier. The gentleman from New York, Mr. Smith.

Mr. Smith. Thank you, Mr. Chairman. And thank you for your 

testimony. I think it is very interesting. I would like to continue 

along the lines of Congressman Danielson in discussing the difficulty 

of enforcing your proposal.

He mentioned the fact that a lot of people have recorders today, 

and I guess there is quite a habit on the part of people to record 

favorite music that comes over the radio or television. I suppose 

tha t the doing of tha t technically would be covered by your bill
60

and would be unlaw ful , and it would of course be almost impossible 

to police.

Mr. Long. I migh t reply to the dis tinguish ed gen tleman from 

New York th at it certainl y would deter the pa rty who had recorded 

this witho ut the oth er pers on’s knowledge from ever using it again st 

th at oth er pei-son. As soon as he br ou gh t out the fac t th at these rema rks had been recorded and the other person ha dn 't consented to 

it, it would be an adm issio n th at a crim e had been com mitted.

He would no t be able to use the othe r person 's words ag ain st him 

in any kin d of legal wav.

Mr. Smith. No, I agre e with that. Bu t I would expect th at under 

you r bill as writ ten, the mere rec ord ing of th at withou t the consent 

of the or iginator of the conversation or the music or wh ate ver it is, 

would be un law ful ?

Air. L ong. I t w ould be unlawful.

Mr. Smith. I t would probably never be ca ught.

Mr. Long. Th ere are circums tanc es in which you might nev er be 

able to enforce this law. In o the r words, a person might make such recordings and in certa in situations, it wou ld pro bab ly never be 

cau ght.

Mr. Smith. Mr. Ch airma n, I th in k we had some ta lk about this 

kin d of thing whe n we were con sidering copy rig ht of sound rec ord ­

ings.

One oth er question. Dr. Long. I would like to point o ut th at prob ­

ably this wo uldn 't cause much trouble. But as we watch football 

games, for instance, on telev ision the y have an electron ic sound 

ga therer at the side of the field and, as they come into the huddle, 

you can hear the q uarte rback giv ing the signals and so forth. I would 

suspect th at unless they got the consent of the quarterb ack and pe rhap s any othe r mem ber of the two teams who migh t speak, the y 

would techn ically be in violation un der this law?

Now I suppose th at wouldn't cause much trouble except to make 

it a lit tle more inconvenient for the telecasters who might wa nt to 

liste n to the sound as well as look at the view.

Mr. Long. Yes. T hat is a valid point. I think, and don ’t you agree 

Mr. Sm ith, th at this is one of those commonsense prob lems involve d 

in any law? Th ere are always are as th at are beyond the purview 

of str ict sta tu tory g auge.

Mr. Smith. Yes, as Mr. Dan ielson pointed out, it is certa inly 

not your intent to make such activ ity unlaw ful.

Mr. Danielson. Wo uld the gentlem an yield?

Mr. Smith. I would be happy to yield.

Mr. Danielson. I think implicit in the bill is the idea th at th is is 

a public sta tem ent, and th at the people who are playing football 

down on the field know that the public is wa tch ing them and so on, 

and I think there is an implied consent to th at sort of thing. I know 

I reco rd some of our promin ent officials’ speeches on telev ision. I 

oftentime s record them so I can sav or the juicy comments when I 

plav them back.

Mr. Smi th. Un de r this bill you would be tech nically vio lating the

law.
61

Mr. Danielson. Well, people have called me illegal or something 

like th at before.

Mr. Long. I thin k you have made a very valid point. It could be 

printed on the ticket tha t admission to the game implies consent of 

being photographed as part of the televising of the game and so 

forth. I do think there are ways in which this could be handled.

I point out also tha t if we had this law at the time tha t these 

conversations were taped in the White House, it would have made 

a great deal of difference in the disposition of the whole Watergate 

case and it could have been immediately clear tha t in this situation 

there was the commission of a serious crime.

Mr. Smith. That might have protected the President against 

slanderous claims also.

Mr. Long. Tha t is also possible.

Mr. Kastenmeter. The gentleman from Massachusetts.

Mr. Drinan. Thank you very much. I welcome your interest and 

involvement in this area, Mr. Long. Don’t you actually go beyond 

the Maryland law ? You state here in your testimony that “it could 

serve as a model for the Nation.” And yet the Maryland statutes 

provide that the interception and divulgence of a private communication is illegal. But as I read your good bill, you say that the 

mere interception even without divulgence is erroneous. I t is illegal ?

Mr. Long. Tha t is right.

Mr. Drinan. Do you actually go beyond the Maryland statute? 

So you have a supermodel? I mean, the Maryland statute is defective 

in your opinion?

Mr. Long. I would go beyond tha t because I think that interception of private conservations must be discouraged. Tha t is a very 

good point.

Mr. Drinan. I have a constituent who claims t hat the phone company is listening to him and he has some plausible evidence. Would 

your bill applv to the phone company?

Mr. Long. The present law, which would not lie affected by my 

bill, states in title 18, sec. 2511 (2) (a) (i) :

(2 )( a )( i) It shall not be unlawful under this chapter for an operator of a 

switchboard, or an officer, employee, or agent of any communication common 

carr ier, whose facilities are used in the transmission of a wire communication, 

to intercept, disclose, or use that communication in the normal course of his 

employment while engaged in any activity which is a necessary incident to 

the rendition of his service or to the protection of the rights of prop erty of 

the carrier of such communication: Provided, Th at said communication common carriers shall not utilize service observing or random monitoring except 

for mechanical or service quality control checks.

Mr. Drinan. Thank you. That clarifies it. One last point.

T thank you for the reference to my dialogue with Senator Gavlord 

Nelson. And I was t rying to make the point, and maybe I didn’t 

make it very clearly, but the ACLU position is categorically opposed 

to all wiretapping and has been since May 1961. They have said that 

the ACLU stands unequivocally against wiretapping or the use of 

other electronic eavesdropping devices by any person for any reason 

whatsoever.

35 -3 01 — 74------ 5
62

You kind of suggest tha t tlie need for wiretapping legislation is 

moot. I hope it is not. I hope it is a live option and maybe the Congress will follow what was recommended by the ACLU 14 years 

ago.

Mr. Long. As I said before, I really don’t want to get into that.

Mr. Drinan. I know. Thank you.

Mr. Kastenmeier. Did you want to comment fur ther on that?

Mr. L ong. No.

Mr. Drinan. Thank you very much.

Mr. Kastenmeier. The gentleman from Towa, Mr. Mezvinsky. .

Mr. Mezvinsky. I want to commend the gentleman from Maryland. I think his contribution is significant, but I really have one 

question in view of the comments concerning enforcement.

You pointed out tha t if you really wanted to enforce the laws,. •

you wouldn’t have enough jails to put all of the violators in.

Mr. Long. I think tha t Shakespeare wrote that if you put everybody who deserves to go to jail in jail, where would there be any 

honest men to keep them there ?

Mr. Mezvinsky. I guess in view of Shakespeare and in view of 

your remarks, I want to know, how do we hone to enforce this law?

Mr. Long. Civil suits would be a self-enforcing aspect. If any 

person felt that, his conversations had been recorded, he could bring 

this out as part of a civil suit or part of a complaint. That would 

be one way of handling it. Another would be. tha t the person who 

had acquired this recording as a scheme against another person 

would be precluded from using it in any legal wav because he had 

committed a crime in acquiring the recordings. Tha t would be a 

very important self-enforcing aspect.

Mr. Mezvinsky. Thank you very much.

Mr. Kastenmeier. The committee is grateful to you Congressman 

Long for your testimony this morning and for the bill you have introduced, which is one of the issues we will have to confront.

Mr. Long. Thank you, Mr. Chairman, and the committee for hearing me. T certainly enjoyed the presentation.

[Air. Long’s statement follows:]

Sta teme nt of Hon. Clarence D. Long, a Repr esenta tive in Congr ess a

from th e State of Maryland

Mr. Chairman, I am pleased to have this opportunity to speak to the distinguished Subcommittee about the need to protect the right of an American 

citizen to have his personal and private communications remain priv ate. „

My home sta te of Maryland, since 1956, has had an official policy of protecting private communications which could well serve as a model for the 

nation. The Maryland statutes provide th at :

“The interception and divulgence of a private communication by any person 

not a party thereto is contrary to the public policy of this State, and shall not 

be perm itted except by court order in unusual circu mstances to protect the 

people. It is furth er declared to be the public policy of this State that the 

detection of the guilty does not justify investigative methods which infringe 

upon the libe rties of the innocent. (Annotated Code of Maryland, Art. 35, Sec.

92).’’

The disclosure las t summer of the White House practice of recording the 

conversations of important officials of the Government, diplomats, and even 

White House staff members—secretly and with out the ir knowledge—shocked 

the entire natio n. The White House bugging, however, is only the tip of the
63

Iceberg. Throughout the country, persons who have assum ed th at their private 

conversations were private have been rudely awakened by the widespread incidence of uncontrolled eavesdropping.

My bill, H.R. 9607, would amend Title 18, Section 2511 of the United States 

Code to require the consent of ALL parties to a conversation before it may be 

recorded or otherwise interc epted. As the law now stan ds, if “A” and “B” 

are conversing, “A” could secretly record the conversation withou t “B’s” knowledge—without breaking any law.

My bill would make such bugging punishable by fines ranging up to $10,000 

and up to five years in jail, and violators would also be subject to civil suits. 

The cou rts would, of course, retai n the power to authorize wiretap s for 

investigations involving criminal activities or natio nal security.

Twenty-five of my colleagues in the House have joined me in sponsoring this 

measure.

U.S. Distric t Court Judge Gerhard Gesell recently pointed out th at legallysanctioned snooping has become a common practice which has been able, under 

the present Fed eral law, to pro life rate without judicia l supervision. According 

to Jud ge Gesell:

“Informers, in retu rn for government promises or hope of favors, are equipped with recording devices and sent into the homes and offices of the ir frie nds 

and confidants to try to tra p their words on tape * * * Many individuals, 

withou t any knowledge of the government, secretly tape their own conversations with others for ulterior purposes and use casu al rem arks to extort or 

intimidate * * *”

The time has come to protect individual citizens again st unr estricte d wiretapping, spying, and surveillance. A recent Ha rris Poll confirms the timeliness 

of such leg islation; by 77 perc ent to 14 percent, the public favo rs passage of a 

law forbidding such intrusio ns into their private lives. As Harris pointed out, 

while the Watergate affair may have acted as a trigger to public opinion, there 

has been a clear and underlying sh ift toward gre ate r protection of the constitution al right to privacy.

The President himself has now recognized the need for a new law. In his 

Sta te of the Union message, the Pre sident told the Congress th at we need “a 

new set of standard s th at respe ct the legitimate needs of society, but that 

also recognize personal privacy as a cardinal principle of American libe rty.”

It is my urgent hope th at thi s Subcommittee will report favorably on the 

legislation which I and several oth er Members of Congress have proposed in 

order to safeguard the personal nature of a citizen’s private communications.

Thank you, Mr. Chairman.

Mr. Kastenmeier. Th e Ch air would like to gree t as ou r next 

witness M r. W illiam T ur ne r of Califo rnia,.

Mr. Tur ne r has served fo r ove r 10 years as a special agent with 

the F B I. Since he resigned fro m the Bu rea u in the early 1960’s. Mr. 

Tur ne r has worked as a private investiga tor and a magaz ine editor. 

He is th e au thor of several hooks, inc ludin g “How To Avoid Electro nic Ea ve sd ropp ing and Pr iv ac y Invasio n.”

Mr. Tur ne r would you please come for wa rd. T wou ld say to mv 

colleagu es, we do have four witnesses yet this mo rning and I ho pe we 

can proc eed expedit iously.

TESTIMONY OF WILLIAM TURNER, FORMER FBI AGENT, PRIVATE

INVESTIGATOR, AND AUTHOR OF SEVERAL BOOKS, INCLUDING

“HOW TO AVOID ELECTRONIC EAVESDROPPING AND PRIVACY

INVASION”

Mr. T urner. Th an k you, Mr. Ch air man and mem bers of the subcommittee.

I will tr y and be as br ief as I can. I un de rst an d th at th e purpo se 

in my being here th is morning is mo re or less to ge t an exp osition
64

or a feeling for what really goes on from the standpoint of some 

body who engages in the black arts.

I have been on both side of the fence in the FBI. I was a sound 

man, which is a euphemism for a graduate of the FB I school which 

teaches bugging and tapping and burglary, and I also have been 

involved as a writer in the last 10 years on controversial subjects 

and hence have been on the other side of the surveillance.

So getting into the issue of electronic surveillance, perhaps if I 

give some firsthand accounts, it would better establish just what we 

are tryin g to reckon with in terms of the subcommittee’s investigation.

I went into the FB I in 1951. And in 1952 and 1953 I was assigned 

to the San Francisco office and, because I was a bachelor, I was assigned to the monitoring plants. These were odd shifts. They were 

manned 24 hours a day. We had one of the plants down in the 

produce section and we had another one over in Oakland, which carried the recording equipment for all of the installations in the east 

bay of the San Francisco area.

Since that p artic ular time, while they have had some mishaps, and 

the FB I monitoring plants are now located inside the field offices. 

I said “installations” because I am not distinguishing between wiretaps and microphone installations.

In those pa rticu lar plants and in the current FB I plants, the lines 

tha t feed in carry both microphone and wiretap conversations. The 

plants are for the purpose of monitoring permanent installations. In 

most cases, what will happen is th at the FB I will lease a line from 

the telephone company, much as radio stations would lease lines, and 

the line will feed from the particular monitoring point out to where 

the installation is. And as you can see, there is a considerable amount 

of logistics involved in this.

In April of 1958, perhaps because of my engineering background, 

I was selected to attend the sound school of the FB I in Washington. 

Now these particular schools are held on an irregular basis as the 

needs to replenish sound men in the field come up. And I should 

point out tha t the Treasury Department and the CIA and the various military intelligence agencies do, or at least did, conduct similar 

schools in the Greater Washington area.

In tha t particular school, which lasted 3 weeks, there was very 

little discussion on the part of the instructors on the constitutional 

issue of bugging and wiretapping. We simply were told tha t the 

FB I tapped under two justifications. And here we are getting into 

a little bit of the evolution of bugging and tapping and the law or 

the lack of the law at the time.

The two justifications were tha t President Roosevelt gave executive authority during the war emergency, and tha t no succeeding 

President had rescinded th at authority; and the second justification 

was tha t the element of disclosure in the Communications Act of 

1934 was not violated because information obtained was not disclosed outside of the Justice Department.

In other words, thev were viewing the Justice Department as a 

metaphysical entity. The instructor added tha t the Communications
65

Act of 1934 was inten ded no t for the F B I, bu t for tele pho ne employees in league with pr ivate inve stig ato rs.

Now we ge t into an oth er area here, which is the difference betw een 

telephone-c onnecte d devices and those which hav e no connection to the 

tele pho ne systems at all. In th at pa rti cu la r class we were told th at 

the au thor ity for any device conn ected to a tele pho ne mu st come 

fro m the Atto rney Gener al, but th at th e Bu rea u installed mi cro ­

pho ne survei llan ces strictly on its own au thor ity . So I think th at 

du rin g th at period a very misleading picture wa s po rtr ay ed to the 

Congres s and to th e public at large in ter ms of the total elec tronic 

surveillan ce, a t least by th e FB I.

Th e announced wiretaps, if I recall, always hovered in the field 

of 100 n ationwide, bu t th at was only part of the picture.

One reason was of course th at there were a lot of microphone in ­

sta lla tio ns th at the Burea u inst alle d on its own autho rity.

I can cite an example of how these books were kept in ord er. In 

one instanc e I was ins tru cte d to pu t in a wire tap and th is wire tap 

was made. I t was very sim ply made by making a bridg e on the pole 

box not too fa r from the sub ject’s home. Th ere was no necessity to 

trespass at all except on the telephone privac y. So th at ta p was in 

opera tion for a couple of years. And it was no t fu rnishing in form atio n or intelligence on a continuing basis. I t was fo r a one-shot piece 

of inform ation.

!So I got a lette r from th e F B I lab orato ry instr uc tin g me to yank 

th at pa rti cu lar ta p and in place of it to ins tal l a mic rophone insta lla tio n. Now this pre sented an entirely different problem. In order 

to install the mic rophone, I first had to have the F B I lab orato ry 

fab ric ate a special device, a small mic rophone with the lit tle pre ­

amplif ier inside a con nec ting block, a re gu la r Western Electric con ­

necting block. I the n had to get up wh at we call a “bla ck bag job ” 

team, which was a bu rg lary team a ctu all y, and we had to go throug h 

the whole dri ll of breaking and enter ing a premises in order to insta ll th at pa rtic ul ar device, rep lacing th e othe r con necting block, 

ru nn ing wire un derneath in the baseme nt of the house, con necting 

it with fine wire th at was concealed inside the drop wire out to th e 

tele phone, and then con nec ting up with the leased line and makin g 

the h ookup in the F B I field office.

So, in th at pa rtic ul ar instance , the book indeed was in balance, 

bu t I think the Co nstituti on suffered because of the fac t th at we ha d 

to br eak an d enter in order to m ake the ins tal lat ion .

Going back to the trai ni ng sessions, they were conducted over in 

the old Identifica tion Bu ild ing and in the sou thw est area of W ashing ton . Th ere was a pra ctice room whe re we pla nted bug s in the 

wa lls and taps on a mute phone there. We went down to the F B I 

radi o sta tio n, which is out in ru ral Vi rg inia, and practiced pole 

climb ing with regu lar telephone pole climb ing equipm ent.

In an attic of the Ju sti ce Bu ild ing there was a workshop where 

the F B I’s top bu rg lar ta ug ht us how to mak e lockpick ing devices, 

an d how to use them.
66

And after tha t course we were sent back out into the field to employ these skills, which I did in the Seattle office, in the Oklahoma 

City office also, for approximately Sy2 °r 4 years.

The additional duties of sound men, in addition to these kinds of 

positive installations, is also the very legitimate function of handling 

security of the FB I office communications. I can recall tha t there 

were tapes made on people involved in the Coors kidnaping of 

people who were somehow identified with the suspect; there were 

taps on Communist Party functionaries; taps on various so-called 

security subjects.

As I said, the permanent installations involved the leasing of a line 

from the telephone company under some cover name such as the 

Federal Research Bureau.

Down in Las Vegas, the FB I used the Henderson Novelty Co. I 

suspect tha t the telephone company knew all along the purpose of 

our request for a line that was not ordered hooked up at either end. 

And the way that we went about getting those kinds of lines, or 

any kind of special consideration, such as the hookup of the recorder 

in the telephone company central office, was to maintain a liaison 

with th e special agents of the telephone company. I n some instances, 

they were former FB I agents. In most instances, they were former 

law enforcement officers. And they would assist with these arrangements. They would furnish information from the subscriber’s cable 

card, tha t was necessary to install the tap, and they would notify 

us if telephone company personnel found a tap or a bug that we 

may have put in.

I can recall being called by a special agent of the telephone company and he asked me about a little thin wire hanging down from 

a telephone pole. I thought I got it in the cracks pretty well, but a 

telephone lineman on a service call found it.

lie called me immediately and asked me if I knew anything about 

it. I said I did and tha t was the end of it.

This particular installation I made in terms of what we call a 

“suicide tap”. A suicide tap was one th at was installed strictly on the 

initiative of the agents in the field and of course in collaboration 

with the sound man. It was called a “suicide tap ” because it was 

strictly unauthorized by Washington and usually was authorized by 

the agent in charge of the field office. And it does illustrate the 

problem of training and equipping people with the necessary skills 

and knowledge and equipment to go out and use this kind of a 

black art and still try to control it, either from Washington or 

through some kind of central authority.

I mentioned the burglaries. The FB I alluded to the burglaries as 

“black bag jobs” after the kind of doctor’s kit tha t the tools were 

carried along in. And when I entered the Bureau in 1951, black 

bag jobs were spoken of in terms of being a standard technique, 

just as tapping phones and mail covers and trash covers. They were 

conducted for two main purposes, the first was, as I have recounted 

one episode, to install a microphone inside a premise. And the second 

purpose was to gather intelligence and to photograph documents.

Now the black bag job is different from a conventional burglary 

in that nothing is removed and every effort is made to disguise the 

fact that entry was made.
67

I partic ipated in a number of black bag jobs, including a 1957 

burglary or the Japanese consulate in Seattle. And in that operation, 

the top burg lar flew out from Washington. He used radioactive 

cobalt to bring out the arrangement of the locking mechanism. And 

after a period of hours, was able to open the safe. The contents 

were photographed and returned to their exact position in the safe.

In these kinds of operations, elaborate measures were taken to 

insure the security of the black bag job participants. In the first 

place, we were instructed never to take anything tha t would identify us with the FB I in the event that an unfortunate mishap 

•occurred.

Just like in a bank robbery, the premises were thoroughly cased 

to make sure that the identity of the regular occupants were known 

and their normal movements were known. And when the black bag 

job was about to take place, surveillances were put on them in order 

to make sure tha t they didn’t double back to the premises.

A further precaution was to station an agent at the police radio 

conosle to make sure the complaints of a burglary in progress were 

not answered.

The FB I agents who made a specialty of black bag jobs were 

frequently rewarded by meritorious cash awards, which of course 

would not be identified as to their reason.

Now getting into the area of the actual technical surveillances, 

as it is called, and the FB I referred to it as Tesurs, the FB I refers 

to wiretaps as Tesurs, which is a contraction of technical surveillance. 

And it refers to microphone or bug surveillance as Misurs.

There are two kinds of telephone taps: the direct and indirect 

A tap-transmitter in which a phone line is tapped and the conversation strictly limited to the telephone conversation is sent over 

the air to a receiving point and is, as I say, the tap-transm itter. 

The advantage of this to the tapper is the tremendous security 

because, if the device is found, it is not traceable to him. If the 

wires lead direct to a monitoring post, why the lines are of course 

traceable.

An additional element of security is afforded by what the telephone company in its construction practice calls the multiple appearacne. Multiple appearances means that your particular telephone 

line will appear not only in the pole box nearest to your premise, 

but will appear in another one perhaps in a radius of a mile simply 

to allow for the two-party subscriber. And usually tha t other pair 

is vacant. If the tapper knows where to go to find it, this involves 

the cooperation of the telephone company cable records, of course, 

he can tap at that site in relative security.

Again, getting into the problem of control of wiretaps, a few 

years ago again when the FB I was contending that there were 

perhaps 100 taps nationwide, Ronald Kessler did a very thorough 

investigation for the Washington Post. And in tha t particular investigation he disclosed that the FB I had 450 special service lines 

feeding into the Washington field office from all over the city.

Obviously perhaps on a kind of multiple phone, a rotary phone, 

one tap would involve maybe 10 lines if you are tapping one establishment. But I think that the fact of those very many lines indicates again the need for some kind of outside authority to look into
68

unilateral statements on the part of agents who engage in electronic 

surveillance.

The question of microphones and bugs, again they fall into two 

categories: wired and wireless, which is the bug transmitter or the 

microphone transmitter

The wired simply means that the microphone is connected to tha t 

listening post by a run of wire. Fo r example, the installation in 

Seattle, where we picked the lock to enter the dwelling, in tha t installation, the technique tha t was used there was simply to run a 

very thin wire concealed behind a baseboard from the microphone 

down into the celler, run it behind rafters in the celler, drill a hole, 

and the FB I already had furnished me with a telephone company 

drop wire tha t was especially built and tha t had two very fine wires 

running through it. And they were connected on. The telpehone 

drop wire then carried it out to the pole box.

I had one problem after we hooked up tha t because there was a 

nearby commercial radio station interfering. Apparently the bug 

wire was acting somewhat like an antenna so it was simply a simple 

matter to design a low pass filter and filter out that radio frequency.

The wireless type I think at this stage is the most common. It 

can be planted strategically, and again if it is discovered, it is not 

traceable to the eavesdropper. He is simply out the $50 or so a decent 

one costs.

And the wired type again is very vulnerable to detection because 

of the necessity for wires to run all of the way from the installation 

to the monitoring point.

I have in my black bag here [indicating] an illustration of a very 

modestly priced bug. And since the law at the current stage forbids possession, I should point out tha t this equipment is all disarmed much like an automatic weapon with the barrel plugged.

This one [indicating] very simply is a small pillbox with a pretty 

good circuit inside. 1 should point out tha t every bug in order to 

operate with any range at all requires an antenna. So again the element of looking for a particular bug would involve, if you suspect 

one, tha t there has got to be an antenna somewhere, which adds to 

the bug’s insecurity.

This one [indicating] is just a little 9-volt-battery type with a 

9-volt battery tha t hooks in there. And the way it operates, as you 

can see, if you found this, it wouldn’t be much loss to the tapper.

It can be received simply in a radio this small [indicating], 

which is an ordin ary transistor radio. It is an FM radio. The upper 

band here [indicating], well the whole band has been slid down a 

little and the commercial ends right about here [indicating] and 

then here [indicating] is your bug band, right here [indicating], 

righ t at the top.

And this kind [indicating] of a bug is very difficult to trace. 

These are just standard components tha t any kid perhaps with a 

high school electronics shop experience could put together.

Here is one [indicating] tha t is a little more mass-manufactured. 

This is an FM wireless microphone. And again, it is the same situation. This one would cost in the neighborhood of $70 and a couple 

of little 9-volt batteries.
69

Mr. Kastenmeier. And the way tha t operates is tha t tha t is 

placed or situated in, for example, a room and it is live 24 hours 

a day?

Mr. Turner. Yes.

Mr. Kastenmeier. And it transmits all sounds?

Mr. T urner. Yes.

Mr. Kastenmeier. All sounds in the room?

Mr. Turner. Exactly, Mr. Chairman.

The bugs again, as you point out, carry all conversations; pillow 

talk as well as relevant conversations. And I would place them in a 

little more insidious category for that reason.

One of the problems of course, is tha t your batteries will run 

down. Again, whenever you hide something like this, you have to 

have some air conduction in order to get a good pickup. So there are 

technical problems confronting the bugger.

Nonetheless, if I had some room and could install a number of 

batteries in parallel, if the bugger could do that, he would get very 

long battery life and this could go on for some time. .

There is also the advanced bugger who has a remote switching 

device where he can turn it on and off simply when he wants to 

monitor, again conserving battery life. Otherwise, he would have 

to reenter and replace the batteries.

The other thing that he may do is, if he want to plant a very small 

device in a wall with say a very limited range, he may have a repeater somewhere nearby; a kind of booster station tha t will boost 

his signal along. Then if he is monitoring in a car somewhere, you 

have the same problem of enforcement tha t you would have in the 

case of sav narcotics where you have to catch somebody with the 

narcotics. I n other words, how do you catch this man with the bug. 

lie is not connected to it in any other way except the airwaves. And 

it is a very difficult problem of enforcement.

I have another device here and T think this is very illustrative 

of what the 1968 law meant. In fact T think the legislative history 

brings this out. T have a device primarily useful for aural acquisition. It is called a spike-mike and it is employed usually from the 

room next door or from some outside area. Here it is [indicating].

It simply is a contact microphone. It is a crystal microphone of 

very good fidelity. And the tapper then takes one of the spikes and 

screws it in here [indicating]. Well, actually first he puts this into 

the wall and this makes contact with the inner wall. This [indicating] will go through. T have another size here if it is a thinner wall.

And tha t mike as I say is verv sensitive. It then is plugged into 

an amplifier. And he can either feed into a recorder or he can listen 

with his earset. And this as I sav is an example of something that 

T can hardly conceive of being used as a baby-sitter device or something for party fun or the other kinds of reasons that are now given 

for making these kinds of devices that are not primarily useful. They 

mav have double or triple purposes.

Then vou have the stethescopelike device, which you can affix to 

a wall. These are usually very transient types of installations.

Somebody checks into a motel room for instance, this is the ideal 

kind of piece of equipment to use in that situation. It is not like
70

the permanent leased line situation, which is for a long-term intelligence gathering.

There has been much made lately about the state of the technology. 

And indeed the technology, aided and abetted by space-age developments and all, has gone on and gone forward.

I think another committee in the past looking into this problem 

was regaled with the olive-in-the-martini type transmitter. And 

while such a device exists, I think it is highly impractical and not 

one of the main problems confronting legislatures in this area for 

the simple reason tha t the thing is so impractical. It will hardly 

transmit more than a few feet. You know, you have to be a few 

stools down to pick anything up.

And there is talk about the CIA having perfected a laser device that aimed at a room window will pick up the room conservations from the minute vibrations of the glass pane. I am sure if 

tha t isn’t in a perfected stage, it is very close to it.

But again you are getting to the problem that this type of device 

would be available simply to the agency that would perfect it and 

so it would take immense amounts of money needed to purchase one.

Tiny integrated circuits have been developed for the aerospace 

programs and these obviously don’t bode well for future privacy as 

they are the breadboard noon which a bug can be made.

There is also a device called the infinity transmitter, or harmonica 

bug. And for example if I went into an apartm ent in Honolulu—• 

well, let’s use another example. I am not sure whether we have direct dial to Honolulu.

In Los Angeles, if I installed a little device in a telephone and T 

came back to Washington, if I had this infinitv transmitter, T would 

simply direct dial tha t phone, and then, as soon as the line clicked 

on, I would activate this device which would then freeze the ring ­

ing system on tha t phone and it would at the same time activate 

the bug in the phone so that in Washington, H.C., via the telephone 

longdistance line, I would be monitoring the room conversations in 

tha t apartment in Los Angeles.

This state of the art is available to the bootleg eavesdropper. That 

particular device was marketed in the past before the 19G8 law. And 

since it has now been disseminated throughout the eavesdropping 

underworld, T am sure that anybody who wanted to pay the price 

could lay their hands on it.

Next, prevention and detection. I t is getting to an area here where 

again we have problems. If a telephone subscriber suspects a tap, 

he can request the telephone company to conduct an inspection, but, 

if the device is found, the telephone companv merely turns it over 

to the proper law enforcement authority. It generally will not advise 

the customer t hat he has been invaded.

I think this is an area for legislation, because I don’t know tha t 

in the 19GR law tha t under the civil recovery provisions. I don’t 

know whether the plaintiff in a civil suit, the plaintiff having been 

injured in this fashion, has the availability of the law enforcement 

testimony and of the law enforcement evidence if a criminal case 

has not been brought.
71

And I think that is one area that might be considered in future 

legislation.

Most law enforcement taps tha t are conducted under court authority are in the telephone company’s central office, which makes 

detection by the citizens or a private sweeping outfit on his behalf 

very difficult if not impossible to locate. And contrary to the mythology, a properly installed telephone tap will not cause clicks and 

noises.

I have gone to the trouble of trying to outline a number of preliminary checks that a citizen can make for devices in the book that 

1 wrote on this.

lie can check his premises for such things as fresh plaster marks 

and alien wires, check for antenna wires of a bug transm itter.

lie can hire at considerable cost a professional sweeper, but he 

should be aware of someone who advertises the ir services and shows 

up with simply a kind of wand they call a hound dog or field 

strength meter, and then declares the premises “clean”. Some unscrupulous operators in this field have even planted their own bugs, 

and then discovered them. This is a prelude for their sales pitch for 

their periodic services.

A truly professional search requires anywhere from $8,000 to 

$10,000 worth of equipment and somebody tha t knows how to use 

tha t equipment, who should have gone to the manufacturers’ school.

And it should also be noted tha t bugs tha t can be remotely turned 

on and off are very difficult to detect. And, the eavesdropper may 

plan t a decoy bug tha t is easily found, to lull the victim into a 

sense of security.

Also the private citizens should beware of delivery men bearing 

gifts which may contain a bug. And repairmen and utility men who 

want to enter the premises uncalled for and the salesmen who drop 

by and leave a briefcase in the conference room and this kind of 

thing.

There was another area tha t was brought up and that is the area 

of voluntary conversations being surreptitiously recorded. And I 

draw a distinction between interception and tha t type of voluntary 

conversation. In other words, if I am talking to a second p arty faceto-face and the conversation is recorded surreptitiously, by me, I 

don’t find tha t too much different than if I were taking notes or 

mentally recording it and later dictating it except of course, as 

has been brought up already, in the area of again the recording can 

be used as evidence against him. It does contain his exact words 

and his inflections.

But again, looking at it the other way, the fact tha t it does contain exact words and inflections, I think make a more valuable record of what was actually said and I feel th at it is not righ t to legislate against a person protecting himself by recording a free and 

voluntary conversation.

And I am not talkin g about a third person being under the table, 

because tha t is an interception electronically as opposed to by notes 

or by mental retention.
72

And if T was interviewed by a law enforcement officer, in connection with my either being a material witness or possibly a suspect, I would like to have a recording of just what his questions 

were and what his remarks to me were. And I don't feel it is right 

that he should be allowed to wear a recorder and I should not be. 

And so my feeling is tha t in that area, tha t the law should be considered to provide for a private citizen also in that type of conversation, making his own recording.

To sum it up, my overall feeling in the area of electronic surveillance is something like the alcoholic who is reformed and doesn't 

touch a drop.

I am for abolition. And I think the real reason is I don’t find any 

way to effectively control it once it is legitimitized for the law 

enforcement in the interests of that vaguely definable “national 

security" or unilaterally definable “national security”, or in the 

area of crime investigation.

If the legislation is going to be tha t we allow it for certain instances—and I doubt very much whether those of us who prefer 

abolition are going to get it—then I found tha t one suggestion tha t 

was brought up this morning of placing various heads of field 

offices under oath to find out exactly what is going on has a considerable amount of merit.

I might also propose the idea of a Federal kind of, well, I don’t 

like to call it a “truth squad”, because tha t implies dishonesty, but 

a kind of special squad tha t knows all about wiretapping, bugging, 

and would go around and have complete entry to the facilities and 

th agents of any agency that is permitted to use electronic eavesdropping.

I think this way that we would all be alerted to the fact that, if 

there was any boootleg eavesdropping, tha t there was a good chance 

of discovery, and I think this would cut down on it quite a bit.

Well, I—as I said—I think tha t the area tha t you gentlemen 

have embarked on here is one th at does cry out for additional legislation and I am very happy to have been invited before the subcommittee to lend whatever I can to the discussions.

Mr. Kastexmeiek. T ha nk you, Mr. Tu rner. I think your testim ony 

will be very useful Io the comm ittee.

You have given us a background at least, historically, of some 

of the uses made of the subject matter of this particular hearing.

We do have a quorum call. Let me ask the members of the committee whether you have questions of Mr. Turner, or whether Mr. 

Turn er can leave?

Mr. Mezvinsky. May I just ask one question?

Mr. Kastexmeiek. Well, I am try ing to determine whether or not—-

Mr. Mezvinsky. Oh, I am sorry.

Mr. Kastexmeiek [continuing]. Whether or not you all have 

questions.

In view of the quorum call, I want to find out whether we can 

release Mr. Turner or have him return afte r lunch.

I guess you had better return.

Mr. Turner. Fine.
73

Mr. Kastenmf.ier. T think we can continue our colloquy then, and 

trust that the members of the subcommittee will have questions to ask 

of you, Mr. Turner.

I apologize for the length of time it took with the first two witnesses. 

Mr. Leon Friedman and Mr. Shattuck and Mr. Morton llalperin. also 

have kindly agreed to return alter lunch.

Mr. Smith. Mr. Chairman, there is a Judiciary Committee bill. 

We have the Police and Fire Benefits Act.

Mr. Kastenmf.ier. Tha t will not come up until sometime later. 

I think the Arms Control and Disarmament Act is up first.

I would like to reconvene the subcommittee, if it is agreeable, at 

1:30 so we can proceed as far as we can. I trust we can complete 

the witnesses today.

If there is no objection, then, the subcommittee will stand in recess until 1:30 at which time we will reconvene in this room.

[Whereupon at 12:30 p.m., the subcommittee recessed to reconvene a t 1:30 p.m., this same day.]

AFTERNOON SESSION

Mr. Kastenmeier. The subcommittee will reconvene on matters 

relating to privacy, wiretapping and electronic eavesdropping. And 

the Chair would like to recall Mr. Turner, please.

Mr. Turner, I think your testimony this morning was extremely 

helpful. I am reassured somewhat th at what might have been possible for the Government to do surreptitiously in years past is less 

possible today, partly because of people like yourself, some of them 

in the military services as well—and I can remember a case or 

two in your State—of former military personnel who literally blew 

the whistle on activities such as you have been describing.

Most of what you had described of your own experience in the 

Bureau was of course before 1968, and so I suppose much of what 

you might know in terms of present policy and operation would 

be a matter of not first-hand experience, but just judgments made 

from past experience.

For example, one of the things that statistics will not show in 

terms of wiretap applications is how many suicide missions are 

there. Isn’t that correct? Have you any reason to believe that the 

same suicide missions are not pursued today that were pursued 15 

years ago?

Mr. T urner. Mr. Chairman, you are quite correct. Anything would 

be hearsay or an impression from staying in contact to some degree 

with what is going on both through investigative journalism and 

inside contacts. And there is no reason to believe that it has been 

terminated forevermore though.

I believe sometimes when the heat is on, especially by subcommittees such as yours, the agencies will pull in their horns quite a 

bit but I think the history of the thing has been that it has gone 

back to the status quo or situation normal and one of the problems 

that I see is in the justifications for say, criminal wiretaps or microphone installations. I find in my own experience that the justifica-
74

tions offered invariably are ones with which we all would agree. 

For example, the legislative history of the 1968 act specifically points 

at a drive against organized crime. And of course I have long written about the dangers, about the corruptive dangers of organized 

■crime and its menace to society as a whole as opposed to some criminals who, heinous as the crimes may be, victimize only one or two 

people. However, I think that in accepting this kind of justification, tha t we have to be very cautious as to the possibility tha t it 

might be altered at a later date.

For example, in the middle 1950’s the Los Angeles Police Dep artment Intelligence Unit, along with similar units from other departments, other major departments across the country, formed what 

they called The Law Enforcement Intelligence Union, LE IU. The 

stated purpose of this was to organize a drive against organized 

crime, recognizing tha t it was national in scope rather than just a 

problem confined to Los Angeles, Philadelphia, Detroit, whatever.

They did get up quite a mechanism there in which exchange of 

information and surveillances, and I suspect they used electronic 

surveillances, a whole program was instituted. In the mid-1960’s, 

after this apparatus had been set up and was functioning, then 

Chief Tom Reddin of the Los Angeles department in the course 

of a press conference, stated tha t the main danger to the United 

States was domestic turmoil, and tha t tha t particular law enforcement intelligence union had switched targets therefore; it had 

turned from organized crime and decided tha t the complete danger 

to the United States was the radical left, was civil disorder.

So there was a well-intentioned program I think getting a little 

out of hand there, away from the original intent.

Mr. Kastenmeier. Yes, sir. I agree. I would like to talk for a 

moment about the technical aspects of wiretapping. You draw certain distinctions. For example, there are phone interceptions, and 

there are nonphone interceptions.

Mr. Turner. Telephone?

Mr. Kastenmeier. Telephone.

Mr. Turner. Yes.

Mr. Kastenmeier. I take it you also referred to other categories 

such as wired interceptions and wireless interceptions?

Mr. Turner. True.

Mr. Kastenmeier. In terms just of the techonolgy, is there some 

sort of distinction of other catgeories tha t clearly are identifiable? 

For example, there is the old-fashioned telephone tap?

Mr. Turner. Yes.

Mr. Kastenmeier. There are I assume some of the new subtler 

devices that trigger the phones automatically from other cities and 

so forth?

Mr. Turner. Yes.

Air. Kastenmeier. But basically still using the phone, and the 

telephone line as the means of interceptions?

Air. Turner. True. The old bread and butter tap is simply going 

to say an apartment house, and in the frame, in the basement, finding the subscriber’s lugs and'just put “alligator clips” across them
75

with a little condenser, and then you have a pair of earphones and 

listen in or attach a recorder.

Now there are many variations on tha t theme of you intercepting 

tha t telephone conversation. There is what they call a “hot mike” 

which is simply in FB I terminology, a “mike-tel”, the microphone 

telephone in other words.

The telephone instrument itself is altered so tha t when the instrument is in the cradle, the off switch is by-passed and the microphone in the telephone itself is activated and therefore it picks up 

all conversation, all room conversation and not just the telephone 

conveisation.

I think the recorder you are referring to is what is called VOR, 

the voice operated relay. When the telephone is not in service, why 

the recorder is not on. When the telephone is used and there is a 

sustained voice level on it, the relay switch is on the recorder and 

that of course conserves tape.

Mr. Kastenmeier. So that is automatic and does not require manning, require monitoring by one or more individual?

Air. Turner. This is true. Again, it offers a certain security in 

tha t the person himself does not have to be present while the monitoring is going on.

Mr. Kastenmeier. You refer to the fact tha t the Bureau had 

conducted in Washington a sound school and that some of the other 

units of government had similar schools. You referred to a sound 

school. I take it however, that the Bureau and other units of the 

Government may use devices other than those monitoring sound? 

For example, do they use cameras and other methods? Is that part 

of your training?

Air. Turner. Well, the training was in electronics and electronic 

eavesdropping. What Jim McCord would call train ing to be a wireman, as he calls it, and NYPD calls it a “ wireman”. In the art there 

are all different terms.

And that program was for 3 weeks at school. The last 3 days were 

devoted to lock picking and bypass, as they call it, in order to enter 

premises, in order to plant electronic devices, but the whole school 

was taken up with the theory and practice of electronic eavesdropping.

Air. Kastenmeier. Was the lock picking aspect justified on any 

legal grounds during the course of your training or otherwise?

Air. Turner. No, there was absolutely no mention of it in terms of 

any possible infringement of the constitutional rights. I remember 

at that time I was stationed in the Seattle office and the instructor, 

when I was leaving, made some crack to me about “well, burglary 

will get you 8 years in the State of Washington”. So there was a 

rather cavalier attitude toward the whole thing.

I think the attitude in the Bureau then, and perhaps you can try 

to verify what it is at present, I think the attitude then was pretty 

much an attitude that the FB I knows best, tha t we stand between 

crime and subversion, and if Air. Hoover says it should be that way, 

it should be tha t way. It was a very monolithic organization and 

the personnel were selected and trained with tha t type of compliance 

in mind.
76

So T believe that the attitude as reflected in that remark and the 

Communications Act of 1934 was really intended for telephone personnel and not for the FBI. In other words, the laws were really 

not broken by the FB I, because the FB I was some kind of superseding authority.

Mr. Kastenmeier. In your own experience and as a matter of your 

own judgment, I take it that the telephone company was almost 

without exception cooperative and would cooperate with the Bureau 

or with the law enforcement authorities, irrespective of the rights 

of the individual, at least while you were in the Bureau?

Mr. Turner. Yes, the telephone companies around the United 

States operate fairly autonomously, and from my own first-hand experience and from talking to other trained sound men when we got 

together, most of the telephone companies were fully cooperative 

with the FB I in these endeavors. They put it on the level of it was 

a patriotic gesture. I don’t think tha t they knew that we had some 

men that were doing this in criminal cases, even though at tha t time 

it wasn’t authorized for criminal cases, I mean, we were only supposed to be doing it under national security.

Still, they have one, I remember they had one on Mickey Cohen and 

some other hoods, about 1958 and 1959, afte r the Appalachian Conference in 1957, which caused quite a bit of embarrassment to law 

enforcement as a whole, and many short-cut methods were devised 

to tr y to catch up in the intelligence end of it on organized crime.

The New York Telephone Co. is one tha t I understand they did 

have a little trouble with. It wasn't fully cooperative. The Chesapeake and Potomac, and I know’ Pacific wTas and Southwestern Bell 

was definitely.

Mr. Kastenmeier. In terms of private or nongovernmental electronic surveillance, w’hat is your judgment today as to how pervasive 

or widespread such practices are?

Mr. Turner. It is a difficult judgment to make, simply because it 

is not a subject tha t even private detectives will talk about among 

themselves. You hear opinions both ways. I think that afte r 1968, 

after the act, mv feeling is there w*as a definite curtailment to see 

which way things w’ould go in terms of enforcement. I think they 

realize now, and I think it is obvious now7

, tha t the enforcement is 

very difficult. And if you have a throw-away transmitter that nobody can trace, that is made out of parts tha t are obtainable in any 

electronics shop and doesn’t have a serial number, and maybe somebody finds it and it can’t be traced to you, that there really is no 

risk. But I think tha t people who want to have tha t kind of work 

done by a private investigator can, a fter making several phone calls, 

find somebody that for a price will do it.

Mr. Kastenmeier. What is your experience as to enforcement by 

law enforcement authorities, either the Federal Government or any 

other agency of government, as far as curtailing illegal and nonauthorized wiretapping or electronic surveillance? Are there cases 

that you know of or are there areas where unauthorized tapping is 

pursued in terms of prosecution?

Mr. Turner. Well, as far as I know, and I haven’t gotten into it 

with depth, you know*, probed the depths of Justice Department sta-
77

tistics, but they only have had a few prosecutions under this act. 

One was Gordon Novel, in United /States v. Novel. in Nevada, and 

if I am not mistaken that case involved, well the count on 

which he was indicted was bringing a recording device interstate. 

And they didn't indict him on the use of it, even though it supposedly 

was planted under a tribal council meeting in order to find out 

what their feeling was toward the land developers' offer. So there 

it was not really a direct prosecution under the act itself.

There is the case down in Dallas of the Hunt family. 1 understand 

that in that one the motion to suppress has been upheld. And on th at 

case, and I am not familiar with the details on it—actually, I am 

more familiar with the Bast case, which involves Richard Bast, a 

Washington private investigator and purveyer of electronic equipment. And as a private investigator, I handled the California phase 

of that investigation and I must say I am n ot very happy with the 

way the prosecution or the investigation was conducted by the Government. And in th at particular case a gentleman in Gardena, Calif., 

got ahold of Mr. Bast and asked him to send him literature on a very 

small recorder that he had. Now a recorder is not necessarily primarily useful for electronic eavesdropping. Recorders are used by 

businessmen and they carry them in their pockets on a plane or 

travelling. And this particular one had some 50 words of sales copy 

on it. And the one word that apparently was the crux of the Government's case was th at he used in the course of tha t sales pitch the 

word “secret"’. And the way they got the litera ture to be sent interstate was to have this man in Gardena, Galif., ask for it. And then 

there was a telephone conversation in which the man asked him if 

he could put VOR's on it, which are the voice operated relays, and in 

my opinion, take it one more step towards the clandestine. And I 

think the evidence is clear th at Bast said, if you want to do that, you 

do it on your own, you know, here is the instrument, here is the price.

And my inve stigation of tha t case was that I went down to see 

this man. Unfortunately, he was the victim of a homicide perpetrated 

by his son, as the police would say, days before. But at any rate it 

turned out that this man, according to the tapes that I did get on 

the case, had been working as an agent of the FB I and I think it was 

a case of borderline entrapment.

So here was a case tha t to me was very marginal. It didn't go 

to the heart of the problem of bugging and tapping and yet, this 

prosecution had been persisted in by the Government. And I think 

that we still haven’t got a case that very clearly brings out the aspect 

of surveillance th at we are talking about in these kinds of hearings.

Mr. Kastenmeier. I have some other questions, but I want to yield 

to my colleagues because I want them to have the opportunity to 

ask questions as well. The gentleman from Massachusetts, Mr. 

Drinan.

Mr. Drinan. Thank you very much, Mr. Chairman. I would like 

to get back to the question I raised this morning in that you have 

extensive background in this whole area. How essential or indispensable is wiretapping to the effective and successful prosecution of 

the criminal law ?

35 -3 91— 74 6
78

Mr. Turner. My experience is that if it was done away with, if 

it was abolished totally, tha t I doubt tha t there would be a drop in 

the bucket impact on the law enforcement in this country.

Mr. Drinan. Can we make it a bit more precise than “a drop in the 

bucket” ?

Mr. Turner. Well, I listened in on these, and as I said before, I 

don’t know how many thousands of hours I listened in on people’s 

lives being trotted before me. And I agree tha t a lot of it was for 

so-called security purposes, but even from tha t standpoint, from 

the standpoint of tha t type of intelligence-gathering, my opinion w

was that it wasn’t worth it, either in terms of the logistics, the money, 

the time involved, or in the constitutional or human terms, in terms 

of invasion of privacy involved.

Mr. Drinan. Has anyone done a really hard, empirical study on .

how many cases have really been prosecuted successfully because, and 

only because of, wiretap evidence? Or in the alternative, a study 

that if they had wiretap evidence, they would not have lost the 

case?

In other words, the burden is on the Department of Justice and the 

FB I I would assume, but they don’t seem to say that burden is on 

them, and they go in and they get all of these warrants about wiretaps, about which we never really hear.

And in your judgment, would you restate it in scientific terms or 

in percentage terms that far less than 1 percent of all of the cases 

might be lost or even less than that?

Mr. Turner. Well, yes, I think that really there were some prosecutions initially when this was authorized, but I think now with all of 

the publicity, you know, we have published a pocket-book edition 

of “Sam the Plumber's Intercepted Wiretaps” and all and it would 

seem to me th at anybody indulging in that type of activity of an 

organized nature and using the telephone as a means of communication and furtherance of a criminal act is awfully stupid or at least 

if he doesn't use a voice scrambler, he is stupid. There are just other 

ways of communicating in code or something.

And I think tha t at this point the real victims of continued wiretapp ing and electronic surveillance are not going to be what you 

would call the heavy organized criminals, but the common citizen •

and people who are at maybe the first time in.

Air. Drinan. I have had extensive discussions and given lectures 

over the years on this precise subject and I always say to law enforcement officials or rather ask them, I always ask whether or not *

this makes them lazy. The fact that they can in fact wiretap, does 

this make them less resourceful in seeking alternative w’ays of discovering clandestine activity.

Mr. Turner. Well, I think back around 1938 or so. J. E dgar TToover 

said he was against it because it was the lazy man’s tool. And he of 

course turned around and was for it later on. But in any event, I 

agree that it is probably a short way of doing it in certain instances 

to go about it, and it does, if you get this kind of a short cut, it does 

create a legion of law enforcement officials who are not versed in 

conventional methods of investigation and lose their skills. Tha t is 

true.
79

Mr. Drinan. One further question. When did you leave the FB I?

Mr. T urner. 1961.

Mr. Drinan. Are you in a position to make any judgment whether 

wiretapping has become more utilized or less?

Mr. T urner. Well, afte r 1961, when Robert Kennedy came in the 

Justice Department, there is no question tha t FBI wiretapping increased, simply because they had been behind on their intelligence on 

organized crime and Kennedy wanted answers to what was going 

on in the criminal netherworld. The embarrassment of the 1966 disclosure of FB I intelligence installations in Las Vegas and the resultant lawsuits, the civil suits filed by the victims, against the 

Central Telephone of Nevada and all, I am sure again brought 

about a temporary curtailment. I am sure tha t when the hearings 

come on, tha t there is considerable pulling back of the electronic 

surveillance, but I think that if we look at it in long-range terms, I 

think that the tool has been so commonly used throughout law enforcement that there is little hope of it being cut back unless there 

is some law that says it should be and some effective way of doing it.

Mr. Drinan. Did I understand you to say tha t the F BI would pull 

back on electronic surevillance because of these hearings here?

Mr. Turner. No, I said it is my feeling that when these hearings 

are held, like for example when the Long’s Subcommittee of Administrative Practices and Procedures of the Senate had hearings, I 

have a feeling then tha t they were cut back. I have had some feedback from inside the FB I that when the heat is on, that “we will pull 

them out” and then they will start them up again when the heat is 

off.Now these are the kinds of things tha t I can’t say from direct 

experience. I wasn't there if and when they pulled them out, but it 

is the kind of thing I say that, if this type of activity is going to be 

permitted, if our laws are going to be permissive in respect to wiretapping and bugging, th at the enforcement has got to be in the hands 

of some totally independent investigative group that has total access 

to the facilities and personnel of the wiretapping and eavesdropping 

people.

Mr. Drinan. Maybe we just should keep the hearings going indefinitely ?

Mr. Turner. Could be. T hat is one way of doing it.

Mr. Drinan. Thank you very much.

Mr. Kastenmeier. The gentleman from Illinois, Mr. Railsback.

Mr. Railsback. I notice in your statement an anecdote about 

Jessica Mitford, who was also the subject of a tap. I don’t think you 

mentioned tha t in your testimony. Wha t was that incident about?

Mr. Turner. I mentioned tha t back in the early 1950’s I was assigned to the wiretapping plants in the San Francisco Bay area tha t 

the FB I had at tha t time. The story would be this, tha t a few years 

ago I was at a cocktail party in San Francisco and I heard this very 

distinctive woman’s voice and I couldn’t place the face. I could not 

associate the face with the voice. So I went over and introduced 

myself and sure enough it wTas Jessica Mitford and sure enough 

the voice I had heard so many times so long ago on the wiretaps
that we had on Jessica and Bob Tr ufa ft, her husband who is a civil 

liberties attorney, was exactly that.

Mr. Railsback. I ’ll be darned.

I guess that is all I have. Mr. Chairman.

Mr. Kastenmeier. I know that you have written a number of 

books or articles on law enforcement, privacy, and electronic eavesdropping. Have you been personally subjected to harassing by the 

Bureau or others as a result of your rather open and candid disclosures about their operations and others'?

Mr. T urner. Yes, 1 have. On two occasions I was notified by an 

editor, Murrv Fisher, of “Playboy,” that the FB I had been up to 

see the “Playboy” editors about articles tha t I had submitted to 

“Playboy’’ directly for consideration for publication. Both of the 

articles dealt with the FBI. And it was a mystery to me as to 

how the FBI knew “ Playboy” held the articles since unless somebody 

inside, the mail clerk or somebody inside, tipped them off. they 

wouldn’t know. But at any rate they showed up and Mr. Fish er 

told me it was very obvious that the idea was to intimidate “Playboy”, not to publish them. The same thing happened at “Saga” 

magazine on one occasion when I published “Hoover’s FB I” in 

1970. I went on the usual promotional tour that the publisher puts 

you through. And at that time the FB I distributed an anonymous 

so-called fact sheet on ine, which was carried by an agent, unsigned, 

no letterhead, carried by the agent to the various producers. Their 

impression was that it would hopefully keep me off the air.

In Philadelphia, Tom Snyder, who is now at the “Tomorrow” 

show, said “Well, I knew what kind of a suit you would be wearing, 

1 knew you would wear a gray suit.”

The F BI had been there, you know, and they told him I was coming in there from Pittsburgh. So whenever I do get involved in 

publications that apparently they disapprove of, I do find there is 

that kind of harassment or surveillance.

Mr. Kastenmeier. There is a vote on and we will have to again 

recess for about a period of 15 minutes. We will resume at 2:30. 

There are other questions we might ask of you, Mr. Turner, but I will 

not hold you any longer. I think that will conclude our inquiries of you.

We might like to keep in touch with you. To the extent tha t we 

are dependent on information and factual data, and sometimes merely 

allegations, to learn what does exist, your appearance here today 

has been most helpful and the committee appreciates it.

Mr. Turner. Thank you, Mr. Chairman.

[Mr. Turner's Statement follows:]

Statement of William W . Turner, a F ormer F B I Agent, P rivate

I nvestigator, and Author of Several Books

OUTLINE OF PROPOSED TES TIM ON Y

Backgro und.—Afte r sen-ice in the Navy during World War II, attended 

Canisius College, gradua ting with B.S. in Chemistry 1949. Entered FB I as 

special agent in 1951 at age 23, serving for over ten years before being ousted 

for asking for Congressional review of Hoover’s policies. Posted to five field 

offices, worked predominately criminal and counterespionage. Designated as 

Inspector's Aide, a kind of junior executive duty, and a Sound Man, a euphem-
S I

ism fo r a gra duate of the F B I's sch oo l on bu gg ing, ta ppin g an d bu rg la ry . Since 

leav ing th e FB I, ha ve w ritten nu m er ou s art ic le s fo r th e leg al pre ss on po lic e 

science top ics , ed ited th e Police Evi de nc e L ib ra ry se ries , au th ore d a num ber 

of ar ticl es in va riou s mag az ines an d ne w sp ap er s, w ri tt en five book s on pop ula r 

su bj ec ts, e.g. Th e Police E st ab lish m en t (P u tn am ’s) ; Hoo ve r's F B I (S he rbo ur ne P re ss; D e ll ); an d Th e Te n-Se co nd Ja ilbre ak (H olt, R in eh art & W in ­

ston ) ; as we ll as a mail or de r boo k H ow to Avo id El ec tron ic Eav es dr op pi ng

an d Priva cy In va si on . Po ssesses a C al if orn ia p ri vate in ves tigat or license, w or kin g pri m ar ily fo r att orn ey s on de fens e cases.

Tr ai ni ng an d Exp er ie nc e in Ele ct ro ni c Su rv ei lla nc e.— F ir st in vo lv em en t w as 

in Sa n Fra nc is co F B I office in 195 2-5 3 when as sign ed to the m on itor in g pla nts 

th er e. Des cr ip tio n of th e pla nts an d ho w they oiterated, who w as tapp ed , e.g. 

A1 Ri ch mon d of th e Dail y Pe op le’s W or ld an d th e Yu goslav co ns ul ate. An ecdo te ab ou t Je ss ic a M itf or d, who was al so th e su bj ec t of a tap .

A fter some misha ps , in clud ing a po lic e ra id on a m on ito ring p la n t su sp ec ted 

of being a bookie jo in t, F B I pla nts were re lo ca ted in side th e field offices.

In April 1958 w as selecte d to att end th e So un d Sch ool held in W ashing ton. 

Sim ilar to sch oo ls co nd uc ted by th e T re asu ry D ep ar tm en t ag en cie s, CIA an d 

m il it ary intelli ge nc e. L it tl e disc us sion of C ons titu tion al iss ue — simply to ld th a t 

FB I tapp ed un der tw o ju st if ic ati ons: (1 ) th a t Pre si den t Roo seve lt ga ve ex ec uti ve au th ori ty an d no succ ee ding pre si den t has descinde d it; an d (2) th a t th e 

elem en t of di sc lo su re in th e Com m un ications Ac t of 1934 w as not vi ol at ed 

be ca us e in fo rm at io n ob tain ed was not disc losed ou tsid e th e Ju st ic e D epart ­

men t. In str u cto r ad de d th a t th e act w as inte nd ed no t fo r th e F B I but fo r 

teleph on e em ploy ees in leag ue w ith p ri vate de tectives .

We were told th a t th e auth ori ty fo r an y devic e co nn ec ted to a teleph on e 

m us t com e from th e A.G., bu t th a t th e B ure au in st all ed microph on e su rv ei llanc e on its own au th ori ty . Thu s th e an no un ce d nu m be r of w ir eta ps—a lw ay s 

ar ou nd 1(M) na tion w id e— w as only a p a rt of th e pi ct ur e, not th e wh ole. Il lu str a ­

tion : once in st ru cte d to pu ll ou t a ta p an d in st all a mike, ke ep ing th e book s in 

ba lanc e bu t ne ce ss itating a bu rg la ry .

Th e tr ain in g sess ions were co nd uc ted mai nl y in th e Id en tifica tion Building. 

The re was a pr ac tice room whe re we pla nte d bugs in w alls and ta ps on th e 

phone. We w en t do wn to th e F B I ra dio st ati on in ru ra l V irgi ni a to pr ac tice 

po le cli mbing . In an att ic of th e Ju sti ce B ui ld in g th er e was a w or ks ho p w he re 

ag en t Ge org e Ber ley ta ught us ho w to m ak e lock pick ing devic es a nd us e them .

Ba ck in Sea tt le I em plo yed th es e sk ills, han dl in g se cu rity of th e office comm un ic at io ns as we ll as in st al ling ta ps an d bugs. Rec all ta ps on re la tives of 

su sp ec t in Co ors kidn ap pi ng , CP fu nct io nar ie s, se cu ri ty su bj ec ts. Per m an en t 

in st all ati ons invo lved the leas ing of a line fr om th e teleph on e co mpa ny under 

So me co ve r na m e su ch as Fed er al Res ea rc h B ur ea u. Th e telco had to su sp ec t 

th e pu rp os e sin ce no ho ok up was ord er ed a t eit h er en d—t h e su bje ct ’s po le box 

whe re th e ju m p w as mad e or th e F B I office bui ld in g w he re th e p la n t was. 

Liaison w as m ai nt ai ne d w ith th e Sp ec ial Age nts of th e telc o. Th ey wo uld ass is t 

w ith ar ra ng em en ts , fu rn is h in fo rm at io n from th e su bs cr ib er ’s ca bl e card th a t 

w as ne ce ss ar y to in st all th e tap, an d no tify us if telc o pe rs on ne l fo un d a ta p 

or bu g th a t we pu t in. Also they wo uld plac e a re co rd er on a su bsc riber ’s lin e 

te rm in al s in th e C en tral Office fo r sh ort pe riod s of tim e. Most telcos ar ound 

th e c ou nt ry co op er ated lavi sh ly w ith th e FB I.

Tap s an d bu gs w er e supposed to be ap pr ov ed by W as hi ng ton. How ev er, th ere 

wer e “sui cide ta ps, ” so ca lle d be ca us e th e pe rs on in st all in g them w ithout per ­

mission w as liab le to dis ci pl in ar y ac tion if ca ug ht . T he prob lem w as th a t th e 

B ur ea u tr ain ed an d eq uipp ed peo ple to us e th e tech niqu e, an d co uld n't ho pe to 

co ntro l th e s it uati on from W as hi ng ton.

Bur gl ar ies.—T he FBT allude d to burg la ri es as “b lac k ba g jo bs .” a ft e r th e 

too l k it us ua lly ta ken along. W hen I en te re d th e B ur ea u in 1951 BB.Ts w er e a 

st andard tech ni qu e, alo ng w ith ta ppin g an d mail co ve rs an d tr ash covers. 

Th ey we re co nd uc ted fo r tw o m ai n purp ose s: (1 ) to in st al l a micro ph on e insid e. an d (2 ) to g ath er intelli ge nc e an d ph ot og ra ph do cu men ts. The BB.T is 

di ff er en t fr om th e co nv en tio na l burg la ry in th a t no th in g is rem ov ed an d ev ery 

ef fo rt is m ad e to disg uise th e fa ct th a t entr y w as made. I part ic ip ate d in a 

nu m be r of BB.Ts. in cl ud ing a 1957 burg la ry of th e Ja pan es e C on su la te in 

Se attle . Tn th a t op er at io n Georg e Ber ley flew out from W as hi ng to n an d use d 

ra di oa ct iv e co ba lt to gra dua lly ph ot og ra ph th e lock ing mec ha nism of th e sa fe . 

The c on te nt s of th e sa fe we re ph ot og ra ph ed and re tu rn ed in pla ce.
82

Elab orate measures are taken to ensure the secu rity of a BBJ. The prem ises 

is thoroug hly “eased” to make sure the reg ula r occup ants’ movements are 

known. Tail s are put on them at the time of the BBJ . An agent sits at the 

police radi o console to mak e sure complaints of a burg lary in prog ress are 

not answered.

FBI agen ts who made a specialty of BB Js were rew arde d for the ir risks in 

the form of m erito rious cash award s.

Telephone Taps.—Descr iption of a telephone tap. Two kinds: direct and 

inductive. A t ap-trans mi tter in which a phone line is tapped and the conversation sent over the ai r to receiving point. Secu rity because if found, not 

trace able (Exh ibi t of such a device).

Explanation of multiple appe aran ce and the security it afford s a tapper. 

Cooperation of phone company neces sar y; othe rwis e difficult to determin e 9

where the multiple app earance is located.

Problem of co ntro l: a few’ year s ago when Hoover contended the re were less 

tha n one hundred tap s nationw ide, the Washingto n Pos t disclosed th at the 

FB I had 450 “special service” leased lines feeding into the Washingto n field 

office from all over the city. •

Microphones /Buys.—These fall into two categ ories: wired and wireless, or 

the bug-trans mitte r.

The wired simply mean s th at the microphone is connected to the list eni ng 

post by a run of wire. Exam ple: inst alla tion in Sea ttle were picked lock to 

ent er dwelling, replace d the telephone connecting block with one han d-fabricated by FB I lab containi ng min iatu re microphone, ran fine w ire down through 

basem ent to connect with special drop wir e in which wire for mike bu ilt in 

and invisible, from drop wire term inal in pole box a bridge was made to a 

leased line. Trouble with commercial radi o station nearby int erf err ing —aeri al 

wire acting like antenn a. So designed low-pass filter to filter out the radi o 

frequency.

The wireless type is the most common. It can be planted stateg ically , and if 

discovered is not trac eable to the eavesdro pper. He is simply out the $50 or so 

a decent one costs. The wired type is more vulnerab le to detection because of 

the necessity for wire s to be run in the prem ises and leave somewhere. Example: Polis h Consulate , Chicago.

Exh ibit of a bread-and -butt er, inexpensive bug -tran smitter. Depending on 

surro undings, tra nsmi ts a hundred feet or so from room. Ordin ary pocket FM 

rad io will pick it up. More b atter ies, more power, gre ate r range. Bro adcast time 

limite d to life of batt erie s. neces#*itating replacem ent. Eavesdropper may use 

radio switch to tur n on and off and conserve power. May use repe ater stat ion, 

sav. buried in yard. Or may pirate curr ent from phone c ircuit or house power.

Hit-and-ru n eavesdropping. Stethoscope-like device pressed aga ins t wall.

Very effective Is the spike-mike. Exh ibit: thi s one is disabled so not prima ry 

useful for anything, but the species was specifically named in the legislative 

histo ry of the 1908 law as being prim arily useful. Other bugs may be used as 

baby-sitter s, bur gla r warni ngs, etc.

Sta te of the Technoloqi/.—Much has been made abou t fut uri sti c devices and 

th eir deployment thro ugh out the land. Fo r instan ce, the olive-in-a-m artini tran s- *

mitter. Ruch a device does exist, but is quite impr actic al. It will tra ns mi t 

only a few feet, and withou t much clar ity. The CIA is said to have a LASER 

device th at aimed at a window will pick up th e room conversations from the 

minu te vibr atio ns of the glass pane. Tiny inte gra ted circ uits developed for the 

aerospace programs don’t auge r well for the fut ure of privacy. However, the *

cost and uniqueness of much of this exotica rend ers it available only to government agencies, not the average eavesdropper. It should be pointed out. however. th at there are electronic engineers th at moonlight makin g very soph isticate d devices.

Preventio n and Detection.—If a subscriber suspects a tap he can have the 

telco conduct an inspection, but if a law enforcement tap is in the telco usua lly 

will not advis e him. Most law enforcem ent tap s are in the telco Central Office,, 

which makes detection nex t to impossible. Con trar y to mythology, a properly 

installed tap will not cause clicks and noises.

The citizen can conduct his own prel imin ary check for devices, checking his 

premise s for such things as fresh pla ste r marks , alien wires, and ant ennae 

wire s of a bug -tran smitter.

Also, he can hire—a t sub stantial cost—a professio nal “sweeper.” Beware of 

some who adv ertise the ir services, show up with simply a “hound dog” or
83

field stre ngth meter, and decla re the premises “clean.” Some unscrupulous 

operators have even planted bugs, then "discovered” them, as a prelude to a 

pitch for their periodic services. A truly professional search require s some 

$10,000 worth of equipment. It should also be noted that bugs that can be 

remotely turned on and off are very difficult to detect. Also, the eavesdropper 

may plant a decoy bug that is easily found, lullin g the target into a false 

sense of security.

Beware of “gifts” th at might contain bugs, of repairm an and utilities men 

who want entry to the premises, of salesmen who drop by and leave a briefcase in the conference room.

Mr. Kastenmeier. U ntil 2:30, tlie committee stands in recess.

[Brief recess.]

Mr. K astenmeier. The subcommitte will come to order for the resumption of the afternoon hearings. I apologize to the witnesses for 

the frequent interruptions. Other members will join the panel, I am 

sure, and in the meantime I would like to continue with the next two 

witnesses who are Mr. Leon Freedman and John Shattuck, representing the American Civil Liberties Union.

Both Mr. Friedman and Mr. Shattuck have had broad experience 

in the area of wiretapping and electronic surveillance. They have 

been active in civil suits. Partic ularly, I am thinking of those against 

the government for recovery of damages for illegal eavesdropping. 

And in other regards they are very deeply interested in the issues 

tha t confront this subcommittee.

We welcome you both, and you may proceed as you wish. We 

have a copy of your testimony, which is some 19 pages. However you 

care to proceed, you may.

TESTIMONY OF LEON FRIED MA N, ESQ., AND JOH N SHATTUCK, ESQ.,

OF N EW YORK, ON BEHA LF OF T HE AMERICAN CIVIL LIBE RT IES

UNION

Mr. Shattuck. Thank you, Mr. Chairman. We are very grateful 

for the invitation to testify on an issue as important as this one to 

the ACLU. As you have noted, we have a joint statement and both 

Mr. Friedman and I will be participating in this. And I w’ill lead 

off, with the Chairm an’s leave, because I have a court appearance 

at 3 o’clock and I may have to leave the balance of the testimony to 

Mr. Friedman.

As Congressman Drinan noted this morning, the ACLU for more 

than a decade has been strongly opposed to all forms of wiretapping 

and electronic surveillance. We believe that the disclosures over the 

last 2 years with respect particularly to national security, to warrantless wiretapping, have underscored the original wisdom of our 

policy. In our testimony today we will attempt from the point of 

view of lawyers who are actively engaged in wiretapping litigation, 

to catalog national wire security tap abuses, and our principal 

focus will be a civil law suit in which we are representing Dr. Morton 

Halperin and his family. He was the target of a 21-month national 

security wiretap from May of 1969 to February of 1971, of which I 

am sure he will testify himself at further length.

His tap was one of the 17 so-called “Kissinger taps” purportedly 

installed to trace news leaks from the White House. And in our 

view, these taps illustrate some of the worst national security abuses.
84

Our statement, as you will notice, is divided into three parts. First 

is an explanation generally of why the ACLU is opposed to all 

forms of wiretapping and why the statutory regulation of wiretapp ing under the Omnibus Crime Control and Safe Streets Act 

is really insufficient to regulate or rather to deal with the deficiencies 

which we have identified. Second, a description of national security 

wiretapping and why it represents the most serious abuse and invasion of constitutional rights of any of the various forms of wirewith renewals possible upon probable cause, make it possible to 

to cure the national security abuses.

I will a ttempt briefly to outline why it is tha t we are opposed to 

all forms of wiretapping and Mr. Friedman will then describe the 

civil suit brought on Dr. Halp erin’s behalf and a number of other 

national security wiretap cases. And then, if time permits, I will return with respect to some of the proposals tha t we see are necessary 

in this area.

The fundamental reason why we are opposed to all forms of wiretapp ing is th at the major wiretap technology is such as to make the 

practice an inherently unreasonable search and seizure regardless 

-of any safeguards tha t might be imposed by law. It is far more 

intrusive than a search of a person or of a house because it is indiscriminate; it picks up all conversations.

I think Senator McClellan has illustrated this point without intending to by pointing to the wiretap statistics as evidence of the 

kind of controls that Congress has brought to bear in this area. 

And I don't think they demonstrate any controls at all. Senator 

McClellan pointed out that in 1972 the Justice Department’s statistics showed tha t an average tap intercepted 1,063 conversations 

among 66 persons for an average of 3 weeks. This is hardly a limited 

search.

The warrant procedure of title II I merely underscores the breadth 

and intrusiveness of wiretapping. Fir st, it is essentially unlimited 

even under the statute. The unrestricted 30-day renewal arrangements 

allow indefinite tapping.

Second, contrary to the general fourth amendment law, which requires that a search warrant particularly describe the things to be 

seized, wiretap warrants cannot comply with the particularity requirements, because it is so difficult to describe conversations which 

have not vet taken place as those conversations which are to be 

seized. And the statute merely says tha t the warrant must describe 

“the type of communication to be intercepted”, which really doesn't 

amount to very much.

Third, there is no prohibition in the statute against intercepting 

privileged communications. And it is no coincidence, therefore, tha t 

over the years the wiretap meithod has been one of the principal ways 

•of invading the lawyer-client relationship. There are a number of 

instances of this in our testimony.

Fourth, both the wiretap statistics and the legislative history of 

title II I demonstrate we believe that the principal purpose of wiretapping is not the investigation of specific crimes at all but in fact is 

general intelligence gathering or preventative surveillance, or really
85

the interception of speech pure and simple without regard to its 

probable criminality. So the inherent nature of the practice is really 

what it is that drives us to the position tha t it in and of itself 

violates the fourth amendment.

And since national security taps by definition are used both outside of title II I and outside the scope of any specific criminal investigation, they are necessarily worse than the taps tha t are covered 

by the 1968 act and represent the worst forms of abuses.

I think Mr. Friedman can proceed with the specifics of some of 

the cases under national security wiretapping.

Mr. Friedman. Under national security wiretapping the few procedural safeguards tha t exist under title I II are ju st swept under the 

rug altogether. In order to sta rt a national security wiretap, someone in the government simply writes a memo or calls the FB I. since 

it is the FB I tha t actually administers the tap, and they are the 

ones who are to justify-----

Mr. Kastexmeier. 1 take it you have learned how these things tran ­

spire and so this is really your acquired knowledge on the subject of 

what initiates national security taps as opposed to title 111 taps?

Mr. F riedman. That is correct. Let me just say this. There are two 

levels of the things that we know. There are matters which we know 

from public record documents and there are some other matters 

which we are under a court order not to discuss. And so what we will 

testify here to is as to those matters which are in the public record 

and which appear in the court records.

There are some additional matters, some additional material, 

actually, which we have not even seen yet, tha t we know something 

about, but we are under a court order not to disclose that additional 

material.

And so I think we have a pretty good idea of what happens on the 

basis of our own litigation and what is a matter of record.

Mr. Kastexmeier. Again. I must say I apologize but we are now 

called in for another vote. That is the second bell. And if it were a 

quorum call, it might be another matter, but a vote we will be required to go to. I would ask my colleagues, however, if they would 

promptly come back and we will recommence the hearings hopefully in 10 minutes. Just go over and vote and come directly back.

I realize. Mr. Shattuck, that you may have to leave. If that is the 

case, our apologies. But the subcommittee will stand in recess for 10 

minutes.

[Brief recess.]

Mr. Kastexmeier. The subcommittee will come to order. When we 

recessed, Mr. John Shattuck and Mr. Friedman were testifying.

Mr. Friedman. Mr. Shattuck had to go to a court appearance.

Mr. Kastexmeier. Mr. Friedman, you may continue.

Mr. Friedman. Yes, I just wanted to go over the procedures that 

are followed in national security wiretapping and how the government starts the procedures and what Steps they take. This is obtained 

primarily through our discovery in the Kissinger tap case in which 

we have questioned the government at some length about the pro-
86

cedures that are followed. And the first tiling is tha t justification 

has to be offered for a national security tap. And what we found in 

the Kissinger taps and in other cases—

Mr. Kastenmeier. Are these merely guidelines ?

Mr. Freidman. No, these are just internal procedures. The government itself has established some kind of procedure which it can 

violate on its own. And in fact, in national security taps generally 

there is a justification offered to the Director of the FB I as to why 

a tap is necessary. And then he in turn, based upon those justifications, will ask for an authorization from the Attorney General. And 

the Attorney General is supposed to himself personally approve any 

such tap. That is the procedure tha t the government has established 

on its own in order to go forward with national security taps.

Mr. Kastenmeier. Mr. Friedman, when you say the government 

though, can you be more particular than that? Who within the government ?

Mr. Friedman. Well, the Justice Department, the Attorney General.

Mr. Kastenmeier. The Attorney General ?

Mr. Friedman. The Attorney General. John Afitchell was very 

proud of the fact, as when he testified before the Ervin committee, 

that he had established a 90-day rule so tha t in a national security 

tap, they must come back to the Attorney General every 90 days in 

order to get additional authorization.

Now th at is the story tha t they tell, but in fact it doesn’t happen 

tha t way. The justification that is offered is either very thin or it 

can be nonexistent. We quote in our statement from tlie fact tha t 

Mr. Ruckelshaus said tha t when a national security council request 

is made for a tap, there is no justification offered. They say “we 

want a tap ” and tha t is it. And Senator Case asked h im : “Could that 

elaborate procedure be avoided by having a Director get Henry 

Kissinger to say ‘let me have the dope’?”

And Mr. Ruckelshaus answered “sure”.

And Senator Case said “In other words, the authorizing document 

does not necessarily, in itself, tell the, full story.”

Mr. Ruckelshaus answered: “That’s possible.”

So even though a justification is supposed to be offered, in fact it 

doesn't always happen that way. And the minute you are dealing 

with internal justifications within the government, they can simply 

say “We don’t to follow our own procedures in this case”.

Now what about this 90-day rule? Well, the 90-day rule was not 

followed in the Kissinger tap case at least with respect to Dr. Halperin’s tap, although Mr. Mitchell was very proud of this 90-day 

rule. In fact, there was only one authorization for the tap on Dr. 

Halp erin, and tha t single authorization continued the tap for 21 

months and there was never any stop to it. Based on the original 

authorization tha t John Mitchell says he doesn’t remember signing.

So these internal standards tha t the Justice Department had established are in fact not binding at all even on the Attorney General 

and the Director of the F BI.

Now we cite also the fact that the justifications that are offered 

for national security taps are absolutely absurd at times. Now Martin
87

Luther King was tapped. His home phone was tapped. His office 

phone in A tlanta was tapped and another office phone in New York 

was tapped. Why? Because he supposedly had associates, he supposedly had two Communists or alleged Communists on his staff.

Now the question is why didn’t they tap the alleged Communists? 

Why did they have to tap his phone rathe r than the people who were 

supposedly improperly influencing him? And the answer was not 

comforting. J. Edg ar Hoover said to Attorney General Robert Kennedy: “We want to tap Martin Luther King because there may be 

improper Communist influence upon him.”

And the tap was made upon Dr. King ’s phone, and not on the alleged Communists’ phones.

So this business tha t there should be a justification for a national 

security tap, which you know sounds very good, and the fact the 

Attorney General says “We have our own way of handling this” 

sounds very good, but it doesn’t work because the justifications offered 

can be absurd when offered to an outsider, but they are not observed 

when they are offered to insiders within the Justice Department 

and the FBI.

And the Ilalperin tap and the King tap are just two examples of 

this.

One other thing that emerges from the analysis of the national 

security tap is that there may be situations in which the Government 

can go and got a title II I tap just as well as a national security tap 

and have to follow the requirements of title II I, but if there is a 

choice at all between going under a title III tap and going under a 

national security tap, they will always go under a national security 

tap. Why? Because then they don’t have to get a w arran t, they don’t 

have to follow all the housekeeping, all of the warehousing procedures of title II I and they don’t have to follow what few procedural 

safeguards exist under title II I. And this has been consistent. This 

has been a consistent pattern along. If they can avoid a warrant 

and avoid title II I, they will do so.

And we cite a number of cases in our testimony, Mr. Chairman, 

showing this. And the Jewish Defense League situation, where there 

were taps on Russian diplomats up in New York, is an example. 

They could have gotten a title III warrant if they wanted, but 

instead they decided to go under national security because as far as 

the Government is concerned, this allows them to cloud their trail. 

They don’t have to keep the records, they can destroy the tapes 

at tlie last minute, they don’t have to give them to the defendant, 

they don’t have to follow the recordkeeping procedures under title II I. 

They can just go ahead and tap without any procedural safeguards.

Now we outlined in our testimony what procedural safeguards 

are lacking in a national security tap th at do exist in title II I. We 

are not saying tha t title II I is wonderful and should be followed, 

but there are some things tha t title III has tha t a national security 

tap does not have.

For instance. No. 1, there is supposed to be a time limit on a T itle 

II I tap. There is supposed to be 30 days which can be renewed except you have to go into court each time this happens. Under a 

national security tap there is no limit.
88

Under Title II I, there is supposed to be a minimum invasion of 

the privacy of the person who is to be tapped. Tha t is to say, there is 

a requirement that if the conversation is not related to the purpose 

of the tap going on, they are supposed to switch it off. I n a national 

security tap there is no switching olf because everything tha t the 

person says is conceivably something tha t could bear on national 

security and therefore the tap stays on and political conversations 

are intercepted, sixth amendment rights between counsel and a 

client may be intercepted, and there is absolutely no requirement of 

minimizing the scope of the tap.

Now all of this is laid out in the Kissinger tap case itself. What 

kind of conversations were interecepted and what kind of limitations 

were set in those particular cases? And what we found in those 

cases was that there was only a single authorization. As I just 

mentioned, they never went back to a court. They never went back to 

the Attorney General. And they simply continued the tap for a 21- 

month period.

No. 2, the kind of conversations that were intercepted, these were 

political conversations, conversations th at related to a political campaign then in progress, conversations relating to articles and a 

political stand tha t I)r. Ilalperin was takin g at that time. All of 

this was intercepted. I t was intercepted, and as we know from public 

testimony, summarized on a regular basis and sent to the White 

House for them to use in any way th at they chose.

The Government erased all of the tapes of the original taps and 

we have to rely on transcripts, and we don’t know how accurate 

those transcripts are.

And so what happens in national security taps is that there is an 

absolutely massive invasion of the privacy of an individual and a 

massive invasion in an area in which protection is absolutely essential. Political conversations are intercepted in national security taps, 

conversations relating to protected first amendment activities, criticism of the Government, criticism of the Government's policies that 

may be involved. And all of this finds its way immediately back to 

the White House, which can make very substantial use of this material in a political campaign, as it did in Senator Muskie’s campaign—finding out materials, finding out what consultants were saying that could be useful in the campaign, and sending it back to the 

political advocates in the White House that might find it useful, and 

all in the name of national security. Because once the tap is installed 

on some vague national security justification, there are no restraints, 

and a justification tha t is not even offered to a court. It is just offered 

to themselves. You know they say, “is there some national security 

reason whv we can justify the tap ” and in the Halperin case they 

said that there was a leak of iWitional security information. Who had 

this information? There was a list of 13 people gotten up. To whom 

was this information leaked? Four newsmen are gotten up. The 

names of four newsmen are gotten up. And those people are tapped 

for an indefinite period of time; for as long as the Government, as 

long as the W hite House, as long as the FB I, as long as the Justice 

Department, thinks that they can get some value out of this material.
89

And in Dr. Halperin's case, it continued for 21 months, and there 

was absolutely no stop until the Government decided th at i t in effect 

had had enough.

Now we talked about the different invasions of constitutional 

l ights, about the first amendment rights tha t are invaded, the mass 

invasion of fourth amendment rights, the invasion very often of 

sixth amendment rights. Agent Tur ner this morning disclosed the 

fact tha t a civil liberties lawyer in San Francisco had his home 

phone tapped for a considerable period of time just because the Gov-

, ernment or the FB I could think of some national security reason

why they might be valuable. And as f ar as we know, Ar thu r Kinoy, 

who was another lawyer for civil liberties groups, his phone was 

tapped. There were 21 separate interceptions of his conversations 

extending over a period of 20 years. In the Chicago conspiracy 

case it turns out that client-lawyer conversations were intercepted. 

So that once you are armed with this catchall of national security, 

which isn’t even limited to a particular kind of crime, once you can 

offer some vague justification for national security, then all of these 

rights can be trampled on.

Now the question is, would a warrant procedure save the situation? Would the requirement of getting a warrant for a national 

security case, would tha t help? And our answer is, as long as you 

have this vague notion of national security which is ill-defined, 

which is so illusive, a warrant procedure is not going to be of any 

sifinificant help. It is some help. It is some help in terms of recordkeeping. It is some help in terms of finding out what the Government did afterwards. It may be of some help in making sure tha t 

the documents and the tapes are preserved, so that, if there is a 

search later on, there might be some redress, but it is no help at 

all if you maintain this vague and ill-defined notion of national 

security and foreign intelligence. Because at tha t point the Government is going to be able to go into court and say to a judge, just as 

it did in the Kissinger wiretap case, that there is a massive leak of 

national security information and here are the 13 people who have 

access to this information and they want to be able to tap their lines. 

Now tha t is very plausible. That is a very plausible argument. It is

« a very plausible justification. Is a judge going to say “I want to know

more about it? ” Is he going to put them to the proof?

You know, it sounds good. It sounds like a good story. And therefore they will be able to secure t hat warrant and theoretically they

* can come back again and again for extensions of the warrant and be

able to make all the invasions of the first, fourth and sixth amendment rights tha t we have talked about up until now.

So the real problem is not so much the warrants, although it may 

be some improvement, as this vague notion of national security.

And the answer is you’ve got to attack national security as such. 

This magic term that has been used to justify the Kissinger taps, 

and has been used to justify breaking into Ellsberg’s psychiatrist’s 

office, and used to justify a wiretap of Dr. King, and used to justify 

a coverup of the Watergate break-in, has to be defined. National 

security just creates blinders as far as the Government is concerned.
90

And Congress should not be in a position of justifying and authorizing the kind of national security we have been talking about up until 

now.

Mr. Kastenmeier. If someone asked you to define national security, 

in terms that would help set forth when and under what circumstances 

a w arrant for such a matter might be obtained, how would you do it ?

Air. Friedman. Well, the answer to tha t is tha t title II I itself 

specifies exactly the kinds of crimes that we are talking about.

Mr. Kastenmeier. Yes, and mentions some of those.

Air. Friedman. And mentions some of those. And so, I mean, if 

Congress is interested at all in getting into the question of national 

security taps, they can very well say that all the national security 

crimes that we have are already under title II I, and no other kinds 

of taps shall be permitted except those already covered by title II I. 

And that would take into account exactly the problem we are talking 

about, that is, espionage, sabotage, and so on. We went over the list 

of the crimes in 2516 and actually one-third of them relate to 

national security issues already so why should there be anything 

beyond the requirements already contained in the act?

Mr. Kastenmeier. Mr. Friedman, what is the Government’s position in this matter? Why do they insist that there are national 

security taps which are authorized pursuant to some other power 

external to title II I ?

What is the Government’s position on this as opposed to your 

position?

Mr. Friedman. Well, again, we’ve got this in answering briefs from 

the Government, that the Executive has the constitutional duty to 

protect the Nation against foreign attacks, against foreign intelligence activities.

Mr. Kastenmeier. Pursuan t to law?

Air. F riedman. There is a catch-all and I guess it is 18 U.S.C. 2511 

which says that nothing in this act shall bear on the Executives’s 

power to protect the national security against foreign intelligence 

activities, whatever tha t might be.

Mr. Kastenmeier. That is the answer then, tha t is the exception 

they resort to?

Mr. F riedman. 2511 does talk about some exceptions which may or 

may not exist. Now the Supreme Court has already held that Congress did not authorize any of these exceptions. All Congress did 

was recognize there may be such an exception. And if there is such 

an exception under the Constitution, we are not dealing with it with 

this legislation.

I think the wording of the section says that if there is such a thing 

as a foreign intelligence exception, if there is such a thing as dealing with foreign spies when they come in, or gathering general information about foreign activities, we are not dealing with it at all 

in this legislation.

ATow our answer to tha t is that the Government has used tha t 

loophole too widely already. They justified the tap on Dr. Ilalperin-
91

not on the ground tha t there was an internal security problem. They 

justified it in their very words in their brief, which we quote here, 

by stating tha t a foreign government by reading the newspapers 

will be able to find out national security information. There argument presumed tha t if a member of the Government talks to a 

newsman and the newsman publishes this information in the press 

and the foreign government can read this information in the press 

and gather foreign intelligence activities, it comes under national 

security. So therefore it is necessary to tap Dr. Halperin and newsmen in order to protect against a foreign government’s finding out 

information on national security. That is the way this was done.

So the thing is, you give them an inch and they will take a mile. 

Mr. Kastenmeier. I would think they might have trouble establishing that sort of approximate nexus.

Mr. F riedman. But they did it. That is the way they did it. And if 

they had to go to a court in order to justify a warrant, presumably 

they would be able to tell a very plausible story and get a warrant 

for that.

Mr. Kastenmeier. But in other words, and the reason this colloquy 

is useful, Senator Nelson’s approach may be unavailing, even if it 

becomes law, if in fact resort is still made to 2511, subsection 3?

Air. Friedman. Well, that might be because the Government’s 

position is they have an inherent power to protect the Nation against 

foreign intelligence activities.

You know there is the famous debate between Senator Ervin and 

John Wilson and John Ehrlichman when they said “Where did 

you get the authority to break in to EllSberg’s psychiatrist’s office?’7

And they pointed to that section of the law. And they said: “2511 (3) 

gives us that procedure, because Congress recognized tha t we have 

tlie power to protect ourselves against foreign intelligence activities.’7

Tha t was the justification for tha t break in to Dr. Fielding’s office. 

The Government, you know, they may be sincere in claiming tha t 

these kinds of taps are necessary. But our point is that unless you 

close that door, it can be used for just about all of the purposes th at 

we have outlined here today.

Mr. Kastenmeier. Are you suggesting we might repeal the section?

Air. Friedman. Absolutely, or narrow it to specifics. In other 

words, if it were narrowed to foreign agents, or foreign nationals of 

a specific kind engaged in certain kinds of activities, perhaps tha t 

might be a way of dealing with it.

Title II I we feel really covers whatever genuine national security 

issues the Government is concerned about. But to have any kind of 

loophole at all is going to allow the Government to use tha t to tap 

people like Alartin Luther King, tap its political enemies, tap people 

in the Government tha t it wants to know w hat they are doing, tap 

newsmen. And the Government has in fact used it for that purpose. 

So it will tap all of tha t under this magic rubric of protecting the 

Government against foreign enemies. So unless there is some very
92

specific kind of definition of “national security” that goes along with 

the warrant procedure, a warrant procedure is not going to be much 

help. It will be some help. I am not saying tha t it won't be any 

help. I mean, now there is nothing at all. So anything tha t closes 

some of these doors would be helpful, but it is not a terrific help 

at all unless there is some effort to close t hat door of national security.

Mr. Kastenmeier. And in order to do that, you might merely 

narrow that section rather than to try to define “national security” 

which might be ra ther a futile exercise.

Mr. F riedman. Well, I mean our order of preference is to have no 

wiretaps at all. If there are to be wiretaps, it should be under title 

II I only because tha t covers whatever legitimate national security 

considerations we have. But if you want to go beyond t hat to some 

kind of foreign intelligence exception, tha t really must be defined 

very specifically and the door tha t is left open in 2511(3) has to be 

narrowed.

Mr. Kastenmeier. Of course 2511(3) may be repealed or 

amended-----

Mr. Friedman. Exactly.

Mr. Kastenmeier [continuing]. Or we might potentially ban 

wiretapping completely, but the President still would rely on the 

philosophy contained in section 2511(3) tha t the Congress could 

not impair his constitutional power to protect the country against 

foreign enemies, and tha t he would be free to use whatever devices 

were at his command to do so notwithstanding the enactment of 

the Congress.

Mr. F riedman. I think that if Congress declared as its policy that 

we want the President to protect against foreign attack, but tha t we 

believe tha t title II I gives him whatever powers he needs, I think 

it would be very difficult for him to claim tha t Congress’ judgment 

and my judgment are different and I am going to take my judgment 

on this.

Mr. Kastenmeier. We have had the debate and the dialogue on 

Presidential power in many contexts. Two or 3 years ago when we 

repealed title II of the Internal Security Act, which apparently 

authorized the maintenance of detention camps in America, the 

question arose tha t the President as Commander-in-Chief, within 

an emergency or war situation, might still have the constitutional 

power to perhaps maintain such institutions. We tried to suggest 

lie did not, but we granted the argument continues, notwithstanding 

enactment of tha t law.

Mr. F riedman. But the U.S. Supreme Court in its unanimous decision in the Keith case suggested tha t there is no inherent Presidential power to tap for domestic subversives on a national security 

basis. It was a unamimous decision, with Justice Powell writing the 

opinion. And tha t certainly suggests tha t the Supreme Court is 

ready, willing and able to knock down the notion of inherent Presidential power once Congress has spoken in this area. And it is because Congress spoke, I think, tha t the Supreme Court was willing 

to go along with the kind of judgment tha t the Congress made.

Mr. Coiien. Would the Chairman yield?
93

On the Keith decision, wasn’t it simply tha t they ruled that 

authorization for a wiretap in a domestic security case by the Attorney General without judicial sanction of the fourth amendment was 

illegal? They didn't hold that the President or the Attorney General cannot authorize such a wiretap. They just said tha t he had to 

get judicial approval?

Mr. F riedman. Exactly, but where is tha t judicial approval other 

than Title II I? Title II I narrowed the area in which they could get 

such judicial approval and Congress established procedures under 

which that judicial approval might be secured. But if Congress 

said this is the only place in which you can get such judicial procedure, then the Executive would have to follow that procedure or 

else they wouldn't get the kind of approval the Supreme Court required them to get.

Mr. Kastenmeier. Did you wish to continue, Mr. Friedman, or 

are you open to questions?

Mr. F riedman. I am open to questions.

Mr. Kastenmeier. I yield to the gentleman from Massachusetts.

Mr. Drinan. You make the case well here on page 18 and before 

that, that it really doesn't matter if we have warrants required for 

national security cases. But wouldn’t you broaden the argument and 

say that all Federal judges seem unable or unwilling to be very 

stringent in the issuance of warrants?

And 1 recall statistics where only an infinitesimal number of requests of any kind for narcotics or organized crime or kidnapping 

warrants had in fact been denied by Federal judges.

Mr. F riedman. I think that is true. I mean, the warrant procedure 

is some protection, more because of the recordkeeping rather than 

because the judge is really going to say no to the Government. And 

when the Government comes in with a national security excuse, I 

take it that the judges are going to be more loath to say no to the 

Government because they feel the security of the Nation may be at 

issue.

Mr. Drinan. No, but can you demonstrate tha t by statistics? Have 

they in fact been more lax, if you will, or more loathe to deny the 

Government in national security cases than they have in the other 

routine crimes?

Mr. Friedman. But the Government never comes to them on a national security case. The Government will not come to a judge. As 

we^ said earlier, in the testimony, if they cannot go under Title

Mr. Drinan. I know that and tha t is the very point I want to 

make. Does it really make any difference?

You make the point on page 18 tha t the only arguable improvement is, if you get a warrant, there would be better recordkeeping.

Mr. F riedman. That is right.

Mr. Drinan. But you wouldn't have fewer warrants? I mean, you 

wouldn’t have fewer taps ?

Mr. F riedman. I don’t think so.

Mr. Drinan. Tha t is right. But doesn’t the argument carry all 

the way that you just have to abolish the whole procedure by which 

a warrant is available at all?

35-3 91—74----- 7
94

Mr. Friedman. Well, tha t is our starting position.

Mr. Drinan. But you are trying to have it both ways, you are 

tryin g to compromise. You are trying to say, well, maybe we could 

in fact require tha t national security cases also get a warrant. But 

if you face the full implication of your argument that' it wouldn’t 

really make any difference, what is the point?

Mr. Friedman. The only improvement is the recordkeeping improvement.

Mr. Drinan. You say the recordkeeping has some effect, but does 

it really? In the long run how many people have ever heard of the 

r

recordkeeping in their case and how many cases has the Government 

concealed it? Is it really any compensation, so to speak, or restitution for the violation of the rights?

Mr. Friedman. Well, I don’t think it is any restitution at all. I 4

mean it is better tha t you do have some records than tha t you don’t 

have such records.

Mr. Drinan. I am not even persuaded of that. W hat benefit is i t to 

the ordinary tappee?

Mr. Friedman. Well, he may be able to sue and be able to prove 

that the tap did take place and get some kind of compensation. We 

are engaged in such suits righ t now.

Air. Drinan. I know. Is Dr. Halperin the first?

Mr. Friedman. No, there are about three or four others.

Mr. Drinan. Has anyone ever recovered?

Mr. F riedman. They have never come to trial. I think they are all 

at the discovery stage. There are about half-a-dozen cases tha t we 

know of which are still in the discovery stage. And as far as I know, 

no one has ever collected any money under the civil remedy.

Mr. Drinan. Are mandatory damages provided in the statute?

Mr. Friedman. They are under 2520.

Mr. Drinan. That is right. I yield back my time. Thank you.

Mr. Kastenmfjer. The gentleman from Illinois?

Mr. Railsback. No questions.

Mr. K astenmfjer. The gentleman from Maine?

Mr. Cohen. There are a number of cases where people have 

brought suit under a violation of the civil rights act and have recovered damages, aren’t there? There is a remedy, and I would * 

think tha t our lawbooks are amply documented with cases of recovery, aren’t they, though not specifically on wiretaps?

Mr. Friedman. Not on wiretap. The 1968 act provides a specific 

monetary civil rights monetary conpensation for damages of $100 •

a day for procurement, use, interception, and use of a tap held to be 

illegal.

Mr. Cohen. But under prior civil rights acts and suits, aren’t 

there awards for damages?

Air. Friedman. There have been awards.

Mr. Cohen. Compensatory and punitive damages as well?

Mr. Friedman. Right. When police officers break in someone’s home 

without a warrant, there have been civil rights action suits brough 

and there are cases in which they do pay damages. And so to that 

extent, as I was saying to Congressman Drinan, the recordkeeping 

may be useful in establishing the basis of a civil rights suit for
95

damages. An d th at is why it is some improvem ent, bu t I mean on a 

scale of 100, I just don’t know. A war ra nt p roc edure may help somewh at in the invasion of rig hts th at we are ta lk in g about.

Mr. Coiien . Th e only other, question I ha d is, I think you made 

the sta tem ent ea rlier th at if you were going to try to narro w the 

are as where the Fe de ral Governme nt could wire tap leg ally by ge tti ng 

warrants you would lim it it to fore ign spie s or agents. Wo uld th at 

be a pra cticable dis tin ction in your mind? To say th at, if one is a 

foreig n agent as opposed to a U.S. citiz en eng age d in spyin g on 

beha lf of foreign gov ernm ents , a tap could be issued. Is th at a wo rkable distinction?

Mr. F riedman. Well, b ut the point is th at title I I I alr eady specifies 

th at you can get a war ra nt and you can secure a tap if you are inve sti ga tin g sabo tage, espio nage, o r treason. So if an Am erican citizen 

is engagin g in those activities, or the re is a possible inv est iga tion 

into those acti vities, the Gov ernmen t alr eady lias the pro cedure it 

needs.

Mr. Coiien. An d in your opinion would th at be sufficient, would 

title I I I be sufficient, for exam ple, on the breaking in of Dr. Fie ld ­

ing 's office? Il ad the y sou ght a title I I I w ar ra nt in th at instance, 

based on espionage act ivities on behalf of for eig n governments, 

wou ld th at be sufficient?

Mr. F riedman. We ll, again I keep-----

Mr. Coiien. I am sorry , I came in late and di dn ’t hear all of yo ur 

testimony.

M r. Friedman. No. I ju st remember Se nator Erv in ma kin g the 

same kind of argume nt when Jo hn Eh rli ch man was on the sta nd. 

And he asked wh at justification was there, I mean, Lewis Fi elding 

di dn't have any secrets, he wasn’t a possible spy , so how can you 

ju stify bre aking into his office? Now I tak e it th at some jud ge might 

have asked the same kin d of question. An d they said “well, we wa nt 

to wiretap Dr. Fi elding 's office because one of his pa tie nts is Dan iel 

Ellsb erg , who we th in k migh t have given some inf orma tio n to the 

Russians .”

Now may be a jud ge would say: “I ju st can’t buy that. Tha t is 

ridiculo us. You know, if you wan t to wi ret ap anyone, wiret ap Ells ­

berg . Wh y do you wa nt to wiretap his ps yc hiat rist?” An d he might 

say “I am not going to give you a war ra nt for th at .”

So hopefully it is just conceivable th at some judge might block 

some of the justifications th at have been offered fo r a national security tap .

But our po int is that, title III, th at if you are concerned abo ut 

natio nal security, th at title I I I gives you wh at powers you need, 

exc ept for some very lim ited area inv olving “f ore ign natio nals” ; the 

exa ct con tour s of which I stil l hav en’t figured out. Bu t we certa inl y 

don t need any vague, gen eral or elusive concept such as nation al 

sec urity and foreig n intelligence and then just say well we will add 

a war ra nt to th at and th at is going to answer the problems. Because 

it is just not going to answer the problem at all because jud ges 

won ’t say no, generally and because it would sim ply open up th is 

massive invasion of righ ts we have been talk ing about.
96

Mr. Cohen. In other words, you don’t think there would be 

sufficient insulation through the judicial process, enough of a buffer, 

notwithstanding any report that might be filed by this committee or 

any other committee that would spell out for example some of the 

factors that might be considered? You would still not have that kind 

of confidence in the judiciary side?

Mr. Friedman. No. I think if you limit it to a specific kind of 

objective standard and really veer in on those specific kinds of limits, 

for foreign intelligence taps, tha t would be helpful. That is more 

important than a warrant procedure.

Mr. Cohen. But spelling out tha t kind of procedure, and giving 

guidelines to the Judiciary , you wouldn’t reject out of hand at least 

the impa rtiality and the conscientiousness of a Federal judge in 

screening these proposals?

Mr. F riedman. No, I wouldn’t. I just don’t think you should just 

lay it in a judge’s lap and say “decide on the basis of national 

security” without defining what national security would be because 

the judge is at a loss then and judges are as much concerned about 

the safety of the Nation as anyone. You know, they are willing to 

lean over backwards to give the Government what it says it needs 

in order to protect the Nation against foreign attack.

Mr. Cohen. Absent any guidelines from Congress?

Mr. Friedman. Absent any guidelines. But the guidelines are important, I mean, the guidelines must be laid down with great specificity or else the court is going to turn around and say, well, Congress 

has said a warrant procedure is OK and so they thereby sanctioned 

exactly what the Executive has done here and I think tha t would 

1)0 <1 disaster.

Mr. Cohen. You don’t dispute the basic fact—and I think you 

said this in one of your statements—that the Government has an 

inherent right to protect itself against foreign activities? You don't 

dispute that basic premise?

Mr. Friedman. I don’t dispute that, but Congress can specify the 

way in which that power shall be exercised.

Mr. Cohen. OK, tha t is all I have.

Air*. Kastenmeier. Jus t a couple more questions. You are talking 

mostlv about the Justice Department and the Bureau conducting 

the wiretapping. What about other entities that might be engaged 

in wiretapping or surveillance other than these, presumably for the 

purposes of national security? I think it was you or it was your 

colleague who referred to campaign workers who were I think wiretapped by the U.S. military in Germany in 1972.

Mr. F rtedman. That is correct,

Mr. Kastenmeier. W hat were the circumstances there? Why would 

the U.S. military intelligence be interested in wiretapping these 

individuals?

Mr. Friedman. Well, their purported justification—and they have 

internal memoranda—and their justification memos on down the 

line, their justification was that they were certain American civilians 

in Germany were creating dissidence among the troups and were 

creating dissidence by urging them to vote for McGovern, among 

other things. And so'an elaborate surveillance procedure was estab-
97

lished by the Army in Germany to wiretap campaign workers for 

McGovern in Germany, to wiretap people who were working with 

lawyers’ groups defending Army personnel in Germany. And it was 

institutionalized. The whole unit was set up in effect to do some of 

this work and a considerable amount of material was developed. And 

the justification was, well, we didn 't want dissidence among our 

troops in Germany.

Now in addition to that, there was a document just filed last week 

in Chicago, in the Chicago conspiracy case. The contempt charges 

in the Chicago conspiracy case are up on appeal in the seventh circuit. And once again, there was a whole request for wiretap inform ation there; a request for wiretaps stalled as long ago as 1969. And 

last week the Government admitted that another Government 

agency had wiretapped some of the defendants in the Chicago case. 

We don't know what agency it was. It wasn't the Justice Department. 

It wasn’t the FBI. It wasn’t the Internal Revenue Service. Some 

other Government agency had been engaging in wiretapping. Maybe it was the Secret Service, maybe it was some other Army unit, 

but the Government has admitted in papers filed in the case last 

week that still another agency engaged in the taps and they just 

discovered it, you know, within the last month.

Mi-. Kastenmeiek. In the case of the campaign workers in Germany, 

who would initiate that in a situation like that? Would it be someone 

in Washington or a general in Germany?

Mr. Friedman. We think it was inspired in the Army high command in Germany. The Army just took it on itself.

Mr. Kastenmeiek. Does it derive the same authority to conduct 

wiretaps as the Attorney General and the FB I, through this exception for national security purposes?

Where does it derive the authority to do it?

Mr. Friedman. Well, they never had to justify it to anyone. They 

never said “we have the authority’’ because they never had to come 

to court. Presumably they feel that they are in Germany and the Constitution doesn't apply and therefore they don’t have to worry about 

it. They can do whatever they want. As long as it doesn't violate German law.

Mr. Kastenmeiek. I s that case being challenged?

Mr. Friedman. Oh, yes. We haven’t got the Government’s answer 

in that so we don’t know what its justifications are yet.

Mr. Kastenmeiek. With State and local enforcement officers or 

entities, do you find similar problems? You don’t probably find national security problems, but it terms of individuals exposed to or 

subject to surveillance or wiretapping by authorities without their 

knowledge, are there any of cases like tha t at the local or State 

level?

Air. Friedman. There are a number of cases. We have a case in 

New York against what was called the Bureau of Stratgic Services 

in the New York City Police and they kept their eye on a number 

of political organizations, antiwar groups, black groups, allegedly 

black militant groups, and very recently they admitted tha t they
98

had at one time or another conducted surveillance on some 250-odd 

groups within their jurisdiction.

Now this is not necessarily a wiretap. Tt is often an informer tha t 

is placed in the midst of these groups and reports back to the police.

Mr. Kastenmeier. Are these activities for which they would need 

to obtain a warrant ?

Mr. Friedman. Well, for an informer, you don’t.

Mr. Kastenmeier. No. Not just informers, but I am talking about 

electronic surveillance, wiretapping.

Mr. Friedman. Sometimes.

Mr. Kastenmeier. And where is it necessary to obtain a warrant 

and where do they obtain such a warrant ?

Mr. Friedman. Presumably yes they do. I mean there may be some 

violent groups. I mean if the California police knew something about 

the SLA and they wanted to place a tap on a phone that they were 

using, I assume they could get a wa rrant without any difficulty, from 

a judge. But of course again there is a definitional problem. The 

SLA is not, you know, the Philadelphia Resistance Group or a 

Quaker group which was in fact surveilled by the FB I in the A ietnam war days. And that is a problem, when criminal investigation 

gets into political intelligence. And the FB I is very quick to assume 

that the two are closely related concepts. And if they are justified 

in doing it in one case, they feel, they are justified in doing it in 

another case.

Mr. Kastenmeier. Yes. The gentleman from Massachusetts?

Mr. Drinan. Some time ago, right afte r the Keith decision in 

1972, T went to the GAO and asked them to investigate the number 

of warrantless taps. They have not been very successful at it. The 

Department of Justice and the F BI are not talking. But Dr. Halperin 

in his testimony savs that the number has remained the same. And 

I gather that you would conclude tha t the number, despite the decision in Keith* remains the same. And I assume from the testimony 

here that Richardson and Ruckelshaus and Saxbe as Attorney Generals have in effect said that the Keith decision has no impact. They 

may change the terminology, but they just go after everything they 

need, and they just say that this person has some connection with 

the foreign government.

Mr. F riedman. Exactly so.

Mr. Drinan. So it is fair to say the the Keith decision, despite the 

fact that it was 8 to 0, and the people hailed it as a great victory, 

really in effect means nothing?

Mr. Freidman. Well, it means something.

Mr. Drinan. I mean, in actual practice.

Mr. Friedman. In actual practice? That is the problem. T think Dr. 

Halperin’s phone was tapped not on a national security basis but 

on a foreign intelligence basis and the Government can always convince itself tha t there is some element of some foreign activity involved in almost any tap tha t it can put on.

In the Jewish Defense League case they said, well, if the Jewish 

Defense League harasses Russian diplomats, even though they have 

no relation, even though the league itself has no relation to a foreign
99

power, what they do affects our foriegn relations and therefore we 

can install the tap on the basis of a foreign policy exception.

Mr. Drinan. Where precisely is the list, is the catalog of all the 

the warrantless taps tha t has been sta rted since the Keith decision? 

In the ollice of the Attorney General, 1 suppose. But is there somebody lower than that that really knows how many and for what 

purposes?

Mr. Freidman. Well, the Justice Department is only bound under 

title II I to give a report each year on the number of warrants applied for and warrants secured, but there is no requirement under 

the statute that they report on the warrantless tap.

Mr. Drinax. I know that, but where is this list? I assume they 

must have a list because the Attorney General I assume or his designated authority must have it personally, but the GAO can’t find 

the list.

Mr. Friedman. Well, when I questioned Mr. Ruckelshaus about 

this, he said there is a folder, a file of authorizations tha t is maintained in the office of the Director of the FB I and tha t contains all 

authorizations for national security taps. And so therefore the Director or in that case it was the Assistant Director actually had possession of the authorization for the Kissinger taps. There is a file 

in which that memorandum from the Director to the Attorney General, which is then returned to the Director of the FB I, is maintained 

and it is a total list of what the taps, are, who was tapped and for 

what length of time.

Mr. Diunan. In Dr. Halperin's case, do you people expect to subpena 

that list ?

Mr. Freidman. Well, not the whole list. We expect to subpena 

the authorization for his particular taps, certainly. But I don't know 

tha t we would be entitled to all of the others tha t may not be related to tha t case.

Mr. Drinan. Mr. Chairman, and counsel, I would suggest tha t this 

committee certainly would be entitled to see that even if we have to 

subpena it. I think it would be a fascinating list.

Mr. Friedman. Well, you know, Attorney General Saxbe said 

his first week in office, the first thing they did was put three national 

security tap authorizations in front of him and he signed them. 

So I mean it is still going on all of the time.

Mr. Drinan. He said that was ju st routine, tha t he wasn’t initiating those.

Mr. Kastenmeier. We have, under my letter of April 11 to the 

Attorney General, requested detailed information on wiretapping, 

including warrantless wiretapping, and the Attorney General or the 

Deputy Attorney General will be here to testify in person and we 

will have an opportunity to ask him further about that.

Mr. Drinan. On that point, Mr. Chairman, I read your good 

letter, and I hope that it is precise and demanding enough so tha t 

they can’t evade it, but I am inclined to think from my experience 

with the GAO tha t they will, and they will either say that it 

doesn't exist or its exists in different places or th at it can’t be released.
100

In anv event we will find out I hope when the Department of Justice 

representative comes.

Thank you sir.

Mr. Kastexmeier. I just have one other question. So long as you 

have that much experience, would wiretaps initiated by the White 

House, and I am not talking now about the Department of Justice or 

the Bureau, be cataloged by the Attorney General or might they be 

separately conducted and not accounted for outside of the White 

House?

Mr. F riedman. Well, our understanding is th at every tap handled 

by the FB I must be authorized personally by the Attorney General 

whether it is initiated bv the National Security Council or the President or anyone else. It must be funneled to the Attorney General 

because his signature is necessary on any tap, even under any kind 

of national security tap. And we believe there is nothing tha t we 

know of to the contrary except tha t there may be other agencies 

that do it. The Army I don’t think got the permission of the Attorney General to conduct its electronic surveillance. We don’t know 

about the Secret Service.

Mr. Kastenmeier. You did mention, and this intrigues me, that 

outside of the Treasury Department, the Secret Service, and 1 don't 

know about the Central Intelligence Agency, but certainly military 

organizations and presumably a number of Government entities. Federal Government entities, can l>e conducting wiretaps which would 

not be accounted for bv the Attorney General. Is that correct?

Mr. F riedman. I think tha t is correct. I think that the Treasury 

Department wiretapping may not go through the Attorney General at all, in which case these authorization documents just don’t 

exist. This was the procedure where the FB I was the installing 

agency. J. Edg ar Hoover wanted a written authorization from the 

Attorney General before he would authorize.

Mr. K astenmeier. And, of course, the reason for my question is a 

very important one. It is so that this committee can get a feel for the 

dimension of what is transpiring and how pervasive it is. We want to 

know who authorizes wiretapping. It would be a little simpler if it 

were just one entity that authorized everything, but if it is not, the job 

is more complex it would seem.

Thank you very much, Mr. Friedman, for your most excellent 

testimony and your hedp to the committee.

[The statement of John Shattuck, Esq., and Leon Friedman, 

Esq., follows:]

Statemen of J ohn II. F. Shattuck and Leon Friedman, National Staff

Counsel American Civil Libertees Union

Our names are John IL F. Shattuck and Leon Friedman and we are staff 

counsel for the American Civil Liberties Union, a nationwide non-partisan 

organization of more than 275,000 members devoted to the protection of the 

Bill of Rights. The ACLU has always been extrem ely concerned about the 

invasion of constitutionally protected rights through government installed 

wiretaps.

We also act as counsel for Morton Halperin in a civil suit for damages 

based on what we claim was an illegal wir etap of his home telephone in the
101

so-called Kissinger taps. [Halperin v. Kissinger, et al., Civ. 1187-73 (D.D.C.)] 

As we explain more fully below, Dr. Halperin’s home telephone was tapped 

for 21 months. He had left government employ after the first four months of 

the tap. We believe that the Kissinger taps of 13 government employees and 

4 newsmen illu strate some of the worst fea tur es of national security taps and 

will refer to specific examples throughout our testimony.

I. TH E AC LU'S GENERAL OPPOSIT ION TO WIR ETAPPIN G.

In May 1961, at the outset of the natio nal deba te over wiretapping, the 

Natio nal Board of Directors of the American Civil Liberties Union adopted 

the following resolu tion:

“The ACLU sta nds unequivocally aga inst wiretapping or the use of other 

electronic eavesdropping devices by any person for any reaso n whatever. It 

rests its policy on the s]>ecific stip ulations of the Fourth Amendment against 

the use of general wa rra nts and searches by government officials, and on the 

basic right of the citizen to the protectio n of his privacy [ACLU Board 

Minutes, May 1. 1961].”

In our view the recent abusive wiretap practices by the fede ral government— 

particularly those conducted in the name of “national security”—have underscored and reinforced the soundness of our broad opposition to wiretapping. 

Before discussing these recent abusive practices and suggesting ways in which 

they might be brought under legislative control, if they are not to be eliminated altogeth er as they ought to be, it is necessary to set for th the general 

consideration s on which the ACLU’s wiretap policy is based.

A. Wiretapping is an Inhere ntly Unreasonable Search and Seizure.

The principal argu men t again st the constitutionality of any kind of electronic 

eavesdropping is that it necessarily results in a search and seizure too sweeping to comply with the particularity requirements of the Fourth Amendment. 

The technology itse lf stands in the way of any kind of effective control, such 

as a conventional search wa rra nt “authorizing the seizure of tangible evidence” 

and partic ula rly describing the things to l>e seized, as well as giving prior 

notice to the subject of the search except under exigent circumstances. Cf. 

Osborn v. United States, 385 U.S. 323, 329-30 (1966).

The technology of electronic surveillance makes the wiretap search of 

telephone conversations infinitely more intrusiv e than the physical search of a 

home or a person, even when the wiretap is conducted pursu ant to a search 

wa rra nt. The typical federal wiretap in 1972, installed with a wa rrant, involved the interception of 1,023 conversations among 66 persons over an 

average period of more than three weeks. These wiretap sta tistics are reported 

annually by the Justice Department, and were cited last year by Senator 

McClellan as the best evidence available of the man ner in which wiretapping 

was being controlled, and restricte d und er Title II I of the Omnibus Crime 

Control and Safe Stre ets Act of 1968. See CONG. RFC. S 7934 (April 30, 

1973) (rem arks of Senator McClellan). Such sta tistics, however, demonstrate 

the opp osite: when a tap is placed on a telephone the eavesdroip er inevitably 

hea rs all the conversations of everyone who talks on th at line, whether the 

subject calls from the tapped number, to that number, or is called by someone 

using th at phone, and no m att er how irr eve lant or privileged the communication.

Electronic surveillance, therefore, is the prime example of Jus tice Bran deis’ 

foreboding in Olmstead v. United States, 277 U.S. 438. 473 (1928) th at “discovery and invention have made it possible for the government, by means fa r 

more effective than stretching upon the rack, to obtain disclosure in cou rt of 

what is whispered in the closet.” Even where circumscribed within the confines of Title III, wiretapping represen ts an inten sive and extensive invasion 

of private speech and though t with almost no paralle l. Wiretap devices 

intrud e so deeply and so grossly, they discourage people from speaking freely, 

and. as Jus tice Brennan has warn ed, if such devices pro life rate widely, we 

may find ourselves in a society where the only sure way to guard one’s 

privacy “is to keep one’s mouth shu t on all occasions.” Lopez v. United States,

373 U.S. 427, 450 (1963).
102

B. The “Restrictions" Imposed by Title III Merely Under-Score the Constitutional Objections to Wiretapping.

The atte mpts made by Congress to impose restriction s on wiretapping 

through the wa rra nt procedure authorized by Title ITT illu strate the inherent 

overbreadth of a wire tapping search. See generally Schwertz. The Legitimation of Electronic Eavesdropping: The Politics of Law and Order, 67 MICH. 

L. REV. 455 (1969).

First, Title II I auth orizes continuous eave sdropping for potentially unlimited periods of time. Section 2518(5) perm its a wir etap to be installed for 

an initial period of thirty days with an unlimited number of thirty-d ay 

extensions upon renewed showings of probable cause. Similarly, sections 

2518(1) (d ) and (4) (e) permit uninterrupted surveillan ce over a “period of 

time.” and do not requ ire the eavesdropper to limit his interception to specific 

conversations. Although several lower fede ral courts have followed the lead 

of the Supreme Court in Berger v. New York , 388 U.S. 71 (1967), and require 

“minim ization” of the interceptions to conversations of the subject, see. e.g., 

United States v. King, 335 F. Supp. 523 (C.D., Cal. 1971), the impracticality 

of this requirement is reflected by the vagueness of the statute.”

Second, particu lari zing the items to be seized—a condition required by the 

Fou rth Amendment—means little in the context of a wiretap “seizure” of all 

conversations which occur during the period of the tap. For this reason, 

Title II I is limited to a vague requirement that the “type of communication 

sought to be intercepte d” be described in the warrant application. Since section 

2517(5) of the Act perm its a court to ratify retro activ ely the seizure of any

conversations overheard on a tap authorized by the statute , the search is not 

necessarily limited to the type of communication described in the warrant. 

This ignores the Fou rth Amendment prin ciple prohibiiting “seizure of one 

thing under a warrant describing another.” Marron v. United States, 275 U.S. 

192, 196 (1927). but it is simply a recognition of what is inevitable in the 

“special circumstances” of wiretapping.

Third, nothing in Title II I prohibits the interception of privileged communications. Again, the sheer impracticality of minimizing or screening intercepted conversations often overcomes a basic consideration of the Fourth 

Amendment which is reflected in virtually every search and seizure context 

except wiretapping. It is hard ly surprising, therefore, that wiretapping more 

tha n any other search technique has become a “widespread” method of 

penetra ting the attorney-client privilege. See. e.g.. United States v. Roberts,

389 U.S. 18 (1967) ; Berger v. New York, 388 U.S. 41 (1967) ; see infra ,

Section II. F .3.

Fou rth, there are substan tial indications th at the surveillance app ara tus 

authorized by Title TIT is not used as much for gathering criminal evidence 

as it is for collecting general intelligence. These indic ation s are evident in 

the sta tistics of the relatively few convictions obtained through evidence 

secured by wire taps, [see Schwartz Report on the Costs and Benefits of

Electronic Surveillance (ACLU, 1973)]. The indications are overwhelming, 

moreover with respect to “national secu rity” wiretapping, to which w’e will 

address the remainder of our statement. Because intelligence gathering 

necessarily lacks partic ularity , and is often aimed at ‘preventive surveillance’ 

and speech in general, its accomplishment by a technique fra ught with constitutiona l difficulties furth er underscores our broad objection to wiretapping. 

The requirements of the Fourth Amendment are most, strict when the object, 

of a search is protected by the First Amendment. Stan ford v. Texas, 379 U.S. 

476 (1965). When wire taps are used to seize speech under a generalized 

claim of “national security intelligence gathering” our constitutional objections to the practice are greatest.

n . NATIONAL SECURITY WIRETAPPING

The invasion of constitutional rights through the installation and use of 

natio nal security wiretaps is even worse tha n it is with respect to Title ITT 

taps. The following outline of the general procedures applicable to natio nal 

security taps, with special emphasis on the Kissinger taps, shows what these 

problems are.
103

A. Vague and Inadequate J ustifications

In order to initiate the procedures for installing a national security tap, an 

official must prepare a written justific ation as to why the tap is necessary. 

This proposed justification is then sen t to the FBI which will adm inister the 

tap. The Director of the FBI in turn requests an authorization from the 

Attorney General to install the tap.

But these justifications can be and have been extrem ely thin. Former Acting FBI Dire ctor William Ruckelshaus testified last summer, for example, 

that full reaso ns for justificatio n were often not given for tap s installed at 

the request of the National Security Counc il:

Mr. Ruckelshaus. However, having been a Director of the FB I for 75 days, 

I know th at general procedure in the FBI was tha t, where a given national 

security wiretap was originated by information the FBI had, the re was a 

very elal>orate request made of the Attorney General justify ing his authorization for a given tap, but where the FBI received a request from the National 

Security Council, this elabo ration was not, as a rule, made.

Senator Case. Could that elaborate procedure be avoided by having a Director get Henry Kissinger to say “Let me have the dope?”

Mr. Ruckelshaus. Sure.

' Senator Case. In other words, the authorizing document does not necessarily, 

in itself, tell the full story.

Mr. Ruckelshaus. That's possible. [Hearings before the Committee on For ­

eign Relations, U.S. Senate, on Nomination of Henry Kissinger to be Secretary 

of State, 93d Cong., 1st Sess., at p. 284].

In other instances, the reasons given for a particular tup could be so general th at no judge would accept them if a requ est were made for a wa rra nt. 

But because the justification memorandum is an inte rnal document between 

or within the Jus tice Departm ent and the FBI, no one could challenge the 

assertions made. One egregious example was the “national security” tap 

placed on the telephone of Martin Luthe r King, Jr. According to Victor* 

Navasky’s excellent account in Kenn edy Justice (Athenaeum 1971), the FBI 

sought to put a tap on Dr. King's phone because they claimed that two of 

his close friends and associates may have been Communists. (These charges 

were never proved and would have been irrelevant even if they were true.) 

Taps were placed on Dr. King's home phone, his office phone in Atlanta andanother office phone in New York. If the FB I were really concerned about, 

possible influence of Dr. King by his allegedly Communist friends, they should 

have put the tap on them, not on King. Navasky quotes an “old han d at 

Jus tice” to this effect: “If you really want to find out about A's attem pt to 

influence B, you tap A not B.” (Id., at pp. 149-50).

In the case of the Kissinger taps, two of the seventeen persons tapped 

allegedly had no access to the national secu rity information whatever. [Vcw 

York Times, October 15, 1973], Yet such access was the stated reason for each 

of the taps.

In ano ther recent series of national security wiretaps, the United States 

Army sought to justify tapping the telephones of American civilians in West 

Germany on the ground that they were responsible for “dissidence” among 

American troops. The principal tar ge ts were a group of civilian lawyers in 

Heidelberg and Americans in Berlin who supported Senator George McGovern 

in the 1972 Presidential campaign. No action was ever taken again st eith er 

group, and the Army has since conceded th at its wiretapping and other surveillance activities in Germany were “excessive.” The American civilians have 

filed a civil suit for damages, claiming th at the taps were illegal. Berlin

Democratic Club, et al. v. Schlesingcr, et al., Civil Action No. 310-74 (D.D.C.).

B. Evasion of Title III

Another aspect of national security tap s which has emerged from several 

recent civil cases is the fac t th at the government consistently avoids using 

the provisions of Title TII when it can assert any basis for a national secu rity 

tap. Thus even if the government could secure a Title II I warrant because a 

specific crime enum erate d in 18 U.S.C. Section 2516 is under investigation, it 

will not do so if it can offer some excuse for claiming th at national secu rity 

is involved and no w arrant is necessary.
104

One recent example Involved the Jewish Defense League. In connection 

with an Investigation into the physical att acks on Soviet diplomats during 

'demonstrations in New York City by the J.D.L., the FBI installed a wiretap 

on the asserted basis of the government’s foreign intelligence activities. Tt 

plainly could have proceeded under Title III, however, since possible violation

of 18 U.S.C. Section 2101 was involved. See Ziveibon v. M itch el l,---------- F.

Su pp ._______(D.D.C. 1973).

Ip. a number of other cases the government could have obtained a wa rra nt 

under Title III. but relied instead on a natio nal security ratio nale. E.g., 

United States v. Ayres, No. 48104 (E.D. Mich. 1973) (alleged SI)S bombing 

conspiracy). In many such cases, the wire taps were found to be illegal because of the lack of a warrant. See United States v. Ahmad, 335 F. Supp. 1198 

(M.D. Penn. 1971) (no finding of purpose to gathe r foreign intelligen ce: fru its 

to be s upres sed ; defe ndants entitled to post-trial adversary hearing on taint) ; 

United States v. .Jaffe, 71 Cr. 480 (E.D.N.Y.. June 18, 1971) (tap directed 

at defendan ts or the ir prem ises; turn over ordered) : United States v. United

States District Court, 407 U.S. 297 (1972) ; United States V. Hoffman, 334 F. 

Supp. 504 (D.D.C. 1971) ; United States v. Smith, 321 F. Supp. 424 (C.D.Cal.

1971) (domestic security surveillances).

As we discuss below, the government could obtain a wa rra nt under Title ITIeven when foreign intelligence gathering is involved. Section 2516 specifically 

includes the investigation of espionage and salvotage as a basis for a Title 

II I warrant. Thus there is no need for a foreign intelligence exception to 

wa rra nt requirements in this area. See United States v. Butenko, 318 F. Supp. 

66 (D.N.J. 1970).

C. Lack of Procedural Safeguards

The effect of using a national security tap instead of proceeding und er 

Title II I is to elim inate what few, though inadequate, procedural saf egu ard s 

exist to protect citizens from the “dread of subjection to an unchecked sur ­

veillance power.” United States v. United States District Court. 407 IT S. 297, 

314 (1972). First, no application is made to a neu tral and detached magistrate 

to issue a warrant. Second, no limitation is placed on the period of time for 

which the interception is to be maintaine d. Title II I expressly requires a 

court orde r to specify the time period for which the wir etap is authorize d. 

18 U.S.C. 2518(1) (d) and (4 )( e) . Court ordered wire taps which were unlimited in duratio n have been held to be illegal. “We observe that the absence 

of a date on the order made its duratio n unlimited by its own terms. As such, 

it apparently authorized a wire tap for an unreasonable length of time which 

rendered it invalid.” United States v. Lamoge, 458 F. 2d 197, 199 (6th Cir.,

1972) .

Third, in natio nal security taps no atte mpt is made to minimize invasion 

of the privacy of the persons using a wiretapped phone. With respect to cou rt 

ordered taps, however, 18 U.S.C. §2518(5) so provides. This requirement of 

minimization has been held to invalidate court ordered wire taps when no 

effort was made to screen out innocent calls. Tn United States v. King. 335 F. 

Supp. 523 (C.D. Cal. 1971) the dis tric t cou rt suppressed all telephone calls 

intercepted by court ord er on a suspected narcotics dealer. The government 

agents had intercepted and recorded all telephone conversations, although 60% 

did not rela te to the purpose of th e wiretap. Similarly, in United States v. Scott,

331 F. Supp. 233 (D.D.C., 1971). the Court condemned the wire taps in question because the surveillance included overhea rs of family conversatio ns 

totally unrelated to the purpose of the wiretap s :

“Tf the court were to allow the government agents to indiscriminately 

inte rcep t every conversation made and to contin ue monioring such calls when 

it became clea r th at they were not related to the “authorized objectives” of 

the wiretap and in violation of the limiting provisions of the order, such 

order would become meaningless verbiage and the protections of the right 

of privacy outlined in Berger and Katz would lie illusory. 331 F. Supp. at 248.”

Fou rth. §2518(8) (a) requires that recordings of all wire taps installed by 

court order “shall not be destroyed except upon an order of the issuing or 

denying judge and in any event shall be kept for ten years.” The Second 

Circuit recently suggested that this provision of Title ITT should apply to 

natio nal security wiretap s as well as those installed by court order. In United

States v. Huss, 482 F.2d 38 (2nd Cir., 1973), the court said :
“The government urges us to adopt the principle that considera tions which 

bear on judicially authorized wire taps are.n ot applicable to the wire taps under 

discussion, because so-called warran tless domestic security bugging not expressly held unlawful at the time these tai»s were installed, was not found to 

be invalid until the Supreme Court decided the question in United States v. 

United States District Court, 407 U.S. 297 (1972). We are urged to hold 

therefore, th at the warehousing provision, 18 U.S.C. Sec 2518(8) (a) which 

requires preservation of records only for electronic surveillance authorize d by 

Title II I . . . does not apply to the w ir eta p here under review. Since we do 

not today announce a per se rule that the government’s failure to (preserve 

the wire tap tapes must result in a reversal of these contempt orders, we need 

not decide the question. We note, however, th at it would be a startling, if not 

preposterous ruling that permits a more relaxed standard for illegal tha n 

for legal wiretaps. Such a precept would serve only to encourage illegal wiretapping. Every orde r . . . shall contain a provision th at the auth orization to 

intercept . . . shall be conducted in such a way as to minimize the interception of such communication not otherwise subject to interception.” [482 F.2d 

at 48],

D. The Halperin Tap as an Illustra tion of All the Infirmities of Current

National Security Wiretap Practices.

The public evidence produced to date in the civil litiga tion arising out of 

the twenty-one month wiretap on the home telephone of Dr. Morton Halperin, 

Halperin v. Kissinyer, ct ah, Civil Action No. 1187-73 (D.D.C.), illu strates in 

detail each of the foregoing infirmities in existing natio nal security wire tap 

pra cti ces: 1

1. The government has conceded that there was only a single authorization 

existed for the wiretai>s in question (Answer, iwir. 17). Thus the original 

auth orization eith er had no time limit or it auth oriz ed the wire tap for the 

entire 21 month period th at it was in force—a liighly unlikely possibility. 

Under either alternative , the wiretap violated existing str ict ures on the 

establishment of a set term for electronic surveillance. The New York wiretap 

sta tut e held unco nstitutional in Berger v. New York, 388 U.S. 41 (1967) permitted wiretaps for 2 month periods after a single showing of probable cause. 

The Court condemned this practice as a sweeping invasion of Fou rth Amendment rights [388 U.S. at 59].

2. The government has admitted that it intercepted, recorded and tran ­

scribed every telephone conversation over the Halperins' home telephone for 

the entire 21-month period, including conversations of the three minor plaintiffs (aged 7, 9 and 11), personal and family conversations, as well as political 

and professional conversatio ns of I)r. Halperin. These are all totally unre lated 

to the supposed leak of national security information. The government, the refore, clearly exceeded the minimization requirem ents applicable to Title II I 

wiretaps.

3. The government has conceded that the original tapes of tiie Halperins’ 

wire tap telephone were erased after the logs were transcribed. Such an 

erasure is contrary to the procedural requirements establishd for court ordered 

wire taps by Title I II, 18 U.S.C. §2518(8) (a) .

4. The government and John Mitchell l>oth admitted in the Halperin case 

th at the procedure for renewal every 90 days of a national security tap was 

not follow ed: “no other authorization was eit her sought or procured by any 

of the federal defendants.” (Government's Answer, par. 17). Thus instead of 

seven separate autho ritari ans every 90 days over the 21-month period of the 

tap which should have been obtained under normal operatin g procedures, the 

government secured only one auth orization which the Attorney General at 

the time does not recall signing.

What emerges from this brief outline is th at national security taps lead to 

a massive invasion of a citizen’s constitutional rights. Because the taj>« do 

not have a limit imposed by the court, they often continue for months and 

even years. In the Halperin case, the tap continued on his home phone for

1

 Additional documentary evidence has recently been produced by the government In 

the suit pursuant to plaintiffs' motion to compel discovery, which was granted by the 

District Court on April 1, 1974. Plaintiffs’ and their counsel, however, are currently 

bound by a Protective Order not to disclose these documents except by further order 

of the Court.
21 months, the las t 17 of which he was not in government employ. According to 

statistics introduced by Senator Edward Kennedy, the average national security tap in 1970 was installed for a minimum of 71 days to a maximum of 

200 days. This was 3 to 9 times greater tha n the average length of a Title II I 

wiretap. [TTorranfleaa Wiretapping, Hearings before the Subcommittee on 

Administrative Practice and Procedure, Senate Committee on the Jud icia ry, 

92nd Cong., 2d Sess., June 29. 1972, a t p. 70].

Because there is no sta tut ory requiremest of minimization, every phone 

conversation may be overheard with no effort made to screen out innocent 

calls.

Because there is no requirement of preserving the taps, there is no way to 

check on whether the tran scriptions or summ aries of the taps were accurate. 

E. Inadequate Recordkeeping and the B reakdown of A ccountability.

Apart from the documentary support requ ired for the authorization of a 

national security wire tap, the re are recordkeeping requirements which must 

be followed by the Jus tice Department with respect to any wiretap. The 

principal requirement is th at the names of all persons who are overheard on 

a wire tap must be entered on the FB I’s “El sur Index,” a central indexing 

system kept both for internal investigatory purposes and for the purpose of 

prepar ing responses to wiretap discovery orders. See Deposition of form er 

Acting FBI Director William D. Ruckelshaus, July 25, 1973, at p. 12, Halperin

v. Kissinger, et al. supra.

Wire tap litigation in recent years, however, has revealed that these recordkeeping requirements are so loosely followed that the government routinely 

evades or fails to disclose the full extent of its wire tap activity with respect 

to partic ular litig ants. In national security cases the temptation appears to 

be particu larly great for the government simply not to ente r the names of 

wiretap subjects on the “Elsur Index.” This is what happened in the Halperin 

case, and there is reason to believe it was also tru e with respect to the other 

so-called “Kissinger taps.”

The good faith recordkeeping of the government is placed in serious doubt 

when, after repeated denials in courts of any electronic surveillance, it suddenly about-faces and adm its that private liti gants were overheard on a 

natio nal security tap. See, e.g., Philadelphia Resistance v. Mitchell, 58 F.R.D. 

139 (E.D., Pa. 1973) (Amended Answer to Complaint H25A), United States v. 

Russo-EUsburg, No. 9393 (C.D., Cal. 1973) ; United States v. Smilow, 472 F.2d 

1193, 1195 (2d Cir., 1972) ; Kinov v. Mitchell, 70 Civ. 5098 R.TW (S.D.N.Y.) ; 

Dellinger v. Mitchell, Civ. Action No. 1708-69 (D.D.C.) (Transcrip t of Hearing on Discovery Motions, November 7. 1973, pp. 32-33). The government’s 

original answ er to the complaint in Philadelphia Resistance, for example, 

denied th at any surveillance of the plaintiff had occurred. Seven months later, 

it filed an amended answ er in which it adm itted overhearing plaintiffs’ conversations during the course of electronic surveillance of others. In the Ellsburg prosecution the government finally adm itted its surveillan ce of Ellsburg 

after a year of repeated denials. Upon an order by Judge Byrne to produce 

all records concerning the taps, the government claimed these records had 

been “lost” (New York Times, May 11, 1973). As is now well known, however, 

a few days after the dismissal of the case, Robert Mardian, the former head 

of the Internal Security Division of the Jus tice Departmen t, revealed that 

the missing records were in fact in a White House safe (New York Times,

May 15. 1973).

Three years after commencement of a civil suit for damages for illegal 

electronic surveillance in Kinvoy v. Mitchell, supra, the government disclosed 

th at there had been 23 incidental overhearings of the plaintiff in national 

security taps over a 15-year period, despite an initial state ment to the contra ry. Another instanc e of government inability or unwillingness to discover 

the existence of electronic surveillance was recently disclosed in Dellinger v. 

Mitchell, supra. After more tha n four years of denying that one of the plaintiffs had ever been overheard, during the argument on plaintiffs’ motion for 

discovery, the government finally adm itted over hea ring him (Tra nscript, 

at 32-33). The Second Circ uit in United States v. Smilow, 472 F.2d 1193. 1195 

(2d Cir., 1972), summed up as follows the cou rts’ increasin g concern at the
107

government’s inability to discover and adm it its wiretap ping activities in a 

prosecution of a grand ju ry witness for contempt of cou rt: “We cannot forbear expressing our regret that those represe nting the Governmen t in cou rt were unable, until such a late date, to discover the true sta te of affairs with regard to official wiretapping of the def end ant's telephone conversations * * * We trus t th at in the future the Government will 

be more thorough in the investigation of such matter s.” One explana tion for the government's rema rkable inability to keep trac k 

of its own surveillance activity must be that its recordkeeping system is woefully inadequate. This system has enabled the government to avoid full com­ pliance with any wiretap discovery order, since apparen tly it cannot determ ine 

from its records the identitie s of all persons overheard in any given instance. 

An example of this problem occurred in United Staten v. Smilaic, supra.

w’here the government lawyers claimed they had not been able to discover that 

a person named “Jeffrey” had been overheard because he introduced himself 

in the intercepted conversation as “Jeff." The Court of Appeals, however, observed tartly that “it does not requ ire much imagination to anticip ate that 

an individual named Jeffrey mig ht be known as Jeff to frien ds or acquaintances” [472 F.2d at 1195]. A partic ula rly shocking illu stration of the inadequacy the government’s 

recordkeeping system was revealed in United States v. Ayers. No. 48104 (E.D., 

Mich.), a conspiracy prosecution of the Weathermen faction of S.U.S. Pu rsua nt to an interim court order to disclose any transc ripts of the defe ndants’ 

intercep ted conversations the government inadvertently turned over twelve 

days of logs of all conversations overhead on one domestic security tap. The logs noted 500 overhearings, half of which were liste d as “unidentified.” 

Upon inspection, the defe ndants w’ere able to determine th at a number of 

these overhearings were of the defe ndants themselves and of their attorneys. In 

each of those instances, the releva nt transc ripts had not been turn ed over to 

the defendan ts, presumably because the government had not realized that 

they represented conversations of the defendants. Unitd States v. Ayers, supra.

(Supplemental Affidavit in Support of Defendants' Motion for Discovery, pp. 

2-3, October 1973). The government ultim ately dropped the prosecution so 

th at it w’ould not have to disclose the full scope of the wiretappings. A series of deliberate and “pate ntly unbelievable” misrepresen tations by the government which “stra ined common sense” and culminated in the unexplained destruction of illegal wir etap tapes on the eve of compelled disclosure, 

led the Court of Appeals for the Second Circuit in United States v. Huss, 482 

F.2d 38 (2d Cir. 1973), to dismiss contem pt charges against an informer who 

had refused to testify before the grand jury. The court refused to accept as 

tru e the governmnt’s “good fa ith ” represen tation th at the destroyed tapes 

would not have revealed m atters of imp ortanc e: “ [i]ndeed, the government’s good fai th did not prev ent illegal wiretapping 

here, nor did the government's good faith prevent it from search illegally 

or from narra tin g an account of th at search which the Cou rt found to be 

incredible [482 F.2d at 50].” Characterizing the attitude of the government as “cavalier, carefree and 

careless.” the Court observed th at the wire tap recordkeeping had made a “mockery of the labors of Congress to tailor [Title II I] with precision” and 

had “offend[ed] the spirit of liberty which has distinguished this nation 

from its bir th” [Id. at 52], Because of these inadequate and deceptive recordkeeping practices, courts 

are increasingly skeptical about the conclusory and ambiguous affidavits denying electronic surveillance which are regularly subm itted by the government in response to court orders to disclose. In re Korman, 13 CrL 2310 (7tli 

Cir., June 8. 1973) ; United Sta tes v. Alter, 482 F. 2d 1016, 1027 ( 9th Cir., 

1973) ; In re Hom, 458 F.2d 468, 471 (3rd Cir., 1972) ; Beverly v. United

States, 468 F. 2d 732, 745 (5th Cir., 1972). The Seventh Circuit, for example, 

recently refused to accept a general lette r from a government atto rney denying electronic surveillance, which was subm itted to counter the allegation of 

a gran d jur y witness th at his interrog ation was based on the fru its of an 

illegal wiretap. In re Korman, supra. Although the Court stated th at it had 

previously been willing to accept such general denials as sufficient, “certain
108

indisc retions” had come to its atte ntion which “seem to militate for a more 

formal and binding denial than those which were [previously] found to be 

adequate.” Id.

The Ninth Circuit has similarly refused to accept such generalized denials 

of wiretapping. United States v. Alter, supra. The denial affidavit in Alter

simply stated who the affidavit was. th at he had “caused an official inquiry 

to he made with the appropriate Federal agencies,” which were listed, and 

that based on the resu lts of the inquiry there had been no electronic sur ­

veillance of the defendant. The court criticized such a conclusory stateme nt 

because: “1. it supplied no information whatev er about the identity of the 

stated no facts from which the court could conclude that the six listed 

eith er the substance of his inquires or the substance of the replies, 3. it 

stated no fac ts from which the court could conclude th at the six lasted 

agencies were the only governmental agencies which could have been involved 

in electronic surveillance, and 4. it did not reveal the dates of claimed surveillance to which the inquiries were addressed.”

The cou rt concluded by pointing out that “[ il f any of the conclusions in 

the affidavit were lat er proved wrong, it would he vilrtually impossible to 

establish th at the affidavit was perjured” [482 F.2d at 1027].

In summary, the lack of recordkeeping standard s in national secu rity wire ­

taps allows the government to he most cav alie r in what records it keeps and 

how much it discloses about its activ ities. As a result, it can hide the facts 

as to who it wiretap s (as it did initially in the Kissinger tap s), or at the least 

be very careless in disclosing what it has done. This lack of accountability 

seriously compounds all the other problems relatin g to national security taps 

which we have discussed.

F. Invasion of Constitutional Fights

National security taps necessarily lead to a massive intrusio n into Constitutionally protected rights.

1. First Amendm ent Fights.—National security taps have repeatedly invaded First Amendment rights to political association and free speech. Tn the 

Halperin case, for example. Dr. Halperin became a consulta nt to Senator 

Muskie’s presidential campaign in 1970 and 1971. All his conversations in this 

area were intercepted and presumably made available to persons in the White 

House who were extremely interestd in Sna tor Muskie’s ideas and efforts at 

thi s time. The government has also admitted that it monitored Dr. Halperin’s 

efforts to write critical artic les of government activities after he left the 

governmen.

Published repo rts indicate that a second target of the Kissinger tap s also 

worked for Senator Muskie and was tapped during the very time he was an 

active campaign worker.

Tn the J.D.L. case, many persons who actively supported the J.D.L. and 

called its office with pledges of money or assistance had their names recorded 

for the use by the government. Any attempt to obtain these names directly 

would have boon denied under the authority of the Supreme Court's decision 

in NAACP v. Alabama. 357 .S. 449 (1958).

There have been numerous other cases where dissident groups or civil 

rights activists or opponents of the Vietnam War. were wiretapped under 

constitutionally baseless circumstances. We have already alluded to the wiretap of Martin Luther King. Jr., who was tapped because some associates 

allegedly had Communist ties. Tn a notorious memorandum produced before 

the Senate Wa terg ate Committee, Fgil Krogh and David Young reported to 

John Fhrlichm an that Richard Barnet and Marc Raskin of the Tnstitute 

for Policy Studies, highly vocal opponents of the Nixon Adm inistration’s 

Vietnam policies, were “overheard.” (Ervin Committee hearings, p. 2B44.) We 

also know that David Dellinger and other defendan ts in the Chicago Conspiracy trial were overheard numerous times during the period when they 

were planning and carry ing out pro test rallies against government policy.

2. Fourth Amendment Fights.—The sweeping intrusion into a person’s right 

to privacy by a wiretap has already been set forth above. Everything that is 

said on a tapped telephone is swept up by the government's electronic machinery. In the Halperin case, every conversation on the plaintiff’s home 

telephone was recorded and tran scribed over a 21-month period. These in-
109

eluded family conversations between husband and wife or parents and children, conversations between the minor children and the ir frien ds as well 

as the political discussions mentioned above. These conversations were carefully transcrib ed by an anonymous government clerks, summarized by FBI 

agents and sent regularly to White House officials, who then knew virtu ally 

every thing about the Halpetrin’s thoughts and activities for nearly two years. 

All this was done in the name of protecting national security and it was done 

for seventeen months after Dr. Halperin had left government employ.

As Mr. Justice Powell pointed out in his opinion for a unanim ous Court in 

United Staten v. United States District Court, 407 U.S. at 313, the historic 

relationship between the First and Fourth Amendments is dramatically 

evident in the context of a national security wire tap, and it is particu larly

* evident in a tap like the Halperins’ :

“National secu rity cases . . . often reflect a convergence of First and Fou rth 

Amendment values not present in cases of “ordinary” crime. Though the investigative duty of the executive may be stronger in such cases, so also is 

there greater jeopardy to constitutionally protected speech. “Histo rically the

* stru ggle for freedom of si>eech and press in England was bound up with the 

issue o f the scope of the search and seizure p ower.” Marcus v. Search Warrant,

367 U.S. 717, 724 (1961).”

3. Sixth Amendment Rights.—The sweeping natur e of a wiretap necessarily 

means that many privileged communications will be overheard by government 

eavesdroppers. In recent years there have been numerous instan ces of lawyerclient calls being overheard. In the days before Title III, bugs or tap s were 

in police headqua rters—almost certainly an intrusion upon lawyer-client conversations. See Schwartz, op. cit. 478-79.

Overhearings of lawyer-client conversations have often occurred in national 

security cases. See. e.g., Kinoy v. Mitchell, supra (defense lawy er overheard 

23 times). In a brief submitted to the Seventh Circ uit Court of Appeals in the 

Dellinger contempt case last week, for example, the following assertions were 

made about FBI wiretapping of the defendants and their lawyers in tihe 

Chicago conspiracy case :

“ (i) Despite Mr. Mitchell’s memorandum to Mr. Hoover, dated July 14, 

1969, directing that FBI agents avoid monitoring defendants and their attorneys during the conspiracy trial, a memorandum heavily relied upon by the 

government in this case, they in fact diid so and had to l)e reminded of the 

directive by the central office of the FBI.

“ (ii) FBI agen ts were specifically directed to fram e even their internal

reports to the FBI so as to conceal the source of their material, the result 

of which is that records in FB I files will not reveal what FBI agents know.

“ (iii) The FBI was continuously making personality assessments of the 

defendan ts in the Chicago conspiracy trial, which obviously were a key to 

what may well have been the structuring of tri al court proceedings so as to 

develop reactions by the defendants.

“ (iv) As a foundation for a claim of a foreign security exception, the FB I

* has directed its agen ts to subm it “excised” logs which would reveal only the 

recordings of converastions showing foreign involvem ent; thus, logs submitted in camera to a cou rt on a claim that surveillanc e was for foreign 

security purposes are not an accurate report of the true logs. In re Dellinger,

73-2017, Reply brief for Appellants pp. 20a-21.”

These assertions were based ui>on government documents produced in a 

civil case pending in the District of Columbia, Dellinger v. Mitchell, Civ. 

No. 1768-69.

Another recent Instance of a nation al security wiretap inte rferrin g with 

Sixth Amendment rights is the Army’s surveillance of civilian American attorneys in West Germany. Conversations among lawyers working for the Lawyers’ 

Military Defense Committee (a plaintiff in Berlin Democratic Club, et at. v. 

Schlesinger, et gl., supra) and their clients were intercepted on at least one 

wiretap installed on the phone of an American free lance jou rna list and consulta nt to LMDC. Conversations overheard on the wiretap, as revealed by 

Army documents summarizing them, included discussions aixnit how to conduct 

the court martia l defense of Larry Johnson a black GI who has since been 

discharged from the Army. According to the Army intelligence agents who 

disclosed the wiretapping, more than fifteen volumes of classified surveillance

85 -3 91 — 7 -8
110

documents, including the records of other wiretap s on LMDC lawyers, were 

destroyed by the Army immediately after the disclosures occurred last August, 

thus furth er indicatin g th at the Army knew the entire operation was illegal.1

II I. CURBING NAT IONA L SECURITY ABUSES

It has been suggested th at the answ er to the abuses noted al>ove is to require a separable wa rra nt procedure ap ar t from Title III for all national 

security or foreign intelligence wiretaps. We do not believe th at such a procedure stand ing alone would adequately deal with the problems we have been 

discussing.

A. Definition of National Security

In the first place the definition of nation al secu rity is so elusive th at a

separate wa rra nt procedure is not likely to res trict the wide range of wiretaps that have been installed in the past. ‘National secu rity”' was used to 

justify many aspects of the Wate rgate cover-up. It was used to justify the 

wiretap of Martin Luther King, Jr. It was used to justify the break-in of 

the office of Dr. Lewis Fielding, Daniel Ellsberg’s psychia trist. It was used 

to justify the wire tap of Morton Halperin for 17 months after he lef t the 

government.

The difficulty of defining “national secu rity” was eloquently expressed by 

Egil Krogh, Jr., soon after he pleaded guilty to his pa rt in the Ellsberg 

bre ak- in:

“While I early concluded tha t the operation had been a mistake, it is only 

recently that I have come to regard it as unlawful. I see now that the key 

is the effect that the term “national secu rity” had on my judgment. The very 

words served to block critical analysis. It seemed at lea st presumptuous if 

not unpatriotic to inquire into just what the significance of national security 

was.

“When the issue was the proper response to a demonstration, for example, 

it was natural for me to question whethe r the proposed course was not excessive. The relativ e rank ings of the rights of demonstrators and the protection of law and orde r could be debated, and the range of possible accommodations explored, without the subjects’ of patriotism and loyalty even risin g 

to the level of consciousness. But to suggest that national security was being 

improperly invoked was to invite a confrontation with patriotism and loyalty 

and so appeared to be beyond the scope and in contravention of the fai thf ul 

performance of the duties of my office.

“Yet what is national security? I mentioned th at all of the potential uses 

of the information sought in the Fielding incident were consistent with my 

then concept of national security. The discrediting of Dr. Ellsberg, which today 

strikes me as repulsive and an inconceivable natio nal security goal, at the 

time would have appeared a means of blocking the possibility that he would 

become such a popular figure that othe rs possessed of classified information 

would be encouraged to emulate him. More broadly, it would serve to diminish 

any influence he might have in mobilizing ojyposition to the course of ending 

the Vietnam war th at had been set by the President. And th at course was the 

very definition of national security. Freedom of the President to pursue his 

planned course was the ultimate national secu rity objective. [Vow York

Times, Jan uary 25, 1974, p. 161”

“Foreign intelligence” is equally difficult to define. A recent law review 

article succinctly points out the problem :

2

 I t sh ou ld be no te d th a t th e Arm y drop pe d It s ch ar ge s ag ai ns t Spec. 4 Jo hn 

Mc Douga l, one of th e Ar my Intellige nc e ag en ts wh o mad e th e “u na ut ho rize d di sc losu re s” , 

aft er Mc Do ug al’s la w yer ga ve no tic e th a t he in te nd ed to base his de fense on th e 

ill eg al ity an d unconst ituti onali ty of th e su rv ei llan ce . An even mo re te llin g ad miss ion 

by th e Army th a t It s su rv ei llan ce prog ram cou ld no t he def ended in co ur t was th e 

rescissio n of E ig hth Ar my Reg ulation 381-2K (“M ilitar y In telli ge nc e, Cou nter dlss lden ce 

Pro gra m ” ) in ea rl y Aug us t 1973, im med iately a fte r th e first re port s ab ou t th e wireta pp in g be gan to ap pe ar in th e press, an d li tt le mo re th an a week af te r th e Reg ul atio n wa s pr om ulga ted on Ju ly 23. Th e Reg ulatio n defined “d isslde nc e” ns “ m an if es ta ­

tio n of a re je ct io n of m il itary , po lit ical or socia l sta n d ard s.” an d au th or iz ed m il itary 

intelli ge nc e ag en ts to co lle ct In fo rm at io n ab ou t civi lian or m ilitar y “d isslde nc e” by a 

va riet y of co ve rt means .
Ill

“The definition of a foreign security surveillan ce is fa r from clear. Almost 

any problem of governmental concern could be said to relate, at least 

remotely, to the nation al security, and to bear, at least potentially, on the 

country's relations with foreign powers. If loosely drawn, a foreign security 

exception to the wa rra nt requirement could thus be very broad. United States

District Court did not narrow its potential scope, having been decided as a 

purely domestic case, and lower court cases which have applied the foreign 

security exception have done so quite expansively. In Ziveibon v. Mitchell, for 

example, the court accepted as grounds for the warrantless surveillance of the 

Jewish Defense League the possibility that that group's anti-S oviet protest 

activities might bring adverse reaction from the Government of the Soviet 

Union and harm to American citizens in that country. The case suggests tha t 

individuals may be the subject of warrantless foreign security surveillance 

without themselves having the least aflinity with a foreign power, if their 

activ ities threaten to affect the behavior of foreign powers, (footnotes omitted) 

Note, 87 Harv. L. Rev. 976. 977-78 (1974)’’

In one current case, in which we are representing an Arab-American activist 

lawyer in a civil suit for wiretap damages, an asesrted national security 

justificatio n by the government for barrin g discovery was rejected by the 

District Court. The government had subm itted an ex parte affidavit which 

undoubtedly was more detailed tha n its own inte rnal justification memoranda. 

Jabara v. Kelley, 42 LW 2528 (E.D. Mich. March 21, 1974).

In the so-called Kissinger taps, the justification offered for wiretap ping 13 

government employees and 4 newsmen was th at there was a leak of national 

security information to the press. The government asserted a “foreign affairs’’/ 

“national secu rity” ratio nale for the tap on the Halperin home by the facile 

logic that because intelligence orga nizations read American newspapers, any 

leak of information to the newspapers is tantam oun t to a spy covertly conveying information to a foreign government.* This rationale would expose to 

unw arra nted executive wiretapping all the hundreds of thousands of government and private industry employees who have access to classified inform ation, 

all former employees who had such access, all members of Congress, and all 

newsmen who are potentia l recipients of such information.

B. Ex Parte Application for a Warrant

The fact th at a judge would have to pass on the government’s application 

for a tap is not likely to solve the problem. The government could offer a 

plausible excuse why a national security tap was necessary. Under the ex

parte circumstances of the application, it is unlikely th at a judge would 

dispute the government’s contentions as to why the tap should be installed.

In the Halperin case, for example, the government has argued as follows.

“The early months of 1969 were partic ularly sensitive times with regard 

to the formulation of this country’s foreign policies and the establish ment of 

our fut ure relations with other nations. Statement by the President, 9 Presidential Documents 694 (1973). During this period, policies were being considered which would establish this country’s fundamental approach to major 

foreign policy issues such ns the Strateg ic Arms Limitation Talks (SALT), 

Vietnam and many other national security issues. Ibid. Because of the sensitive nature of these matters, the secrecy of each was of vita l importance, and 

placed in lawyers’ offices or in other places where attorney s would speak to 

the ir clients. The Detroit police allegedly wiretapped every public telephone 

the success or failure of each program turned in many instances upon the 

maintenance of the necessary security. Ibid. However, notw ithstanding the 

critical need for such security during this period, the Government was confronted with leaks to the press of documents which were considered of the 

greatest importance to the national security . . . . access to the classified 

inform ation which had been disclosed to the press was limited to a few officials 

and employees within the Government, Dr. Henry A. Kissinger, then Special 

Assistant to the President, was directed by the Preside nt to provide the

♦The go ve rn m en t's ar gu m en t wa s as fo llow s: “. . . th e elec tro nic su rv ei llan ce of 

(D r. H al per ln ’a home teleph on e] wa s co nd uc ted h.v th e Exe cu tiv e fo r fo reig n policy 

pu rp os es nnd fo r th e pr ot ec tion of nat io nal se cu rity In fo rm at io n ag ai nst fo re ig n In te llig ence ac ti vit ie s. ”
112

Fede ral Bureau of Investigation with the names of certain individuals who 

had such access. Hearing on Nomination of Henry A. Kissinger, supra at 12. One of the names provided to the Federal Bureau of Investigation by Dr. 

Kissinger’s office was th at of Dr. Morton II. Halperin, then a member of the 

National Security Council staff.

“However, notwithstand ing this and other investigations being conducted 

by the Federal Bureau of Investigation and additional governmental efforts 

to curb the unauthorized disclosure of classified information, press leaks involving the most sensitive of foreign policy ma tters continued through 1909, 

1970 and 1971, and the surveillance of Dr. Halperin was thus continued 

throughout this period until its term ination on February 10, 1971.”

The plaintiffs’ were able to dispute the government's argument, however, 

and obtain discovery in the case, despite the assertions of national security. 

But with out an adv ersary hearing, the government’s assertions might well 

have been accepted by the court.

A wa rra nt procedure would add limited protection if the concept of national 

security rema ins as broad and is as frequently asserted as it is now. In our 

view, therefore, the principal task facing the Congress is the enactmen t of 

broad prohibitory legislation. This legislation should be backed up by a wa rra nt procedure only with respect to the extremely narrow area in which any 

wiretap ping at all is permitted.

C. Inadequate Protection of Constitutional Rig hts

The only arguable improvement that would come out of a separate wa rra nt 

procedure for broadly defined national sec urity/foreign intelligence taps would 

be better recordkeeping. The Title III requirem ents of a wa rra nt and the 

housekeeping provisions of Section 2518 would mean that the government 

would not l>e able to be so careless in accounting for the existence of a tap. 

Bu t other Constitutio nal infirmities mentioned above would still exist.

The government would still be able to wiretap its political enemies und er 

the pretext o national security and thereby inhibit the exercise of the ir Fi rst 

Amendment rights. The invasion of Fou rth Amendment righ ts would be as 

sweeping as they are now, as would Sixth Amendment infringements. A wa rra nt procedure would not overcome these constitu tional objections.

D. Warrant Procedures and Recordkeeping Requirements

It has been argued that there must Ih* some procedure for the government to secure foreign intelligence information through a wiretap to protect 

the national defense or safety; and th at the government must have some 

means to protect itse lf aga inst foreign espionage. It must be allowed to 

obtain intelligence to meet clear and present external dangers before they 

ripen into direct violence again st the nation.

It has been argu ed tha t there must be some procedure for the government already has specific authority to wiretap, the constitutionality of which 

has not yet been decided. The crimes outlined in Section 2516 which justify a 

wire tap under Title II I include espionage, sabotage, treason, rioting, and 

sim ilar crimes. As the Supreme Court pointed out in United States v. United Sta tes Dis trict Court. 407 U.S. at 321. “Judge s may be counted upon to be 

especially conscious of security requirements in national security cases. Title 

II I . . . already has imposed this responsibility on the judiciary in connection 

with such crimes as espionage, sabotage, and treason. §2516(1) (a) (c).”

With respect to domestic activities which are under investigation by the 

Government for “national security” reasons, the Supreme Court has already 

spoken. Where “the re is on evidence of any involvement, directly or indirectly 

of a foreign power,” the Fourth Amendment applies. United States v. United States District Court, 470 U.S. at 309.

The Justice Departm ent in its Congressional testimony has conceded that 

the Supreme Court’s decision narrows the nrea of possible executive discretion 

to wire tap in foreig n intelligence situations. These must be limited to circumstances where “such factors [exist] as sub stan tial financing, control by or 

active collalmration with a foreign government or agencies thereof in unlawful 

activities directed again st the government of the United States.” Furthermore 

the Justice Departm ent has conceded that “such fac tors will be present in a 

very minimum number of situ atio ns.” Testimony of Deputy Assistan t Attorney 

General Kevin T. Maroney, Hearing's, Warrantless Wiretapping supra, p. 12.
113

We mu st point out that the Government’s position in eacli national security 

wiretap case cited in our testimony is at varia nce with this concession.

Title II I leaves open the question of discretion for Executive action in tlie 

are a of foreign intelligence gathering or to protect natio nal security inform ation aga inst foreign intelligence activities. This are a of discretion as to 

which the Congress Inis taken no position and which the Supreme Court 

narrow ed in the Keith case, is still too broad. At a minimum the limits of 

foreign intelligence wiretajiping should begin with the definitions offered above. 

But in draw ing up these definitions we hope that Congress does not authorize 

what it is seeking to prohibit.

We believe that a wa rra nt procedure for foreign intelligence wiretaps does 

not go fa r enough. It does not meet the definitional problems mentioned above. 

It may be interpreted as lending Congressional sanction to an unconstitutional 

practice. The need for accou ntability is great and any exercise of executive 

discretion in this area should be subject to legislative definition and subseque nt judicial review.

However if Congress does not affirmatively proh ibit these kinds of wiretaps, 

a warrant procedure under str ict definitions and standard s is a conceivable 

alte rna tive. As we noted above, a wa rrant requ irem ent would lead to some 

kind of Executive accountability. It would mean th at the courts could initially check on the government’s claim of foreign secu rity and later hold it 

to account if it exceeded its auth ority. It would mean th at the targ ets of 

illegal use of this power might obtain redress, and Congress could also determ ine whether its stan dar ds have been met.

CONCLUSION

The right of privacy is perhaps the most imp ortant rig ht of American 

citizens. A wire tap is and has been a most serious invasion of that right. A 

warrant requirement in order to legitimate vague national security wire tap 

practices will not cure these incursions upon the C onstitution.

Thank you for this opportunity to appea r before the Subcommittee today.

Mr. Kastenmeier. The hour is late and I would like to offer the 

Chair's apologies to Dr. Morton Halperin, who has patiently waited 

to testify.

Dr. ifalperin holds his Ph.D. in political science and served the 

Government both as Deputy Assistant Secretary of Defense during 

the Johnson administration and as an assistant to Henry Kissinger 

at the National Security Council during the early part of this administration.

Dr. Ifalperin was the subject of a warrantless national security 

wiretap for over iy 2

 ye a rs after leaving the Government.

We welcome you and you may proceed any way you wish.

TESTIMONY OF MORTON HALPERIN, PH. D., FORMER NATIONAL 

SECURITY COUNCIL STAFFER

Dr. Halperin. Mr. Chairman, it is a great privilege for me to 

appear before this committee. I propose to discuss warrantless wiretapping rationalized by the incantation “national security.’’

Depending on one's perspective this can be said to be a subject 

on which I am biased, or it can be said to be one on which I speak 

from great experience. In any case, my involvement with warrantless wiretaps is, which unvoluntary, quite extensive. For 21 months, 

the words of members of my family and those who called us on 

the telephone or used the telephone themselves, were duly summarized 

and copies of these summaries were sent to high administration 

officials, including Henry Kissinger and 11. R. Ilaldeman. During
114

all but the first 4 of these 21 months, T was a private citizen with 

no access to classified information, but with an active involvement 

in public affairs.

The lawsuit brought by mv family has been brought against 

those we believe responsible for this surveillance and has now progressed to the stage where we have been given copies of the summaries of these telephone conversations and other documents. And I 

have spent, T might say. most, of the last week reading these documents and they are both fascinating and frightening. I am prohibited by the court’s order from discussing this material. And in 

restraint and the fact that Mr. Freidman and Mr. Shattuck have 

discussed what we know’ about the case from other materials. I 

propose to focus my remarks on some more general questions about 

my case in so far as T am able to do so.

Aly remarks then will be focused on three questions: (1) What is 

the current practice of the Justice Department; (2) what are the 

benefits of such surveillance; and (3) what should be done.

The starting point for any inquiry about current practice is of 

of course the Keith decision. I find Justice Powell’s decision in tha t 

case unambiguous, totally unambiguous. As I read it, he says that, 

electronic surveillance of an American citizen requires a warrant 

under the procedures of the omnibus crime bill unless he or she 

is an “agent” of a foreign power. And the Court of course, reached 

no judgment at all about whether a warrant would be required for 

the surveillance of foreign pow’ers or their agents. But it defined 

“agents” as those having a significant connection with a foreign 

power. Therefore, in my view, its practice under Keith should be 

straightforward, as Mr. Freedman suggests, and clearly it is not.

Warrants should be required under title 3 unless the surveillance 

is of a foreign power or its agents, and agents is narrowly defined. 

Now the Justice Department witnesses who testified before the 

Senate Judiciary Committee shortly afte r the Keith decision gave 

precisely this interpretation. William Ruckleshaus, when he was 

Acting Director of the FB I and later Deputy Attorney General, 

also gave this interpretation of the decision. But as already suggested, other signs are more disquieting.

The number of warrantless surveillances does not appear to have 

gone down. Mr. Richardson has presented the opinion that the 

Keith case did not cover any surveillance in any way related to 

foreign policy—'the Jewish Defense League was attacking an embassy or in my case because of the view tha t foreign powers read 

newspapers and therefore anything that involves anything tha t 

might get into a newspaper, the Justice Department explicitly says 

involves the activities of a “foreign power.”

Therefore, there is great uncertainty about what the current practices are of the Justice Department and very disquieting indications 

that in fact very little has been accomplished by Keith. Afte r all, the 

Keith case itself involved the CIA, the blowing up of a CIA installation so presumably that would now’ be said to be involved with a 

foreign power.

In my view the committee should discover very precisely what 

the current practices are and insist that, if there is to be any war-
115

rantless surveillance, until there is anv further legislation, that it 

be limited to foreign powers, and their “agents” narrowly defined 

as those who have a significant connection with a foreign power, 

but in cases where espionage is not involved.

Because if espionage is involved, then a warrant should be required under title 3.

Let me turn now to the question of the value of warrantless surveillance for national security purposes. In my judgment, such surveillance has extremely limited value and can in no sense be called 

vital to the security of the United States. I should make it clear 

that on that specific question of what one learns from such surveillance, my information is only negative. Never during my 3 

or 4 or more years in the Defense Department and the White House 

did I read a report which I knew to be based on electronic surveillance conducted in the United States, although I routinely saw 

material from far more sensitive sources.

Occasionally and at random, one might pick up a useful piece of 

information from an electronic surveillance of an embassy, but the 

systematic take must, as regards the activities of foreign powers, be 

mere gossip. Such things as whether the Foreign Minister is coming 

over this week or next week and whether he plans to stop in New 

York for 2 or 3 days.

As George Kennan makes clear in his memoirs, every foreign service officer going abroad assumes t ha t his office and home phones are 

tapped. Nothing is said by a diplomat on a phone unless he is 

prepared or even in some cases desires tha t what he says is to be 

overheard by the host government.

Now not only is electronic surveillance unlikely to yield significant 

information, but also the American Government has many other 

sources of information of significantly greater value.

This is, of course, a very difficult subject to discuss in a public session or even in executive session of a Congressional committee limited 

to Top Secret information. I may simply assert tha t the executive 

Branch has many sources of information on the activities of foreign 

governments, that no single one of these sources can be considered 

“vital” although many yield information of far greater value than 

could conceivably come from electronic surveillance.

I would urge this committee to demand from the executive 

branch a very careful “all source” evaluation of the absolute and 

relative value of information obtained from warrantless electronic 

surveillance for national security purposes.

Now if I am right that surveillance lias relatively little value, you 

may wonder why it is carried on so extensively and so vigorously 

defended by the Justice Department and the FBI. The explanation 

in my view lies in large part in the way the American executive 

bureaucracy functions.

Let me try to suggest just a few key points involved there:

First, involving the struggle over missions. One of the most enduring characteristics of the Federal bureaucracies is the struggle 

over responsibilities. Each agency has a view of its essence, its core 

activity, and struggles to keep responsibility for the areas it has 

while broadening into other related areas.
116

Such a str ug gle over tu rf eng ages the F B I in its relations with 

the CI A, NS A, DTA, and the Arme d Services Intellige nce bran ches. 

The F B I seeks exclusive control over inv estigations within the 

Un ited States while the foreig n intelligen ce agencies seek respon sibil ity for ga ther ing all nat ion al sec uri ty inform atio n.

When such a conflict exists, the agen cy respo nsible for the mission 

must constan tly dem onstrate its willing ness and ability to perform 

th at mission.

The com pet ing o rga niz ations seek to show that the agen cy is e ith er 

un wi lling or una ble to commit the resources necessary to do the job 

rig ht. An d in this classic situatio n, the consuming agen cies continue to raise th ei r demands while the pe rfo rm ing gro up struggle s 

to meet the requests.

Th e foreign intellige nce agencies, eag er for the res ponsibility to 

mo nitor embassies, would like no thing be tte r than a reco rd of F B I 

ref usals to perfo rm a requested surv eillance.

Th e F B I is unwilling to create such a record. Thu s, requ ests for 

survei llance are gen erated whe never the y are remotely plau sible, 

and the F B I is reluctan t to challenge the asse rted need.

Second, is wh at I call, the ex tra va ga nt use of “free goods” ; 

whe never som eth ing is free to an agency, it is likely to ask fo r a 

grea t deal of it.

The bu dg etary and ma npo wer costs of the surv eillance are not 

cha rged to the foreign policy agencies. I f on the oth er hand, the 

NS A for exa mple, wan ted to increase its mo nitoring of coded messages to and from cou ntry AT, it would have to find the money and 

personnel to do so. Bu t tele phone tap s or b ugs of embassies are “free 

goods”, paid for from the F B I budget. Bureau cracies, like individuals, h ave a tend enc y to consume a gr ea t deal of any free good wi thout ask ing how much it is costing someone else.

Th ird , the failu re to take other valu es into account. Burea ucr acies 

feel neith er the respon sibility no r the ca pa bility to tak e the values 

of society, othe r than those with which the y are form all y charg ed, 

into account in ma kin g decisions. Fo r the foreign affairs agencies, 

who gener ate the requests for surveillan ce, not only is the re no 

budg eta ry cost, bu t the possible infring em en t of con stitution al rig hts 

is n ot viewed as a l egitim ate concern. The ir resp onsibility is to ga the r 

inf orma tio n needed bv fore ign policy decisio nmake rs; it is somebody 

else's job to worry about civil libe rties .

One might expect the att orney gen eral to pla y thi s role, bu t he 

is sim ply not equippe d to do so unless he has a staff involved in 

th is process which can challenge national sec urity surv eillance on 

the grounds th at it int erf ere s with people’s civil liberties and of 

course he has no such staff.

Fi na lly , t here is the unpla nned payoffs of value to the bu reaucracy. 

Often , an agency will pursue a pro gra m with enthus iasm fo r reasons un related to whv it is asked to underta ke che a ctivity. I suspect 

such a phenom enon is as work here.

There is lit tle dou bt that the F B I has an insatia ble ap pe tite for informa tion about domestic groups and ind ividuals with an intere st 

in one or an othe r foreign cou ntry. Ta ps on embassv phones yield 

much inform ation about who gets into con tact with foreig n govern-
117

ments and why. From the point of view of the FB I itself, the most 

valuable aspect of embassy taps may very well be the leads tha t it 

provides to American citizens who are of interest to the Bureau.

If this last phenomenon explains at least in part why our surveillance is so extensive despite the meager returns for national security, 

it also explains what is wrong with such surveillance. Taps on embassies do not merely pick up the conversations of diplomats talking 

to each other. They allow the FB I to listen in on the conversations 

of American citizens discussing their political beliefs. These citizens 

have no way of knowing which phones to avoid and do not learn 

tha t their conversations have been overheard unless and until they 

are indicted for a criminal offense.

Let me conclude by stating briefly what I believe should be done 

by way of legislation.

Let me state clearly that' my own preference would be to abolish 

all wiretapping. 1 believe it is an unwarranted intrusion of the 

privacy of American citizens. And I do not believe tha t it is either 

legal under the Fourth Amendment or even that, if it is, that it 

is good policy to permit such taps.

But assuming that the Congress is not prepared to take the steps 

of abolishing such wiretaps, then it seems to me that it should 

urgently consider some most modest steps:

First, I think warrants should be required for all surveillance of 

American citizens and resident aliens and should be issued under 

the procedures of the Omnibus Crime bill in situations where there 

is probable cause to believe th at a crime has been committed.

And I thin k given the Justice Department’s interpretation of 

Keith, this requires legislation.

As far as taps on embassy personnel and nonresident aliens and 

noncitizens, who may be agents of foreign powers, again my preference would be that all such surveillance be made illegal and that 

section 3, which permits such an exception, be removed from the 

legislation. But again, if Congress is not prepared to take tha t step 

of banning embassy taps, but under the lesser standard of reason 

to believe that information of importance to the national security 

will be learned.

And I do not believe that information obtained from such taps 

should be usable in a court of law. My view of the main purpose 

of requiring warrants on embassy taps is that if your permit any 

area in which taps can be conducted without a warrant, no matter 

how narrowly you define that area, sav it can only be on embassies 

or ambassadors, the Government will always extend the area. They 

will say “well we are tapping A because Ambassador Jones frequently visits him or it is his mistress’ house” or whatever. I think 

the only wav to make it clear that, if you conduct a tap without 

a warrant, you are doing something illegal is to require a warrant 

on every tap, whether it is on an embassy or ambassador or an 

American citizen.

Finally I think, as far as the telephone companies, th at legislation 

should provide that the telephone company is to assist in placing 

taps on phones only when it is given a copy of a warrant and maintains a copy of that warrant in its files. In my view the behavior of
118

the phone company has been even more reprehensible than tha t of 

the Government because the phone company is a fter all a contractee 

of an individual and one really doesn’t have any choice but to go 

to the C&P Telephone Co. if one lives in Maryland and one wants a 

telephone. There is not much competition in this area.

And the phone company, which T let into my home in order to get 

its phone service, permitted the F BI, without a warrant, without any 

justification being given to the phone company, without even a piece 

of paper being given to them, permitted them—and not only permitted but put a tap on my phone and gave the end of the wire to 

the FB I in order to listen into conversations.

T believe that the phone company should be pu t on notice tha t its 

behavior is criminal if it permits a tap without a warrant.

That is another reason why I believe w arrants have to be required 

for all taps. I believe the telephone company should be told very 

explicitly that a wiretap without a warrant is illegal and I believe 

this is of great importance because my understanding is t hat a tap 

with the help of the telephone company can be put on in 10 minutes. 

It is easy to put on a tap with the help of the telephone company 

but a tap without the support and assistance of the telephone company is difficult to put on and it is relatively easy to detect.

Mr. Chairman, tha t I think concludes my remarks except to say 

that the changes that I think should be made, if in fact taps are not 

to be banned entirely, are consistent with the bill that the Chairman has introduced and I am pleased to indicate my support for it.

Mr. Kastenmeier. I am pleased to have your support for it, Dr. 

Halperin. You have talked about wiretapping and to some extent 

electronic surveillance. Do you feel there are other ways the Government, through mere following of citizens or shadowing of them, 

engages in pursuits which invade the privacy of its citizens?

Mr. Halperin. I am sure that these things go on. In the public 

materials in my lawsuit there is no reference to any surveillance of 

me other than the phone taps but there is of course a great deal of 

information on the record of the Government doing this in other 

cases, of attending meetings, of taking down the names of people 

there, of taking pictures of meetings and so on.

Mr. K astenmeier. IIow did you happen to discover that you were 

being wiretapped?

If you are able to say, was this an accidental discovery?

Mr. Halperin. No, Daniel Ellsberg happened to be in my home 

on one occasion and made a phone call and tha t fact was revealed 

at the criminal trial where he had been indicted for conduct involved with the Pentagon Papers.

Air. Kastenmeier. I see.

Mr. Halperin. And the Government revealed there that he had 

been overheard on surveillance, not of him, but of me.

Air. Kastenmeier. Do you have any questions? We might have 

time for a question. Otherwise we are again being called to the floor 

for a vote.

Mr. Drinan. No. I have a few but I can talk to Dr. Halperin 

afterwards. I am interested in pages 7 and 8 of his testimony, but
119

I don’t want to hold him. I want to apologize because he stayed 

all day here and we appreciate it.

1 want to tell him his testimony has been extraordinarily helpful. 

Mr. Kastenmeier. Yes, the committee is indeed indebted to you 

for your appearance today and for your statement. It is a brief statement but it is a very useful one and we appreciate your appearance. 

Thank you very much. Dr. Halperin.

[The statement of Dr. Halperin follows:]

Testim on y of Morton H. Halper in, P h .D., F ormer National Secu rity

Council Staffer

It is a great privilege for me to appear before thi s committee. I propose to 

discuss warrantless wiretapping rationalized by the incantation “national 

security.”

Depending on one’s perspective this can be said to be a subject on which I 

am biased, or it can be said to be one on which I speak from gre at experience. 

In any case, my involvement with warrantless wiretaps is extensive. For 21 

months, with the aid of the C&P Telephone Company, agen ts of the FBI recorded and listened to all of the conversations on my home telephone. The words 

of my family and those who called us or used our phone were duly summarized 

and copies sent to high administration officials, including Henry Kissinger and 

II. R. Haldeman. During all but the first four of these 21 months. I was a private citizen with no access to classified information, but in an activ e involvement in public affairs.

The lawsuit brought by my family aga inst those we believe responsible for 

this surveillance has progressed to tlie stage where we have been given copies 

of the summaries of these telephone conversations and other documents. la m 

prohibited by the Court’s order from discussing thi s material. In view of this 

restr aint and the fact that, as I understand it, Mr*. Friedman will be discussing 

my suit, as well as others, with voij. I propose to focus my remarks on more 

general questions. I would, of course, be happy to respond to questions about 

my own case in so fa r a s I am able to do so.

My remarks, focusing on warrantless so-called national security taps, will 

deal with three questions: (1) what is the curre nt practice of the Jus tice Department, (2) what are the benefits of such surveillance, and (3) what should 

be done.

The sta rting point for any inquiry into curre nt practice is, of course, the 

Keith decision (U.S. v. U.S. District Court 407 U.S. 297 (1972)). I find Justice 

Powell’s opinion for the Court unambiguous. It says, as I read it, that electronic surveillance of an American citizen requ ires a wa rra nt under the procedures of the Omnibus Crime Bill unless he or she is an “agent” of a foreign 

power. The Court reached no judgm ent as to whether a wa rra nt was required 

for the surveillance of foreign powers or their “agen ts,” but it defined ‘“agents” 

as those having a significant connection with a foreign power.

Practice under Keith should be straightforwa rd. Warr ants should be required 

unless the surveillance is of foreign power or its agents, narrowly defined. The 

Justice Department witness who testified before the Senate Jud icia ry Committee shortly after the Keith decision came down gave this interp retation of its 

meaning, and William Ruckelshaus took this view when he was Acting Director 

of the FB I and Deputy Attorney General. Other signs are more disquieting. 

The number of warrantless surveillances does not appear to have declined significantly since Keith. Only six were removed immediately folowing the decision 

and Elliot Richardson recently testified before two subcommittees of the Senate 

Judiciary Committee th at while he was Attorney General there were an average of approximately 100 warrantless surveillances at any given time. Moreover, in Mr. Rich ardson’s view, Keith did not affect any surveillance in any 

way related to foreign policy. The Justice Departm ent has taken the same 

position in defending individuals in civil litigation , particu larly in the Zweibon case (where the position has been upheld by the District Court, Zweibon

v. Mitchell 363 F. Supp. 936 (D.D.C. 1973)) and in Halperin v. Kissinger.
120

Tlnis there is great uncertainty about curre nt practice and disquieting indications that warrantless surveillance continues aga inst American citizens where 

foreign policy is in one way or another involved. I would urge this committee 

to urgently seek from the Justice Department a clarification of current practices. The committee should, in my view, insist that if there is to be any warrantless surveillance, pending any furth er action by Congress on the Court, it 

should be limited to foreign powers and to the ir “agents” in the rare case where 

there is reason to believe th at a significant connection exists but where espionage is not suspected.

Let me turn now to the question of the value of warrantless surveillan ce foir 

natio nal security purposes. In my judgm ent, such surveillance has extrem ely 

limited value and can in no sense be considered vital to the security of the 

United States. I should make it clear that, on the specific question of what 

one learns from such surveillance, my information is only negative. Never during my three or more years in the Defense Departm ent and the White House 

did I read a report which I knew to be based on electronic surveillance in the 

United States, althou gh I routinely saw material from far more sensitive 

sources. Occasionally and at random, one might of course pick up a useful 

piece of information from an electronic surveilan ce of an embassy, but the 

systematic take must, as regards the activities of foreign powers, be mere 

gossip.

As George Kinnan makes clear in his Memoirs, for example, every foreign 

service officer going abroad assumes that his office and home phones are tapped. 

Nothing is said by the diplom ats unless they are prepared, or even want, to 

have it overheard.

Not only is electronic surveillance unlikely to yield significant information, 

but also the American government has many other sources of information of 

significantly gre ate r value. This is, of course, a very difficult subject to discuss 

in a public session or even in an executive session limited to Top Secret information. Let me simply ass ert that the executive branch has many sources of 

information on the activities of foreign governments. No single source is itse lf 

“vital,” although many yield information of fa r more value than can conceivably come from electronic surveillance. I would urge this committee to demand 

from the executive branch a careful “all source” evalu ation of the absolute 

and relative value of information obtained from warran tless electronic surveillance for national security purposes.

If I am right th at such surveillance has relatively little value, you may 

wonder why it is carried on so extensively and so vigorously defended by the 

Justice Department and the FBT. The explanation lies in large part in the 

way the bureacracy of the executive branch functions. Le t me just touch on 

a few key points.

T he struggle over missions. One of the most enduring characteristics of the 

federal bureaucracies is the struggle over responsibilities. Each agencv has a 

view of its essence—its core activity—and strug gles to keep responsibility for 

the areas it has while broadening into other related areas. Such a struggle 

over turf engages the FBT in its relations with the CIA, NSA, DTA, and the 

armed services intelligence branches. The FBT seeks exclusive control over investigations within the United States while the ‘“foreign” intelligence agencies 

seek responsibility for gathering all “national security” inform ation.

When such a conflict exists, the agency responsible for the mission must constantly demonstrate its willingness and ability to perform the mission. The 

competing organizations seek to show that that agency is unwilling or unable 

to commit the resources necessary to do the job right. Tn this classic situation, 

the consuming agencies continue to raise their demands while the performing 

group struggles to meet the requests. The foreign intelligence agencies, eager 

for the responsibility to monitor embassies, would like nothing better than a 

record of FBT refu sals to perform a requested surveillance. The FBT is unwilling to crea te such a record. Thus requests for snrvoillan'’o wi1

’ be generated whenever a remotely plausible case can be made and the FBT will be 

relu ctan t to challenge the asserted need.

T he e .r tr n m a n n t use o f “F re e Go od s." T h ere is a n o th e r re as on w bv th e f o re g o 

affairs agencies are likely to be casual about requesting surveillance in the 

United States. The budgetary and manpower costs of the surveillance is not
121

charged to them. If NSA wants to incre ase its monitoring of coded messages to 

and from country X, it must find the money and trained personnel in its budget. 

Telephone tai>s or bugs of the embassy are a “free good,” paid for from the 

FB I budget. Bureaucracies, like individuals, have a tendency to consume a 

gre at deal of any free good without asking how much it is costing someone else.

The failure to take other value# into account. Bureaucracies feel neither the 

need nor the capa bility to take the value s of society, other tha n those with 

which they are formally charged, into account in making decisions. Fo r the 

foreign affa irs agencies, who generate the requests for surveillance, not only 

is there no budgetary cost, but the possible infrin gement of con stitutio nal 

righ ts is not viewed as a legitimate concern. Their responsibility is to gather 

information needed by foreign policy decision makers; it is someone else's job 

to worry about civil liberties. One might have expected the Attorney General to play this role, but he has 

not really been equipped to do so. What he would need is a staff th at is skeptical about the foreign i>olicy value of such surveillance and concerned with civil 

liberties which could make the case against any proposed surveillan ce. In the 

absence of such a staff he is likely to be overwhelmed by assertions of what 

the ‘‘national secu rity” indeed requires.

Unplanned payoffs of Value to the Bureaucracy. Often an agency will pursue a program with enthusiasm for reasons unre lated to why it is asked to 

undertake the activity. I suspect such a phenomenon is at work here.

There is little doubt that the FBI has an insatiable appetite for information 

about domestic groups and individuals with an inte rest in one or ano ther foreign 

country. Tai>s on embassy phones yield much information about who gets into 

contact with foreign governments and why. From the point of view of the 

FBI itself, the most valuable aspect of embassy tap s might very well be the 

leads that they provide to American citizens who are of intere st to the Bureau.

If this last phenomenon explains at least in pa rt Why such surveillance is 

so extensive despite the meager ret urn s for national security, it also explains 

what is wrong with such surveillance. Taps on embassies do not merely pick 

up the conversations of diplomats talkin g to each other. They allow the FBI 

to listen in on the conversations of American citizens discussing their political 

beliefs. These citizens have no way of knowing which phones to avoid and do 

not learn th at the ir conversations have been overheard unless and until they 

are indicted for a criminal offense.

Let me conclude by stating briefly what I believe should be done by way 

of legislation. Warr ants should be required for all surveillance of American citizens (and 

resident aliens) and should l>e issued under the procedures of the Omnibus 

Crime Bill in situatio ns where there is probable cause to believe that a crime 

has been committed. Warr ants should also be required for surveillan ce of embassies and embassy 

personnel, but under the lesser standard of reason to lielieve th at information 

of importance to the national security will be learned. I believe th at wa rra nts 

should be requ ired for such taps, among oth er reasons, so th at there can be 

no ambiguity abo ut the legality of wa rrantless taps. If some taps, with no 

one knowing how narrowly circumscribed, are legal without a warrant, officials 

would alwa ys be able to claim that they l>elieved a pa rticular tap was in the 

limited, permissible category. Only if all electronic surveillance requires a wa rrant can we have any hoj>e of preventin g illegal surveillance.

The telephone company should be instructed to assist as requested in telephone tap s when it is given a copy of a wa rra nt, and its assista nce in a wa rrantless tap should be made a crime. Evidence obtained from an embassy surveillan ce should not be usab le in 

a criminal prosecution. These proposals are consistent with II.R. 13825 and I am delighted to endorse 

that bill.

Mr. Kastexmeier. This will conclude today’s hearings, and on 

Friday morning next in this room at 10 a.m., the hearings will continue, at which time we will hear from a representative of the Justice 

Department, the lion. David O. Cooke. Deputy Assistant Secretary of
122

Defense and William Camming, attorney for American Telephone 

and Telegraph Co.

We will ask him a couple of questions which perhaps Mr. 

Halperin might like to know in connection with the phone company, in connection with some of their practices. Until tha t time, the 

subcommittee stands adjourned.

[Whereupon, at 4 p.m., the subcommittee recessed, to reconvene at 

10 a.m., Friday, April 2G, 1974.]
WIRETAPPING AND ELECTRONIC SURVEILLANCE

FRID A Y , A P R IL 26 , 19 74

H ouse of R epr esen ta tiv es,

S u b c o m m it tee on C ourt s, C iv il L ib er tie s, 

and t iie A d m in is t r a t io n of J u st ic e of t h e

C o m m it t e e on t h e J ud ic ia ry,

Wa shington , D.C.

The subcommittee met at 10:10 a.m., pu rsua nt to recess, in room 

2141. Ra yburn House Office Bu ild ing , Hon. Robert W. Ka stenm eie r 

(ch airma n) pre siding .

Pr esen t: Repre sen tative s Kastenm eier, Dan iels on, Dr inan , an d 

Smith.

Also pr es en t: B ruce A. Leh man, Counsel, an d Tho mas E. Mooney, 

Associate Counsel.

Mr. K a st en m eie r. Th e subcommifcte will come to orde r this mo rning fo r the second day of hearings con cer ning the wi retapp ing and 

electronic surv eilla nce.

I would like to announce thi s mo rning th at Mr. Sm ith, the gentlem an from New Yo rk, inform s me th at the re are a grou p of 

you ng people here fro m On tar io, Ca nada, and we welcome our 

Canad ian fri en ds to this Subcom mittee me eting of the Congress.

Ou r first witness th is mo rning is the As sis tan t At tor ney Gen eral 

in Charge of the Crimina l Division, rep res entin g the De partm ent 

of Justice, Mr. Hen ry Petersen. Mr. Pe ter sen’s long and fa ithf ul 

service in the D ep artm en t of Justice is well know n to this committee 

and we are very pleased to welcome Mr. Petersen. And wi th Mr. 

Peters en, I un derst and, is his De puty, Mr. Ke vin T. Maroney. Gentlemen, you are both welcome.

The Ch air will observe, Mr. Peter sen, th at you have a 35-page 

statement. And we will accept th at for the record. You may not 

necessarily wa nt to rea d every line of your statem ent. Tf you could 

summarize, pa rti cu larly those portions de aling with the legisla tion 

it would be helpf ul. I f the Ch air may observe, I think at this po int 

the committee is more interested in the policies and practic es of the 

De pa rtm ent than in rece iving testim ony on legislation , although 

some of the legisla tive proposals them selves are original and they 

ap pe ar to be plausible in terms o f addre ssing themselves to the prob ­

lems involved.

Mr. Petersen, you are most welcome and you may proceed.

(123)
124

TESTIMONY OF HON. HENRY E. PETERSEN, ASSISTANT ATTORNEY

GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE,

ACCOMPANIED BY KEVIN T. MARONEY AND PH IL IP WH ITE

Mr. Petersen. Thank you.

I was disposed to read it and on your admonition T thought first 

of summarizing. I do not really think I can do an effective job of 

summarizing a 35-page statement.

Mr. P etersen. Let me be very brief.

We oppose the bills. That is it.

Now, I think with good reason. F irs t of all, let us start with title 

TII. T think that title II I, or what we call title II I, the provisions 

which both prohibit and permit wiretapping are effective safeguards. We have set up an elaborate system. Indeed, many say much 

too elaborate a system under title II I to ensure that the wiretapping 

procedure in implementation of our criminal investigative function 

is carefully and wisely utilized. Under our practice over the past 

5 years, from 1969, and I do not have a precise figure, I would 

say not more than 10, and I may be exaggerating, not more than 

10 of our applications authorizing attorneys to go to the court have 

been turned down for lack of probable cause. There is a disagreement between the court and our evaluation of the procedure.

Mr. Kastenmeier. If I my interrupt, I think probably the figure 

is less than that. Indeed I was struck with the few turn-downs of requests at both the State and Federal levels. For example, according 

to the Administrative Office of the U.S. Courts, for the period June 

20, 1968, to December 31, 1972, the total number of applications for 

authority to wiretap was 2,751. The total number of authorizations 

was 2,744. There were only six denials and one withdrawal. So, your 

“not more than 10” figure is not far from correct.

Mr. P etersen. It reflects a great deal of concern and I am sure 

some of our agents and some of our lawyers at times consider it to 

be an excess of redtape, but it requires a procedure that initiates 

with the lawyer or investigator and involves a close working relationship between the two to develop the probable cause and a formulation of the evidence in affidavit form, and an extensive review 

procedure in the Organized Crime Section in the Criminal Division, 

and ultimately with the Attorney General. And we exercise a large 

degree of discretion. We are conscious of the instances where privileged communications may be intercepted, and we are conscious 

of the duration of the taps on the statutes authorized 30 days. It is 

our usual custom to authorize only for 15, and if necessary, to apply 

for a continuation or a renewal, which again has to be submitted 

with all of the formulation or reasons on up to the Attorney General. We think the practice has been a salutary one, and we think 

that it has paid off.

We would not like to see it changed. The statute is complex. It 

has given rise to a large degree of litigation, particularly with respect to the issue of the so-called Mitchell signatures. You are 

undoubtedly aware that we take the position that the control that 

the statute mandates at the policymaking level was, in fact, exer-
125

cised by the Attorney General, notwithstanding the fact tha t he did 

not actually put his signature on each and every one. Th at issue is 

under consideration by the Supreme Court and, hopefully, we will 

have a ruling before the end of the term.

Mr. Kastenmeier. On tha t question, has the practice changed 

because of the challenge ?

Mr. P etersen. Yes it has. The Attorney General now, as a matter 

of practice, signs every one unless he is unavailable and then under a 

specific delegation to me, and another Assistant Attorney General 

on a standby basis we have the authority to approve in an emergency. And that emergency ought to be distinguished from the emergency provisions of the statute. We exercise our authority only 

when the Attorney General is unavailable. The emergency provisions of the statute have never been actually utilized, and only in 

one instance was the emergency provision invoked, and that just 

very recently in connection with some ongoing extortion scheme 

where the lives of alleged hostages were threatened. And it was on 

a weekend and we authorized the Bureau, with the concurrence, 

telephone concurrence of the Attorney General, to proceed without 

formal submission of the affidavits and papers. Fortunately, the law 

enforcement authorities raided the premises where the hostages were 

alleged to have been held, and there were indeed no hostages and 

so, we have never had to utilize tha t emergency authorization. Had 

it been protracted we would have applied again, I think it is a 

classic example of the discretion t hat is employed in the Department 

of Justice and how carefully, and in a limited fashion, we are exercising those powers that have been granted to us by the Congress.

Perhaps a more controversial issue involves the issue of electronic 

surveillance in the area of internal security. The phrase, itself, is 

ambiguous. In the Keith case, recently decided, it made the distinction between foreign intelligence and foreign relations matters and 

domestic security matters, and, obviously, we have followed that 

case and do not authorize warrantless electronic surveillance in 

domestic security matters. And the procedure in foreign intelligence 

and foreign relations matters is now more stringent. The applications are walked over by Bureau agents to the office of the Attorney 

General. They are hand-delivered from the Attorney General’s 

office and they are brought down to me for my recommendation, and 

if for any reason I am unavailable Mr. Maroney sees them. They 

are than hand-carried back with our recommendation to the Attorney General, who personally approves, and approval is done under 

the specific authority of the President and has been sanctioned by 

history and custom, at least going back as far as President Roosevelt. 

The standards we use have recently been supported by the Third 

Circuit en banc decision in the Ivanov case, and basically those standards are reasonable suspicion and need.

The applications themselves are directed to intelligence and counterintelligence, espionage activities and activities relating to development of intelligence information for assistance to the President in 

the conduct of foreign relations of the United States.

Whether or not it would ultimately be practical to require submission of those applications to the court is, I suppose, to some

3 5- 39 1— 74------ 9
126

degree an open question. We, in the Department of Justice, think 

it is rather impractical, if only because it requires a large degree 

of background in intelligence and the information tha t constitutes 

the intelligence to make an informed judgment with respect to 

whether or not the suspicion is realistic. Whether or not there is a 

need involves dissemination of a great deal of confidential, secret 

and top secret information. We think tha t that is best left to the 

executive branch and, for that reason, we would oppose a warrant 

requirement and we think tha t we are rather firmly supported in 

that by the Ivano v decision.

We have thought about other things in terms of this complex, 

so-called English system, which I cannot speak of in a wholly authritative fashion, but I am told that they over there have a commission 

which serves this purpose. In any event, there are people who devote their careers to this sort of thing, and a counterpart proposal 

here would be to establish a commission with one member appointed 

by the Congress, one by the Executive and perhaps from the intelligence community.

Mr'. Smith. Mr. Petersen, excuse me ju9t a minute. You are talking 

now about internal security matters?

Mr. 1 ’etersen. We are talking about, yes, if that phrase means 

foreign intelligence, foreign intelligence espionage, counterespionage 

activities, yes.

Mr. Kastenmeier. My understanding is you are talking about all 

warrantless wire taps?

Mr. P etersen. Yes, sir.

Mr. Kastenmeier. Electronic surveillance which involves either 

internal security or foreign intelligence?

Mr. Petersen. Tha t is correct.

Mr. Smith. This is as opposed to internal problems like organized 

crime and so forth?

Mr. Petersen. That is correct, which are covered by the warrant 

procedure and which we support and would like to suggest that the 

Congress not change.

I think tha t the critical area is in this area of internal security and 

I think that is where, frankly, I think we need some help. We welcome help from the Congress. We do not want to shoulder this responsibility wholly ourselves. We do not want to say it is not for 

you. We think it is too important a responsibility and our problem 

is not to exclude you, but our problem is to bring you in in such a 

fashion t hat we are not abdicating Executive functions, t hat wre are 

not violating the separation of powers, that we are not thrusting 

our responsibility on you. But, we are performing our obligation in 

such a fashion t hat we can recognize, with some degree of confidence, 

what we are doing and that it is done properly, and the judgments 

are properly exercised, and tha t there is not calculated abuse, you 

know, which we do not condone, but there can be mistakes, and there 

is a possibility of mistakes.

Mr. Smith. Mr. Petersen, you were talking about the British 

system, where there was a commission. It is my understanding that 

you are saying, in effect, th at the commission members had a background in internal security and counterespionage work, so th at they
127

knew the sort of background that you imply is necessary to make 

an informed judgment?

Mr. Petersen. Yes, tha t is true. But, I do not mean to import 

parochialism into that concept. I do not mean to suggest tha t no 

one from without the intelligence community should be appointed. 

Indeed, I would think to the contrary, that we would like some 

fresh thinking in there.

Mr. Smith. But you would think that there should be some experts 

on that?

Mr. Petersen. That is right. But, there are people who could 

rapidly develop this factual development and insight into the foreign 

relations and intelligence problems so far as they affect a major 

power in the world, so tha t we could function in that fashion.

The other alternative, which we told to the chairman before, we 

have no objection to the oversight committee. But we do think, at 

least I think from my position in the Department of Justice, tha t 

an oversight committee by the House or an oversight committee by 

the Senate is really not the answer. Frankly, there is too much 

jealously between the bodies or maybe a lack of confidence. I do not 

know what you call it, but at least there is, one can discern from 

without the legislative branch, a certain degree of jealousy with 

respect to what committee even within the House or the Senate does 

this or that. So, we would like to suggest if tha t is going to be 

done it be a joint committee. And I would think it would be advisable, too, tha t it not be of such broad range tha t its impact is dissipated. I would like to think tha t perhaps we could have an oversight committee with respect to internal security problems, or 

internal security problems as they relate to surveillance, whether it 

be electronic or other surveillance, so the Congress could be assured 

tha t what we are tryin g to do is in the best interest of the United 

States.

We are distressed, you know, I am distressed, my colleagues are 

distressed. I think the individuals in the Federal Bureau of Investigation are distressed, that so often what we think is necessary, and 

what we feel conscience-bound to do is being misunderstood. We are 

distressed bv abuse by people who are not a part of the intelligence 

community because of the damage they do to what we consider to be 

absolutely necessary and an indispensable function of the executive 

branch.

Mr. Kastenmeier. Do you concede, Mr. Petersen, tha t there is 

abuse by the Federal Government in connection with this?

Mr. P etersen. I think—well, I have to concede th at there has been 

at least one abuse, one abusive action. But, I think your statement 

is too general. Frankly, I am impressed by the lack of abuse in the 

areas so far as I can see. I do not mean to say, Mr. Chairman, tha t 

you and I might share the same judgments, you know, on particular 

instances. There are instances where Mr. Maroney and I disagree 

or the Attorney General and I disagree. And ultimately he has made 

the decision. But, they are not irrational disagreements. They are not 

circumstances which are so marked tha t either one of us could say 

tha t the other is categorically wrong or being abusive of authority 

or irresponsible. I do not see tha t sort of thing.
128

Mr. Kastenmeier. Without cataloging them, we are all aware 

that there have been in the past 2 or 3 years a number of cases of 

electronic surveillance made public by one means or another, which 

appear to be abuses to many people.

Mr. Petersen. Well, you know-----

Air. Kastenmeier. I do not want to make it any more specific 

than that. I do not want to go down the litany of cases, but tha t 

is one of the reasons I think both the Senate and the House are presently involved in this inquiry.

Air. Petersen. You see I am not sure whether they are, indeed, 

abusive. F or example, one of the bills here suggested a certain category of persons, justices, judges, Alembers of Congress, somebody 

else ought to be excluded. I do not agree with that. You know, I 

think you are no better or no worse than the rest of us. I think today's paper classifies and illustrates better still the problem. You 

know, Willy Brand t’s chief aide turns out to be a spy. I mean 

those things do happen. AVe ought not to exclude categories, newsmen or what have you. Indeed, in the temper of the times, if I were 

a Russian agent the first thing I would do would be to get myself 

a newspaperman’s job because I can tell you it is much more difficult for us either under an internal security approach or a pure 

criminal approach to investigate a newspaperman. I think it is 

wholly unwarranted. It is more difficult for us to investigate a Congressman. It is difficult to conduct an investigation with political 

connotations, you know. To the extent that you proceed cautiously 

you may be criticized as I was in connection with the Watergate

case.

Air. Kastenmeier. I might say, Air. Petersen, tha t it is difficult for 

our parent committee to conduct an investigation with political implications.

Air. Petersen. Alaybe that is a great safeguard for both of us, is 

it not ?

Air. Drinan. Air. Chairman, may I ask a question?

Air. Kastenmeier. Yes. I yield to the gentleman from Massachusetts.

Air. Drinan. I appreciate your concern and the concern of your 

colleagues with this. But, I wonder if you can enable us to make some 

evaluation on the basis of information other your own statement, by 

giving to us the evidence that the chairman has requested. I am p articularly interested in the number of warrantless wiretaps. I 

have the previously released statements of Senator Scott and Gerald 

Ford on the number of warrantless wiretaps prior to 1973; but, I 

wonder if you could give us now, or hereafter, the number of warrantless wiretaps tha t have been authorized?

Air. Petersen. Air. Drinan, I am not prepared to do so.

Air. Drinan. AVe asked for this information in a letter, dated 

April 11, and we asked for compliance by April 18, and we agreed 

to a deterrence of that. But, it seems to me tha t if you are not 

prepared, then you ought to give us a date when you are prepared.

Air. Petersen. AVell, I would like to be able to do it, but I cannot. 

Tha t is going to have to come from the Attorney General of the 

United States.
129

Mr. Drinan. We wrote to the Attorney General of the United 

States on April 11, and I have here hearings of the Senate, held 2 

years ago, on warrantless wiretaps.

Mr. Petersen. Well, you know, all I can say, Mr. Drinan, is I 

can misconstrue him at times, but I cannot overrule him.

Mr. Drinan. Are you telling us that Mr. Saxbe has denied our request?

Mr. Petersen. I am telling you tha t at least as of this morning 

he still has it under consideration, and I have no satisfactory answer 

for you or myself.

Mr. Drinan. How do you expect us to say then you feel there has 

been some abuse, but no grave abuse, when we do not even know the 

number of warrantless taps?

Mr. Petersen. Well, I do not know tha t I can do other than ask 

you to accept mv representations. I can tell you that and if you want 

to swear me, I will still say it. But, other than that, I just offer my 

testimony as a public official.

Mr. Kastenmeier. If the gentleman from Masachusetts will 

yield, I think it appropriate that this subject should be pursued. For 

the record, the letter that was sent to the Attorney General on 

April 11 contained four questions, and none of those questions have 

been answered in the testimony this morning. Is that correct, Mr. 

Petersen ?

Mr. Petersen. "We discussed the procedures.

Mr. Kastenmeier. You discussed the procedures?

Mr. Petersen. Yes.

Mr. Kastenmeier. The reason 1 have asked this is so that we can 

delineate which of the questions are answered in your testimony 

and which are not. The questions which are not, as you correctly 

point out, we will have to take up with the Attorney General. Possibly we can resolve this at some future time, but not this morning. 

Therefore, I think for the record th at the Chair will pose each question asked in the April 11 letter and you will indicate whether 

or not it is still under consideration by the Attorney General, or 

whether or not your testimony considers it, and if it does, what 

answer your testimony gives.

Mr. Petersen. Okay.

Mr. Kastenmeier. We asked the Attorney General of the United 

States, by letter of April 11, for each calendar year from 1969 

through 1973, how many requests for permission to conduct warrantless wiretaps or electronic surveillance were granted by the Attorney 

General. That is the first question.

Mr. P etersen. That has not been answered, Mr. Chairman.

Mr. K astenmeier. The second question is for each of these years, 

how many approved requests for permission to conduct warrantless 

wiretapping or electronic surveillance involved a United States citizen as the chief subject of the surveillance?

Mr. Petersen. That has not been answered.

Mr. K astenmeier. Th at third question is: Is a standa rd procedure 

used for processing requests for warrantless wiretapping or electronic 

surveillance, and, if so, what is the procedure?
130

Mr. Petersen. I have just described tha t procedure orally, so I 

think that the record will reflect th at that is answered and tha t that 

is the procedure. I might amplify that a hit. It has varied under 

attorneys general. Under Attorney General Mitchell, the requests 

were brought to him and signed by him. Under Attorney General 

Kleindienst, they were brought to him and he solicited then the recommendation o f the Assistant Attorney General of the Internal Security Division or myself at a later date and, under Attorney 

General Richardson, he handled the matters wholly in his own office.

And under Attorney General Saxbe, they followed the procedure I «

previously described.

Mr. Kastenmeier. Do other agencies, if so, which other agencies, 

make such requests for approval by the Attorney General for warrantless wiretapping? •

Mr. P etersen. As a matter of procedure, any agency which is 

conducting an internal security investigation, in the broadest sense 

of the term, and desires information which can only be obtained by 

a type of electronic surveillance, is required to process tha t request 

through the Federal Bureau of Investigation and the Federal Bureau 

of Investigation will conduct that.

Now, we do not get into activities, foreign activities of other intelligence agencies which take place on foreign soil.

Mr. Kastenmeier. Is it your answer, then, on the latter point, 

tha t all warrantless interceptions tha t take place within the United 

States, under the authority of the United States, are processed 

through the Attorney General, and through the FBI.

Mr. P etersen. It is my answer tha t they are supposed to be and 

all those tha t are legitimately done are.

Mr. Kastenmeier. Whether these are, let us say, within the Defense Department, within the National Security Agency, the Central 

Intelligence Agency, or whatever agency, and arc within the confines of the United States?

Mr. P etersen. I f the Central Intelligence Agency wanted to cover 

x in the United States, they would be required to go through the 

FB I and have the FB I do that in which case it would be authorized 

by the Attorney General.

Mr. Drinan. May I intervene? •

Was the tap of Dr. Morton Ilalperin authorized by the Attorney 

General ?

Mr. Petersen. Yes, it was.

Mr. Drinan. You mentioned th at there were some abuses. Do you 

think that tha t was an abuse?

Mr. Petersen. I do not know, Mr. Drinan. My perception is not, 

but on the other hand, I have to say that has been subjected to 

rather extensive investigation by the Special Prosecutor, and I have 

not seen all of the investigative reports. The conclusions reported 

to me are tha t while one may differ with the wisdom of the procedure involved, t hat it was not an abuse, that there was a security 

problem of considerable dimension. And so, I would have to conclude 

on the basis of what I know that it was not an abuse.

Now, that brings us to another question: That is. the degree of 

abuse, or the question of abuse, seems to take on a different meaning 

depending on who is covered or who is surveilled. For example, let
131

us assume for the moment that I work for Senator x, and I am a 

foreign intelligence agent, and the Bureau gets wind of tha t and 

they use electronic surveillance to develop precisely what I am doing.

Mr. Kastenmeier. T hat is not a very common case tha t you have 

just given.

Mr. P etersen. No, it is not. But, you see, it is not an uncommon 

possibility. If you recall-----

Mr. K astenmeier. Have you had such a case?

Mr. P etersen. Senator Muskie had a problem, did he not, in connection with just this very thing, because one of those people who 

was being surveilled happened to work for him. But, as I told him 

if I were an agent and I worked for him, the Bureau certainly 

would not stop surveilling me. So, th e nature of the problem is not 

changed by the fact that I go to work for the New York Times, or 

I go to work for Congressman Kastenmeier, or I go to work for 

Senator x. But, the perceptions of tha t problem are changed, and 

the need for precision and care and prudence, you know, even for 

perhaps some disclosures in the legislative branch at an earlier date 

than possibly might be warranted in order to ensure tha t what the 

Executive is doing is not misconstrued.

For example, when we had an investigation of a Supreme Court 

Justice, we went to the Chief Justice, not because we had to, not 

because it was not in our power to do it, but because we wanted 

him to understand, and so tha t our motives would not be misconstrued. Prudence, yes. Is it mandated? No. Now, if you asked me 

whether all of these things have been handled prudently, I would 

say absolutely not.

Mr. Drinan. Would you give us an example of an abuse? If the 

tap on Dr. Morton Ilalp erin is not an abuse, then what would be an 

abuse ?

Mr. Petersen. Well, I suppose th at you would call an abuse, Mr. 

Drinan, any mistake of judgment. I think tha t is too stern a test. 

I am hard pressed to think of any official action where the action 

was taken purely in an abusive sense, without any regard to governmental responsibility.

Mr. Drinan. Mr. Petersen, we are hard pressed because this is the 

only oversight committee in the entire House of Representatives. 

We have been treated very shabbily by the Attorney General. He has 

refused to give us the precise basis on which we may evaluate the 

use o f wiretapping, namely, the number of warrantless taps. Would 

you suggest tha t the only way that we can get the figures is to 

subpoena them? I will move th at we subpoena them.

Mr. Petersen. I do not think, if you will excuse me, tha t tha t 

makes a lot of sense.

Mr. K astenmeier. I f the gentleman from Massachusetts will yield 

back, we have been diverted from our original line of questioning 

to the question of abuse. We can return to the question of abuse later 

if we like.

Mr. P etersen. I did not want to leave that, if you will excuse me, 

•Mr. Kastenmeier. It did not make a lot of sense, period, a lot of 

sense in the sense that it never seems wise to me to force that kind 

of a confrontation under the separation of powers doctrine.
132

Mr. Drinan. Except we will never get the documents. We will 

never get the facts.

Mr. Petersen. I do not think that is true.

Mr. Drinan. We have been waiting 2 years, sir; we still just do not 

have the basic facts of the warrantless taps, which is the essence 

of all of this.

I yield back to the chairman.

Mr. Kastenmeier. I was merely stating tha t we were considering 

the question in the letter relating to the relationship between surveillance by other agencies and the Department of Justice. The 

question of abuse is another question. We will return now to the 

point where I was asking whether all of the agencies of the Federal 

Government operating within the United States cleared their requests for warrantless taps or surveillances through the Attorney 

General or through the Federal Bureau of Investigation. You indicated tha t was the case.

I asked this for informational purposes only. I take it tha t overseas, whether or not the subjects are American citizens, agencies of 

the United States might not necessarily clear, electronic surveillance 

plans through the Department of Justice. Is that correct?

Mr. Petersen. Overseas?

Mr. Kastenmeier. Overseas.

Mr. Petersen. I do not perceive that the Attorney General’s responsibility is that encompassing. I have to say that t ha t is an individual opinion. I have not discussed it with him and he may have 

another opnion. But I do not perceive tha t they are that encompassing, and it does not occur to me tha t he has, if you will, oversight responsibility with the National Security Agency or the Central Intelligence Agency. I just do not understand that to be the 

case.

Mr. Kastenmeier. Yes. The purpose of the question is to try to 

delineate which procedures we are talking about or which warran tless procedures are not really covered.

Mr. Petersen. To the extent that we are talking about citizens 

overseas, and tha t is the only instance where I perceive there is a 

legal question, that legal question is far from clear, whether or not 

the constitutional guarantees are applicable to a citizen in a foreign 

country, who may be involved in any suspected activity. Tha t is an 

answer on which you, or a question on which you may get different 

answers.

Mr. Kastenmeier. Under present practice, if an agency did not, 

in fact, clear its warrantless surveillance through the Department 

of Justice, is there any penalty for such agency or a person in such 

agency conducting the surveillance?

Mr. P etersen. 1 would consider that except for those surveillances 

which followed the mandated government procedures; tha t is, 

through the Attorney General, that they would be subject to the 

penalties of the civil provisions of title II I of the Omnibus Crime 

Act.

Mr. Kastenmeier. These have been questions which I have added 

as an extension of question No. 3 in my letter.

The fourth question in the letter is, are there any written directives, memoranda, regulations, or manuals, which set forth proce-
133

dures or guidelines to be used by investigative agencies in applying 

for permssion to conduct either warrantless or a court-approved 

wiretapping or electronic surveillance?

Mr. Petersen. So far as title II I is concerned, an application for 

court-authorized electronic surveillance, the procedure, tha t business 

about the manual is covered in my statement. We do have a very 

extensive manual and it is distributed to the appropriate investigative agencies and lawyers concerned with the application. It is for 

administrative use only. I t is obviously not a rule of law. I t is what 

we regard as proper administrative practice in connection with it. 

and it is very detailed. With respect to national security standards 

I honestly do not know what internal instructions the Bureau has 

for its agents. We do have the overall instructions from President 

Johnson, which continue in effect th at all of these things are to be 

cleared through the Attorney General. Now, obviously, tha t is a 

general instruction and does not fall in a manual category.

Internally, after referral, I have described the procedure which 

takes place in the Attorney General’s Office or in the Office of the 

Assistant Attorney General concerning those matters. I have to say 

tha t implementation of this internal security program, and perhaps 

as a result of current events, certainly the interest of the Congress, 

Mr. Maroney and I, or excuse me, I did not introduce him before, 

but I have here Mr. Phi lip White who is a staff assistant in the 

Criminal Division, embarked upon a program to try and articulate, 

if you will, standards, formalized standards, and guidance for those 

who are concerned with internal security electronic surveillances.

Now, I mention tha t with some trepidation, you know, because 

I do not want to disclose it to Congress if we get it, if you will 

excuse that. I certainly do not want to disclose it to the public at 

large. I do not want it to be disclosed. I do not want to create a 

situation where the first thing tha t a foreign intelligence agent does 

is look at the standards and see how he can adopt a cover th at will 

take him without those standards. But, there again, it is an attempt 

to develop some degree of uniformity in the practice.

Now, once again, I go back to the business of oversight. When I 

say I do not want to disclose to the Congress, I mean I do not want 

to put it in the Congressional Record and have it promulgated. But, 

certainly I want to get this across, tha t we have no objection when 

we develop these standards and articulate them, to bring them up 

and show them to a specified group of a select committee to insure, 

or to persuade them, tha t what we are doing is in the interest of the 

United States.

Mr. Kastenmeier. I can appreciate tha t there are many things 

you might want to present to the Congress in say a confidential or 

executive session, but I think it is somewhat presumptuous, Mr. 

Petersen, for you to say under what circumstances; th at is, what the 

Congress must do to organize itself for you to agree to do business 

with us. And that is really what you are suggesting.

Mr. Petersen. Well, you know, certainly it was presumptuous to 

say I am doctrinaire about it, and I certainly do not mean to do that.

Mr. Kastenmeier. In the sense we must have a Joint Committee, 

and we must do this or that, and then you might be agreeable to 

do certain things tha t you would not otherwise be agreeable to doing.
134

Mr. Petersen. I do not want to be misunderstood on that. I offered in the sense of, in the sense of openness, if you will, and in a 

sense to indicate to you what we are trying to do. But, again, I am 

wholly opposed to the idea of confrontation, or dictating to you 

how it should be done. But. we do deal with different functions, we 

do deal with Executive authority. And, Mr. Congressman, with all 

deference, yours is not the power to conduct foreign relations, and 

yours is not the power of the Commander in Chief. And there is a 

separation of powers principle there. And if the effectuation of any 

of those mandated, important, critical, necessary duties would be 

jeopardized by that type of disclosure, it would be a violation of the 

Constitution to make that disclosure, whether it be to the Congress 

or to anyone else. Tha t is what I am trying to get across. And so, 

when I suggest a procedure it is to avoid confrontation and it is 

to avoid arrogating to ourselves the power tha t ought to be shared 

and the exercise of which ought to be viewed with some degree of 

confidence. Only in tha t sense, Mr. Chairman.

Mr. Kastenmeier. I do not want to moralize about the question 

either, but the Congress does have the constitutional duty to make 

the laws of this country, and it has the duty to exercise oversight 

with respect thereto on behalf of the people. And I would suggest 

only the lesson of the last 2 years to suggest some humility to the 

executive branch with respect to its unilateral exercise of power 

in this country.

Mr. Drinan. Mr. Chairman, may I follow up on that?

Mr. Petersen, we do not have to reach all of those grave questions 

to have you give the subcommittee what we have asked for. The 

President of the United States authorized Senator Scott on June 5, 

1973, to request the number of warrantless taps over the past several 

years, and I read them. There are discrepancies between these figures 

and figures written bv Mr. Robert Mardian on March 1. 1971. 1 

will read the la tter figures authorized by the President of the United 

States, and the bottom line is this, tha t we have asked tha t you 

people furnish the number of warrantless taps in 1973. We are not 

asking to invade the executive branch of the Government. We are 

asking for the next figure.

In 1969, warrantless taps, 123; 1970 warrantless taps 102; 1971, 

101; 1972, 108. We are simply asking that you supply the figures 

for 1973. Perhaps we will have to go to Senator Scott and ask 

him to authorize the President to release the 1973 figures. Tha t is 

the main one th at we want. And I do not think tha t you should lecture us on the authority of the President to conduct national security 

surveillance. We are simply trying to do our job, and you are preventing us from carrying out our responsibility of oversight.

Mr. Petersen. You know, again, I do not want to be presumptuous. and I did not mean to seem to be lecturing you. But, on the other 

hand, I thought you expected candor and I wanted to express a point 

of view. Tha t point of view is not wholly novel. I refer you to Dr. 

Schlesinger’s book on the “Imperial President” in which there are 

some very interesting statements with respect to the right of the 

President to take action without the consent of Congress. And the 

only check on tha t is subsequent ratification and approval, and it is
135

clear, as Dr. Schlesinger points out, that the Executive proceeds at its 

peril. It is a very extraordinary responsibility. But, you know, the

problem is there. I do not mean to lecture you. I am trying to-----

Mr. Drinan. Would you give us the figure for 1973 by next week, 

by Tuesday?

Mr. Petersen. Mr. Drinan. if I could give them to you, I would 

hand them to you right now. I told you th at there are approximately 

100. I am not permitted to go beyond that. Now, do you want me 

to violate my orders to the Attorney General? I could not do it if 

I wanted to. I do not have the precise figures. I will take your message back.

Mr. Kastenmeier. I think the point is clear that that is a matter 

within the authority of the Attorney General, and I will accept the 

point of view tha t we can take tha t matter up with Mr. Saxbe, 

rather than with you, Mr. Petersen.

Mr. P etersen. I would not mind having the authority to overrule 

him if you want to give it to me, b ut I do not have it.

Mr. Kastenmeier. The manual which you referred to as having 

been furnished the Federal agencies, I take it this is a confidential 

manual ?

Mr. P etersen. Well, we like to think it is. We are litigating under 

the Freedom of Information Act. I hope we win, quite honestly, for 

this very specific reason. Manuals, when promulgated to the public 

at large, or to defense counsel, have the habit of being translated into 

principles of law and, therefore, what is structure or guidelines or 

policies or standards, then comes back to haunt you and for that reason we should just like not to make them made public, but for tha t 

reason only.

Mr. Kastenmeier. The reason I have asked is that we have 

also requested two copies of whatever manuals, guidelines, regulations or directives used in connection with electronic surveillance 

be supplied. If there is some difficulty with this, we will have to take 

that m atter up with Mr. Saxbe as weill. You may continue or if you 

have finished with your presentation, I will yield.

Mr. Petersen. I am at your service. The Department of Justice 

opposes every one of those bills for the reasons I have just stated.

I do agree to what has come through on some of these answers, 

tha t what we are concerned about is the degree of disclosure and 

I feel certain if total disclosure were made tha t we would not be 

very, very far apa rt to say the least. But, I will be happy to answer 

any questions that you have.

Mr. Kastenmeier. You indicated that you found it difficult to 

comply with title III but you had worked under it, you were able 

to do it and were willing to do it, and you do not want to see title 

II I changed.

Mr. Petersen. When I say difficult, it takes us—for a period of 

time it was taking us 12 days to process those affidavits and, you 

know, under legal standards it almost became stale. We have cut 

tha t down to about an average of 5 days, and wre are reluctant to do 

more I think, or to make it any less complex because we want to insist 

upon the degree of supervision that we now have. Difficult only in 

tha t sense. It is a very technical statute, it is a very lengthy statute
136

and one of my friends from the defense said: ‘“Henry, we are going 

to litigate you to death on tha t thing.” Well, they may well, but 

by the same token, we find it operationally effective.

Mr. Kastenmeier. You also indicated th at very few of the applications made for warrant interceptions were denied. As a matter of 

fact, I read you some figures by the Administrative Office of the 

U.S. Court, indicating tha t of 2,751 applications, 6 were denied and 

1 was withdrawn, presumably at the request of the court. Some 

would suggest, not as you suggested at the outset, tha t you were 

doing a tremendous job of setting forth your applications, but tha t 

the judges are not doing much of a job in reviewing these requests. 

What is your experience with respect to the critical review by the 

Federal Courts of these applications for surveillance orders?

Mr. Petersen. I have asked that question, too, and the response 

I get back from the lawyers is that the judges do look at them. But 

to elaborate on the procedure, tha t application can be stopped any 

step of the way so that the lawyer in the field turns down more 

than his superior. And his superior turn s down more than I do. 

But, when we get them, we do not send them up to the Attorney 

General if we do not like them. They just go back, and they either 

do them over, or do them better, or do not do them at all. So, I 

think that is the reason. It is the refinement process, you know. 

Every one of these lawyers is proud of his professional ability. None 

of them like to be told tha t you are a knucklehead or you missed 

it, or you do not know probable cause or how could you submit 

something like that. So, it is a matter of pride involved when they 

jsubmit it, and they like to think that it is good and it is going to 

be praised not criticized. And I think tha t is wholly accounted for 

by the degree and the depth of review.

Mr. K astenmeier. I guess a comparison ought to be made to some 

other class of applications not dealing with electronic surveillance 

and one would have to ask whether the courts are more selective in 

approval.

Mr. Petersen. Well, I think there are two things: Fir st of all, 

I think tha t if we are going to make a comparison, you would have 

to make the comparison to some other ex parte proceeding, and the 

application for a search w arrant generally.

Secondly, you have got to be mindful that this is subjected to 

a judicial review at the trial level on motion, in the course of the 

trial in terms of the admissibility of the evidence, and finally in 

terms of appellate review. So, you know, judges, as we all know, 

do not like to be reversed. I think they do look at them carefully.

Mr. Kastenmeier. Have there been any renewals ?

Mr. Petersen. On probable cause?

Mr. Kastenmeier. Yes.

Mr. Petersen. I thin k maybe one, one or two.

Mr. Kastenmeier. I have just one further question and tha t has 

to do with what prosecutions, if any, has the Department of Justice 

undertaken for violation of title II I ?

Mr. P etersen. Well, I perceive th at we are under the same standards as every o ther citizen of the United States, so th at if an agent
137

violated title III by willy-nilly installing a wiretap, you know, he 

would be subject to prosecution. On the other hand, we do not 

perceive th at a failure of probable cause, or a mistake subjects personnel in the Department to prosecution, when they have made a 

good faith attem pt under the statute.

Mr. Kastenmeier. I am making an assumption tha t there may 

have been somewhere in the United States some number of instances 

where wiretapping and electronic eavesdropping was engaged in, 

possibly by agents of the Government or otherwise, which were 

illegal under title II I and which might have been prosecuted, and 

I am asking you how many, if any cases, you have prosecuted?

Mr. Petersen. I know of two situations only, two that might conceivably be thought by outsiders to fall in tha t situation. One was 

the recently concluded hearing in the Wounded Knee case where 

there was at issue a party line, and the par ty line had been installed 

at the request, or reinstalled at the request of the people, the other 

side tha t wTas in the enclave, and there were at least 10 parties to 

tha t line. A nd in the course of installation, another phone was put 

in and there was an incidental overhearing in connection with tha t 

which led to a protracted hearing after, and the court held tha t the 

agent listening in on tha t party line acted illegally. Now, those in 

the Criminal Division do not agree with tha t in terms of the definition of title II I but, in any event, th at is what the court held. I would 

not consider th at to be actionable in a criminal sense.

The other instance of which I can think is the W A V Case down 

in Gainesville, Fla., where there were allegations that there may 

have been Bureau agents tha t w*ere found in the telephone frame 

room in the courthouse. There was an extended hearing on that, and 

the agents were there to check out as periodically they do, the security of the lines.

Air. Kastenmeier. Yes. The implication of my question is, has, 

indeed, the Justice Department been staffed in terms of prosecuting 

abuses under title III of wiretapping or electronic surveillance?

Mr. Petersen. No, I do not thin k so.

Mr. Kastenmeier. In which case I was asking for your records 

in terms of prosecution.

Mr. Petersen. We do not have it, and we will be h appy to give 

it to you. I do not have it at my fingertips, Mr. Chairman. But, we 

think we have a reasonably good record on that. It is much better 

than it was under 605, probably because the statute is more effective 

and most of the cases are against private detectives and lawyers, 

largely in domestic-relations cases and some commercial espionage. 

So there are some and at least one investigation is being conducted 

with respect to State law enforcement officers’ actions in one of the 

States. I thin k our record is reasonably good on that question, and 

we will make the figures available.

Mr. Kastenmeier. Thank you'. We would like to have the figures 

available.

[Subsequently, the following information was supplied by the 

Department of Ju stice:]
138

AN AL YS IS OF CA SE S TE RM INA TED UNDER THE IN TE RC EP TIO N OF COMM UNI CAT ION S ST AT UTE S*

Fiscal

year Statute

Case s terminating in conviction Cas es not terminating in conviction

Conviction after Plea of guilty or 

contested tr ial nolo contendere

Dismissal 

by D.J.

Dismissal

by court Aqcuittal Tota

1969........ 18 U.S.C. 2511____

18 U.S.C. 2512____

47 U.S.C . 605.........

..................................... K D -

KD..............

! ! ! !

To tal...................

..................................... K D - KD.............. 2( 2)

1970........ 18 U.S.C . 2511.............................................. 2 (2 ).................................................................. 2( 2)

18 U.S.C . 2512.............................................................................................................................. .....................................

47 U.S.C . 605............. 1(1 )---------- KD 4 (5 ). .. ............ 6(7 )

Total....................... 1(1 ) 2( 2) KD 4 (5 ).. . - ........... 8( 9)

1971. .. . . 18 U.S.C. 2511_____ 1(1) 1 ( 1 ) . .. . 1 (3 )— 3(5)

18 U.S.C . 2512........... 2(2 ) 1(1 ) 1 (1 ).. .. 4( 4)

47 U.S.C . 6 05....................... 1 (2 )- -. 1(2 )

To tal....................... 3(3 ) 2( 2) KD 2 ( 5 ) - - 8(1 1)

1972. .. . . 18 U.S.C . 2511...........

18 U.S.C. 2512......... ...........

3(5) 5( 7)

KD --

KD 3( 3)

KD

14(22)

3( 3)

47 U.S.C . 605............. KD....... 1(1)

Tot al....................... 4(6 ) 5( 8) 1(1 ) 3(7) 4( 4) 18(2 6)

1973.. . . . 18 U.S.C . 2511........... 4( 5) 12(13) 3 ( 3 ) ... 3( 3) 22( 24)

18 U.S.C . 2512.................... 1(2 ) 2 (2 ), . 3(4)

47 U.S.C . 605............. KD....... KD

Tot al....................... 5(6 ) 12(13) 4( 5) 2( 2) 3( 3) 26(29 )

1974 ». . . 18 U.S.C . 2511........... 5(7 ) 2( 6) 2 ( 2 ) ... 2( 2)

1(2 )

11(17)

18 U.S.C. 2512.................... 1(1 ) — 2( 3)

47 U.S.C . 605......................

Tota l....................... 5(7 ) 2( 6) 3 (3 ).. . 3( 4) 13(20)

Tota l f or all years detailed above 18(23) 25(32) 10(11) 12(20 ) 10(11) 75 (97 )

Total cases terminating in conviction........................................ 43(55 )

Total cases not terminating in

conviction...................................................................................................................................................... 32(42)

* The statis tics maintained by the D. J. Information Syste ms Section reflect case terminations for many actions which 

do not, in fact, represent a final termination of the case, eg., dism issa ls followed by the f iling of a supers eding information 

or indictment and rule 20 tran sfers. Such nonfinal terminations are elimina ted from the statistics above.

’ Statistics for fiscal year 1974 are based on data through the First 6 months of the fiscal year.
139

department of justice activit y under the interception of communications statutes

Fiscal

year

Complaints 

received by

F B I* 

Cases Tiled (ind ictm ents & informations)’ Cases term inated ’

18 U.S.C. 

2511

18 U.S.C. 

2512

47 U.S.C. 

605 Total

18 U.S.C. 

2511

18 U.S.C. 

2512

47 U.S.C. 

605 Total

1969‘ ......... 433 •3 (3 ) K D 3(4) 7(8) KD KD 2(2)

1970............ 541 3(3 ) 3(4 ) 3(4 ) 9(11) 2(2) 6( 7) 8(9)

1971............ 521 8(12) 2(2) 10(14) 3(5) 4(4) 1(2) 8(11)

19/2............ 541 15(21) 6(7) 2(2) 23(30) 14(22) 3(3) 1(1) 18(26)

1973............ 569 19(33) 3(4) K D 23(38) 22(24) 3(4) 1(1 ) 26(29)

19/4 •......... 407 11(15) 1(2 ) 2(4) 14(21) 11(17) 2(3) 13(20)

T o ta l. .. . 3,012 ’ 59(87) 16(20) 11(15) 86(122) 52(70) 13(15) 10(12) 75(97)

Cases 

pending 

as of 

Jan. 1,

1974....................................... 12(16) 5(7) 2(4) 19(27) .............................................................................

Total of 

cases 

terminated 

and 

cases

pending................................. ’ 64(86) 18(22) 12(16) 94(124) .............................................................................

1

 The statistics set forth in this category are compiled by the FBI and represent what they classify as “ cases received 

for inv estigation." This term , defined generally, means all complaints which state a prima facie violation of the Federal 

crim inal statute in question. The statistics are compiled for the broad classification of interception of communications 

violations, which includes 18 U.S.C. 2511 and 2512 and 47 U.S.C. 605. Separate statistics are not maintained for the ind ividual statutes. A case is categorized under the subject matter of the initia l complaint. Therefore, if an interception of 

communications investigation evolves from an investigation begun in another statutory area, tha t investigation would 

not be reflected in these statistics.

3

 Except for the figure set fo rth for fiscal year 74 and for 47 U.S.C. 605, these statistics exclude superseding indictments 

and informations. Appropriate statistics have not yet been obtained for the excepted categories to permit the eliminatio n 

of superseding actions.

» The statistics maintained by the DJ. Information Systems Section reflect case terminations for many actions which 

do not, in fact, represent a final termination of the case, e g., dismissals followed by the filing of a superseding information 

or indictm ent and rule 20 transfers. Such nonfinal term inations are eliminated from the statistics in this category.

‘ T itle 18, United States Code, sections 2511 and 2512 became law on June 19, 1968, and 47 U.S.C. 605 was amended 

to its present fo rm on that date. Therefore, the statistics set forth above cover virtually the entire history of the currently 

existing interception of communications sttheatutes.

4

 The figure in parentheses represents number of defendants involved in the stated cases.

• The statistic as to the number of complaints received by the FBI in fiscal year 74 is based on data through the first 7 

months of the fiscal year while all other statistics for fiscal year 74 are based on data through the first 6 months of the 

fiscal year.

’ As a result of the elim ination of superseding indictments and informations and nonfinal terminations from the above 

statistics, the total of cases terminated plus cases presently pending should equal the total number of indictments and 

informa tions filed. However, as is apparent above, these figures— while close—do not exactly equate. This may be exB

lained, in part, by the lag in data being reported from the field, and, to a small extent, by the occasional failure of 

nited States Attorne y's offices to comply with the Department reporting requirements.
140

DISPOSITION OF APPEALS TAKEN UNDER THE INTERCEPTION OF COMMUNICATIONS STATUTES

Fiscal year Statute

Cases/

defendants Disposition

1969 . -. None

1970 ................ None

1971................ 18 U.S.C. 2511_________ 1(1) Dismissed in favor of United States.

47 U.S.C. 60 5.................... 1(1) Decision in favor of United States.

1972....................... 18 U.S.C. 2 5 1 1 .. .. .......... 1(2) Do.

18 U.S.C. 2512............ 1(1) Do.

1973______ ____ 18 U.S.C. 2511................... 1(1) Do.

18 U.S.C. 2512................... 1(1) Dismissed in favor of United States,

1974....................... 47 U.S.C. 605..................... K D Decision in fa vor of United States.

Mr. Kastenmeier. At this point, I would like to yield to the gentleman from New York, Mr. Smith.

Mr. Smith. Thank you, Mr. Chairman.

Mr. Petersen, pursuing the questions of Father Drinan, regarding 

figures for warrantless wiretaps for the years of 1969 through 1972, 

which were disclosed, has there been any problem because they 

were disclosed?

Mr. Petersen. Well, the Bureau did not like it. I think Mr. 

Maroney testified to some of the figures and they said tha t if they 

had known that he was going to do tha t tha t they would not have 

given them to him. So, there has been some internal problem, yes, 

sir.

Mr. Smith. Other than the fact tha t they did not like it, has there 

been any problem because they were disclosed?

Air. Petersen. They take the position whether you agree with it 

or not, they take the position that since the Keith case, where security covers in the United States, at least, in investigating groups or 

those tha t are not clearly foreign-controlled to require a warrant, 

that the number has an intelligence element now, per se. You know, 

whether you agree with that or not tha t is their position and that 

is the basis for their objection to Mr. Maroney furnishing those 

figures in the past. And they say tha t tha t type of information, 

since we are so selective, you know, in our use of it, that a minimum 

number could be of intelligence value to those countries who maintain foreign agents here.

Now, you know, part of the difficulty we have, Mr. Smith, is this: 

We are talkin g about approximately 100, as I told the chairman 

earlier. I have said tha t I cannot prove this, but as contrasted with 

that, we are talkin g about 75,000 of these installations in another 

Western European country. Now, tha t is a remarkable difference.

Mr. Smith. I s that what we are talking about?

Mr. P etersen. Maybe they are wholly unrestrained. I do not know.

Mr. Smith. And we are talking about possibly 100?

Mr. Kastenmeier. And we are talking about possibly 100. Now, 

maybe they are wholly unrestrained but even if they are 700 percent unrestrained, it is still a remarkable difference.

Mr. Smith. Because there is thought to be some intelligence concern, is this the reason that the Attorney General has not met our 

request as set forth in paragraphs 1 and 2 of the letter of A pril 11?

Mr. Petersen. Well, I assume so. I did not want to impute that 

to the Attorney General categorically without—I was out of town
141

until late last night, and hence T did not get the opportunity to 

discuss it with him yesterday, this specific point, and we had proposed to do it today, and again today I did not have the opportunity. 

But, I had to assume that that is the basis for his position.

Mr. Smith. I would like to suggest, Mr. Petersen, tha t when you 

do discuss it with him that you might perhaps look at the possibility 

of how these figures might be furnished to us, perhaps in executive 

session of this committee or something like that?

Mr. P etersen. 1 would be delighted to do that, of you all do not 

perceive that I am tryin g to tell you how to run your business, 

Mr. Smith.

Mr. Smith. Now, let me get briefly to where Senator Gaylord 

Nelson had introduced one of the bills tha t is before this committee 

would require a court-issued warrant on probable cause in order 

to authorize an electronic surveillance which is now called warrantless wiretap. And you have stated categorically the Department is 

opposed to it. Why would you be opposed to it?

Mr. Petersen. Well, I am opposed to it for this reason; first of 

all, I think tha t the judge lacks the factual background information 

and expertise in the area that I think is necessary. Secondly-----

Mr. Smith. But at that point is he not only deciding on the 

probable cause being testified to him by experts?

Mr. Petersen. You anticipate me.

Secondly, I do not agree that probable cause is the proper standard. The Supreme Court has suggested in one of its cases tha t 

perhaps some lesser standard could be employed. We have had great 

difficulty in trying to articulate a lesser standard. By the same 

token, however, the court in the Ivano v case clearly indicated that 

suspicion as opposed to probable cause was a satisfactory criteria. 

1 can tell you my own standards in approving these things, or of 

not approving them for tha t matter, is to apply a standard of 

suspicion and need to the extent tha t I can ascertain the need, and it 

is difficult for me, you know, because I am not immersed in intelligence every day. So, I would say tha t when you couple one detachment of the court with probable cause, while those factors are 

ordinarily quite efficacious in criminal matters, I think tha t they 

would not serve the purpose here.

Now, if we apply standards of suspicion and need, the question 

then seems to me to be a m atter of control. Now, that control I think 

has to be exercised by those who have a keen appreciation of those 

factors which constitute suspicion and which constitute a need. 

And I do not think that you and I are likely to get tha t degree of 

expertise in the court. That is the reason that I suggest tha t if there 

is going to be any procedure in tha t fashion tha t it be in some type 

of commission which has the responsibility on a day-to-day basis, 

so that they could develop this degree of insight tha t is necessary. 

Now, we have all seen the criticisms tha t arise from intelligence 

failures. Whenever there is an upheaval in the Middle Eas t there 

is at least public criticism, or commentary, perhaps, tha t well, we 

knew, or we did not know, and if we did not know why did we not 

know. And how could the President be expected to take the proper 

courses of action if the CIA or other intelligence agencies failed in

3 5 -3 9 1—-74 ------ 10
142

their responsibility to bring it here, bring you information? So, it 

does require a great deal of vision to fix foreign policy positions, and 

it is one of the functions that I am told that the National Security 

Council and the United States Intelligence Board do have. These 

factors concern the national interest of the United States and fix the 

patterns for the direction and the general policy directives of the 

intelligence agencies involved.

Now, th at is too much to try to translate to a judge or to someone 

who operates on a haphazard basis. And you may well say, on the 

other hand, it is too terrible a weapon to leave wholly with the investigative agencies subject only to the review of political appointees. 

Well, perhaps they are reasonable positions. All I am suggesting 

is tha t if there are alternatives they have not been cast in terms of 

probable cause by courts, particularly, when almost every court tha t 

has concluded that, tha t has examined this in its foreign policy and 

foreign intelligence implications has agreed with the Government— 

tha t under the fourth amendment standards a lesser guideline may 

be employed where foreign intelligence or foreign relations are involved. And the latest impaneled decision by Ivanov is clearly 

supportive.

I took great consolation from reading that opinion because it reinforced me in what we were doing. Undoubtedly, the case will go to 

the Supreme Court and perhaps we will get a further expression of 

view on the subject.

Air. Smith. Thank you, Air. Petersen.

Air. Kastenmeier. Does the gentleman from Alassachusetts have 

additional questions ?

Air. Drinan. Thank you, Air. Chairman.

Air. Petersen, Elliott Richardson, testifying in the other body 

on April 3, 1974, indicated that he had directed the Department of 

the Justice and the FB I to undertake a joint review of the electronic surveillance procedures. And Air. Richardson said that that 

review was well underway when he resigned last October. Has the 

Department of the Justice and the FB I continued that joi.it review 

of electronic surveillance procedures and, if not, why ?

Air. Petersen. Well, first of all, I do not know how far it was 

under way-----

Air. Drinan. Air. Richardson said it was well under way.

Air. Petersen. Well, you have to ask him what was, whatever was 

underway. I have not been able to find that, and it has not been made 

available to me. And I have been saddled with the responsibility 

of conducting tha t study and I alluded to it earlier. We are in the 

course of doing that and we are tryin g to formulate tha t standards. 

But, it is now well underway and it is predicated on suspicion, on 

need, on the standards enunciated by the Congress in 2511, and we 

are trying to refine that for the guidance of the Agency and the 

Attorney General’s Office. I t has not been completed.

Air. Drinan. Air. Petersen, on a related question, one of the basic 

reasons why Elliott Richardson was so concerned about this and also 

the reason why you said that you and your colleagues are deeply 

concerned, and why the Nation is so concerned, is tha t around the 

time of Air. Elliott Richardson’s confirmation, it was revealed tha t
143

certain wiretap activities had been conducted at the direct request 

of the White House, and that those surveillances were handled outside of the normal procedures and channels. Can you guarantee to 

us now that there are no wiretaps tha t are handled outside of the 

normal procedures and channels? I do not know the procedures 

and channels, and that is why we wanted the number of warran tless taps. We do not know where th is record is kept. Senator Scott 

did not indicate the source from which his statistics were taken, 

and you will have to give us the evidence t hat we need in executive 

session so tha t his oversight committee of the Congress can be assured and can assure our colleagues around the country tha t there 

are no wiretaps being handled outside of the normal procedures and 

channels.

Mr. Petersen. Well, I can assure you that no wiretaps should be. 

I can never, and under any circumstances and under any set of guidelines, assure you that none will. The technique is too generally 

known,

Mr. Drinan. What about right today? Are there any wiretaps 

asked for by the White House—do not shrug, I want evidence. This 

is the key question, sir. This is the reason why this Nation is in 

turmoil over the executive branch of the Government admittedly, 

openly, having to concede tha t they had authorized electronic, warrantless taps tha t have been handled outside of the channels of the 

Department of Justice.

Mr. Petersen. Mr. Drinan, in 1965 on Jun e 30, President Johnson 

issued an order which is still in effect. It said no Federal personnel 

is to intercept telephone conversations within the United States by 

any mechanical or electronic device without the consent of one of 

the parties involved, except in connection with investigations related 

to national security and no interception shall be undertaken or continued wihout first obtaining the approval of the Attorney General. 

Tha t is in force now. I cannot guarantee you that tha t is not 

breached. I cannot guarantee you tha t some Congressman or some 

Senator or some member of the executive branch, or some investigative agency has not gotten himself one of those little devices and 

gone out and installed it someplace. That is impossible, and that 

will be impossible under any set of guidelines.

Mr. Drinan. T hat is not my question, sir.

Mr. Petersen. Well, but your question is susceptible to that.

Air. Drinan. No, my question-----

Mr. Petersen. Under any set of guidelines tha t is possible. But, I 

am telling you that I know of no instance.

But, on the other hand, Mr. Drinan, if somebody is going to do 

that they are not going to come and tell me, because I am going to 

say you cannot do it. So, there is no way tha t I can guarantee you 

ever that I am going to know when there is abuse. Like you, I find 

out when there is abuse, when for one reason or another the abusers 

are ineffective and it becomes known.

Mr. Drinan. Mr. Petersen, a subsequent question: Mr. Elliott 

Richardson and many others have said tha t under the Keith decision, 

they feel tha t the Government should establish a policy tha t would
144

require a warrant for any electronic surveillance on an American 

citizen. What is your opinion on that?

Mr. P etersen. Well, as I did not agree with it when Mr. Richardson 9aid it, I do not agree with it now. I do not think the fact of citizenship ought to be determinative. It seems to me that it is much 

more rational to talk about a reasonable basis for suspicion and 

need.

Well, let us take a deep cover agent who comes over and becomes 

naturalized. Should that be a factor? I do not think so. I do not think 

it is rational at all. Or, a natural born citizen. I do not see that 

that is a criteria, a proper criteria to apply.

Mr. Drinan. Mr. Peters en, title II I. as you know, autho rizes the 

use of wa rra nts for such crimes as espionage, sabotage and trea son . 

In ord er to avoid the deep suspicion throug ho ut the country and in 

the Congres s of the numb er and extent of wa rra ntless tap s, would 

it be a serious inconvenience for you to tak e advanta ge of tit le II I, 

and secure the war ra nt fo r alleg ed crim e of espionage, sabo tage and 

treason, a nd rela ted crimes? And if it would be a serious inconvenience 

because you wou ld have to reveal the na ture of this ta p af te r it was 

done, would you th in k th at the Congres s could pass a bill tig hten ing 

up title II I. h av ing a sep ara te, lesser, weake r stand ar d fo r those, even 

American citizens, who are allegedly involved in certain kin ds of 

espionage?

Mr. Petersen. Well, I would suppose tha t you can.

Mr. Drinan. Why are you opposed to it if we can?

Mr. Petersen. Well, I did not say that. I said that I was opposed—

Mr. Drinan. You are opposed to every bill that has been proposed.

Mr. Petersen. Well, I think tha t is correct. I tried-----

Mr. Drinan. You are opposed to any change in the law.

Mr. Petersen. No, I did not say that.

Mr. Drinan. Any change that has been proposed.

Mr. Petersen. No, I did not say that.

Mr. Drinan. You are opposed to every bill that is here on my 

desk.

Mr. P etersen. I did not say that. Now, if you want to get to what 

I did say, I will be happy to do so.

What I did say is tha t I think it would be ineffective to utilize 

the probable cause standards and the court standards of title II I 

in connection with investigations which have a foreign policy or a 

foreign intelligence purpose. Now, espionage is not the be-all and 

end-all of an intelligence investigation. There are other elements involved. If we were involved in wholly a sabotage caused by a citizen at. we will say, one of the plants of the big three automakers, in 

all probability we would use the title II I procedures. But, we would 

not want to use title III procedures where the saboteur was an 

agent of a foreign power. We would not want to make that disclosure. We would want to keep our options open. We would want 

to have the right to use that for intelligence or not, as we chose. 

Criminal prosecution then would be the last in a series of priorities. 

We would like to be able to determine whether or not we could 

make an exchange for some of the elements of importance to our
145

foreign power, or perhaps one of our agents who is a citizen. I 

mean, we would like to have all of those options open.

But, I do not mean to testify or leave you with the impression that 

I am opposed to change simply in those terms. That is the reason I 

am suggesting, if you will, tha t perhaps we can rewrite this in 

terms of a commission, in terms of individuals who are appointed, 

one bv the Congress, one by the Executive, one from the intelligence 

community who would sit in judgment on these things on a day-today basis, and have the expertise and the background and the time 

to explore all of these issues.

Mr. Drinan. Mr. Petersen, would you agree with the Keith decision 

encouraged legislation to tighten up the standards so that at least 

American citizens would have the right under the fourth amendment 

to have a warrant issued for any surveillance that may be directed 

toward them?

Mr. Petersen. I certainly agree it made the suggestion, yes.

Mr. Drinan. And that is what we are trying to do. We are just 

tryi ng to follow the suggestion.

Mr. Petersen. I do not object to what you are tryi ng to do by 

any means, Mr. Drinan. Indeed, I applaud it. It is terribly important. I said before we do not want to carry this responsibility alone, 

but we do want to insure th at whatever is enacted is not by its nature 

to defeat the very ends which we are trying to attain.

Mr. Drinan. But aside from the ambiguous suggestion of some 

floating commission, you have nothing to suggest to us as to how we 

can carry out the objectives tha t you embrace?

Mr. Petersen. Well, I think tha t what—what we are talking 

about is the interjection of a relatively impartial authority between 

the manipulators of these devices, if you will, to insure against 

political abuse or executive abuse, tha t tha t commission suggestion 

does the same thing as a court. You know, you could call them 

court judges, if you want. There is no magic to the title. We are 

talking about the function.

Mr. Drinan. That function is precisely located in the Judiciary 

Committee of the House of Representatives, which has oversight with 

respect to the Department of Justice, and tha t is what we are try ­

ing to exercise.

One last question: On page 24, you say II.R. 9949 proposes to 

limit this constitutional power by excluding burglary or any other 

illegal act from the scope of measures the President or anyone 

acting or purportin g to act on his behalf is authorized to utilize 

to protect the national security. You are opposed to tha t bill. Do 

you suggest that the President can commit burglary?

Mr. Petersen. Well. I think tha t is rather unfair. You know I am 

opposed to it.

Mr. Drinan. Why are you opposed?

Mr. P etersen. I did not say that I was in favor of burglary. 

Burglary, you know, is something very special.

Mr. Drinan. Why are you opposed to it?

Mr. P etersen. For one thing the statute ought to speak about 

breaking and entering, if that is what you have in mind. We are not 

in there to steal the personal property of another when we go in
14G

there. If we have to use a break-in entering technique to install an 

electronic listening device, I think tha t tha t probably stands on 

the same basis as an overhearing on an internal security grounds. 

I did not say tha t I was in favor of burglary. I said that I was 

opposed to the bill because if there is an unauthorized burglary, 

it is covered bv the laws of every State. 1 mean, the classic example is the Fielding break-in. There is no problem with going afte r 

that, either under the civil rights laws or the laws of the State of 

California. I mean, we are not here to proliferate legislation. We 

simply do not need it. Tha t is my testimony.

Mr. Drinan. All right. Thank you very much.

Mr. Kastenmeier. Mr. Petersen, you have been here a long time.

Mr. Petersen. And you wear me out.

Mr. Kastenmeier. And you have been a good witness, and I 

think this is a very good introduction to the dialog which I assume 

will continue between the subcommittee and the Justice Department. 

We appreciate your testimony.

Mr. Petersen. Mr. Chairman, it is a pleasure to see you and to 

discuss and discourse with all of you gentlemen, and however much 

we disagree I can tell you that we would like and we feel we need 

your support.

[The statement of Mr. Petersen follows:]

Statement of Henry E. Petersen, Assistant Attorney General, 

Criminal Division

Mr. Ch airma n: My name is Henry E. Petersen, I am the Assistan t Attorney 

General in charge of the Criminal Division of the Departm ent of Justice. I 

apprecia te the opportunity to appear before this Subcommittee on Itehalf of 

the Department to present the Departm ent’s position on H.R. 1597, II.It. 9698, 

H.R. 9781, H.R. 9815, H.R. 9949, H.R. 11629, II.R. 11838, and H.R. 13825.

The purpose of these bills is to amend portions of statutes rela ting to the 

interceptions of wire and oral communications Title II I of the Omnibus Crime 

Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, authorizing the 

use of electronic surveillance, is the object of these proposed bills. These various 

sections of the Omnibus Crime Control and Safe Streets Act of 1968 differentiate between electronic surveillance in instances unrelated to national security 

interests, and surveillances involving the national security. The former surveillances, which we commonly designate Title II I surveillances, are authorized 

only for classes of crimes care fully specified in Section 2516 of Title 18, United 

States Code. These are subject to prior court orde r and are guided by detailed 

and particularized procedures necessary to obtain such an order, as well as 

carefully circumscribed conditions for the ir use set forth in Section 2518. The 

latte r surveillances per tain to national security matter s, both foreign and 

domestic. These surveillances are mentioned in Section 2511(3). There are, 

however, no prescribed procedures for national security surveillances in Section 2511(3).

The Omnibus Crime Control and Safe Streets Act represents a comprehensive attempt by Congress to promote more effective crime control while protecting the privacy of individual thought and expression. Its enactmen t reflects congressional recognition of the need for surveillance in combatting 

various types of crimes, and organized crime in particu lar. We mainta in th at 

electronic surveillan ce techniques are, to date , the most effective method to 

bring criminal sanctions aga inst organized criminals, and are indispensable in 

developing witnesses with corroborating testimony, and generally in providing 

a useful tool in the evidence-gathering process. The Departm ent’s most notable 

success with the use of electronic surveillances has been aga inst organized 

crime controlled gambling enterprises. However, surveillances have also proved 

extremely useful in detecting and arresting violators of the other crimes
147

listed in Section 2516 of Title 18. Our successes require us to recommend tha t 

Title III remain unchanged.

The proponents of these proposed bills appear to believe th at electronic 

surveillances, under the Title II I guidelines, violate fundamen tal constitutional 

rights by infringing upon personal security. However, much of Title III was 

drafte d to meet the constitutional requirements for electronic surveillances 

set out in Kats v. United States, 389 U.S. 347 (19 67), and Berger v. Kew York,

388 P.S. 41 (19 67) . The Katz decision looks to the Fourt h Amendment in inquiring into the “reasonableness” of the search and seizure. The Berger opinion sets out the framework within which electronic surveillance may 

constitutionally be used. The decision of which is paramount, justice of 

privacy, is not an easy one and can only be balanced by consideration of the 

needs and conditions w’hich exist at any given moment. The Supreme Court 

has set out a structural framework to balance privacy and justice, and Title 

III was enacted within this framework. We believe tha t Title III is a workable solution arrived at to balance justice and privacy.

Before discussing the Department's position on the proposed amendments, 

I would first like to review for you the administrative techniques and procedures presently in effect within the Department designed to comply strictly 

with the electronic surveillance statutes and to centralize control over the 

surveillance procedures. These procedures and techniques are as follows :

Approval of the Attorney General or a specially designed Assistan t Attorney 

General;

A written sworn application containing a complete statement of facts establishing probable cause relied on by the applicant to justify his belief that an 

order should be issued;

Findings of probable cause by the issuing judge before entering an ord er;

A statemen t in the order of the period of time during which the interception 

is authorized, which must be no longer than is necessary to achieve the objective of the authorization, and in no event more than thirty days;

A finding by the issuing judge tha t normal investigative procedures have 

been tried and failed, or reasonably appear unlikely to succeed if tried;

The recording on tape or other comparable device of all interceptions in 

such a way as to protect the recording from editing or alt era tio n;

The filing of an inventory of persons named in the order within ninety 

days afte r termination of the period of an order;

The filing by the Attorney General in Janu ary of each year with the 

Administrative Office of the United States Courts of a detailed report regarding each application for an order during the preceding calendar year.

In order to insure stric t compliance with these and other provisions of the 

statut e, we have established a number of administrative procedures to achieve 

centralized control over the initiat ion of interception procedures. Briefly, 

these procedures are as follows:

Requests for authorization for an interception order must be made in writing 

to the Attorney General from the highest ranking officer of the investigative 

agency having jurisdiction over the offense involved ;

All requests are initially reviewed in the field by attorneys of the Department of Justice, usually Strike Force attorney of the Organized Crime and 

Racketeering Section of the Criminal Division, or by a United States Attorney 

or an Assistant United States Attorney, who assist the investigative agencies 

in the preparation of the affidavit and prepare the proposed application and 

court order;

All requests are next submitted to the Organized Crime and Racketeering 

Section or the Narcotic and Dangerous Drug Section of the Criminal Division 

where there has been established a special unit of attorneys whose primary 

function is to review the entire matt er for both form and stubstance, with 

parti cula r emphasis on assuring strict adherence to the required statutory 

standards;

When approved by this unit, requests are next submitted for review to 

either the Chief or Deputy Chief of the Organized Crime and Racketeering 

Section or the Narcotic and Dangerous Drug Section. If approved here, requests are next submitted for review and approved by the Assistan t Attorney 

General. Criminal Division, and finally to the Attorney General. When so 

approved by the Attorney General, a lett er is prepared authoriz ing the attor-
148

ney named in the requ est for aut hor iza tion to apply to the cou rt for an 

interc eption order.

In additi on, we have published and distrib ute d to all Divisions of the Depar tme nt of Just ice, to all United Sta tes Atto rney s, and to all app rop riat e 

investigati ve agencies a “Manual for Conduct of Electr onic Surve illanc e’’ 

which sets for th in deta il the proced ures th at must he followed with regard 

to every interc eption pu rsu an t to cou rt orde r, no ma tte r in which agency of 

the Government or Division of the Dep artm ent of Jus tice it origi nates . The 

procedure s set forth in the Manual cover every phase of the inter cept ion 

process—from aut hor iza tion by the Departme nt of Jus tice thro ugh the securi ng 

of an interc eption ord er and the conduct of the interc eptio n itself to use of the 

inform ation obtaine d.

As you can see, these proced ures are wel l-str uctu red to accomplish a thorou gh 

exam inatio n of the necess ity to inte rce pt wire and oral communic ations. Once 

the need for inter cept ion is establi shed, then and only then will the Attorney 

General or a desig nated Ass ista nt Attor ney General authorize an appli catio n 

for the inter cept ion to be prese nted to the cour t. In this way, it is impossible 

for frivolous and unr estrained appl icati ons to inte rcep t commun ications to 

proceed for court appro val.

To ass ist the Subcomm ittee, I would like to presen t the Dep artm ent’s views 

by first giving a bri ef synopsis of a bill, and second, by statin g the position 

of the Dep artm ent in respe ct to th at bill.

H.R. 1597 proposes to amend Section 251 1 of Tit le 18 by requ iring “. . . the 

wri tten auth oriz atio n of the Pres iden t specifically auth orizing the par tic ula r inter cept ion or disclo sure,” when " . . . a judg e or justice of the United 

States or a Sen ator or Member of Congress is a par ty. . . .” Section 251 1 

presen tly pro hibits the interc eption and disclosure of wire or oral communication s unless complianc e is made with the electron ic surveillanc e sta tut es. 

Str ict adhere nce to these sta tut es prev ents unscr upulous and indi scrimin ate 

invasions of privacy .

I assume th at this bill is not atte mpting to sub stit ute a wri tten Pres iden tial 

auth oriz atio n in lieu of a Judi cial aut hor iza tion for a wire tap order , but is 

intended to suppl emen t those proce dures in Section s 25 16 (1 ) and 2 51 8 (1 ), 

described above. II.I t. 159 7 appe ars to sugge st th at these existing contro ls no 

longer ins ure sufficient protec tion of the priv acie s oif specially categori zed 

persons, th at is, a United States jud ge of jus tice or a Sen ator or Member 

of Congress. We disagree.

There is no reaso nable basis for disti ngu ishi ng these persons from United 

States citizens in genera l. The unau thorize d infri ngem ent upon con stitu tional 

freedoms must alwa ys be prohib ited, whe ther the freedom s involved are 

those of the persons specially enum erate d or anyone else’s. Titl e II I has 

met this challen ge by (1 ) institu tin g a care full y circumsc ribed proced ure 

antec edent to the intru sion , (2 ) impleme nting the exclus ionary rule, (3 ) 

making unau thor ized surveillan ce a serious crime, and (4 ) provid ing a civil 

action in 18 U.S.C. 252 0 to sufficiently compe nsate for any unco nstit utional 

intrusio n by means of electroni c surveilla nce.

This bill would crea te pref eren tial tre atm ent fo r a select few and would 

expand exist ing contr ols which alre ady conform with Fou rth Amendment 

standa rds . The im par tiality of a neutr al Judg e provid es the ulti mat e examinati on of the proba ble cause necess ary to pre ven t unreasonab le searche s and 

seizure s. This is the case wheth er the request for wire or oral intercepti on 

is las t examined by the Attorne y General or the Pres ident.

For these reasons, the Departmen t of Jus tice recommends aga inst enac tment of II.R. 1597 .

H.R. 966 7 and H.R. 969 8 will be considered togeth er. They both propose 

amen dmen ts to Section s 25 11 (2 ) (c ) and (d ) requ irin g the consent of all 

par ties whose commu nicatio ns are inter cept ed. Sections 2511 (2 ) (c ) and (d ) 

of Titl e 18, United Sta tes Code, now provide th at it is not unlaw ful to inter ­

cept wir e and oral communication s “whe re such person is a pa rty to the 

communica tions or where one of the pa rti es to the communications has given 

prio r consent to such inte rcep tion.” (em pha sis sup plie d). These bills desire 

to alt er these claus es to make the consen t of pa rti es a necessa ry prerequ isite 

to intercep tion und er these subdivisions of Section 2 51 1 (2 ).
149

The proposed modifications, in essence, provide that the consensual monitoring of wire and oral requirements of a third party intercepted unless the consensual monitoring was conducted with prior notice to all partie s to the conversation. This would negate any efforts to obtain evidence by investiga­ tive procedures th at have consistently been approved by the Supreme Court. Court decisions have for some time distinguished between electronic sur­ veillance of conversations witho ut the consent of any of the parties, which requires a court order and a showing of probable cause, and tlie monitoring 

of conversations with tlie consent of one but not all of tlie parties. United

States v. White, 401 U.S. 745 (1971) ; Lopes v. United State s, 373 U.S. 427 

(1963) ; Ra thb um v. United States, 355 U.S. 107 (1957) ; On Lee v. United

States, 334, U.S. 747 (1952). The primary difference between nonconsensual electronic surveillance and consensual monitoring is th at in the latter, one participant in tlie conversation may be collab orating witli the Government and may rela te to the Government tlie substance of tlie conversation. The mon­ itoring serves to provide instantaneou s communications and to assu re effective corroboration. No information is acquired which would not have been ob­ tain ed without the accomiwinying mon itor; this method is simply fas ter and 

more probative. As the Supreme Court said in United Sta tes v. White, 401 U.S. 

745 (1971), we should not: “* * * lie too ready to erect constitutional barriers to relevant and pro­ bative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of wh at a defe ndant has said than will tlie unaided memory of a police agent * * *. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fou rth Amendment privilege aga inst a 

more accurate version of the events in question. 401 U.S. at 753.” The most reliable and probative evidence is always preferred in the law. Science through electronic surveillance techniques can promote the acquisi­ tion of such evidence withou t subjection to the vagarie s and fra ilitie s of human nature. Where informants, whose credibility may be suspect, are used, where victims of crime are engaged in key conversations with the perpetrators themselves, or where the investigators as such are individually involved and their credibility will be significant factor in the subsequent tria l, recorded and monitored conversations are of the utmost importance. Recorded con­ versations produce the precise character of the spoken words with the inflections, emphasis ,and other aspects of oral speech. For these reasons, we strongly oppose both II.R. 9667 and II.R. 9698. We fu rth er recommend following tlie American Bar Association’s adoption of 18 U.S.C. 2511(a) (c) and (d) as their Minimum Sta nda rd of Criminal Jus tice relatin g to consensual overhearing and recording. See American Bar Association Stan dards for Criminal Justice, Electronic Surveillance, Standa rd 4.1, 

and Commentary, pages 12-13 (1971). II.R. 9781 also proposes to amend Section 2511, and in addition, Sections 2512, 2516. 2517. 2518, 2519, and 2520 of Title 18, United States Code. This bill suggests that the current procedural safeguards designed to prevent the abuse and misuse of intercep tions of wire and oral communications are inade­ quate and temp t Government officials to furth er partisan political goals by means of wire and oral electronic surveillance. Furth er, II.R. 9781 declares th at electronic surveillances have been employed too extensively, thereby spawning the undermining of personal security and the violation of the con­ stitutional rights to free speech, press, and association, tlie righ ts to due 

process and equal protection, and the right to privacy. To correct these alleged infringements, II.R. 9781 proposes, first to amend 

Section 2511(1) to pro hib it all interceptions and disclosures of wire and 

ora l communications. Further, a new subdivision (e) to Section 2511(1) is suggested which w’ould prohibit the willful interception or recording of wire or oral communications withou t the consent of all par ties to the conversations. Second, the bill seeks to strike out Sections 2511 (2) (a) (ii), (b). (c) , and (d ). This would prohibit any disclosure or technical assistance by an em­ ployee of a communication common carrier, whose employment may require an incidental wire interception, to a person lawfully authorized to inte rcep t
150

such. It would also make unlawful the interception of wire or oral communications, the disclosure, or use of such interceptions, by the Federal Communications Commission in the normal course of its responsibilities. Consistent with 

the pro]>osed addition of Section 2511(1) (e) , the elimination of Section 

2511(2) (c) and (d) would make unlawful the interception of wire and oral 

communications where one party to the conversation consents to such 

monitoring.

Third, H.R. 9781 proposes to strike out Section 2511(3). This seeks to curtai l the constitutional power of the President to obtain the intelligence information he deems necessary to protect the security of the United States by 

the interception of wire and oral communications.

The fourth proposed amendment included in H.R. 9781 would prohibit all 

manufacture, distribution, possession, and advertisement of wire and oral 

communication interception devices by amending Section 2512(1). It would 

also strike out the provisions in Section 2512(2), thereby making it unlawful 

for a communications common carrier or an employee, a person under contract 

with such carrier, or an employee of or person under con trac t with a Governm enta l body to tra nspo rt through interstate or foreign commerce any 

electronic, mechanical or other device prim arily useful in the surreptitious of 

wire or oral communications.

H.R. 9781. lastly, proposes to amend the interception statutes by striking 

out Sections 2516, 2517, 2518, 2519. 2510(9). These proposals prohibit the 

authorization and disclosure for interception of wire and oral communications, and eliminate the need for a procedure for the interception and repo rts 

concerning the intercepted communications.

As you can see, the ultimate effect of H.R. 9781 is to literally destroy the 

Government’s authority to apply for wire and oral interceptions. The first 

proposed amendment to the bill recommends th at all interceptions and disclosures be prohibited unless the consent of all partie s to the conversation is 

obtained. We object to the passage of this proposal for the same reasons we 

objected to H.R. 9667 and H.R. 9698. Furthermore, the absolute prohibitio n on 

non-consensual intercep tions and disclosures undermines the purposes for 

which the electronic surveillan ce sta tutes were enacted. The state ments made 

before this Subcommittee, both now and in the past, have amply demonstrated 

the need for interceptions of wire and oral communications, and the results 

obtained from the use of these interceptions.

The second proposal in II.R. 9781 involves forbidding employees of communication common car riers or of the Federal Communications Commission 

to provide assistance for an interception, to intercept, or to disclose or use 

the interception. We also object to the passage of thi s proposal. As our 

position strongly favors the perpetuation of the electronic surveillance 

sta tut es in the ir present form, any attempt to frus trate the effective execution 

of these statutes must be strongly opposed by us.

T would like to defer discussion of the third proposal in H.R. 9781 to lat er 

discussions of H.R. 9949 and H.R. 13825, all involving national security.

H.R. 9781 also suggested a fourth proposal to proscribe the manufacture, 

distribution, possession and advertisem ent of wire and oral interception 

devices, as well as the intersta te or foreign tran spo rtation of such devices. 

Obviously this proposal would prevent any interception of wire and oral communications. As previously stated, we cann ot adhe re to a policy that would 

und ercut an effective source of crime detection. We, therefore, object to this 

amendment also.

The las t amendment proposed in H.R. 9781, recommends that Sections 2516, 

2517, 2518, 2519. and 2510(a) be struck from Title 18. As these Sections set 

out the procedures for the authorization, the interception, disclosure and 

use of intercepted communications, and for the rep orts concerning intercepted 

communications, their elimination would seriously hamper criminal investigative techniques. By str iki ng these Sections from the electronic surveillance 

statutes, the Government's authority to seek cou rt approval for wire and 

oral inerceptions is revoked.

Fo r the above-stated reasons, the Departm ent objects to the passage of 

H.R. 9781. and to any of the proposed portions of H.R. 9781.

H.R. 9815 and II.R. 11629 will be examined together as they are substan ­

tially identical bills proposing a “Freedom from Surveillance Act of 1973.”
151

These bills would proh ibit the use of the Armed Forces or any sta te mili tia to 

inve stig ate or mai ntai n surv eilla nce of civili ans, excep t where the use of 

the Armed Forces is employed to car ry out cer tain specific resixm sibiliti es. The 

surveilla nce to be curtaile d inclu des monitoring by wire tapp ing, electron ic eavesdro pping, overt and cove rt infil tration, and civi lian info rma nts. To accomplish this purpose, these bills seek to add a new section to Tit le 18, 

United Sta tes Code. They would also amend Tit le 28, Unite d Sta tes Code, by 

auth oriz ing civil action s for dama ge and injun ctive relie f, and by per mit ting 

class action s to be ini tiated to enjoin such survei llance . The bills would also 

affect the Posse Comi tatus Act, 18 U.S.C. 1385 , by expa ndin g its scope to 

include the Coast Guard. We would poin t out th at thi s prop osed amend ment of Tit le 18, United 

Sta tes Code, is inco nsist ent wit h Publ ic Law iK)-331, author izin g the use of 

the Armed Force s to condu ct surveillan ce monitoring when the Armed 

Force s ass ist the Secret Service in prot ectin g the Pres iden t, Vice-P resident , 

and foreign visitors. The Dep artm ent of Jus tice believes th at the crim inal pen alti es provid ed in 

Section 2 of these bills are overly broad. Fur ther more, we oppose Section 

3 of these bills which author izes civil actio ns fo r dam age and inju nctive 

relie f. Civil damage s are author ize d in Section 25 20 of Tit le 18, whenever communication s are inter cept ed, disclosed, or used in violation of tliis chap ter. 

The add ition of the proposed civil remedie s in Tit le 28 would nece ssarily be 

superfluous and could be used for har ass me nt to tes t the aut hor izat ion of an exception to the surveillan ce prohib ition , thereby incre asing the alre ady 

burden some load of civil litig atio n. We do objec t to the inclusion of the Coast Gua rd in the Armed Forces, 

and urge th at the Coast Gua rd be excluded from the Posse Comitatus Act. 

Section 5 of these bills, is, ther efor e, objectio nable to the Dep artm ent as it 

would prev ent the Coast Gua rd from purs uing its tra dit ion al law enforc ement 

duties. See 14 U.S.C. 89. These reasons force the De par tme nt of Jus tice to oppose the enac tmen t 

of H.R. 981 5 and H.R. 1162 9. H.R. 118 38 proposes to amend Section 25 16 (1 ) and (2 ) of Titl e 18, United 

Sta tes Code, to assure th at all aut hor ized inter cept ions of wire and ora l 

commu nicatio ns receive pri or cou rt appro val. This langu age of the bill re ­

str ict s itse lf to amendin g Section s 251 6( 1) and (2 ). It does not ref er to Section 

251 8( 7) of T itle 18, United Sta tes Code, which provides: Notwith stan ding any oth er provisio n of this chapter , any inve stiga tive or 

law enforceme nt officer, Specially desi gnat ed by the Attor ney Gene ral or by 

the prin cipa l prosec uting atto rne y of any Sta te or subdivision ther eof acting 

pur sua nt to a sta tut e of th at Sta te, who reason ably dete rmin es th at — (a ) an emergency situ atio n exists wit h respect to con spir ator ial acti vitie s 

threat eni ng the natio nal secu rity int ere st or to conspir ator ial acti vitie s cha racter ist ic of organiz ed crime th at require s a wire or oral commun ication to be 

inte rcep ted before an ord er aut horiz ing such inte rcep tion can with due 

diligence be obtained , and (b ) the re are groun ds upon which an ord er could be entered un de r thi s 

cha pte r to auth oriz e such inter cept ion, may inte rce pt such wire or oral communi catio n if an applic ation for an ord er approv ing the inter cept ion is made 

in accord ance with thi s section wit hin forty- eight hou rs af te r the intercepti on 

has occur red, or begins to occur. In the absence of an orde r, such inter cept ion 

shal l immed iately term ina te when the communi cation soug ht is obtain ed or w’hen the appli cation for the ord er is denied, which ever is ear lier. In the 

even t such application for approval is denied, or in any other: case wrhere 

the inter cept ion is term inat ed wit hou t an orde r havi ng been issued, the conten ts of any wire or oral commu nicatio n intercept ed sha ll be tre ate d as havi ng 

been obtain ed in violatio n of this cha pte r, and an inve ntory shal l be served 

as prov ided for in subsection (d ) of th is section on the person name d in the 

applic ation. H.R. 118 38 appears to be dire cted at the elimi natio n of thi s emergency pro ­ visio n, but does not accomplish thi s sta ted purpose.

We believe that, althou gh the Dep artm ent has never used thi s emergency 

provisi on, it should be reta ine d with out lim itat ion or chang e. The provisi on 

per mit s inves tigat ion to proceed when an emergency sit uat ion exis ts, follow-
152

ing up thi s investiga tion within forty-ei ght hou rs with an appli catio n to the 

cour t to approv e such interc eption . A cou rt ord er is requir ed as a condition 

precede nt to the use of any interc epted evidence, thereby a sufficient safe guard 

to potentia l abuse.

This bill does not, therefor e, accomplish its stat ed purpose. The Dep artment of Jus tice does, however, object to any limi tati on on the emergency 

auth oriz atio n in Section 251 8(7 ), and objects to the use of H.R. 118 38 to 

atte mp t to limi t this Section of Title 18.

The las t two bills pendin g before thi s Subcommittee are II.R. 994 9 and 

II.R. 13825, both concerni ng the aut hor izat ion of interc epted communication s 

in nat ional secu rity cases. Previously, I defe rred discussion of II.R. 978 1, 

Section 2 ( 5 ) , un til thes e two bills were presented, as it, too, deal s with 

nati onal secu rity interc eption s.

Each of these proposed amendments' would sub stan tial ly change the langua ge, 

inte nt, and effect of Section 25 11 (3 ) of Title 18, United States Code, the 

pre sen t recognit ion of nati ona l secur ity au tho rity for interc eption of wire and 

oral communications . Section 25 11 (3 ) provides th at the cons titution al power 

of the Pre sident shall not be limited or res tric ted wheneve r he deems it necessary affirmatively to act to prote ct the national secur ity of the United States. 

Such affirmative mea sures by the Pre side nt may include the auth oriz atio n of 

wire and oral intercepti ons, with out pri or or subseq uent cou rt approv'al.

H.R. 9781 , Section 2 ( 5 ) , seeks to wholly abro gate the Pre side nt’s con stitutional power by stri kin g out Section 2 51 1 (3 ). II.R . 994 9 proposes to lim it this 

cons titutiona l power by excluding burg lary or any oth er illegal act from the 

scope of measu res the Pres ident, or anyone act ing or purp orti ng to act on his 

beha lf (is auth oriz ed to utilize to pro tect the nat ional security. H.R. 138 25 

seeks to amend Section 25 11 (3 ) by cur tailin g the constituti onal power of the 

Preside nt to act in the name of nati onal secu rity only aga inst foreign agents 

and powers pu rsu an t to the proposed Section 2518A . The conte nts, or evidence derived there from , of intercept ions unde r Section 25 11 (3 ) would not be 

admissib le in evidence nor be other wise disclosed in any tri al, hear ing, or 

other proceeding in Fed eral or sta te court, wi th the exception of admi ssibi lity 

in civil proceedings ag ain st foreign agent s. Fu rth er, H.R. 138 25 proposes to 

delete subsecti on (a ) of Section 251 6 of Tit le 18, United Sta tes Code, renumbe r the rem ainin g subsections, and add a new Section 251 6 following 

Section 251 6 concerni ng the auth oriz atio n for inter ceptio ns in national 

secu rity cases. Ano ther recommended amen dmen t of this bill would add a 

new Section 2518 A immedia tely following Section 2518 , involving the procedure for interc eptio n in natio nal secur ity cases.

H.R. 994 9 provi des th at no Congression al enac tmen t shall be deemed to 

auth oriz e the Pre side nt, or anyone acti ng or pur por ting to act on his behalf , 

to engage in burg lary or any oth er illegal act. The Dep artm ent objec ts to the 

enac tmen t of this hill ns it would be needless.

It seems fai rly obvious, I believe, th at the Dep artm ent opposes the passa ge 

of II.R. 978 1, Section 2 ( 5 ) , which seeks to destr oy the Pre sident ’s con stitutional aut hority to inte rcep t cert ain comm unicat ions in the int ere st of natio nal 

securit y. Any lim itat ion of the Presi den’s con stitu tion al power to pro tect the 

United States aga inst foreign inst igate d subvers ion must be objected to. We 

believe th at the deletion of Section 2 51 1 (3 ), although it certa inly would not 

detra ct from the Pre side nt's constitu tional powers, should be prevented in 

order to be compat ible with cons titutiona l and case law sta nda rds balanc ing 

the Fi rs t and Fou rth Amendment rig hts again st the Governme nt’s need to 

elicit intelligence info rma tion for purposes of national security .

The reason ing employed to object to II.R . 978 1, Section 2 (5 ), also compels 

us to object to H.R. 1382 5. This bill was proposed to prev ent abusive practices and proce dures by the Government when engag ing in inves tigat ion and 

law enforc ement act ivit ies utilizi ng electro nic surveillan ce technique s. These 

abusive prac tice s and proced ures were declar ed to be especially excessive 

in insta nces involvin g secu rity. To fu rth er thi s end, II.R. 138 25 recommends 

amendin g Section 251 1(3 ) to limit its provi sions solely to the protect ion of %

the natio nal secu rity aga ins t foreign powers and agents .

The policy of the Pre sident and the Attor ney General rela ting to nat ional 

securi ty wir etap s was recen tly set fort h by form er Attorn ey General Ric har dson. In reply to quest ions raise d dur ing the rece nt hearings on the confirma-
153

tion of Henry Kissinger as Secretary of State, Attorney General Elliot 

Richardson sent a letter to the Senate Foreign Relations Committee outlining 

the Justice Department’s policy in light of United States v. U.S. District

Court, 407 U.S. 207, 11 Cr. L. 3131, (10 72), and pending litigatio n on the 

subject.

The full text of Attorney General Richardson’s letter to Senator J. W. Fulbright (D. Ark.) follows:

“September 12, 1073.

“Dear Mr. Chairman : During the confirmation hearing of Dr. Kissinger, 

a question was raised as to this Administration’s position concerning the power 

of the Executive to conduct electronic surveillance without war rant in the 

national security field. Dr. Kissinger said tha t he would try to elicit a statement for the record tha t would clarify our general policy on this matter.

“I believe tha t there will continue to be situations which justify the conduct 

of electronic surveillance for the purpose of national security. This surveillance 

is carried out to meet the obligations of the President as both Commander-inChief and as the Nation’s instrum ent for foreign affairs. I will continue to 

attemp t to ensure tha t a genuine national security interest is, in fact, involved 

whenever we invoke this power and tha t we operate within the limits set by 

Congress and the courts.

“The Department of Justice scrupulously observes the law as interpreted 

by the courts. There may be questions as to what certain decisions mean 

and whether surveillance, such as th at discussed by the committee, has been 

affected by late r court decision. These and other issues are before the courts 

now and w*e expect any ambiguities to be settled within the normal judicial 

process. The policy statement tha t follows therefore refers to procedures for 

any surveillance tha t may be carried out a t present.

“A year ago in the Keith case (407 U.S. 207, 11 Cr. L. 313 1), the Supreme 

Court ruled unanimously tha t the Government may not carry on electronic 

surveillance in domestic security operations, as opposed to foreign intelligence 

operations, without first obtaining a judicial warrant. The Court pointed out 

tha t it was condemning warr antle ss electronic surveillance carried out in 

domestic security cases directed at a “domestic organization (whether formally or informally constituted) composed of citizens of the United States 

and which has no significant connection with a foreign power, its agents or 

agencies.” The Keith decision necessarily is Departmental policy and is being 

followed.

“Although the Keith case did not address warrantless national security 

electronic surveillance, to date, the lower courts which have addressed this 

problem have agreed with the contention of this Department tha t a judicial 

war rant is not a necessary requirement for the Government’s use of electronic surveillance to obtain foreign intelligence or foreign policy information necessary for the protection of national security. E.G., United States v. 

Clay, 430 F. 2d 165 (5th Cir. 1070 ), reversed on other grounds. 403 U.S. 608 

(10 71); United States v. Broun, 317 F. Supp. 531 (E.D. La., 1070 ), affirmed, 

No. 72-2881 (5th Cir., Aug. 22, 1073) ; United States v. Smith, 321 F. Supp. 

424 (C.D. Calif. 1071) ; Zweihon v. Mitchell, 42 U.S. L. Week 2054 (10 73) . 

Pending a decision on this issue by the Supreme Court I believe tha t we are 

justified in relying on the case law as it is being developed in the lower 

courts to conduct national security electronic surveillance, without warrant, 

in a limited number of cautiously and meticulously reviewed instances.

“When Congress enacted legislation in 1068 requiring a judicial warran t for 

the use of electronic surveillance in investigations of violations of certain 

criminal laws, it made clear tha t it did not intend to add or subtra ct from 

whatever measure of constitutional power the President may have to dse 

electronic surveillance in the national security field. How’ever, as a guide, it 

set forth a number of purposes, divided between the domestic and foreign 

aspects of national security, tha t it understood to be proper for the exercise 

of Presidential power. The Keith decision subsequently held tha t this power 

could not, in the absence of a warr ant, be exercised for the domestic security 

purposes mentioned by Congress. However, as a matt er of policy, I shall keep 

in mind the contours of the Presid ent’s power suggested by Congress in the 

1068 law as it relates to foreign intelligence. In general, before I approve
154

any new application for surveillance withou t a wa rra nt, I must be convinced that it is necessary (1 ) to pro tec t the natio n aga inst actual or 

poten tial atta ck of othe r hostile acts of a foreig n power; (2 ) to obtain foreign 

intelligence infor mati on deemed essential to the secu rity of the United States, 

or (3 ) to prot ect nationa l security info rma tion aga inst foreign intellig ence 

activities. 18 U.S.C. 25 11 (3 ).

“As the Suprem e Court itse lf observed in Keith , it may well be difficult 

to distinguish between “domestic“ and “foreign’’ unla wful activities directed 

agai nst the United Sta tes where there are rela tionship s in vary ing degrees 

between domestic group s or organ izatio ns and foreign powers, or the ir agents. 

All I can say is tha t, as the applic ation s are pres ente d to me, I will, toge ther 

with my staff, try scrupulo usly to follow the guidance and inst ruction given 

to us by Congress and the courts, bearing in mind the importance of balancing 

individual privacy with the needs of n atio nal secu rity .’’

Therefo re, the proposal in H.R. 13825 deleting the second sentence of Section 

25 11 (3) is needless, as the former Attorney Gene ral’s state men t, adherin g to 

United Sta tes v. United States Dis tric t Court, 407 U.S. 297 (197 2), indicate s 

that the Dep artm ent is scrupulously observing the proced ures laid out by the 

Supreme Court.

In additio n, the proposal in II.R. 13825 limi ting the admissibility of contents 

or evidence of inter cepted communications to civil proceedi ngs aga ins t foreign 

agents is also objectio nable to us. As we feel th at wire and oral communications may be intercepted in the name of nat ion al security, both again st for ­

eign and domestic subversion, subject to the Kei th decision.

Fur ther, we feel th at Section 2515 of Title 18 adequ ately covers the sit ua ­

tion which this proposal seeks to amend. Section 2515 sta tes th at . no 

pa rt of the cont ents of such [intercep ted ] communication and no evidence 

derived there from may be received in evidence . . . if the disclosure of th at 

information would be in violation of this cha pter.” (Em pha sis sup plied) . Thi s 

sta tut e obviously covers the suppression of intercepted evidence wher e the 

interception procedure and auth oriz atio n is purs ued contrar y to Sections 2516 

and 2518. It fu rth er covers the proce dures for nationa l security surveillances, 

unde r Section 25 11 (3 ), and United Sta tes v. United Sta tes District Court,

407 U.S. 297 (1 97 2) . These reasons compel us to object to the enac tme nt of 

the proposal in H.R. 13825 limit ing the admi ssibility of nat ion al secur ity 

surveillance to civil proceedings.

H.R. 13825 also propos es to supplement the pre sen t Sections 2516 and 2518, 

by adding the new’ Sections 2516A and 2518A. These recommended amend ­

ments are cons istent with the bill’s earlier proposal to limit the provisions of 

Section 25 11 (3 ) to national security surve illances solely ag ain st foreign 

agents and powers. We understood th at the int en t of thi s bill is to make 

foreig n intellig ence surveillances by electronic means obtain pri or court 

approval before utiliz ation .

Since the Supreme Court’s decision in United Sta tes v. United Sta tes Dis trict

Court, 407 U.S. 297 (197 2) , this Dep ortm ent w’ould employ an app ropriate 

pri or wa rra nt procedure where secur ity surveilla nces were to be applied for 

in the name of domestic security. It is our view th at nei the r this decision 

nor Section 25 11 (3 ) requires a wa rra nt, or jud icia l approval, before surveillance may be und erta ken where the national security is thre atened by or on 

behalf of foreign powers. Form er Attorney General Rich ardso n’s lette r to 

Senator Fu lbr igh t poin ts out th at several low’er Fede ral cou rts and courts of 

appeals also adhere to this belief. Fu rth er, the Execu tive power “to preserve , 

prot ect and defend the Constitutio n” in Artic le II, Section 1, also supports 

our view.

Thus, we cannot supp ort the propo sal in H.R. 13825 to estab lish guidelines 

for the auth oriz atio n of and procedures fo r inter ceptions of wire and oral 

communications rela ting to nationa l secu rity cases aga inst foreign powers. 

We cann ot help but feel th at these amen dments would contravene the Pre siden t’s power under the Cons tituti on by requirin g a prio r judicia l dete rmi nation of probab le cause to believe certa in enum erated crimes have been or are 

about to be committed by foreign agen ts thereby endan gerin g th e natio nal 

security . Unless, and until, we receive a judicial constru ction of the Execu tive
155

power in Article II, Section 1, tha t requires prior judicial approval for electronic surveillances in national security cases against foreign ixnvers, we do 

not believe that Congress should enact these proposals. For this reason, we 

object to their passage.

In sum, I want to thank you for the opportunity to express the views of the 

Department of Justice on landing legislation relating to the subject of wiretapping and electronic surveillance. We do not feel tha t these proposals will 

further nor support the present Title III of the Omnibus Crime Control and 

Safe Streets Act of 1968, nor are they consistent with the expressions of the 

various Federal courts. Consequently, we recommend against the passage of 

H.R. 1597, H.R. 9667, H.R. 9698, II.R. 9781, H.R. 9815, II.R. 9949, H.R. 11629, 

H.R. 11838, and II.R. 13825.

Mr . K astexm eie r. Than k you. Mr. Pe terse n an d Mr. Maro ney.

The C hair would next like to call, representing the Department of 

Defense, the Deputy Assistant Secretary of Defense for Administration, Mr. David O. Cooke. Prior to joining the Department, Mr. 

Cooke served as a career naval officer, retiring with the rank of 

captain. We are very pleased to have Mr. Cooke and his assistants 

here this morning. I know that at least one of your group may have 

time problems, and we will try to expedite your testimony.

TESTIMONY OF HON. DAVID 0. COOKE, DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR ADMINISTRATION, DEPARTMENT OF

DEFENSE, ACCOMPANIED BY JOSEPH J. LIEBLING, DEPUTY

ASSISTANT SECRETARY OF DEFENSE FOR SECURITY; AND

ROBERT T. ANDREWS, ASSISTANT GENERAL COUNSEL

Mr. Cooke. Thank you, Mr. Chairman. May I introduce my two 

colleagues. On my right, is Mr. Joseph Liebling, Deputy Assistant 

Secretary of Defense for Security Policy and on my left, Mr. Robert 

Andrews, Assistant General Counsel in the Department of Defense.

Mr. Chairman and members of the connnittee, I am here in response to your invitation to the Secretary of Defense to furnish 

information in connection with your inquiry into changes to title 

II I of the Omnibus Crime Control and Safe Streets Act of 1968, 

and to provide information relating to the policies and procedures 

by which wiretapping and electronic surveillance are authorized 

and controlled within the Department of Defense.

For management purposes, the Department has placed wiretapping 

and electronic surveillance activities into two separate categories.

Department policies and procedures which limit the use of telephone monitoring and control the use of information obtained by 

thir d parties, are set forth in Department of Defense Directive 

4640.1, “Telephone Monitoring.” DOD policies which restrict the use 

of wiretapping and eavesdropping during the conduct of investigations for law enforcement purposes are published in DOD Directive 

5200.24, “Telephone Interception and Eavesdropping.” Both of these 

directives apply to the United States, the Commonwealth of Puerto 

Rico and U.S. territories. They do not apply elsewhere overseas, nor 

are they applicable to our foreign intelligence collection activities. 

Copies of the two directives were provided to your committee last 

week.
156

First, I would like to discuss telephone monitoring which is administrative rath er than investigative in purpose. There are four 

classes of telephone monitoring. They ar e:

1. OFF IC E TELEPH O N E

Listening to or recording office telephone communications by use 

of mechanical or electronic devices or recording by written means, 

for the purpose of obtaining an exact reproduction or a summary 

of the substance of the telephone conversation and with the consent 

of all parties.

2. CO MMAN D CE NT ER COM M UNIC ATI ONS

Listening to or recording telephone communication in DOD command centers for the purpose of obtaining a record of conversations, 

or parts thereof, for command and control purposes.

3. COM M UNIC ATI ONS SE CURI TY

Listening to or recording of the transmission of official defense 

information over DOD-owed or leased telephone communication, by 

any means, for the purpose of determining whether such information 

is being properly protected in the inte rest of national security. Notice 

of this action is given to users tha t these systems are subject to communications security monitoring at all times.

4. CO M M U NIC ATI ONS M A NAGEM EN T

Listening to or recording telephone communications on DODdedicatcd systems or the common-user systems of the Defense communication system, by any means, not for the contents but for the 

purpose of determining whether the systems are functioning properly for official purposes. Almost every phone company has a counterpart activity.

The first class of telephone monitoring is one in which you are all 

familiar, called office monitoring. With the use of either a recorder 

equipped with “beeper” or with a stenographer, it requires the advance consent of all parties to the conversation. Office telephone 

monitoring, in such cases, is a valuable management tool to reflect 

the exact nature of agreements and understanding achieved by telephone. One of the parties to the conversation may be outside the 

DOD but again let me emphasize that all parties concerned must 

consent to office telephone monitoring.

The other three classes of telephone monitoring are largely internal. Tha t is, they are directed to the manner in which DOD military and civilian personnel use telephones which are part of DOD 

communications systems.

Telephone monitoring in command centers, for communications 

security and for communications management purposes, does not require express consent in each case. The purpose of command center 

monitoring is to obtain accurate records for command and control 

purposes of official calls to a command center. Examples of the command centers are the National Military Command Center, its alter-
157

nate, the Airborne Command Post, the North American Air Defense 

Command Post, the Military Services Operations Centers in Washington, the Military and Security Police Operations Centers, Fire 

and Rescue Control Centers and Air Traffic Control Centers.

DOD monitoring for these Centers closely compares with the recordings made by the Federal Aviation Agency in its many air traffic 

control centers. Similarly, most police, fire, and rescue control centers 

in our large cities and’counties monitor incident reports and requests 

for assistance to insure accuracy and for record purposes. Furth ermore, command centers are able to record messages to be rebroadcast to subordinate and lateral units.

DOD Directive 4640.1 requires for each center specific regulations 

be published prio r to the initial operation of the recording equipment. The existence of such monitoring, however, is required by 

DOD Directive 4640.1 to be so widely and expressly publicized 

throughout DOD and its components as to amount to constructive 

consent. ,

Our authority for this class of monitoring equipment and its use 

stems from communications common carrier tariffs which have been 

approved by the Federal Communications Commission. This class 

of monitoring is provided for in DOD Directive 4640.1, which I 

mentioned earlier.

Communications security monitoring—COMSEC monitoring—is 

the third class of administrative telephone monitoring which is used, 

albeit rarely, on Department of Defense telephone circuits. The purpose. of COMSEC monitoring is to provide a basis for analysis to ensure tha t classified information is not discussed on unsecure telephones.

This monitoring may only be conducted when authorized by the 

commander or DOD official in charge of an installation or activity 

or his superior. Let me stress that security organizations organized 

and equipped to perform communications security monitoring are 

not authorized to monitor communications systems on their own 

initiative. Communications security monitoring is employed infrequently. Less than one percent of our telephones are monitored for 

security in any given year.

The lines selected for security monitoring consist mainly of those 

serving command posts, major operational headquarters, war rooms, 

and field exercises both in the United States and overseas.

Let me emphasize that the purposes of COMSEC monitoring are 

to advise commanders on actual or possible security compromises and 

improve the security protection of telephone communications.

DOD Directive 4640.1 expressly states that the information obtained 

as a result of telephone communications security monitoring shall not 

be authorized for law enforcement purposes unless the General Counsel authorizes an exception in a specific case.

The last class of administrative telephone monitoring is communications management monitoring, often called service observation. 

Service observation is conducted largely by computer analysis and 

pay count methods rather than by actual listening to telephone conversations in progress.

It is a tool used to determine if telephone systems are functioning 

properly, not with the contents of conversations, but with such things

35-391— 74------ 11
158

as the precedence and number of calls, their duration, response to 

signals, number of busy signals for a given time period, total load 

on a system in numbers and duration of calls, etc.

The purpose of administrative telephone monitoring previously 

described, is distinctly different from the purpose of wiretapping or 

eavesdropping. Telephone monitoring is to accurately preserve records of conversations as in command centers, or to analyze a total 

system for adherence to protection of classified information as in 

COMSEC monitoring.

Wiretapping and eavesdropping are used for the purpose of crimi- »

nal investigations.

Let me now turn to the Department’s policies and procedures for 

telephone interception and eavesdropping techniques used in investigating criminal cases. DOD defines these terms exactly as they are *

defined in title III of Public Law 90-351:

Telephone Interception—wiretapping. The use of electronic, 

mechanicalj or other devices to intercept a wire communication for 

the purpose of obtaining information as part of a criminal investigation.

Eavesdropping—Electronic Surveillance. The use of electronic, 

mechanical, or other devices to intercept an oral communication for 

the purpose of obtaining information as part of a criminal investigation.

DOD Directive 5200.24 authorizes, under controlled circumstances, 

the use of telephone interception—or wiretapping— and nontelephonic electronic surveillance—eavesdropping—by DOD criminal 

and investigative agencies when there are reasonable grounds to 

believe that:

1. A criminal offense concerning the national security is involved; 

or 2. a felony has been or is about to be committed; or 3. telephone 

calls involved obscenity, harassment, extortion, bribery, or thre at of 

bodily harm have been made to a subscriber-user on a military base.

Wiretap and eavesdrop operations conducted by DOD are in full 

compliance with the policies and requirements established by the 

Attorney General and issued pursuant to 18 U.S. Code, chapter 119.

Let me stress most strongly that the DOD is not in the business 

of conducting electronic surveillance of civilians not affiliated with «

the Department. DOD Directive 5200.27 expressly forbids such practices except in narrowly defined circumstances. In other words, the 

wiretaps or eavesdrops DOD conducts are employed only in cases 

involving military or, in extremely rare cases, DOD civilian personnel provided the FB I has yielded jurisdiction.

The procedures I am about to describe are those instituted by the 

Attorney General for consensual wiretaps and eavesdrops. That is, at 

least one party has consented. All non-consensual cases, should any 

arise, must be referred to the Attorney General. None have arisen 

in DOD since the passage of P.L. 90-351 in 1968.

Under the Attorney General’s procedures and the provisions of 

DOD 5200.24, consensual wiretaps may be authorized by heads of 

DOD components or their designees for the investigation of criminal 

cases and harassing telephone calls. DOD components have issued 

regulations setting forth procedures and controls for these authorizations.
159

The Attorney General has adopted stricter rules in the case of 

eavesdrops. For consensual eavesdropping of nontelephone conversations, prior approval normally must be obtained from the Dep artment of Justice. Again, DOD Directive 5200.24 provides first tha t 

the head of the DOD component concerned, or his designee, must 

approve the proposed eavesdrop. Then it must be approved by the 

DASD/A before it is sent to the Attorney General requesting his 

approval. Attorney General regulations provide for emergency 

monitoring in advance of his approval to prevent the immient loss 

of essential evidence. In such cases, a full report of justification 

must be provided to him.

Each request for approval of proposed wiretapping or eavesdropping must contain a detailed statement as to the crimes and persons 

involved and a statement that the consent of one party has been 

obtained with his identity. All approvals are limited to 30 days, as 

are any renewals.

DOD Directive 5200.24 provides careful safeguards both as to the 

integ rity of equipment and any information obtained by their use.

The wiretapping and eavesdropping devices are carefully accounted for and stored under secure conditions by the investigative 

agencies of our Military Departments. Both categories of electronic 

devices are only authorized for use in approved cases under the 

supervision of experienced aegnts who have been instructed in the 

legal and private rights aspects of their use.

With respect to the information tha t might be received by wiretapping or eavesdropping activities, DOD Directive 5200.24 requires th at 

it be stored in app ropriate investigative files at a central location; that 

the information so stored is always identified, when used for any p urpose, as information which was obtained by wiretapping or eavesdropping; that access to information so stored is strictly controlled 

and recorded and tha t this information shall not be disclosed outside 

of the Department of Defense unless the head of the DOD Component concerned determines tha t disclosure is essential to governmental operations.

Finally, the Directive requires quarterly reports to the Secretary 

of Defense concerning the employment of wiretaps and eavesdrops, 

including those conducted in areas of the world where the substantive provisions of the Directive do not apply. We also have an annual 

summary and electronic equipment report to make to the Attorney 

General.

In recent years, wiretapping has shown an increase in cases involving drugs and telephonic bomb threa ts or other harassing calls. 

Eavesdropping activities have shown a marked increase over the last 

several years attributable almost completely to the narcotics and drui? 

problem.

Consensual intercepts, particula rly eavesdrops, have contributed 

significantly to our success in drug cases. However, because of the 

type and short duration of the calls, we have been only moderately 

successful in identifying the callers in bomb threats and similar 

cases. Both wiretapping and eavesdropping are essential elements in 

the DOD Law enforcement program.

Department of Defense programs and activities under DOD 

5200.24 which have been discussed would be affected adversely by
160

pending legislation relating to wiretapping and electronic surveillance. In particula r II.R. 9698 would prohibit the interception of 

certain communications unless all parties to the intercepted communication consent. The effect of II.R. 9698 would be to eliminate 

the use of wiretaps or eavesdrops in any criminal case. Obviously, 

none of the narcotic and drug cases which the M ilitary Services have 

investigated successfully on the basis of consensual intercepts unde rtaken in accord with the present law would have been possible if 

the prior consent of each of the parties had been a necessity.

The bill, in my judgment, would not impact on our administrative 

telephone monitoring procedures which are now based on actual or 

implied consent of all parties.

Mr. Chairman, I have appreciated the opportunity you have afforded the DOD to describe its policies and practices in the area 

of electronic surveillance. We realize tha t this is an area of balancing the rights of the individual on one hand and the legitimate needs 

of an organized society on the other. We believe our directives are 

not only in full compliance with the law and the Attorney General’s 

regulation but also have achieved tha t balance.

Mr. Drinan [presiding]. Thank you very much, Mr. Cooke.

In the absence of the chairman temporarily, I will begin the 

questioning.

On page 1 of your statement you indicate that the Department of 

Defense (DOD) Directive which restricts the use of wiretapping 

does not apply overseas. Does that mean that the DOD conducts 

warrantless national security wiretapping in the United States, as 

well as overseas, and to what extent, if you do that, is tha t approved 

by the Attorney General?

Mr. Cooke. Mr. Drinan, the Department of Defense does not 

conduct warrantless wiretapping in the United States, although the 

Directive does provide that in cases we would go to the Attorney 

General, as we do in the case of consensual eavesdropping exempted, 

as you know, from the provision of title II I. But, since the law has 

been passed, we have had no occasion in the United States to go to 

the Attorney General for a request for warrantless wiretap.

Mr. Drinan. What about overseas?

Mr. Cooke. Overseas, the Department of Defense Directive does 

not apply. By its terms, it is limited, as I indicated, to the United 

States, the Commonwealth of Puerto Rico and the U.S. territory.

Mr. Drinan. Does it apply to American citizens overseas?

Mr. Cooke. It does not.

Mr. Drinan. Therefore, was the wiretapping and surveillance of 

McGovern campaing workers in Germany in 1972 conducted in this 

manner, pursuant to an exception, if you will, or without the DOD 

Directive?

Mr. Cooke. Mr. Drinan, I am aware it goes back to July and 

August of 1973, and there appeared to be in the press a number of 

stories concerning alleged Army surveillance of U.S. citizens, 

foreign nationals and organizations, both foreign and domestic, 

based in the Federal Republic of Germany and in Berlin. The 

'Army looked into this matter, and I can only say at this time 

that, as you know, in February 1974, a complaint was filed in the
161

U. S. District Court for the District of Columbia against the Secretary of Defense and the Secretary of the Army and the entire chain 

of the Army Command responsible for intelligence activities in 

Europe concerning this alleged surveillance. The case is entitled, 

Berlin Democratic Club et al. v. Schlesinger et al. It alleges charges 

of illegal wiretapping, interception of mail, infiltration and penetration of meetings and maintenance of intelligence dossiers. It 

would be highly inappropriate for me to comment on a case now in 

litigation, and on the advice of the Department of Justice I would 

prefer not to discuss the facts involved in the lawsuit. I can add tha t 

the counter-intelligence measures th at were adopted by the Army in 

Europe have been conducted in accordance with our international 

obligations, the laws of the host nation in which troops are located. 

We are confident of the issue as presented in the pending litigation 

will be resolved in the government’s favor.

Mr. Drinan. Well, Mr. Cooke, would you answer my question? If 

these were conducted, I assume there is some record of it, and would 

that record be included in the quarterly and annual reports to the 

Secretary and to the Attorney General ?

Mr. Cooke. The record, as I said, would not be governed bv the 

provisions of our Directives because they are overseas. AVe would 

have a quarterly report of eavesdrops or telephone interceptions in 

areas outside of the purview of the directives.

Mr. Drinan. Where are they contained?

Mr. Cooke. The quarterly reports are sent into the Office of the 

Secretary of Defense.

Mr. Drinan. Could we have that quarterly report? You mention 

on page 10 tha t you do have these quarterly reports on warrantless 

national security surveillance. "Would you furnish us with one or 

more, and particularly with the one in which the wiretapping or 

alleged -wiretapping and surveillance of the McGovern campaign 

workers is noted ?

Mr. Cooke. Mr. Drinan, I have stated that the Department of 

Defense has no record of engaging in warrantless surveillance within 

the meaning of title II I of the law, because, as you know, the 

provisions of the law are limited, as are the provisions of our directives to the United States, to the Commonwealth of Puerto Rico and 

the United States territories and possesions. So, to use the term 

warrantless activities, or warrentless wiretaps overseas, I think is 

not the proper use of the term.

Mr. Drinan. Mr. Cooke, may I rephrase and clarify it.

On page 10 you sta te:

Finally, the Directive requires quarterly repo rts to the Secretary of Defense 

concerning the employment of wir etaps and eavesdrops, inclu ding those conducted in are as of the world where the substan tive provisions of the Directive 

do not apply.

Consequently, I am asking therefore that quarterly or annual 

reports, or both, which contain a record of all wiretaps and eavesdrops, including those conducted in areas of the world where the 

directive does not apply, be supplied.

Mr. Cooke. Mr. Drinan, we will attempt to furnish you that. The 

record of the wiretaps and eavesdrops conducted overseas of neces-
162

sitv in many cases contain information classified under th e provisions 

of the Executive Order 11652. I can give you totals righ t now if you 

are interested.

Mr. Drinan. We are very interested. Give us the totals.

Mr. Cooke. In calendar year 1973, in the Continental United 

States, and I will go through those first, if I may, the number of 

requests for approval of consensual or oral electronic surveillance, 

where we sent the requests to the Attorney General and got his 

approval, 48. Now, bear in mind these are not warrantless because 

these are the consent of one party. And under the provisions of 2511, „

section 2(C) and (D) of title TIT consensual taps are expressly excluded from provisions of title ITT. But, the Attorney General has 

seen fit to impose higher standards than the law and I think quite 

properly. •

The number of electronic surveillance cases reported by DOD 

components outside of the United States, the Commonwealth and 

territories during calendar year 1973 was a total of 42, sir. Tn the 

case of telephone taps, electronic or wiretapping, again consensual, 

but where the Attorney General has not said he demands advance 

approval, in the United States these consensual taps in 1973 totaled 

55, overseas, and in calendar year 1973, 27.

Mr. Drinan. Would you have those also, sir, for 1972?

Mr. Cooke. As a matter of fact I do, sir. Lot me run through them.

Air. Drinan. I f you would.

Air. Cooke. I do not think—let me preface this by saying the 

Attorney General’s memorandum about consensual taps dated October 16, 1972, and issued December 1, 1972. We only show one request 

and that was approved, but not used. Aly figures started essentially 

with 73, and I have them for the first quarter of 1974.

Air. Drinan. Air. Cooke, would you explain again the exact ruling 

of the Attorney General in October of 1972?

Air. Cooke. The Attorney General in October 1972, in a memorandum issued to the heads of Executive Departments and Agencies, 

subject, “Monitoring Private Conversations with the Consent of a 

Party,” expressly stated that this memorandum does not restrict any 

form of monitoring where all parties to the conversation consent, 

nor does it affect his existing instructions on the related matter of *

electronic surveillance without the consent of any party to a conversation. This memorandum established procedures whereby in the case 

of a—and I am now quoting from page 5 of the memorandum, and 

the administrative regulation concerning consensual monitoring of 

conversations, the Attorney General observed, “it is clear tha t such 

montitoring is Constitutionally and statutorily permissible, and, 

therefore, that it may be conducted without a judicial warrant.”

Bear in mind I am talking about consensual taps or surveillance 

which the provisions of 2511 of title XVIII, section 2(C) and (D) 

expressly state or exclude from the provisions of tha t section. These 

are interceptions for one of the parties to the communication has 

given prior consent to such interception, and this is the subject of 

the Attorney General’s memo. The Attorney General provided that 

for conversations other than telephone conversations:
163

. . . all Federal departments and agencies shall, except in the exigent circumstances, as discussed below, obtain the advanced authorization of the 

Attorney General or his designated Assistant Attorney General before using 

any mechanical or electronic device to overhear and trans mit or record . . .”

Mr. P rinan. Mr. Cooke, in view of that, assuming that the McGovern campaign workers would have been tapped, prior to October 

1972, what record would the POD have of th e alleged wiretap?

Mr. Cooke. Wiretapping? Mr. Prinan , the information we have 

had in the pending litigation tha t I discussed before was th at it was 

in 1973 t ha t these incidents took place, not 1972.

But, to return to the Attorney General’s memorandum with respect 

to telephone conversations, again where one party has consented, the 

Attorney General says that because the transmission of the participants’ conversations through a complex and far-flung network of 

wires, the common use of multiparty lines and extension telephones, 

and the possibility of an unseen participant permitting another person to listen have long been considered not to justify the same assumptions as tha t of a private, face-to-face conversation. Accordingly, the current practice of charging each departm ent and agency 

with a control of such consensual monitoring by its agents will continue. T hat is the provisions that are embodied in the directive which 

we have furnished you, sir.

Mr. P rinan. Going back to this question, Mr. Cooke, of consensual, 

and apparently implied consent, it is construed by PO P to mean 

constructive consent. Let me just give a hypothetical. If somebody is 

suspected of selling or using hard drugs, who is the consensual person in a wiretap conversation ? Would it be his superior officer, or 

who would in this case be deemed to have given consent?

Mr. Cooke. Mr. Prinan , I talked about implied consent only with 

respect to the four classes administered, or three classes of administrative telephone monitoring which were not for the purpose of 

criminal investigations. This is communications security, the command and control or operations center and traffic management, which 

really does not involve listening. But, in the case you cited we are 

talking about a law enforcement or a criminal investigation, where 

one of the two parties to th at phone call has consented to wiretap, or 

one of the parties involved in the telephone surveillance has.

Mr. P rinan. From the normal course of events, how would this 

person have consented? Is he an informer or a law enforcement 

official himself?

Mr. Cooke. In the normal course of our investigation in a drug 

case, and that is mainly where they arise here, we would be using an 

informer, a m ilitary man, or possibly one of the actual agents of one 

of our criminal investigations, who have succeeded in contacting the 

suspect.

Mr. P rinan. Has there been any challenge to that implied consent? You state tha t certain monitoring is considered to be given 

with the constructive consent of PO P personnel. Is there any statutory or judicial authority for the concept?

Mr. Cooke. I think the statement is essentially with respect to the 

communications security monitoring th at I described as the third of 

the three classes. There are several things. One is issued pursuant to
164

the National Security Act of 1947, as amended where there is a 

National Scurity Council Communications Security Directive, which 

among other things, provides that the heads of individual departments and agencies, with the responsibility for executing all measures required to assure the security of the Federal communications, 

and we are trying to protect an unsecure line, and the use of, or 

casual discussion of classified information on an unsecured line, and 

I would also observe this is done essentially in field exercise, in command posts and the like. I t is less than one percent of our phones at 

any time. I mean, during the year being subject to this monitoring. 

Our directive provides for express prio r notice measures to all subscribers. And let me read tha t provision, if I may.

I am quoting now from DOD Directive 4640.1, para graph 

5( C)(2) :

Such regu latio ns referr ing to COMSEC mon itori ng shall be widely distri buted in all eleme nts of the Dep artm ent of Defense concerned, and shal l 

contain the following specific state men ts as a minimum for info rma tion and 

guidanc e of user s of Dep artm ent of Defense Telephone Communications Systems. The Commun ications Systems are, one, provi ding for tran smis sion of 

official governm ent information on ly; and, two, th at they are subje ct to communi cation s s ecur ity monitoring at all times.

Mr. Deinan. Mr. Cooke. T have th at reg ula tion here.

Mr. Cooke. I am quoting from page 44.

Mr. Drinan. Yes. I have it righ t here. But, I go back to my 

original question. Is there any authorization from Congress or the 

courts for this very broad understanding of constructive consent? 

Certainly this could not be done in General Motors, it could not be 

done in the Department of Labor with civilians. Is there any statutory or judicial authority for this concept.

Mr. Cooke. Fi rst of all, I think there is recognition of the requirement of this concept in 25 U.S. Code Title XVIII , 2511, which states 

in subsection (3) that nothing contained in this chapter shall limit 

the constitutional power of the President to protect national security 

information against foreign intelligence activities.

Mr. Drinan. Do you really th ink tha t th at justifies it?

Mr. Cooke. I think this justifies the communications security 

monitoring, and I will also add again that—and again I quote from 

our directive tha t the users have been notified, as outlined in paragraph 2(A) above, and the DOD communications system shall constitute consent to the communications security monitoring.

Mr. Drinan. Do you think a statute enacted by the Congress could 

protect the righ t of privacy of people in the military without any 

really severe or any damage to security?

Air. Cooke. No, I do not, and we are concerned that on an unsecure 

phone, and it is a natura l tendency because of the ease of talking on 

a phone, there are occasions where information, properly classified 

to protect national security, has been discussed on unsecured lines. 

And, believe me, we are targeted both here in the United States and 

monitored overseas by people who can listen to us. Again, let me 

emphasize the purpose of this is not law enforcement. The purpose of 

this is to advise commanders on actual or post-security compromises, 

and to improve the security protection of telephone communications.
165

The directive expressly states tha t information obtained as a result 

of telephone communications security monitoring shall not be used 

for law enforcement purposes.

Now. it is true tha t it says any proposed exceptions shall be submitted by the head of the DOD component concerned to the General 

Counsel for consideration. And I will state categorically we have 

never had a request for such an exception.

Mr. Drinan. Thank you, Mr. Cooke.

I yield at this time to my colleague from New York, Mr. Smith.

Mr. Smith. Thank you, Mr. Chairman.

Mr. Cooke, I think you just answered the question I was going to 

ask you and that was in regard to COMSEC information being 

authorized for law enforcement purposes. And you just said th at you 

never had such a request.

Mr. Cooke. We have never had although the directive does contemplate tha t possibility.

Mr. Smith. When you talk about that in connection with law enforcement, are you talking about military law enforcement or any 

kind o f law enforcement purposes?

Mr. Cooke. We are talking both, but essentially as you know, the 

Uniform Code of Military Justice, in its penal provision, which 

applies to all of our military personnel, in large measure repeats 

most of the offenses of title XVIII. generally. Rut, in our criminal 

law enforcement investigations in the United States, we are focusing 

almost exclusively on military personnel, very rarely on a civilian 

employee of the Department, and then only in terms of the delimitations agreement between the Bureau and the Department of 

Defense.

Mr. Smith. If I understood your statement, you are prohibited by 

regulations, if not by law, from monitoring civilians who do not 

have any connection with the military?

Mr. Cooke. Yes, we do. DOD Directive 5200.27 has a prohibition. 

We can furnish a copy of it. It expressly eliminates electronic or 

other surveillance except under some very narrowly, carefully defined circumstances, where it constitutes an immediate thre at to personnel or property. But, there is an express prohibition in the directive, sir.

Mr. Smith. And the civilians that might be monitored if I understood your statement correctly, who are employed by the Military 

Sendee, you may monitor them only if the FB I has in advance 

waived th eir right?

Mr. Cooke. If we are talking about criminal investigations, of our 

civilian employees, of course.

Mr. S mith. I can understand that. But, in criminal investigations?

Mr. Cooke. Yes. We had, as you know, a De-limitations Agreement with the Bureau as to who investigates many of the offenses, 

as I indicated, for military personnel, which could be subject to either 

tria l bv court-marital o r tr ial in a local or Federal court.

Mr. Smith. Let me ask you a possible for instance. For instance, 

if there were a civilian employed by the military, who was selling 

drugs as a moonlighter at home, this would probably be pursued by 

the FB I?
166

Mr. Cooke. I th in k so or local autho rities , yes, sir.

Mr. Smi th . Rut if you were selling drug s on the base, a military 

base, i t pro bab ly would be p ursued by th e military?

Mr. Cooke. Pu rsue d, perha ps inv estigate/! would be the be tte r 

word because we w ould have made arrang em en ts for juris dic tio n and 

fo r a crim inal tria l bv civil court.

Mr. Smith. I will accept th at amendmen t. Th an k you very much.

Air. Drin an. Tha nk you, Mr. Sm ith. I yie ld to ou r counsel for 

90me questions.

Mr. Lehma n. l\Tr. Cooke, I won der if y ou could clarify som eth ing *

you men tioned a lit tle earlie r, and th at is, did you mean to ind icate 

th at you would supply the com mittee with the qu arterly re po rt to 

the Secre tary of Defense and th e annual sum ma ry to the At torney 

Gen eral ? *

Mr. Cooke. I ind ica ted we would su pp ly you the num erical ta bu la r 

da ta fo r it. I wou ld wa nt to go back and check as to th e exact details 

of fac tual inf orma tio n, as to the fac ts involve d in such case. T th in k 

we can do th at , bu t reco gnizing th at some cases would have th e informa tion classified, and in othe r cases, there are oth er provisi ons of 

the Fre edo m of Inform ation Act, othe r th an classification which 

would impede public disclosure.

Mr. Drin an. Well, Air. Cooke, I would take it that is the sense of 

the committee, th at th e inform ation wou ld be very helpf ul, and we 

here by request it. We, obviously, will keep classified inf orma tio n 

classified.

Mr. Cooke. We will be back in tou ch on th at.

Mr. Drin an. OK.

Mr. Lehma n. A no ther question.

You supplied th e comm ittee, in response to the Ch airm an ’s lette r 

to the Secre tar y of Defense, with a copy of DO D Dir ective 5200.24 

dated Au gust 17, 1967.

[The exchange of correspo nden ce betw een th e Ch airma n and the 

De pa rtm ent o f Defense fol low s:]

House of Representatives. U.S.,

Committee on tiie J udiciary,

Washington, D.C., April 10, 1974-

Hon. J ames R. Schlesinoer, *

Secretary of Defense,

Department of Defense,

Washington, D.C.

My Dear Mr. Secretary : The Subcommittee on Courts, Civil Liberties, and 

the Administration of Jus tice of the House Jud iciary Committee has scheduled 

hearing s on April 24, 26, and 29 on wiretapping and electronic surveillance. In 

orde r th at the Subcommittee may be adequately informed about the surveillance 

practices of the Departm ent of Defense, I would appreciate your replying to 

the following questions by close of business, April 18.

1. Does the Department perm it monitoring of incoming or outgoing telephone calls by third perso ns: a. with the consent and knowledge of both parties to the call? b. With the consent and knowledge of only one par ty to the 

call? c. Without the consent and knowledge of either party to the call?

2. Does the Dep artm ent permit monitoring of telephone calls betwen telephones within the Departm ent under the circumstances described in a, b, and 

c above?

3. Does the Dep artm ent have any rules or regulations covering telephone 

monitoring, recording, and surveillance? If so, please provide two copies.
167

4. Does the Dep artm ent perm it the use of wiretapping or electronic surveillan ce as an inve stigativ e technique by mil itary police agencies invst igating suspected crim inal viola tions ?

5. Does the Dep artm ent ever utiliz e non telephonic electronic surveillance 

devices of any kin d? If so, of what type and for wh at purpo ses?

6. Does the Dep artm ent possess telephonic recording devices ? If so, how 

many, and is a beej)er or othe r warn ing device requ ired to warn partie s to 

the ca ll of the recording ?

If you or your staff have any question s rega rdin g this reque st please call 

Bruce Lehman, Subcommittee Counsel, 225-3926.

Sincerely yours,

R obert W. Kas te nm eie r,

Chairm an, Subcommittee on Courts, Civil Liberties and the

Adm inist ratio n of Justice.

Off ic e of th e A ss is ta nt Secretary of Def en se,

Washington, D.C., April 19, 1971f.

H on . Robert W . Kas te nm ei er,

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of

Justice, Committee on the Judiciary, House of Representatives, Washington, 11.C.

Dear Mr. Cha ir m an : Your let ter to Secre tary of Defense Schlesinger of

April 10, 1974, rega rding wiretajipdng and elect ronic surveillance has been 

refe rred to me for reply.

The Depa rtme nt of Defense separat es wire tapp ing and electronic surv eillance into two categ ori es:

1. Telephone monitoring.

2. Telephone interception (wi retapp ing ) and eavesdropping (elec tronic su rveilla nce) employed dur ing the conduct of inve stiga tions for law enforcem ent 

purposes in the United States.

Telephone monitoring in tur n is divided into fou r c las ses:

1. Office telephone—Listening to or record ing office telephone communications 

by use of mechanical or electron ic devices or recor ding by wri tten means, for 

th purpose of obtaining an exac t reprod uction or a summary of the subst ance 

of the telephone conversation.

2. Command center communications.—Liste ning to or recording telephone 

communications in DoD command cente rs for the purpose of obtaining a record 

of con versations, or pa rts thereo f, for command purposes.

3. Communications secur ity.—Listening to or record ing the transmission of 

official defense infor mation over DoD ow’ned or leased telephone communications, by any means, for the purpose of determin ing whe ther such info rma ­

tion is being properly protected in the int ere st of national security.

4. Communications management.—Listen ing to or recordin g telephone communication s on DoD-dedicated systems or the common-user systems of the 

Defense Communications System, by any means, for the purpose of dete rmin ­

ing whether the systems are functio ning properly or being used fo r othe r 

tha n official purposes.

The following answ ers are keyed to your question s which have been included 

verbatim for ease of reference.

Question 1. Does the Depa rtme nt perm it monitorin g of incoming or outgoing telephone call s by third persons: a. with the consent and knowledge 

of both par ties to the call?

Answer. (1 ) Office telephone monitoring is permitted only with the consent 

of all partie s to the call.

(2 ) Command cent er communica tions recording is authorized for command and communications purposes pursu ant to regu latio ns issued by the 

head of the DoD component concerned in command cente rs such as the National Military Command Center in the Pentagon.

(3 ) Communications security monito ring is underta ken only as specified 

in regulations issued by the head of the DoD component concerned to provide
168

for analysis and to deter mine the degree of secu rity being afforded telephone 

transmissions.

(4 ) Communications managem ent monitoring is unde rtake n only to provide 

material for analyse s with in DoD to determin e the operational efficiency and 

proper use o f DoD communications systems.

Question lb. With the consent and knowledge of only one par ty to the cal l?

Answer. (1 ) Office telephone monitoring is not autho rized unless the consent of all par tie s is obtained.

(2 ) The oth er thr ee classes of telephone monitoring are permitted as described in the replies to question l.a. above.

Question lc. Without the consent and knowledge of eith er par ty to the cal l?

Answer. (1 ) No. See a nswe r to question l.a. (1 ) above.

(2 ) DoD directiv es and implementing regulatio ns relating to the oth er thre e 

classes of telephone monitoring presc ribe wide advance notice of such moni toring to users, tan tam ou nt to consent.

Question 2. Does the Departm ent perm it monitoring of telephone calls between telephones wit hin the Dep artm ent under the circum stances described 

in a, b, and c above ?

Answer. The answers to question 1 also apply to telephone calls with in the 

Departm ent of Defense.

Question 8. Does the Dep artm ent have any rule s or regu latio ns covering 

telephone monitoring, recording, and surv eilla nce? If so, please provid e two 

copies.

Answer. DoD policy with respe ct to telephone monitoring is conta ined in 

DoD Direc tive 4640.1 DoD policy with resp ect to telephone interception and 

eavesdrop ping is conta ined in DoD Direc tive 5200.24. Copies of both directives 

are attac hed.

Question 4. Does the Departm ent per mit the use of wiret appin g or electronic 

surveillance as an inve stiga tive technique by mil itary police agencies inve stigatin g suspected criminal violation s?

Answer. Yes. Wiretapping and eavesdropping may be autho rized for use by 

DoD criminal inve stiga tive agencies when the re are reasonable groun ds to 

believe tha t: 1. a crim inal offense co ncerning the national security in involved; 

or 2. a felony has been or is abou t to be com mitted; or 3. telephone calls involved obscenity, hara ssment, extortion , bribery, or th re at of bodily harm 

have been made to subscriber-user on a mil itar y base. The conditions under 

which such wire tapp ing or eavesdropping is conducted are specified in DoD 

Directi ve 5200.24.

Question 5. Does the Depa rtme nt ever utili ze non telephonic electronic sur ­

veillance devices of any kin d? If so, of wh at type and for wh at purp oses ?

Answer. As previously noted in the answer to question 4 above, the Depar tment of Defense uses non-telephonic electro nic surveillance devices. These devices include miniature tran smi tters, microphones and receiv ers which may use 

eith er wire or radio as a means of trans mission. They are employed in crimin al 

inves tigations prim arily involving alleg ation s of the sale of narc otics and 

dange rous dru gs af te r responsible superv isory officials have determined that 

non-electronic inve stiga tive techniques would not provide the evidence needed 

or prot ect the mil itar y personnel involved. Their use is subje ct to the policies 

prescribed by the A ttorney General.

Question 6. Does the Departm ent possess tlephon ic recording device s? If 

so, how m any, and is a beeper or other war ning device required to warn par ties 

to the call of the recording ?

Answer. Yes. Of of Jun e 30, 1073, DoD possessed 755 telephone recordin g 

devices. DoD Direc tive 4640.1, “Telephone Monitoring,” requires th at any recording device used for office telephone monitorin g mus t be equipped with a 

beeper or oth er war ning devices. The use of the warning tone is in addition 

to the requ irem ent for prior consent by all pa rties particip ating . Warning devices are not used in connection with command cente r communications recording, communications security monitoring, communications manag ement monitoring or telephone interc eptio ns conducted dur ing criminal inves tigatio ns.

Sincerely,

D. O. Cooke,

Deputy Ass istan t Secretary of Defence.

Attachments.
169

Department of Defense,

Aug ust 17, 1967.

Department of Defense Directive

Su bject: Telephone Interception and Eavesdropping

Referen ces: (a) Section 605 of the Communications Act of 1934, as amended 

(47 U.S.C. 605)

(b) Presidential Memorandum for the Heads of Executive Departme nts and Agencies, Ju ne 30, 1965

(c) Memorandum to the Heads of Executive Department and

Agencies from the Attorney General, Jun e 16, 1967

(d) Deputy Secretary of Defense Multiple-addressee Memorandum,

“Reporting Intercep tion Activities,” August 10, 1966 (C) 

(hereby cancelled)

I. PURPOSE AND SCOPE

This Directive implements references (a ), (b) and (c), and sets forth 

the policies and restrictions governing telephone interception and eavesdropping by DoD personnel engaged in the conduct of investigations for law enforcement purposes in the United State s. It also establishes cer tain worldwide repo rting requirements regarding storage, inventory, and use of interception and eavesdropping devices by DoD Components in the conduct of 

such activities.

II. CANCELLATION

Reference (d) is hereby superseded and cancelled.

III. APPLICABILITY

This Directive is applicable to all DoD Components. It does not apply to activitie s which are related direc tly to the protection of the national security.

IV. DEFINITIONS

Fo r the purpose of this Directive, the following definitions apply :

A. Wiretapping—the act of listening to or recording of any telephonic conversation by the use of any electronic, mechanical, or other device without the 

advance consent of all of the partie s to the con versation; sometimes referred 

to herein as interception.

B. Eavesdropping—the act of liste ning to or recording of any conversation 

other tha n telephonic by the use of any electronic, mechanical, or other device 

withou t the advance consent of all of the parties to the conversation.

C. Heads of DoD Components—the Secretaries of the Military Departments 

(or if they so designate, the Under Secretary, Assistant Secretary, the principal staff officer responsible for the investig ative activity concerned, or the 

head of the investigative agency concerned), the Directo rs of the Defense 

Agencies, the Chairman of the Joint Chiefs of Staff, and the Assistant Secretary 

of Defense and other activities assigned for adm inistrative support.

V. WIRETAPPING

A. To insu re the privacy of telephone conversations to the maximum practical extent, the interception of telephone conversations is prohibited unless 

there are reasonable grounds to believe t h a t:

1. A criminal offense concerning the national security is involved ; or,

2. A felony has been o r is about to be com mitted; or,

3. Telephone calls involving obscenity, harassment, extortion, bribery, or 

thre at of bodily harm have been made to a subsc riber-user on a military base 

under the jurisdiction of the Dep artm ent of Defense.

B. National Security Investigations—The following requirem ents must be 

me t:

1. One of the parties has freely and voluntarily consented in advance to the 

Interception. If none of the parties has consented in advance, the interception must be approved by the Attorney General in advance, see paragraph 

V.F.3., below; and,
170

2. The intercepti on has been approved in advan ce by the Secr etary of the 

Milita ry Dep artm ent concerned (o r his specific designee ), or the Ass ista nt Secret ary of Defense (Ad min istr atio n) for all oth er DoD Components. C. Felony Inve stiga tions—The following requi reme nts mus t be me t: 1. One of the partie s has freely and volu ntar ily consented in adv ance to 

the int erc ept ion ; and, 2. The interc eptio n has been approved in advance by the Secretary of the Milita ry Dep artm ent concerned (or his specific desi gne e), or the Ass ista nt Secret ary of Defense (Ad min istr atio n) for all oth er DoD Components. D. Inve stiga tions Involv ing On-Base Telephones—The following requ irements must be met : 1. The subs cribe r-user of the telephon e has requested the inve stiga tion of teleph one calls involving obsecurity , har assmen t, exto rtion , briber y, or th re at of bodily harm and, in writ ing, freely and volu ntar ily consents in advance 

to the w ire ta p; and, 2. The telephon e and wir eta p are locate d on an ins tall atio n und er the ju risdiction of the Departme nt of D efen se; an d.

3. The head of the investigat ive un it has approve d the inter cept ion in ad­ vance in accorda nce with the rules presc ribed by the Head of the DoD Component concerned. E. The proh ibitions and restrictions of thi s Section V. apply whe ther or not the info rma tion which may be acqui red thro ugh interc eption is intend ed to be used in any way or to be subsequently divulged outside the Dep artm ent of Defense. Any questio n as to whether the use of a pa rti cu lar device can be said to involve a prohib ited inter cept ion of a telephone conversation shal l be subm itted to the Genera l Counsel of the Dep artm ent of a Defense for conside rati on. F. A requ est for appro val und er subsection s V.B. and C., above, shall include the info rma tion outlined in Enclo sure 1. 1. Approval will not be gran ted for more tha n 30 days, and the wir etap will be term inat ed as soon as the desired info rma tion is obtained. 2. Renewal requ ests for specified perio ds of not more tha n tha n 30 days may be subm itted to the app ropr iate appro val author ity fo rcon sidera tion. 3. If the approval of the Attorney General is require d, the requ est shall be sent to the Ass ista nt Secret ary of Defense (Ad minis tration) who, if he conside rs it justified, will forwar d it, and subseq uent renewals ther eof, to 

the Attorne y General.

VI. EAVE SDRO PPING

A. To prot ect the rig hts of privacy, eavesd roppin g is prohibited if the list en­ ing to or record ing of a conversa tion involves a violatio n of the Const itutio n or a statute. This prohibitio n includes eavesd roppin g in any form which is accomplished by means of physical tres pas s or entry. It also may include eavesdro pping prac tices which intrud e upon the conve rsation s between person s whose rela tionship is trad itio nall y conside red privilege d (such as lawye r-client and doc tor- pat ient). Fu rth er, even though it may be accomplished witho ut physica l tres pas s or entry, it may also be unla wful if it invades the sanctity of a man's home, priva te office, hotel room, automobile, or oth er physical 

are as deservi ng p rotec tion of t he rig ht to privacy . B. In ord er to lim it eavesdrop ping not other wise prohib ited by subsection VI.A., above, eavesd ropping is auth orized wit hou t the conse nt of all of the 

pa rtie s only und er the following con diti ons : 1. Ther e are reason able grounds to believe th at a crimi nal offense concern­ ing the nat ion al secu rity is involved, or th at a felony has been or is abou t 

to be com mit ted ; and, 2. Advance wri tten approval has been obtain ed from the Attorn ey General, see par agr aph VI.B.3., below. A requ est for appro val und er this par agr aph must include the information outlined in Enclos ure 1. Approval will not be gra nte d for more tha n 30 days, and the eavesd rop will lie term inat ed as soon 

as the d esired i nfor mat ion i s obtained : and. 3. The reques t shal l be sent to the Ass ista nt Secre tary of Defense (Ad­ mi nis tra tio n) who, if he considers it justi fied, will forw ard it, and subse­ quent renew als ther eof for not more tha n 30 days, to the Attorne y General.
171

C. If, in the judg men t of the Head of the DoD Component concerned, ar

his specific designee, the emergency needs of an inve stiga tion preclu de obta ining 

the advance appro val of the Attorne y Genera l as required by par agr aph VI.B.2. , 

above, he may, with out th at appro val, auth oriz e the eaves dropp ing required 

by the inves tigat ion. He shall, with in 24 hour s af te r author izin g the eavesdropping, provide the Attorne y General, with a copy to the Assistant- Se cret ary 

of Defense (A dm ini str ati on ), with the info rma tion outlin ed in Enclo sure 1. 

He shall include an explanat ion of the circu mstances upon which he based his 

judgm ent th at the emergency needs of the inve stiga tion preclud ed the obtai ning 

of the advan ce approval of the Attorney General.

v n . PBOCEDUBES AN D REPORTS

A. The Hea d of each DoD Component concerned shal l requ ire, und er the 

adm inistra tive contro ls provided by thi s Directi ve, the following.

1. Th at when wire tapp ing or eavesdr opping is autho rized , the investig ative 

agen t sh al l: a. If techn ically feasible , perm anen tly record the conv ersat ions 

concerned on tape or oth er recordin g me diu m; b. prese rve the recordi ng, togeth er with any logs, tran scr ipts, summ aries, or memo randa th at are made 

concerni ng the conv ersat ions; and, c. rep ort in writ ing to the Head of the 

DoD Component describ ing the uses made of each device for wire tapp ing or 

eavesdrop ping.

2. As to info rma tion obtain ed by wire tapp ing or eavesd ropping , th at : a. 

Info rma tion is stor ed in an app rop riat e inve stiga tive file at a cen tral location ; b. info rmation so store d is alw ays identified , when used for any pu rpose, as info rmation obtained by wiretap ping or eave sdro pping; c. access to 

information so store d is stri ctly contr olled and rec ord ed; and, d. information 

so store d sha ll not be disclosed outside the Dep artm ent of Defense unless the 

Head of the DoD Component concerned dete rmin es th at disclosure is esse ntia l 

to gover nment al operati ons.

3. As to recor ds and devices used fo r wire tapp ing and eavesdr opping, th at : 

a. Devices are obtain ed only to the ext ent necess ary for use in confor mance 

with this Di rec tiv e; b. un its be desi gnated to mainta in and control dev ice s; 

c. cent raliz ed recor ds be mai ntain ed of the inven tory and use of devices. (A 

recor d mus t include the date a device was assigned to an agen t, the date 

he retu rne d it, and his ref>ort und er subp arag raph VII. A.l.c., above, on its 

use ) ; d. the need for devices be re-ev alua ted once a yea r; and, e. all record s 

are m aint aine d for a period of six years.

B. The Head of each DoD Component shall rep ort to the Assist ant Secretary 

of Defense (Ad min istr ation) as follows:

1. Before the ten th day of each month sta tin g whe ther there was any wire ­

tapp ing or eaves dropp ing durin g the preced ing month by person nel of the 

DoD Component concerned (a ) in the United States or (b ) elsewhere, if any 

pa rty to the conve rsatio n was a citizen of the United State s. The rep ort mus t 

include all info rma tion in Enclos ure 2.

2. Before Jul y 10, annu ally, giving a complete invent ory of all devices in 

the DoD Component concerned th at are prim arily designed for wiretap ping 

or eavesdr opping. The repo rt shall include a stat eme nt th at the inven tory is 

being mai ntai ned at the lowest level th at is consis tent with ope ratio nal requirem ents.

C. The Assist ant Secre tary of Defense (Ad minis tration) sha ll rep ort by 

Jul y 31, ann uall y, to the Attorn ey Genera l on all uses of devices for wiretapping and eavesdr opping in the Dep artm ent of Defense duri ng the previo us 

fiscal year, to include, in each case, the info rmation in Enclos ure 2. The report s hall contain the Depa rtme nt of Defense inven tory of devices.

v r n . REPORT CONTROL SYM BOLS

The rep ort s requ ired by par agr aph s VI I.B .l. and VII.B.2. have been as ­

signed Rep ort Control Symbol DD -A(M )79 5 and Rep ort Control Symbol DDA(A )79 6, respectiv ely.
172

IX. EFFE CTIVE DATE IM PL EM EN TA TION

This Directi ve is effective immediately. Two (2 ) copies of the implementing instruct ion shall be forw arded to the Assist ant Secretary of Defense (Admin istr ation) within sixty (6 0) days. When implementation is conta ined in 

more tha n one issuance, one complete set sha ll be appr opriate ly mark ed to indica te the implemented sections of this Directi ve. Two (2 ) copies of supe rseding, supplementing, or amending issua nce will be forw arded to the Assis tan t Secreta ry of Defense (Ad minis tration) no la te r tha n fifteen (1 5) days 

after publication.

R obert S. McNamara,

Secretary of Defense.

Enclosures.

I nformation T o Be I ncluded in a Req ue st for Approval of Proposed

Wiret ap pin g or E avesdro pping

1. Indi cate w het her the requ est is for a wiretap or an eavesdrop.

2. The purpose. To the ext ent possible, describe the conversation expected 

to be interce pted.

3. Ide ntit y of a ll perso ns und er investigatio n, or affected.

4. Stateme nt if an y party has consented, and if so, his identity.

5. With respe ct to the par tic ula r op erati on : a. Ide ntity of the operatin g 

uni t; b. types of equip ment to be used, if any, to Include method of tran smission and recording dev ice; c. mann er or method of ins talla tio n; d. physical 

location, to include the address, telephone number, room number, whe ther inside or outside a building , public or pri vate property, and the means of access; and e. the expect ed period of time for the operatio n. (Th e perio d should 

be as sho rt as possible compatible with operationa l nec essi ty).

I nforma tion T o Be I ncluded in Wiret ap pin g or Eavesd ropping Reports

1. Ind icat e whether the report is on a wire tap or an eavesdrop.

2. Ide ntity of t he persons aga inst whom direc ted

3. Location.

4. Ide ntity of th e perfo rming o rgani zational unit.

5. Type of equipme nt used and mann er and method of installatio n.

6. Approval authority.

7. Durat ion.

8. Purpo se served.

9. Evaluat ion of res ults of operations th at were completed duri ng the report ing period.

Mr. Lehma n. I s th at the most recent DO D wr itten policy, on 

eav esd rop pin g ?

Mr. Cooke. Well, let me make th is observatio n. That directive is 

in the process o f revision. It is t he most rec ent official dire ctive. But, 

of course, it has also been supplemented and the procedures are consisten t with th e At torney Ge ner al’s 1972 memorand um, whi ch we 

discussed earlie r.

Mr. Lehma n. O f course, th at 1972 memorandum covers consensual 

wiretaps .

Mr. Cooke. A s I ind icated, we are no t involve d in the business of 

nonconsensual wiretaps .

Mr. Lehma n. Nevertheless, you could con duc t nonconsensual 

eav esd rop pin g un de r a court warrant, could you not? An d does no t 

the 1968 law, whi ch postdate s y our reg ula tion, pro vid e certa in------

Mr. Cooke. Yes, we could. As a m atter of fac t, the reg ula tion, the 

directive so provides. Bu t, in the case th at we wanted to con duct a 

nonconsensual wi thin the mea ning of title I II , we would have to go
173

to the Attorney General and he presumably would have to, following his procedures, would have to get court authorization. But, the 

point I want to make tha t since the passage of the law, we have not 

had the occasion to do that.

Mr. Lehman. If one of our military investigative agencies wanted 

right now to conduct such a surveillance, how would they know tha t 

a court order was required, if the regulation predates the present 

iaw?

Mr. Cooke. Well, the regulation, as it now stands, shows tha t request has to come up to the head of the DOD component or his 

designee, with certain specified information. That, in turn, comes to 

my office and I would send it under the terms of the regulations, as 

it now exists, to the Attorney General, and they would not move without the consent. So, once it is sent up to me and it comes up to me, 

not only for the consensual eavesdrops we are talking about, in accordance with the Attorney General’s memorandum, but in the event, 

which I emphasize has not occurred, of a nonconsensual, it would be 

treated the same way and it would go over to the Attorney General. 

And then we would need his approval, and I would presume th at the 

Attorney General would then seek the court authorization. The directives does not give either to one of our criminal investigative 

agencies, or, for tha t matter, to the Secretary of Defense the right 

to apply directly to the court.

Mr. Lehman. Do you anticipate that very shortly you will be coming out with a new directive which will recognize title II I of the 

19G8 law?

Mr. Cooke. Yes. As I indicated, I think our directive plus some 

modifications incorporated in the Attorney General’s memorandum, 

are fully consistent with title II I. But, like any other piece of official 

paper they should be updated and clarified with experience.

Mr. Lehman. And you have plans to?

Mr. Cooke. We have a draft revision well underway. I am not 

going to say 2 weeks from now, or 2 months from now, but they are 

well underway.

Mr. Lehman. I have one other question, and I am not sure that 

you covered it previously in your testimony. That is, what is the 

legal authority which the Department relies on for surveillance for 

American citizens outside of the United States? What statutory or 

judicial authority would you have for that?

Mr. Cooke. Fir st of all, I share the opinion expressed by the 

Assistant Attorney General, Petersen, that the dividing line, obvious, 

is not or should not be citizen, noncitizen. The provisions of title I I 1 

expressly exclude in their geographical application any activity conducted outside of the United States, its territories and possessions. 

I think the test is the function of the American citizens, some of them 

in uniform, by the way, and most of them in uniform in Europe and 

elsewhere. I am not aware of any statutory, judicial restrictions, 

talking of any limitation on surveillance overseas.

Mr. Lehman. I s it your impression then that the fourth amendment 

requiring, of course, court approval of wiretapping does not apply 

to American citizens living overseas?

35 -3 91 — 74 ------ 12
174

Air. Cooke. No. I ce rta inly would no t wa nt to go th at far . An d I 

would think th at any activ ity we un de rta ke overseas is certa inly 

consensual within the m ea ni ng of section 2511 of the U.S. Code. And , ap paren tly , to the ex tent to which the Pu blic Law 9351 tre ated the problem, it made th at dis tin ction by lim iti ng its applicat ion to the 

Un ited Sta tes, its territo ries and possessions.

Mr. Lehma n. Wa s th e wiret ap involved in th e Be rli n Dem ocratic Clvb case, was t hat a consensual wi ret ap?

Mr. Cooke. I am rea lly not th at fa m ilia r with the case. As T said , 

these are allega tions in pending litigation, an d I cer tainly am not 

familiar w ith t he facts of t he case.

Mr. Lehma n. So, it is your position th at among those overseas 

wir etaps which you g ave us some statist ics on ju st a few min utes ago, 

none were an ythi ng other than consensual wiretaps ?

Mr. Cooke. As the y are defined by the law, yes. An d let me also 

assure you, and I will rep eat this again , th at any of our act ivities 

overseas are very ca refully circumscribed bv the St atus of Forces 

Agr eem ent, by the laws of the host natio n and the like.

Mr. Lehma n. So you do not con duct eav esd rop pin g wi tho ut the 

consent of at lea st one pa rty to the con versation overseas on Am erican citizens? Can you mak e th at flat sta tem ent?

Mr. Cooke. No, I certa inly cannot mak e th at flat statem ent, partic ula rly since, as I poi nted out, and you ha d an exte nded discussip n 

with the As sis tan t At torney Gen eral on th e problem s of intelligence, 

positive intelligen ce connections.

Mr. Drin an. T ha nk you, Counsel.

I have one ad dit ion al question.

On page 10 of your testimo ny, you cite DO D Direc tive 5200.24 , and I find it trou blesom e because the dir ectiv e is, in my jud gm ent, 

ra th er vague, in th at inf orm ation so stored shall not be disclosed 

outside th e De pa rtm en t of Defense unless the head of th e DO D component conc erned dete rmines th at disc losu re is esse ntial to governmental ope ration s. An d I think you would hav e to admi t th at th at 

is a p retty v ague and ambiguo us norm, especially Gov ernment op erations. I am wondering if there is any reco rd th at the head of each 

DO D com ponent mu st make, when he reveals his inf orma tio n ou tside of DOD, and wh at would “esssential to Government o peration s” 

mean in rea lity?

Mr. Cooke. I am not awa re of a reco rd. I can check th at for you, 

Air. Dr ina n. Bu t, I would suspect it might be, pa rti cu larly in man y 

of our drug abuse cases where we are worki ng very closely with the 

Burea u, or pe rhaps local autho riti es, where civ ilia n pus hers ar e involved, as well as military wholesalers selling to our people on base. 

An d I th in k th at cle arly th at would come under the provisions of 

esse ntial gov ernme ntal purposes.

Mr. Drin an. We ll, the regu lation does no t s ay th at at all.

Air. Cooke. I realize th at th e reg ula tio n in th at reg ard is somewhat broadly worded.

Air. Drin an. H ow ma ny people would there be in the catego ry of 

hea ds of the DO D components?

Air. Cooke. E ssen tia lly it is the Secre tary of the Army , Nav y, Air 

Force, t hat hav e the c rim ina l inv estiga tive agencies under t he ir juris-
175

dictions, and it would be they or their designee, a specific designee 

and not a blanket designation.

Mr. Drinan. If I may ask you or your aides, is there any record of complaints by people who feel that their privacy has been invaded 

by this frankly very sloppy, regulation?

* Mr. Cooke. We have had no record of complaints on the basis of 

this directive as such. As you are aware, we are in some pending litigation. The most current of that litigation now is the Berlin

Democratic Club against Schlesinger et al.

Mr. Drinan. Mr. Smith?

Mr. S mith. No questions.

Mr. Drinan. One final question: Did you have any suggestion for the committee as to what areas 

of privacy we could protect?

Mr. Cooke. I have no specific suggestion at this time.

Mr. Drinan. All right. Thank you very much. sir.

[The statement of Secretary Cooke follows :J

Statement of David O. Cooke, Deputy Assistan t Secretary of Defense

Mr. Chairman and Members of the Committee, I am here in response to your invitation to the Secr etary of Defense to furnish info rma tion in connection with your inquiry into changes to Titl e II I of the Omnibus Crime Control and Safe Streets Act of 1908, and to provide info rma tion rela ting to the policies and procedu res by which wire tapping and electro nic surveillance are auth orized and contro lled with in the Dep artm ent of Defense. For management purposes, the Dep artm ent has placed wiret appin g and electro nic surveillance activit ies into two sep arate categori es. Dep artm ental policies and proce dures which limit the use of telephone moni­ toring and control the use of info rma tion obtain ed by thi rd parties, are set fort h in Dep artm ent of Defense Direc tive 4640.1, “Telephone Monitoring.” DoD policies winch res trict the use of wiret appin g and eavesdropping durin g the conduct of invest igations for law enforcem ent purpo ses ar e published in DoD Direct ive 5200.24, “Telephone Inter ception and Eavesdropping.” Both of these direc tives apply to the United States, the Commonwealth of Puer to Rico and U. S. terr itor ies. They do not apply elsewhere overseas, nor are they applicable to our foreign intellige nce collection activi ties. Copies of the two Directives 

were provided to your Committee last week. Fir st, I would like to discuss telephone monitorin g which is adm inis trative ra th er tha n investigative in purjwse. Ther e are fou r class es of telephone monitoring . They are:

Office telephone.—Liste ning to or recordin g office telephone communications by use of mechanical or electro nic devices or recording by wri tten means, for the purpo se of obtaining an exact reproduction or a summ ary of the substance of the telephone conversation and with the consent of all parties . Command center communications.—Listening to or recording telephone communications in DoD command cent ers for the purpose of obtaining a record of conversations, or pa rts thereof, for command and control puri>oses.

Communications secur ity.—Listening to or recor ding of the transmission of 

official defense info rma tion over DoD-owned or leased telephone communica­ tions. by any means, for the purpose of determining whethe r such infor mation is being properly prote cted in the inte res t of national secur ity. Notice of thi s action is given to user s th at these systems ar e subje ct to communications 

secur ity monito ring at all times. Communications management.—list en in g to or recor ding telephone communicatio ns on DoD-dedicated system s or the common-user systems of the Defense Communica tions System, by any means, not for the contents but for the pu r­ pose of determ ining whe ther the systems are functionin g properly for official purposes. Almost every phone company has a cou nte rpa rt activ ity. The first class of telephone monitoring is one in which you are all fam iliar, called office monitoring. With the use of eith er a recorder equipped with
176

“beeper” or with a stenographer, it requires the advance consent of all partie s 

to the conversation. Office telephone monitoring, in such cases, is a valuable 

management tool to reflect the exact natur e of agreements and unde rstandings 

achieved by telephone. One of the par ties to the conversation may be outside 

the DoD but again let me emphasize that all par ties concerned must consent 

to office telephone monitoring.

The other three classes of telephone monitoring are largely internal. Th at 

is, they are direc ted to the manner in which DoD military and civilian personnel use telephones which are pa rt of DoD communications systems.

Telephone monitoring in command centers, for communications secu rity and 

for communications management purposes, does not require express consent 

in each case. The purpose of command center monitoring is to obtain accurate 

records for command and control purposes of official calls to a command 

center. Examples of the Command Centers are the National Military Command 

Center, its Alterate, the Airborne Command Post, the North American Air 

Defense Command Post, the Military Services Operations Centers in Washington, the Military and Security Police Operations Centers, Fire and Rescue 

Control Centers and Air Traffic Control Centers.

DoD monitoring for these Centers closely compares with the recordings 

made by the Fed era l Aviation Agency in its many ai r traffic control centers. 

Similarly, most police, fire, and rescue control cente rs in our large cities and 

counties monitor incid ent repo rts and requests for assistance to insure accuracy 

and for record purposes. Furtherm ore, command centers are able to record 

messages to be rebroadcast to subordinate and lat eral units.

DoD Directive 4640.1 requires for each center specific regulations be published prior to the initial operation of the recording equipment The existence 

of such monitoring, however, is required by DoD Directive 4640.1 to be so 

widely and expressly publicized throughout DoD and its components as to 

amount to constructive consent.

Our autho rity for this class of monitoring equipment and its use stems from 

communications common car rier tariffs which have been approved by the 

Federal Communications Commission. This class of monitoring is provided 

for in DoD Directive 4640.1, which I mentioned earlier.

Communications security monitoring (COMSEC monitoring) is the third 

class of adm inistrative telephone monitoring wihch is used albeit rarely on 

Department of Defense telephone circuits. The purpose of COMSEC monitoring 

is to provide a basis for analysis to ensu re th at classified information is 

not discussed on unsecure telephones.

This monitoring may only be conducted when auth orized by the Commander 

or DoD official in charge of an installatio n or activity or his superior. Let 

me stress that security organizations organized and equipped to perform communications security monitoring are not authorized to monitor communications 

systems on the ir own initia tive. Communications security monitoring is employed infrequently. Less tha n 1% of our telephones are monitored for security 

in any given year.

The lines selected for security monitoring consist mainly of command posts, 

major operational headquarters, war rooms, and field exercises both in the 

United States and overseas.

Let me emphasize that the purpose of COMSEC monitoring are to advise 

commanders on actual or possible secu rity compromises and improve the 

security protection of telephone communications.

DoD 4640.1 expressly states that the information obtained as a result of 

telephone communications security monitoring shall not be authorized for law 

enforcement purposes unless the General Counsel authorizes an exception in 

a specific case.

The last class of adm inistra tive telephone monitoring is Communications 

Management Monitoring, often called service observation. Service observation 

is conducted largely by computer analysis and pay count methods rather than 

by actu al listening to telephone conversations in progress.

Tt is a tool used to determ ine if telephone systems are functioning properly, not with the contents of conversations, but with such things as the 

precedence and number of calls, the ir duration, response to signals, number 

of busy signals for a given time period, total load on a system in numbers 

and dura tion of calls, etc.
177

The purpose of adm inis trat ive telephone monitoring previously described 

is distinctly diffe rent from the purpose of wire tapping or eavesdropping. Telephone monitoring is to accurately prese rve records of conv ersat ions as in 

command centers or to analyze a total system for adher ence to protec tion 

of classified information as in COMSEC monitoring.

Wire tapping and eavesdro pping are used for the purpose of crim inal investigations.

Let me now turn to the Departme nt’s policies and procedures for telephone 

interception and eavesdropping techniques used in investigating crim inal cases. 

DoD defines these term s exact ly as they ar e defined in Titl e II I of Public 

Law 90-3 51:

Telephone Inter ception (W ire tap pin g). —The use of electronic, mechan ical, or 

other devices to inte rcep t a wire communication for the purpose of obtaining 

information as pa rt of a criminal inves tigation.

Eavesdropping (Ele ctro nic Surve illance ).—The use of electronic, mechanical, 

or othe r devices to inte rcep t an oral communication for the purpose of obta ining infor mati on as pa rt of a crim inal investigation.

Directive 5200.24 auth oriz es under controlled circum stances the use of telephone inter ception (o r wiretap ping) and non-telephonic electronic surveillance 

(eav esdr oppi ng) by DoD crim inal and inve stiga tive agencies when the re are 

reason able groun ds to believe th a t: 1. a crim inal offense concernin g the na ­

tional secu rity is involved; or 2. a felony has been or is about to be committed ; or 3. telephone calls involved obscenity , harassme nt, exto rition, bribery. or th re at of bodily harm have been made to a subscriber-u ser on a 

mil itary base.

Wir etap and eavesdro p operations conducted by DoD are in full compliance 

with the policies and requ irem ents esta blis hed by the Attorney General and 

issue d p urs uant to 18 U.S. Code, C hap ter 119.

Let me stre ss most strongly th at the DoD is not in the busine ss of conducing electronic surveillance of civilians no t affiliated with the Depa rtment. 

DoD Direc tive 5200.27 expressly forb ids such practices except in narrowly 

defined circum stance s. In othe r words, the wiret aps or eavesd rops DoD conducts are employed only in cases involv ing mil itar y or, in extre mely rare 

cases, DoD civilian personnel provide d the FB I has yielded juris dict ion.

The proce dures I am about to describe are thos e institu ted by the Attorney 

General for consensual wire tap s and eavesdrops. Th at is, at lea st one par ty 

has consented. All non-consensual cases, should any arise , mu st be referre d 

to the Attorney General. None have arisen in DoD since the passage of PL 

90-351 in 1968.

Under the Attorney General’s p rocedures and the provisions of DoD 5200.24, 

consensual wir etaps may be auth oribed by hea ds of DoD Components or the ir 

designees for the inves tigation of crim inal cases and har ass ing telephone calls. 

DoD Components have issued regu lations setting for th proce dures and controls 

for these auth oriz atio ns.

The Attorney General has adopted str icter rul es in the case of eavesdrops. 

For consensual eavesdro pping of non-telephonic conversations, pr io r approval 

normally mu st be obtain ed from the Depar tment of Just ice. Again, DoD Directive 5200.24 provid es first th at the head of the DoD Component concerned, 

or his designee, must approve the proposed eavesdrop. Then it mus t be approved by the DAS D/A before it is sen t to the Attorney General requesting 

his appro val. Attorney General regulat ions provi de for emergency monitoring 

in advance of his approval to preven t the imm inen t loss of esse ntial evidence. 

In such cases, a full rep ort of justi fica tion mu st be provided to him.

Each requ est for appro val of proposed wire tapp ing or eavesdropping must 

contain a deta iled stat eme nt as to the crime s and persons involved and a sta tement th at the consent of one party has been obtain ed with his iden tity. All 

appro vals are li mited to 30 days, as are a ny renew als.

DoD Directive 5200.24 provid es car efu l safe gua rds both as to the inte grity 

of equipm ent and any infor mati on obtained by their use.

The wire tapp ing and eavesdropping devices are care fully accounte d for and 

store d und er secure conditions by the inve stig ativ e agencies of our Military 

Departmen ts. Both catego ries of electronic devices are only authorized for 

use in approved cases und er the supervision of experienced agen ts who have 

been instructed in the legal and privat e rights aspects of the ir use.
178

With respect to the info rmation that migh t be received by wiretap ping or 

eavesdrop ping activ ities , DoD 520 0.2 4 requires th at it be store d in app rop riat e 

inve stiga tive files at a central loc ation; th at the info rma tion so stored is always identified, when used for any purpose, as info rma tion which was obtain ed by wireta pping or eaves dropp ing; th at access to info rma tion so store d 

is stri ctly controlled and rec ord ed ; and th at this info rma tion shall not be 

disclosed outside of the Dep artm ent of Defense unle ss the head of the DoD 

Component concerned deter mine s th at disclosure is ess enti al to govern menta l 

operati ons.

Fina lly, the Direc tive requ ires qua rter ly rep ort s to the Secre tary of Defense concerning the employm ent of wire taps and eavesd rops, incluldin g those 

conducte d in are as of the world where the sub stan tive provisio ns of the Direct ive do not apply. We also have an annual summ ary and electron ic equipmen t rep ort to m ake to the Attor ney General.

In rece nt years , wire tapp ing has shown an incre ase in eases involving drugs 

and telephoni c bomb thr ea ts or other hara ssin g calls. Eavesd roppin g acti vitie s 

have shown a marked incre ase over the las t seve ral yea rs att rib uta ble almost 

completely to the narcotics and dru g problem.

Consen sual inter cept s, par tic ula rly eavesdrops, have contribut ed significantly 

to our success in drug cases. However, because of the type and sho rt dur atio n 

of the calls, we have been only moderat ely successfu l in iden tifying the calle rs 

in bomb thr ea ts and sim ilar cases. Both wir etap ping and eavesdrop ping are 

esse ntia l elemen ts in the DoD law enforc ement progra m.

Dep artm ent of Defense prog rams and acti viti es und er DoD 520 0.24 which 

have been discussed would be affected adversely by pendin g legislati on rela ting 

to wire tapp ing and electr onic surveilla nce. In pa rti cu lar H.R. 969 8 would 

proh ibit the intercepti on of cer tain communica tions unle ss all par ties to the 

inter cept ed communication con sen t The effect of H.R. 969 8 would be to 

elim inate the use of wire taps or eavesdrop s in any crim inal case. Obviously, 

none of the narco tic and dru g cases which the Mil itary Services have in ­

vestigate d successfully on the basis of consen sual inte rcep ts unde rtaken in 

accord with the pres ent law would have been possible if the pri or consent 

of each of the par ties had been a necessity.

The bill, in my judgm ent, would not imp act on our adm inis trat ive tele ­

phone monit oring proc edures which are now based on act ual or implied consent of all part ies.

Mr. Chairm an. I have appreci ated the oppo rtun ity you have afforded the 

DoD to describe its policies and pract ices in the are a of electr onic surveilla nce. 

We reali ze th at this is an are a of balanc ing the rights of the indivi dual on 

one hand and the legi tim ate needs of an organ ized society on the other. We 

believe our direc tives are not only in full compliance wi th the law and the 

Attor ney Genera l’s regu latio n bu t also have achieved th at balance.

Mr. Drtnan. M r. William Gam ing is ou r next witn ess, ap pe aring 

on behalf of the Am erican Tele phone & Te legrap h Co. Mr. Gam ing 

is t he attorney chiefly responsible fo r all sec urity matters within the 

Bell System, a system which consists of 24 op erating comp anies and 

handles o ver 85 percen t of all tele phone calls in the Un ite d States.

Welcome, Mr. Camin g, and proceed wi th yo ur testimony if you 

will.

TESTIMONY OF HON. WILL IAM CAMING. ESQ., ATTORNEY, AMERICAN TELEPHONE & TELEGRAPH CO.

Mr. Gaming. Tha nk you, and good mo rning, or good afternoon , 

at th is moment.

I will attempt to sum ma rize the testimony con tain ed in our statement.

Since 1965, I hav e ha d pr im ary responsi bility from a legal stan dpo in t for overs igh t over ma tte rs pe rta ining to indu str ial security 

an d privac y, as the y affec t th e Bell System.
179

I wish to thank the subcommittee for the opportunity to present 

the views of the Bell System on privacy of communications and 

delineate our experiences with electronic surveillance, principally 

in the area of wiretapping.

At the outset, I wish to stress the singular importance the Bell 

System has always placed upon preparing the privacy of telephone 

communications. Such privacy is a very basic concept in our business. We believe tha t our customers have an inherent right to feel 

that they can use the telephone with the same degree of privacy they 

enjoy when talking face to face. Any undermining of this confidence 

would seriously impair the usefulness and value of telephone communications, in our opinion.

Over the years, the Bell System has repeatedly urged tha t full 

protection be accorded to its customers’ privacy, and we have constantly endorsed legislation both at the Federal and State level, tha t 

•would make wiretapping as such illegal. In 1966 and again in 1967, 

we testified to this effect before the Senate Subcommittee on Administrative Practice and Procedure during its consideration of the 

Federal omnibus crime control and safe streets bill. This is still, of 

course, our position.

We believe that the Federal Omnibus Crime Control Act has contributed significantly to protecting privacy by, among others, clarifying existing law and proscribing under pain of heavy criminal 

penalty any unauthorized interception or disclosure or use of a wire 

communication. I might parenthetically state that thertofore interception and disclosure was a requirement under section 605.

During our congressional testimony, we said too at tha t time tha t 

we recognized that national security and organized racketeering are 

matters of grave concern to the Government and to all of us as good 

citizens. The extent to which privacy of communications should yield 

and where the line between privacy and police powers should be 

drawn in the public interest are in our opinion, matters of national 

public policy, to be determined by the Congress upon a proper 

balancing of the individual and societal considerations.

For more than three decades, it has been Bell System policy to 

refuse to accept in the yellow pages of its telephone directories advertisements by private detective agencies and others, stating or 

implying that the services being offered include the use of wiretapping. In December 1966, during congressional consideration of 

the Federal Omnibus Crime Control Act’s Title II I proscriptions 

against unauthorized interceptions, this longstanding policy was 

expanded to prohibit too the acceptance of eavesdropping copy. This 

standard, adopted bv all Bell System Cos., was interpreted from the 

outset to make equally unacceptable so-called debuging advertising.

The removal of unacceptable copy is a never-ending task of large 

proportions, since many such advertisements are revised, and new 

outset to make equally unacceptable so-called debugging advertising, 

ones appear, in each issue of our 2,400 directories. We believe, however, th at we have done a creditable job in this area, and we intend 

to continue such rigid policing as contributive to maximizing priv ­

acy of communications.
180

It may help place matters in perspective if we provide a brief 

insight into the magnitude of telephone calling that occurs in this 

country in a single year. During the calendar year 1973, fo r example, 

there were approximately 138 million telephones—including extensions—in use in the United States, from which some 188 billion calls 

were completed.

From the time our business began some 90 years ago, the American 

public has understood that the telephone service they were receiving 

was being personally furnished by switchboard operators, telephone 

installers, and central office repairmen who, in the performance of 

their duties of completing calls, installing phones, and maintaining 

equipment, must of necessity have access to customers’ lines to carry 

out their normal job functions. We have always recognized this and 

have worked hard and, we believe, effectively to insure tha t unwarranted intrusions on customers’ telephone conversations do not occur.

The advance of telephone technology has in itself produced an 

increasing measure of protection for telephone users. Today, the vast 

majority of calls are dialed bv the customer, without the presence 

of an operator on the connection. This has greatly minimized the 

opportunities for intrusions on privacy. There are many other technical advances of similar import touched upon in our testimony.

Beyond this, all Bell System Cos. conduct a vigorous program to 

insure every reasonable precaution is taken to preserve privacy of 

communications through physical protection of telephone plant and 

thorough instruction of employees.

Our employees are selected, trained, and supervised with care. 

They are regularly reminded t hat , as a basic condition of employment, they must strictly adhere to company rules and applicable 

laws against unauthorized interception or disclosure of customers’ 

conversations.

In regard to our operating plant, all of our premises housing central offices, equipment and wiring and the plant records of our facilities, including those serving each customer, are at all times kept 

locked or supervised by responsible management personnel, to deny 

unauthorized persons access thereto or specific knowledge thereof. 

We have some 90,000 people whose daily work assignments are in 

the outside plant. They are constantly alert for unauthorized connections or indications tha t telephone terminals or equipment have 

been tampered with.

With these measures and many others, we maintain security at a 

high levej.

Our concern for the privacy of our customers is reflected too in the 

care with which we investigate any suspicious circumstances and all 

customer complaints tha t their lines are being wiretapped. Our companies follow generally similar operating procedures when an employee discovers a wiretap or eavesdropping device on a telephone 

line. Each of these cases is carefully checked. I n those few instances 

where there is evidence of wiretapping, the employee discovering it 

is required to inform his supervisor immediately, and a thorough 

investigation is undertaken in every such case by competent security 

and plant forces.
181

In a small number of cases, a customer suspects a wiretap and asks 

for our assistance. Usually, these requests arise because the customer 

hears what are to him suspicious noises on his line. Hearing fragments of another conversation due to a defective cable, or tapping 

noises due to loose connections, or other plan t troubles are on occasion understandably mistaken for wiretapping. Each company has 

established procedures for handling such requests. Generally, the 

first step is to have our craftsmen test the customer’s line from the 

central office. In most instances, these tests will disclose a plan t 

(trouble condition. In each such case, the trouble is promptly corrected and the customer informed there was no wiretap.

In cases where no trouble is detected through testing the customer’s 

line, a thorough physical inspection for evidence of a wiretap is 

made by trained personnel at the customer’s premises and at all other 

locations where his circuitry might be exposed to a wiretap. If no 

evidence of a wiretap is found, the customer is so informed. Where 

evidence of a wiretap is found, the practice generally is to report to 

law enforcement authorities any device found in the course of the 

company inspection, for the purposes of determining whether the 

device was lawful and of affording law enforcement an opportunity 

to investigate if the tap was unlawful. The existence of the device is 

also reported to the customer requesting the check, generally irrespective of whether it was lawful or unlawful. The customer is told 

tha t “a device” has been found on his line, without our characterizing it as lawful or unlawful; should the customer have any questions, he is referred without further comment to the appropriate law 

enforcement authority.

New Jersey Bell, however, as a matter of policy, informs a customer requesting a wiretap check tha t only the presence of an 

unauthorized device will be disclosed. Minnesota by statute similarly 

limits disclosure to unlawful devices. Should the customer inquire 

about the presence of a lawful device, he will usually be assured that 

applicable Federal and State laws require any judge authorizing or 

approving a court-ordered interception to notify the affected customer within 90 days after interception ceases—or at a later date, if 

disclosure is postponed upon a good cause showing by law enforcement. Section 2518(8) of tit le II I provides th at provision under law.

All Bell System Cos. report the existence of an unlawful device 

to the customer requesting the check, as well as to law enforcement, 

and the latter is provided an opportunity to invesetigate for a reasonable period—generally 24-48 hours—prior to removal of the 

wiretap.

We might point out tha t unless the wiretap effort is amateurish, a 

person whose line is being tapped will not hear anything unusual, 

because of the sophisticated devices employed. As we previously said, 

most of the complaints originate because the customer hears an odd 

noise, static, clicking, or other unusual manifestation. As far as our 

experience discloses, these usually turn out to be difficulties in tran smission or other plan t irregularities. From 1967 onward, for example, the total number of wiretap and eavesdrop devices of all 

types—including both lawful and unlawful—found by telephone
182

employees on Bell System lines has averaged less than 21 per month— 

an average of less than one a month for each of the twenty-four 

operating companies of the Bell System. I n our opinion, the criminal 

sanctions imposed by title III—for the authorized interception or 

disclosure or use of wire or oral communications, or the manufacture, 

distribution, possession, or advertising of intercepting devices— 

coupled with vigorous law enforcement and attendant publicity, 

appear to have contributed significantly to safeguarding telephone 

privacy.

In the area of court-ordered wiretapping, it is the policy of the 

Bell System to cooperate with duly authorized law enforcement 

authorities in their execution of lawful interceptions b ut only to the 

extent of providing limited assistance as necessary for law enforcement to effectuate the particular wiretap. We wish to stress that the 

Bell System does not do the wiretapping. The assistance furnished 

generally takes the form of providing line access information, upon 

the presentation of a court order valid on its face, as to the cable and 

pair designations and multiple appearances of the terminals of the 

specific telephone lines judicially approved for interception in the 

court order. In the instance of law enforcement authorities of the 

Federal government and of those States enacting specific enabling 

legislation, and I believe there are seven in number and the District 

of Columbia, the court order may direct the telephone company to 

provide limited assistance in the form of the information, facilities 

and technical assistance necessary to accomplish the wiretap unobtrusively, and w ith a minimum disruption of service.

Upon the receipt of such a directive in a court order valid on its 

face, our cooperation will usually take the form of furnishing a private line channel from terminal to terminal—i.e., a channel from a 

terminal which also services the telephone line under investigation to 

a terminal servicing the listening post location designated bv law 

enforcement. Additionally, the above described line access information will be furnished for the specific telephone lines judicially 

approved for interception.

On occasion, assistance in the form of private line channels is 

furnished to Federal authorities in national security cases. This 

assistance is only rendered upon specific written request of the Attorney General of the United States or of the Director of the Federal Bureau of Investigation—upon the specific written authorization of the Attorney General to make such request—to the local 

telephone company for such facilities, as a necessary investigative 

technique, and i t is so stated, under the Presidential power to protect 

the national security against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information 

deemed essential to the security of the United States, or to protect 

national security information against foreign intelligence activities. 

Fo r reasons of security, we are not informed in such cases of the 

specific nature of the national security matter under investigation. 

And we strictly ensure th at we don’t need any such information, in 

order to maximize its security.

In cooperating in court-ordered and national security cases, we 

endeavor to provide the very minimum assistance necessary as re-
183

quired bv law, to effectuate the particular wiretap. Under no circumstances, do we do the wiretapping itself; tha t is the exclusive province of the appropriate law enforcement officers. Xor do we furnish 

end equipment to be used in connection with a wiretap, such as tape 

recorders or pen registers. Nor do we design or build wiretap or 

eavesdrop devices for law enforcement authorities. Furthermore, our 

telephone companies do not train law enforcement personnel in the 

general methods of wiretapping and eavesdropping, nor do we provide telephone company employee identification cards, uniforms or 

tools, or telephone company trucks.

In conclusion, I wish to assure you based upon almost nine years 

experience in this area personally, tha t the Bell System continues to 

be wholly dedicated to the proposition that the public is entitled to 

telephone communications free from unlawful interception or divulgence. We are vitally interested in the protection of the privacy of 

communications and always welcome measures and techniques that 

will strengthen and preserve it.

I shall be pleased to endeavor to answer any questions tha t the 

Subcommittee may have.

Mr. Kastenmeier. Thank you very much for what I consider an 

extremely helpful testimony, Mr. Caming. And I only apologize th at 

at the outset of your testimony, I was called away and was not 

present. But, I have had an opportunity to read your statement and 

hear you deliver most of it.

There are some questions which arise, which seem to me procedural 

questions. Who makes the decision in the telephone company as to 

whether to cooperate with the person who represents himself as the 

representative of a Federal agency who is authorizd to conduct a 

tap? Is that decided at each local office?

Mr. Camino. No. May I ?

Mr. Kastenmeier. Yes.

Mr. Caming. Sort of walk through this or stumble through it with 

you and see if I can help.

First, in each Bell System Co. we have a security group headed by 

a security manager. All of the personnel involved are carefully 

trained, and they are long-term employees in almost all instances, 

and very qualified and, of course, as responsible and reliable people 

as we have.

We also have in each company, just, so that you can get the full 

picture, a legal department which varies in size, but in each case has 

a security counsel who is fully cognizant of just about everything 

that goes on, and that specifically, more or less is under my wing.

We also have at A.T. & T. a corporate director for security, and 

the head security managers are coordinated through his efforts. And 

he is one of my primary clients, as you could well imagine.

Now we do require th at any order tha t is presented to us—and the 

personnel have been trained in security as to the qualifications tha t 

an order must possess in order to be valid on its face—and that has 

been very carefully reviewed with him. And I might say tha t most 

orders are very similar in tenor, as f ar as validity.

Mr. Kastenmeier. But, Mr. Caming, are you referring to court 

orders?
Mr. Caming. The court orders. And let us assume it is a member 

of the Federal Bureau of Investigation or a member of the Drug 

Enforcement Administration tha t is using the Federal authority, as 

an example. They are required to submit the order to the security 

manager. They cannot submit it to anyone else in the company. And, 

generally, they are familiar and so are the State and local authorities as to whom the proper individuals are. The security manager, 

or one of his specially trained security supervisors, and they are all 

in management, will then review the order. Now, he has been generally familiar with orders, and if the order appears on its face to 

be identical with proper orders, so far as form, he will then be in a 

position to pass upon its validity. If he has any question whatever, he 

has the strictest mandate to take it up with the secretary counsel. 

And if any question arises they immediately call me.

Mr. Kastenmeier. Let me ask you this: That is fairly clear. There 

seem to be three areas; one, let us say, the private, unauthorized, 

illegal wiretapping, which you do not support in any sense, and you 

have indicated in your statement how your companies would handle 

this. Second, you have the taps for which there is a legitimate order 

or a warrant which is submitted to the Security Manager. And, 

third, the class of warrantless wiretaps for which there is no order 

given to you or to your Security Manager locally. How is t ha t third 

class handled? What I have in mind, of course, is the point raised 

earlier by the gentleman from Massachusetts, Mr. Drinan. If somebody comes in and says, look, we want to tap Dr. Halperin for 22 

months; we do not have an order for it, but we will just tell you that 

it is for national security. Are you not going to ask any questions? 

Wha t happens in tha t case?

Mr. Camino. All right. Let me tell you what our current procedures are and if you wish we can go back and can give you the history. I have gone over tha t with Mr. Lehman previously. I can do 

it very briefly or I can give you our present practice and then give 

you such history as you gentlemen may desire.

Mr. Kastenmeier. I would be interested-----

Mr. Camino. Let me giving the existing, and then we can go back 

if you so desire.

Mr. Kastenmeier. Yes. I think your practice since the 1968 law, 

authorizing wiretapping pursuant to warrant would be of interest 

to the subcommittee. I think that the 1968 act probably changed 

many things for your company and for the Government agencies 

conducting surveillance. Accordingly, I would think tha t during the 

last 6 years you might have developed a uniform policy.

Mr. Camino. All right. Let me give you this very briefly, and when 

I sav brief I usually am as much as a lawyer may, and Mr. Drinan 

would probably know that lawyers are not often very brief.

From the inception of national security wiretaps in 1941. as we 

know now—and I am quoting past history where I was still struggling through my last year in law school—wit h the war on at that time, 

wiretapping without warrants was introduced and a certain limited 

amount of cooperation was required from the telephone Co. Over 

the years, until the passage of the Crime Control Act, this was
185

handled with great sensitivity by our Company, perhaps because it 

was launched during World War II. perhaps because we try to be 

conscientious citizens. The matter of handling wiretaps was done 

with considerable delicacy, and usually the liaison point was especially designated and the only cooperation was extended to the Federal 

Bureau of Investigation. I might add, and would be some individual 

of relatively reasonably high position within the company and only 

he and others who had a need to know would ever know tha t such 

requests were made. And over the years, there were not too many. 

And we had the understanding from the inception, which was renewed over the years, that in each case there was a particular authorization from the Attorney General of the United States and tha t 

such authorization was in writing and was in the hands of the FB I 

or the Department of Justice to be recallable if necessary. For example, in litigation or perhaps before a committee of Congress.

It was agreed from the inception, too, that because these matters 

were too delicate, and I think the first ones only related you might 

say to foreign intelligence from 1941 on, it was decided th at no paper 

trail should be left, so that no written matter was presented to us 

affirming this authorization, the idea being if anyone got access to it, 

it would disclose vital secrets.

Now, we became concerned starting in 1965, 1966, with the changes 

tha t had been revealed. The hearings before the Subcommittee on 

Administrative Practice and Procedure, starting in about May 1965, 

under the chairmanship of Senator Edward Long of Missouri, the 

fact tha t the military, to some extent, were engaging in somewhat 

publicized worldwide monitoring of some of their m ilitary exercises, 

and the general rising concern about privacy, and perhaps some of 

the questions raised in the Long committee about how the Government was using some of its wiretapping efforts. So, it was decided 

tha t it w’ould be in the best interest, both of the Government and 

ourselves, to reduce to writing this commitment. This was not an 

easy decision, nor was it unanimous within the system. We have 

large independent entities as our Bell Telephone companies and we 

do not always agree. I think you could appreciate that even in the 

Congress there is not always complete agreement.

Mr. Kastenmeier. There was evidence tha t the New Jersey Bell 

System distinguished itself in terms of policy from some of the 

other systems?

Mr. Camino. In connection with national security?

Mr. Smith. Mr. Chairman, I think the statement was tha t the 

New Jersey Bell Co., as a matter of policy, advised a customer only 

about unlawful wiretapping.

Mr. Camino. Yes. That is what I call an expression of free spirit. 

And I just think the approach used by New Jersey Bell is possibly 

just as good. They and we have been troubled by the question which 

is left unanswered by the congressional legislative history of title 

II I. Can we disclose an authorized device? Clearly we cannot disclose that it is authorized because both the court order and the 

underlying application are expressly sealed by statute, and under 

2518(8) it is a contempt of court to disclose that. The question is,
186

‘what about a device we find th at we know from an orde r in ou r 

possession, or from othe r means, pe rhap s query ing law enforc ement, being told, gentlem en, it is law ful, can we disclose this. And 

we have had some rea l conflicts with law enf orcement who have, 

on pain of c rim ina l con tem pt, told us th at by disc losing the presence 

of a device we are giv ing awa y th e fact th at it is a law ful device 

and in th ei r terminolog y, un ea rth ing or blowin g the inv estiga tion, 

and it is a matter of grave concern.

We have take n a very lim ited position because we hav e lean ed 

over, in our opinion, as fa r as the law pe rm its, to coo perate to as 

lim ited an exten t as we can, and we hav e said th at Congres s sealed 

the order and sealed the appli cat ion an d they have sealed the 

device, too, as fa r as disclosure. They did not. An d we hav e said 

th at in the absence of a sta tut e of a St ate, or a court ma ndate in a 

pa rticul ar place, we will disclose the presence of the device and 

th at is why I pu t in quotes in my sta temen t the term “a device.” 

W he ther it is law ful or unlawful, we say we hav e fou nd a device 

and if you have any questions whatever, ta lk to law enforcement. 

There for e, the cus tom er can nev er know wh eth er or no t it is a 

law ful or un law ful device. We have fou nd thus th at there would 

be no giveaway.

Now, New Jerse y Bell, and Minnesota by sta tute, preclu de 

th at . They expressly proh ibit the disclosure of a law ful device. In 

New Jerse y they merely say on a form th at the y pre sen t to the 

customer when they request a check, and he gives his nam e and 

autho riz ati on to check his line, and the y have a pa ra gr ap h po intin g 

ou t th at the orde r and the applicat ion are seale d, and then they go 

on to say, and, acc ord ingly, we cannot disclose the orde r or ap pl ication nor will we disclose the presence o f any device othe r th an an 

unautho rized device. And then, as I mentioned in the statem ent , the 

customer says, well, th at is gre at, bu t wh at abo ut an autho rized 

device? An d we say, you have the assurance th at 90 day s normally 

af te r ter mina tio n of any wiretap or eavesdrop the issuing or denyin g Ju dg e, if he denie s app rov al in a specific case, is required to 

disclose this. An d I th in k th at is the case th at was allu ded to in the 

statem ent. They both reached the same res ult, the y both did not 

disclose the presence o f a device. Ex cept fo r New Jerse y and Minne ­

sota , we unifo rm ly follo w the other app roa ch.

Mr. Kastenmeier. We were, of course, pu rsu ing the question of 

wa rra ntles s tap s, which is a som ewhat different situation, with 

respec t to the person being tap ped. No thi ng is disclosed in 90 day s 

or at any o ther time.

Mr. Camino. Well, we would hav e a problem there. As you 

cou ld appre cia te, ou r role is really to ca rry ou t the necessary fun ctio ns th at our being gu ardian s of the syste m requires.

Mr. Kastenmeier. I appre cia te th at yo ur gen era l policy has been 

in aid of law enforcement.

Mr. Camino. Well, ou r general policy has been prim arily and 

first, an d I can catalog it righ t now, in aid of privac y of com munications, and second in being responsive to law enforcement rea lly 

to the degree necessa ry under title I I I or natio nal sec urity, and 

there I would no t use th e word begru dging , bu t it has been ex-
187

tremelv limited. We have refused to do a number of things which 

law enforcement has said we are required to do. We, for example, 

have in a particular circuit recently found to be in criminal contempt for refusing to give certain assistance of a limited nature, 

because we have felt it was not within the framework of the law as 

far as a present title II I situation. And w’e did not voluntarily 

feel that it was advisable, on balancing the public interest as well 

as we could.

Mr. Kastenmeier. Then you do, in fact, make a judgment about 

requests of you for warrantless wiretapping?

Mr. Camino. Well, yes. We do require and we perhaps are getting 

back to the point where we got off onto New Jersey. If I may, in a 

national security situation, as I 9aid, due to the concern expressed, 

and with negotiations with Mr. Vinson and others of Mr. Katzenback’s group, and on later occasion with Mr. Clark and Mr. Yeagley 

of his Department, we forged a written understanding that only if 

such a request was presented to us for limited assistance in the form 

of private line channels would we cooperate in a national security 

situation. I might emphasize this was merely reducing to writing 

the understanding we have always had tha t there was written 

authorization, and t ha t the matter was to be conducted bv the FB I.

Now, in that case, when we do receive such a letter denominating 

a request as one in the national security interest, we do not attempt 

to evaluate it. I was referring to other situations, such as a situation where national security will not be present. This will parenthetically or must be signed by the Director of the Federal Bureau 

or by the Attorney General and, generally, it has been signed by 

the Director of the Federal Bureau.

Now since the Keith case, of course, we recognize it, and I know 

Mr. Maroney testified before the Congress in, I think, June of 1972, 

shortly after the Keith case, assuring the Congress that th e Dep artment would comply fully with its terms. And I think tha t was the 

testimony in the hearing which recently came to my attention.

Now, we cannot evaluate, and we do not know the purpose of the 

investigation. Often we will only in the letter get a location or 

telephone number. That matter goes to the security manager. All of 

our requests are concentrated in security, li e handles it with just 

as much restrictive character as can be possible. Very few people 

in our company have access to these. For example, if there is a 

question arising with respect to one, even in discusions with me, I 

have assured tha t anything is blocked out tha t might be the facts, 

feeling tha t I have no need to know that in order to resolve the 

question. Now. we do not know and we will report frankly to the 

Department of Justice any agent that gives us any indication of 

a purpose of the investigation, the theory being that if it is significant enough to be national security, the security should be 

maximized.

Mr. Kastenmeier. Is it not a fact that you did not require a 

request in writing for warrantless taps in Washington until 1973?

Mr. Camino. No, that is not the fact. But, Mr. Lehman has reference to a point which we were coming to. As I said, we were just, 

up to 1968, we adopted the letter and then I did branch off perhaps
188

too quickly to the fact th at the lette r was adopted virtu ally in the 

fall of 1968, from our sta ndpoint . It too k th e De partm ent of Justi ce 

and ourselves a long while to hamm er ou t th e exact words, and who 

would sign it and wh eth er it would be confined to the At torney 

General or the Atto rney Gen eral and the Direc tor, and we finally 

agre ed ju st on those two persons.

Now, in May 1969, the lette r was finally so rt of forma lize d and 

introdu ced in a me eting we had with all Bell System general securit y man age rs, and sec urity counsel, to ex pla in firs t the new tit le I I I 

proc edures fro m ou r sta nd po int as to how we would handle them, 

because you may rec all under Air. Johnson, tit le I I I was no t used 

so fa r as a co urt orde r prov ision. So, it was only in ear ly 1969 th at 

we had the problem of ge tting court ord ers , and at th at same tim e 

we intr oduce d this so-called let ter which I hav e allude d to.

Now, it took us—th ere was a lot of dissension about the lette r as 

I indicated, wi thin ou r own ran ks as to wh eth er we were not crea ting a pa pe r tr ail th at might well disclose to th e wrong eyes the par ­

tic ular activ ity un de r investigation . An d were we no t perhap s 

going too far. Now, this is a question which was freely discussed 

and we recognized th ere were view poin ts. Bu t, gradua lly , ove r an ­

oth er long period of tim e the lette r was introd uced and in Au gust, 

I think the meetin g of Au gust 4, 1971, the last com pany, the Chesa ­

peake and Pot om ac Co. in Wash ing ton , used the letter. So, since 

the n we have ha d the l etter unifo rm ly throug ho ut, and th at has been 

our pra ctice un til the n.

Now, before the n, a case arose which, of cours e, we did not know 

about at the tim e, as to the ramificatio ns th at have been disclosed , 

and the case was inv olving the wi retapp ing under the aegis of na ­

tional sec urity of some 17 members, 13 o r 14 o f whom were Gover nment officials, and 4 of them were mem bers of the press. One of the 

members of th e Government I th in k was Mr. Ha lperin. Now, there 

is litigation pe nding on that, bu t I feel free to discuss at lea st ou r 

role, which was a very lim ited one of ju st process ing facilities.

As I under stood it, we received t he ora l requ est with the sta tem ent 

which ha pp ily now has been corroborated in the ple ading s an d I 

say “h ap pily’ because you can un derst and ou r position at th at time , 

th at was, one, th at was a specifically autho rized national sec urity 

inv estiga tion and , two, we were adv ised on the foreig n inte lligence 

activities aegis of national security investiga tion. Whethe r th at was 

tru e or not, of course, we have no way of determinin g and we stil l 

do not, on any of these. And , th ird, as I und erstood it and some of 

this is from subsequently pub lish ed docu ments, because we are not 

pri vy to every one of these, at least it is one of th ei r taps was for 

du rat ion of May 1969 to Fe brua ry of 1971, and it may even have 

been of Mr. Halpe rin , although I am not sure witho ut con sulting 

my records. Some were of shorter du ratio n of these 17. At th at time , 

we had not adopted the letter. As I say, it was ju st at th at tim e 

th at it was com ing in, so the re was th at jux tap osition, an d even if 

we ha d ha d th e lette r tho ugh, we would have done exactly the same 

thing, and we wou ld do it today, since we do not know normally, 

we may possibly identify a subject, if one of the security ma nag ers 

was curious eno ugh, you know, to check, bu t normally we only are
189

advised of the location at which these take place and all we do is 

provide the channel from terminal to terminal, where they are taken. 

It may or may not be clear but we just get the telephone number 

and the channel, and we do not know the purpose of the investigation other than tha t we are assured by the Director of the FB I and 

in writing, or by the Attorney General tha t it is a foreign intelligence investigation.

Mr. Kastenmeier. Let me ask you this, Mr. Caming.

Would it not be possible and perhaps even the practice at the 

Justice Department or the Bureau, whether they obtain a warrant 

or not, not to notify the phone company? They may not need your 

company’s cooperation on certain taps. They may have the technical 

capacity to install those taps or devices without your knowledge 

or consent.

Air. Camino. I think this is very true and is the fact in this sense, 

not that they do it improperly but, first, that they do not need to have 

our knowledge. Whenever they disclose anything to us, this is always a source of a potential leak of magnitude because it is outside 

of their control. And although we try very conscientiously, we also 

are greatly concerned tha t we are entrusted with this information 

which theoretically at least is of such vital importance to the Nation 

as to warrant warrantless tap.

Now. I have heard Mr. Petersen, for example, if I may allude to 

him, discuss the sensitivity of numbers and therefore I am moving 

with a certain amount of circumspection, but I w’ould like to point 

out tha t he mentioned tha t there were approximately 100 wiretaps 

in 1973, but he could not give you the precise figure. Our figures, and 

I had them collated purely because of the fact tha t I was coming 

before the committee and normally we do not keep any centralized 

records, and again it is to protect maximum security, but I have 

been down this year. My number is significantly below tha t figure, 

which indicates tha t at least a number of taps were performed that 

could have been performed without our knowledge or-----

Mr. Kastenmeier. Or they, in fact, may not have used the telephone as a device.

Mr. Camino. Yes. It could be an eavesdropping device. And we 

normally would not know about that and unless there is a court 

directive as p art of our very restrictive policies, to do it voluntarily, 

and in the other 15 States which do not have a court directive, of 

the 22 States tha t have an enacted State enabling laws, we refuse to 

cooperate when the court order refers to eavesdropping alone, feeling 

that it is not, you know, a part of our network that is directly involved, although we recognize there is some tangential assistance 

obtained, if they can also run the eavesdrop through the network 

to a distant location.

Mr. Drinan. Mr. Chairman?

Mr. Kastenmeier. I yield to the gentleman from Massachusetts.

Mr. Drinan. Could I come back to the point tha t even though 

there is no centralized figure, you were able to pull together a figure 

tha t you say is substantially under 100. Do I understand rightly 

that you do, in fact, keep all of these letters or authorizations, and

35 -3 91 — 74 ------ 13
190

that the corporate officer responsible for security does, in fact, possess 

these at some particular place?

Mr. Camino. Yes, Mr. Drinan. Each company, and it was not a 

very difficult task for me to get these figures, we just have no reason 

to keep them at headquarters. Each company has been told to keep 

the national security letters, no accompanying records or anything, 

but just the letters themselves permanently or indefinitely. We also 

keep, for your information, information with respect to cooperation in wiretaps under title II I or the equivalent State law for a 

period of 10 years, which tracks with the period set forth in section 

2518(8) of title II I for court orders and applications. So, we keep 

any accompanying records.

Mr. Kastenmeier. I am reassured on tha t point. Was it not one of 

your competitors who notoriously reverted to a paper shredder at one 

point in some case in the last few years?

Mr. Camino. Let me point out here tha t I have been accused of 

working for I.T. & T. merely because there was a confusion of 

terminology within the United States with the perception of, I 

guess, litigation tha t may now develop which may now make them 

a competitor and they have normally operated only in the overseas 

theater. So, there was never any question prior to a Satellite application now being entertained of cooperation. We do cooperate with 

independent companies when necessary of the telephone industry, 

like General Telephone, to the extent of insurance t hat any cooperation we extend does not unfold at some other point. In other words, 

but generally speaking, no, most of our coperation is in the sense 

that when they come to our company, tha t is all tha t they desire, 

and if they come to an independent company, because their territory 

is being served they normally would have no reason to have recourse 

to us.

Mr. Kastf.nmeter. I think I am correct in assuming, Mr. Caming, 

am I not, tha t American Telephone & Telegraph would experience 

the major impact of wiretapping and electronic eavesdropping 

under title II I as opposed to other telephone companies?

Mr. Caming. I think that would be very fair to say and conclude 

for several reasons. The first, of course, th at from 80 to 85 percent 

of all of the phones in the United States at this time, certainly in 

the message toll network are Bell System phones.

Many of the principal centers of an urban character, where Crime 

seems to emanate, like New York or New Orleans or Los Angeles 

or Chicago or Washington, are served by our companies principally, 

60 tha t most of the wiretaps would probably be requested there.

Mr. Kastenmeier. May I pursue another line of questioning?

Mr. Caming. Surely.

ISIr. Kastenmeier. And then I will yield to my friend from 

Massachusetts.

Are you or have you in the past, other than the leasing of lines 

which you alluded to briefly, been compensated by government 

agencies or law enforcement authorities for your cooperation? Have 

you ever considered to what extent, both in manpower and resources, 

the company ought to cooperate with agencies in conducting sur-
191

veillance? And have you considered whether there was a legal requirement tha t A.T. & T. cooperate with the installation of these 

devices ?

Mr. Camino. Of course, that is a subject dear to our hearts, as 

you can well imagine. First, we, of course, in the Federal area, have 

no longer cooperated in title II I wiretapping, except under the court 

directive provision of 2518, and there any technical assistance or 

facilities provided are at the prevailing tariff rate, as expressly said 

in the Statute. We have taken the position also, I might say, tha t 

outside of the scope, the narrow scope of title II I, that any cooperation on our part in any area, although lawful, is not mandated by 

the Congress and tha t we would, therefore, respectfully decline to 

cooperate in many situations.

For example, we do not engage in line identification, so-called 

tracing, even if fhe Government is operating under a ti tle II I court 

order. We have refused to trace lines because, not from the expense 

standpoint alone although tha t is an element, but our prim ary 

reason is that our general concern for privacy of communications 

compels us to the conclusion that we should restrict our activities 

to the degree tha t Congress and States under enabling legislation 

feel is wise for us to participate in, generally apart from the national security area, where there has been some expression. So, we 

do not engage, I might say, in a number of activities.

Now, other activities such as servicing title II I orders for cable 

information, it is very difficult to calculate that there is any significant cost to us. If we have any cost to us. If we have any costs, such 

as providing a private line channel and having to do any engineering 

on it, occasionally to compensate for losses of transmission if the 

channel is over a certain distance, or we sometimes put in what we 

call dial impulse repeaters so that the dial impulses will come 

through clearly and not be lost in transmission, or that there is no 

sagging of transmissions, and someone says, uh, huh, my line must 

be wiretapped, those charges are put into our private line charges 

to the Government. And any charges under national security, I 

mean—I am sorry, any services provided under national security 

which we provide as channels, terminal to terminal, are also compensated for fully. We do as best as we can estimate our costs and do 

charge.

Mr. Kastenmeier. And are those charges made openly or are 

they concealed? Are they made to the Department of Justice or 

just the General Services A dministration or some other branch of 

Government?

Mr. Camino. Surely now, startin g with the premise that what they 

are doing is lawful, be it covert in the sense tha t the parties being 

overheard are not to know of it, and, thirdly, that it is court ordered, we are, or have molded our billing practices to the desires of 

the Government. We frequently bill to a fictitious name, or to a 

post office so that if you picked up the bill it would look like perhaps 

the ARC Toy Co., and if you just happened to see it in accounting 

also. We often have our billing done through security and they may 

keep the bills in order to maximize the security of the operation. But,
192

we will do it to a fictional add ress if they so reque st. In fac t, we 

will do th is fo r any subscriber if he asks, an d his nam e is Sm ith 

and he asks us to bill it to th e Jones Pu bl ishi ng Co., assuming th at 

we have no knowledge o f any im prop rie ty in such request, we wou ld 

norm ally bill as requested.

Mr. Kastenmeier. A m I correct in assum ing since 1969, th at your 

subscriber in th at connection has been the Dep artm en t of Justice, 

or the F B I however otherwise billed? You do not have, I take it, 

Whit e House, CI A, or oth er sources of requests th at hav e not, in 

fact, gone th roug h the De partm ent of Ju stice or the Fe de ral Bu rea u 

of Investigatio n ? Is th at corr ect?

Mr. Camino. Ass um ing we are ta lk in g in th e are a of natio nal security, the ans wer is unequivocab ly we only deal with the D ep ar tment of Justi ce and th e FB I. We hav e ha d no requests, to my know ledge, in th at are a, and we do not even mak e any pa rti cu lar—w ell, 

if we did receive such a request, we would imm ediately conta ct the 

De partm ent of Ju sti ce about it. To my know ledge, it has alw ays 

been my conception and it is lim ited, intelligen ce activities wi thin 

the Un ite d State s sup posedly are to be confined to the Fe de ral 

Bureau and we a ct upo n that.

We do have, of course, the n orm al com municatio n services wi th t he 

White House, the CIA and, of cours e, the se would be the normal 

provision of service to any customer.

Mr. K astenmeier. Yes, of course. I un de rst an d th at.

One las t line of questions. On pag e 10 o f yo ur statem ent you indicated th at eavesdrop devices, law ful an d un law ful, are fou nd on 

com pany lines at an average of 21 a month. W ha t perce nta ge are 

unlaw ful?

Mr. Camino. T o tell you the trut h, Mr. Ka stenm eier, the numb er 

has always been so infi nite stim al th at we have never attemp ted to 

break it out. I was ju st looking throug h because I thou gh t it might 

be of inter est to th e comm ittee. Tha t figu re I gave of 21, being a 

law yer and no t rea lly advanced in ma the ma tics, and seve ral of my 

college teache rs could affirm th at , I wor ked on the basis of th e hi gh ­

est figu re bu t actua lly th e figure has tu rn ed out to be lower th an 

that. Las t year, fo r example, with 1G3 th roug ho ut the Bell System 

of devices o f any typ e, law ful or un law ful, th at we have discovered. 

The pr ior ye ar was 174 an d, in fac t, since 1967, because I thou gh t it 

would give the c ommittee a b ett er feel of it, if I may, and I am sure 

Mr. Lehm an can tak e thes e down. 1967 we estimate we fou nd 195 

devices in all 24 of our companies aggregate d of all types. 179 in 

1968, 218 in 1969, 195 in 1970, 249 in 1971, which exp lains my high 

figure. One hu nd red sev enty-four and th en 163. So, because the y 

hav e been so sma ll and often— we are nev er quite certa in on those 

devices wheth er they are law ful or un law ful, because some of those 

may be law ful, bu t once they are disc overed the law enforcement 

autho rities say, you know’, well, we do not know anything abo ut 

them and reme mber, too, th at all of the St ate and local autho rities 

in 22 State s have the righ t to engage in wiret appin g. So, we hav e 

never broken ou t a percen tage of th at min uscule amoun t out of the 

138 million telep hones, just giv ing a pro portio n.
193

Mr. Kastenmeier. Do you have a procedure for reporting these, a 

portion of which would be unlawful presumably and a portion of 

which would be lawful to the law enforcement authorities?

Mr. Caming. As I just alluded to in our statement, we report all 

cases because even if we find a device and have a court order on file, 

unless there was a little thing which was placed here by the New 

York State Police Department or the Boston Police Department, we 

would not know whether it was a coincidence, or whether this was 

actually a lawful device. It could be t hat more than one party is ta pping the same line.

Mr. Kastenmeier. In the case of what would be assumed to be unlawful bugs, and you may not know whether they are, have you found 

the Department of Justice responsive in investigating these cases? 

Certainly, the unlawful bugs are a menace to your subscribers, and 

are unwanted by you as a company and presumably you would like 

to see title I I enforced.

Mr. Caming. I would like to make a comment which probably 

means I have arrived at a position that I can make comments on my 

own. As I say, I have personally cooperated in overseeing this program for some 9 years. The Department of Justice, tha t I deal with 

is the Criminal Division, and very frequently the organized crime 

and racketeering groups which has oversight over title II I and we 

do not get into national security very much, as you could see. It is 

not necessary. But, throughout from the inception in 1968 and the 

passage of title III the Criminal Division, under Mr. Petersen, has 

been aware of our concern, of the encroachments on privacy tha t title 

III made, and the fact tha t we do all necessary to effectuate the particular requests, but give them the minimum assistance and he has, 

and his staff has respected this, although they have disagreed on a 

number of occasions, such as with our recent measure in further restricting toll billing records. But we have, for instance, discussed at 

the time of the passage in February 1971 of the directive amendments 

to title II I, which put us in the position of having to respond to a 

court order, which could direct us to do things, we said, and I said it 

personally, tha t it would be best to maximize privacy if they used 

only the statutory language in their court orders and we would then 

do the very minimum amount necessary and insure tha t the title II I 

tap would be effectuated. But, in as restrictive a way as possible. I 

would say to that, tha t whenever we have brought their attention to 

any questions of the nature you address on wiretapping tha t they 

have been utterly responsive and utterly cooperative and, in fact, I 

think tha t some of their task forces in the field have complained at 

times tha t they were too solicitous.

Mr. Kastenmeier. I appreciate that response, although there is some 

concern, and I shall it, tha t generally speaking, the Justice Department, is not pursuing prosecutions under title I II .

Mr. Caming. I see.

Mr. K astenmeier. To dissuade people, in some cases unauthorized 

Government officials, from engaging in these practices.

Mr. Caming. I can appreciate that. My remarks were addressed to 

what I thought was your earlier statement as to their general att itude with respect to our procedures, when we find a device, whether
194

lawful or unlawful. If it is a lawful device, as far as it appears, by 

our having a court order, we would then contact the agency concerned 

and if it is a State agency or the FB I, we would contact them. Now 

if it -was an unlawful device, we would contact first the Federal, local 

agency, remembering it is our local telephone company that finds it 

in each case and we contact the local agency of the FB I. And, in 

addition, we contact the appropriate local authority whether it is the 

State or the county or a city, and we have the coordinates to do that 

with, because the Federal authorities might say this is unlawful and

we do not know tha t th at is a lawful tap, and it might turn out to be 

a State or a local tap, so we contact both. Then if they both declare 

or all parties declare tha t they do not know of it being lawful, we 

then say we intend to remove i t and keep it under surveillance, and 

if it is trouble-inducing, we immediately disable it anyway, but, we 

leave it in place. But, we will if you wish permit you 24 to 48 hours, 

and I do know at least in a number of cases, the ones I think happened to be with State police or local police, where they have actually undertaken a surveillance, and then, if within a reasonable 

period it proves fruitless, we really remove the device.

Now, if they do not want to investigate w’e, in some of our companies, attempt, because it is rather difficult to investigate this source. 

Our main concern is if you just remove the device but do not apprehend the wiretapper, it is virtually like picking up some burglary 

tools but leaving the burg lar free. So, we do cooperate but usually 

only to the extent of 48 hours and the customer is advised tha t an 

unlawful device has been found.

Mr. Kastenmeier. Thank you.

I yield to the gentleman from Massachusetts.

Mr. Drinan. Thank you, Mr. Chairman, and thank you, Mr. earning. This is very, very informative. I have listened here fascinated 

at all of your problems.

Let me try to clarify something for myself.

Mr. Camino. Surely.

Dr. Drinan. If the Department of Justice puts a tap on, unbeknownst to the A.T. & T. and unbeknownst to the subscriber, would 

tha t be illegal?

Mr. Camino. In my opinion, if it were not it the area of national 

Security and I could not pass the comment upon the legality, but 

assuming arguendo the legality of t hat type of tap, apa rt from that, 

it is clearly-----

Mr. Drinan. Assuming-----

Mr. Camino. I am sorry. If they place a tap on the line without 

our knowledge but have a valid court order, for example, we have 

argued among ourselves with the company, what is this, and it seems 

that it is not a technical trespass on the ground tha t it is court authorized. In fact, some State statutes have expressed it but assuming 

there is no title II I, I would say th is: Tha t the Department of Justice or any other branch of Government, Federal or State or local, is 

just as liable under the proscriptions of title II I.

Mr. Drinan. Therefore, since your figures show substantially less 

than 100 wiretaps, we can make an inference tha t the Department of 

Justice is, in fact, engaging in warrantless wiretaps without the
195

knowledge or co nsen t of the A.T. & T. Tf one of those taps were dis ­

covered, w hat w ould th e A .T. & T . d o?

Mr. Camin o. OK. Now, perhap s in mv attempt to say su bstan tia lly , 

or perha ps the term sign ificantl y would be—bu t if we discovered a 

nation al sec urity device, Mr. Drin an , firs t the re may be some serious 

question wh eth er we would know th at it is that. They wou ld have to 

tell us a bout it.

Mr. Drin an. Let me hack up. Tha t ju st tells us abo ut the practic e. 

TTow easv is it for this never to he discovered ? I t is conceivab le th at 

they could have dozens or even h un dreds of them now, a nd that in th e 

nature of th ing s the y would n ever be disco vered ?

Mr. Camino. Well, th e so phistica tion and tech nology tod ay, th e contin ual advances, it is v ery difficult in certain areas, such as ind uctiv ely couple devices, which may no t be actua lly tou ching ou r line , and 

our people are instructed to be constan tly on the ale rt— fo r example, 

any insta lle r or rep air ma n th at goes in norm ally would check over 

the fac ility. How ever, if they ha d concealed them at some distan t 

point, it is conceivable, at least, if i t is well done, th at n either we no r 

the su bscriber would be aware of it.

Mr. Drin an. But coming back to my ori gin al question, T am no t 

certain th at I got t hat clear, as to wh at would the A.T. & T. do if it 

did discover a wa rra ntless tap placed there by the Dep artm en t of 

Justice?

Mr. Camino. Well, all rig ht. We ll, the first th in g wou ld be th at we 

would discover the device. We would not know at th e moment wh at it 

was. Tf it was discovered as a result of a c usto mer c om pla int, it w ould 

pro bab lv hav e been found by ou r security forces, or pl an t forces, 

un de r their direction , checking out the comp laint, or it could hav e 

been stum bled upon by a rep air ma n or ins tal ler . And in th at case it 

is required th at any employee do no thing bu t repo rt it immedia tely 

thr ough h is lines of superv ision to Secur ity.

Mr. Drtnan. All rig ht. All of th at has gone by. I am ask ing ------

Mr. Camino. T hey would then go to the Gov ernmen t.

Mr. Drtnan. And they admi t openly, yes, we did it, and we are 

sorry you discovered it?

Mr. Camino. In t hat case, we wou ld leave the ta p in place, I would 

assume.

Mr. Drtnan. Yes. "Why? Th is is a trespa ss. Th is is illeg al. W hy do 

you do th at? You are coo peratin g in evil, now.

Mr. Camino. We ll, no, I guess we may be mi sund ers tan din g each 

oth er because I certa inly w ould no t say we are coo per ating in evil. T 

guess I did no t understand vou r question. I was assuming th at the y 

said the follow ing to us : Th is is a national sec urity tap. I t is in a 

very sensitiv e area. It has been exp ressly authorize d bv the At tor ney 

General and i f you wish , we will give vou the p roo f. We did not wish 

to br ing this to yo ur attention in orde r to max imize the sec urity of 

the ope rations , and we wish you would leave it in place. In th at case, 

assu min g we hav e no customer com pla int, fo r exam ple, we would 

pro bablv do so if we had the necessa ry proo f adduced . In oth er 

words, if we got a natio nal sec urity letter say ing yes, thi s was. and 

we did not desire it, there is no reason for the Gov ernment to brirur
196

it to our attention in national security taps and that is lawfully put 

on by them.

Mr. Drinan. Would the subscriber in such a situation have a claim 

against the A.T. & T. because they had allowed his wire to be tapped 

unbeknownst to him ?

Mr. Camino. Well, you mean after the discovery when it was continued? No more so than if ab initia we had received a letter request, 

assuming the same situation. And we have established afte r discovery 

tha t it is a national security tap.

Mr. Drixax. This is a pretty permissive attitude on your part to 

allow the Department of Justice to give you a letter any time they 

want. In other words, you are really not demanding a letter ahead of 

time.

Mr. Caming. Oh, no.

Mr. Drixax. You are not really?

Mr. Caming. We are in a position almost as a stakeholder, Mr. 

Drinan. We are required to venture into areas that are quite foreign 

to us. We do not wish to participate in any of this any further than 

the Congress, and the necessity of the situation warrants. I can assure 

you of that. When we get a letter from the Director or from the 

Attorney General, we have no knowledge other than the facial letter 

of the validity of the contention. We merely assume tha t a man of 

tha t stature in the Government, and we have no alternative, but to 

assume tha t he would not-----

Mr. Drinan. But legally, you could refuse to cooperate?

Mr. Caming. Yes, I think we could.

Mr. Drinan. Has it been considered at th e highest level that maybe 

the A.T. & T. should refuse to collaborate in warrantless taps?

Mr. Camtng. I think it is fa ir to say t hat tha t has been considered 

ever since the inception in 1941, as of necessity, tha t it was recognized 

that frequently our assistance may be almost indispensible to effectuate a wiretap. The number of requests have never over the years 

been at such volume to-----

Mr. Drinan. Tha t is immaterial if it violates the fourth amendment.

NTr. Caming. I agree with that, and am not talking about tha t 

aspect. We have always had recognition, you might say from the 

Congress, when we testified in 1966 and 1967, we brought the National security question to the attention of Congress in our testimony. In 

2511.3 of 18 United States Code, the Congress, and in its underlying 

Senate Beport 1097 of April 1968, took cognizance of the importance of the national security and its constitutional significance. These 

are only guideposts.

Mr. Drinan. And they did not require you to cooperate. The Congress did not require you to cooperate.

Mr. Caming. No, the Congress did not require us to cooperate.

Mr. Drinan. T hat is right. You are free agents. Has the Board of 

Directors of A.T. & T. ever been given the question of whether they 

will cooperate in warrantless taps?

Mr. Caming. I think we could take tha t legal position.

Mr. Drinan. I am asking you why has not the A.T. & T. ever gone 

above management with this question ? Has it ever gone to the policy
197

directors of this very public company tha t has 150 million subscribers?

Mr. Camino. I am sorry, I did not catch the point. Has it ever gone 

ahead-----

Mr. Drinan. Above the management level? Has it ever gone to 

the B oard ?

Mr. Camino. I would say tha t we have received, in fact we reviewed recently before the board of directors our policy in wiretapping generally. Our vice president then of operations and now of 

customer services did review with our board our policy. Now, whether 

tha t included national security matters I cannot say with certainty, 

not having been present. It is my opinion tha t they were generally 

aware of it, and of the circumscribed areas in which we cooperate. 

Now, we do not cooperate in internal security matters now as we 

would define tha t term, only to the extent tha t the letter spells out 

the foreign intelligence areas set forth in my statement.

Mr. Drinan. I asked these questions, Air. Caming, because I was 

very impressed with your testimony. And as you heard, we are not 

getting very much cooperation from the Department of Justice, and 

perhaps the only way to protect the privacy of the people on their 

phone lines in America, is to have the telephone company do what it 

is authorized to do; namely, refuse to cooperate unless wiretapping 

is done pursuant to law. So th at is a new avenue that has been opened 

up to me by your testimony, and for that I am grateful.

I would ask this, sir, in conclusion, tha t if you have any subsequent 

answers tha t you would like to give or a more complete explanation 

of some of these questions tha t came up, I know th at your testimony 

would be very helpful and you could submit further statements.

Mr. Caming. Thank you, Mr. Drinan. I might also say that I would 

like to express our appreciation for being given the opportunity to 

appear. And we are completely at the disposal of the subcommittee, 

and we have had some very fine relationships with Mr. Lehman preliminarily and we will do an ything to assist the subcommittee in its 

deliberations, and will be pleased to hear from you.

Mr. Drinan. Thank you very much.

[The prepared statement of Mr. Caming follows:]

S tatement of H. W. William Camino, Attorney, American Teleph one & 

Telegraph Co.

I am H. W. William Caming, Attorney in the General Departm ents of American Telephone and Telegraph Company. My areas of prim ary responsibility 

have since 1965 included, from a legal standpoint, oversight over ma tters pertaining to industrial security and privacy as they affect the Bell System.

I wish to thank the Suljcommittee for the opportunity to present the views of 

the Bell System on privacy of communications and delineate our experiences 

with electronic surveillance, principally in the are a of wiretapping.

At the outset, I wish to stre ss the singular importance the Bell System has 

alway s placed upon preserving the privacy of telephone communications. Such 

privacy is a basic concept in our business. We believe th at our customers have 

an inheren t right to feel that they can use the telephone with the same degree 

of privacy they enjoy when talking face to face. Any undermining of this confidence would seriously impair the usefulness and value of telephone communications.

Over the years, the Bell System has repeated ly urged that full protectio n be 

accorded to its custom ers’ privacy, and we have consistently endorsed legislation th at would make wiretapping as such illegal. In 1966 and aga in in 1967,
198

we testified to this effect before the Senate Subcommittee on Adm inistrativ e 

Practice and Procedure during its consideration of the Federal Omnibus Crime 

Control and Safe Stre ets Bill. We said we strongly opposed any invasion of the 

privacy of communications by wiretapping and accordingly welcomed Federal 

and State legislation which would stren gthen such privacy. This is still, of 

course, our position.

We believe that the Federal Omnibus Crime Control Act has contributed 

significantly to protecting privacy by, among others, clarifying existing law 

and proscribing under pain of heavy criminal penalty any unauthorized interception “or” disclosure or use of a wire communication.

During our Congressional testimony, we said too th at we recognized that 

national security and organized racketeering are ma tters of grave concern to 

the government and to all of us as good citizens. The extent to which privacy 

of communications should yield and where the line between privacy and ixfiice 

powers should be draw n in the public inte rest are matters of national public 

policy, to be determined by the Congress upon a proper balancing of the individual and societal considerations.

For more tha n thre e decades, it has been Bell System policy to refuse to 

accept in the Yellow Pages of its telephone direc tories advertisements by private detective agencies and others, stating or implying that the services being 

offered include the use of wiretapping. In December 1966, during Congressional 

consideration of the Federal Omnibus Crime Control Act’s Title II I proscriptions against unauthorized interceptions, this longstanding policy was expanded 

to prohibit too the acceptance of eavesdropping copy. This stan dard, adopted 

by all Bell System Companies, was interpreted from the outset to make equally 

unacceptable so-called debugging advertising (t.e., advertising stating or implying electronic devices or sendees will be provided for the detection and removal 

of wiretaps and eavesdropping “bugs”), on the theo ry th at those who can debug 

also possess the capa bility to bug and wiretap.

Our Companies continually review their Yellow Pages in an endeavor to 

ensure all unacceptable copy is removed, eith er by satisfactory rewording or 

deletion of the offending copy. New advertising is subject to similar scrutiny. 

The scope of this und ertaking becomes app arent from the fact that there ar e 

approximately 2,400 Yellow Pages telephone directories, containing some 18,000.- 

000 advertisem ents and listings.

The removal of unacceptable copy is a neverending task of large proportions, 

since many such advertisements are revised, and new ones a ppear, in each issue. 

We believe, however, th at we have done a cred itable job in this area , and we 

intend to continue such rigid policing as contributive to maximizing privacy of 

communications.

It may help place matters in perspective if we provide a brief insight into the 

magnitude of telephone calling tha t occurs in this country in a single year. 

During the calen dar yea r 1973, for example, there were approximately 138 

million telephones (including extensions) in use in the United States, from 

which some 188 billion calls were completed.

From the time our business began some 90 years ago, the American public 

has understood that the telephone sendee they were receiving was being personally furnished by switchboard operators, telephone installers and cen tral 

office repairm en who, in the performance of their duties of completing calls, 

installing phones and maintaining equipment, must of necessity have access to 

customers’ lines to carry out the ir normal job functions. We have always recognized this and have worked hard and effectively to ensure that unw arranted 

intrusio ns on customers’ telephone conversations do not occur. We are confident tha t we have done and are doing an excellent job in preserving privacy in 

telephone communication.

The advance of telephone technology has in itse lf produced an increasin g 

measure of protection for telephone users. Today, the vast majo rity of calls 

are dialed by the customer, without the presence of an operator on the connection. This has greatly oiiniinized the opportunities for intrusions on privacy. 

In addition, more tha n 88 percent of our custom ers now have one-party telephone service, and the proportion of such individual lines is growing stead ily. 

Dire ct inward dialing to PB - extensions, auto matic testing equipment, and the 

extension of direct distance dialing to person-to-person, collect and credit card 

calls and to long distance calls from coin box telephones furth er contributes to 

telephone privacy.
199

Beyond this, all Bell System Companies conduct a vigorous program to ensure 

every reasonable precaution is taken to preserve privacy of communications 

through physical protection of telephone plant and thorough instruc tion of 

employees.

Our employees are selected, trained, and supervised with care. They are 

regularly reminded that, as a basic condition of employment, they must strictly 

adhere to Company rules and applicable laws aga inst unauthorized interception 

or disclosure of custom ers’ conversations. All employees are required to read a 

booklet describing what is expected of them in the area of secrecy of communications. Violations can lead, and indeed have led, to discharge.

In regard to our operating plant, all of our premises housing central offices, 

equipment and wiring and the plant records of our facilities, including those 

serving each customer, are at all times kept locked or supervised by responsible 

management personnel, to deny unauthorized persons access thereto or specific 

knowledge th er eo y We have some 90,000 people whose daily work assignments 

are in the outside plant. They are constantly alert for unau thorized connections 

or indications that telephone term inals or equipment have been tamp ered with. 

Telephone cables are protected against intrusion. They are fully sealed and generally filled with gas ; aqy break in the cable shea th reduces the gas pressure 

and activates an a larm , y

With these measures and many others, we maintain security at a high level. 

We are, of course, concerned that as a result of technological developments, 

cland estine electronic monitoring of telephone lines by outsiders can be done 

today in a much more sophisticated man ner tha n has been heretofore possible. 

Devices, for example, now can pick up conversations without being physically 

connected to telephone lines. These devices must, however, gene rally be in close 

proxim ity to a telephone line, and our personnel in the ir day-to-day work 

assignments are ale rt for signs of this type of wiretapping too. Every indication of irregu larity is promptly and thoroughly investigated.

Our concern for the privacy of our custom ers is reflected too in the care with 

which we investigate any suspicious circumstances and all customer complaints 

th at the ir lines are being wiretapped. Our Companies follow generally sim ilar 

operating procedures when an employee discovers a wire tap or eavesdropping 

device on a telephone line. Each Company has established ground rules for the 

small nurnlier of these situations th at occur, which take into consideration any 

local statutory requirements. Most frequently, when our people find improper 

wiring at a term inal, it is the resu lt either of a record error or failure on the 

pa rt of our personnel to remove the wire s associated with a disconnected telephone. Each of these cases is, however, care fully checked. In those few instanc es where there is evidence of wiretapping, the employee discovering it is 

required to inform his supervisor immediately, and a thorough investig ation is 

undertak en in every such case by competent security and plant forces.

In a small number of cases, a customer susiiects a wire tap and asks for our 

assistance. Usually, these requests arise because the custom er hea rs what are 

to him suspicious noises on his line. Hearing frag men ts of ano ther conversation 

due to a defective cable, or tapping noises due to loose connections, or oth er 

plant troubles are on occasion mistaken for wiretapping. Each Company has 

established procedures for handling such requests. Generally, the first step is 

to have our craftsmen test the customer’s line from the central office. In most 

instances, these tests will disclose a pla nt trouble condition. In each such case, 

the trouble is promptly corrected and the customer informed there was no 

wiretap.

In cases where no trouble is detected through testing the customer's line, a 

thorough physical inspection for evidence of a wiretap is made by trained personnel at the customer's premises and at all oth er locations where his circ uitry 

might be exposed to a wiretap. If no evidence of a wiretap is found, the customer is so informed. Where evidence of a wir etap is found, the practice generally 

is to report to law enforcem ent authorities any device found in the course of 

the Company inspection, for the purposes of determ ining whether the device 

was lawful and of affording law enforcement an opportunity to inve stigate if 

the tap was unlawful. The existence of the device is also reported to the customer requesting the check, generally irrespective of whether it was lawful or 

unlawful. The customer is told that “a device” has been found on his line, 

without our characterizing it as lawful or un lawful; should the customer have 

any questions, he is referred without fu rth er comment to law enforcement.
200

New Jersey Bell, however, as a matter of policy, inform s a customer requesting a wiretap check th at only the presence of an unauthorized device will be 

disclosed. Minnesota by statute similarly limits disclosure to unlawful devices. 

Should the customer inqu ire about the presence of a lawful device, he will 

usually be assured that applicable Federal and State laws require any judge 

authorizing or approving a court-ordered interception to notify the affected 

customer within t)0 days af ter interception ceases (or at a lat er date, if disclosure is ixxstponed upon a good cause showing by law’ enforcement).

All Bell System Companies repo rt the existence of an unlawful device to the 

custom er requesting the check, as well as to law’ enforcement, and the latte r is 

provided an opportunity to investiga te for a reasonable period (generally 24-48 

hours) prior to removal of the wiretap.

We might point out that unless the wire tap effort is amateurish, a person 

whose line is being tapped will not hea r any thing unusual, because of the 

sophisticated devices employed. As we previously said, most of the complaints 

originate because the custom er hears an odd noise, static, clicking, or other 

unusual manifestation s. As fa r as our experience discloses, these usually turn 

out to be difficulties in transmission or other pla nt irregularities. From 1967 

onward, for example, the tota l number of wiretap and eavesdrop devices of all 

types (including both lawful and unlaw ful) found by telephone employees on 

Bell System lines lias averaged less t han 21 per month—an average of less than 

one a month for each of the twenty-four operatin g companies of the Bell System. In our opinion, the criminal sanctions imposed by Title II I (for the 

unauthorized intercep tion or disclosure or use of wire or oral communications, 

or the manufacture, distributio n, possession, or advertising of intercepting 

devices), coupled with vigorous law enforcement and attendant publicity, 

appea r to have contributed significantly to safeguarding telephone privacy.

In the area of court-ordered wiretapping, it is the policy of the Bell System 

to cooperate with duly auth orized law enforcement author itie s in the ir execution of lawful interceptions by providing limited assistance as necessary for 

law enforcement to effectuate the partic ula r wiretap. We wish to stress th at 

the Bell System does not do the wiretapping. The assistance furnished generally takes the form of providing line access information, upon the presentation 

of a court ord er valid on its face, as to the cable and pair designations and 

multiple appearances of the term inals of the specific telephone lines approved 

for interception in th e court order.

The term “cable and pa ir” denotes the pair of wires serving the telephone 

line in question, and the cable (carried on poles, or in conduit, or buried in the 

ea rth ) in which the pair reposes. A “terminal” is the distribution j>oinit to 

which a number of individual pairs of wires from the cable are connected, to 

provide service in tha t immediate area. A term inal may in a residential area 

be on aerial cable suspended from telephone poles or on a low, above-ground 

pedestal, or be found in terminal boxes or connecting strips in the basement, 

hall, or room of an office building or apartment house. The pair of wires of each 

telephone serviced from a particular terminal are interconnected at that term ­

inal with a specific p air of wires from the cable, so that a continuous path of 

communication is establish ed between the customer’s premises and the telephone company’s central office. The term inals vary in size, depending upon the 

needs of the particular location. To provide optimum flexibility in usage of 

telephone equipment, the same pa ir of wires may appear in para llel in a number of terminals, so that the pa ir can be used to service a nearby location if its 

use is not required at a particular point. Thus, the term “multiple appearance” 

denotes the locations where the same pair of wires appears in more than one 

term inal on the electrical path between the cen tral office and the customer’s 

premises.

In the instance of law enforcem ent authorities of the Federal government 

(and of those States enacting specific enabling legislation in conformity with 

the amendments to § 2518(4) of Title II I of the Federal Omnibus Crime Contro l Act effective F ebr uar y 1, 1971), the court order may “dire ct” the telephone 

company to provide limited assistance in the form of the “information, facilities. and technical assistance” necessary to accomplish the wiretap unobtru ­

sively and with a minimum disruption of service. Upon the receipt of such a 

dire ctiv e in a court order valid on its face, our cooperation will usually tak e 

the form of furnishing a private line channel from term inal to terminal (i.e.. a 

chan nel from a term inal which also services the telephone line under investiga-
201

tion to a term inal servicing the listen ing post location designated by law enforce ment). Additionally, the above described line access information will be 

furnished for the specific telephone lines judicially approved for interception.

On occasion, assistance in the form of private line chann els is furnished to 

Federal authorities in nationul security cases. This assistance is only rend ered 

upon specific written request of the Attorney General of the United States or 

of the Director of the Federal Bureau of Investigation (upon the specific writ ­

ten authorization of the Attorney General to make such request) to the local 

telephone company for such facilities, as a necessary investigative technique 

under the Preside ntial power to protect the national security again st actual or 

I>otential att ack or oth er hostile acts of a foreign power, to obtain foreig n 

intelligence information deemed essential to the secu rity of the United States, 

or to protect national security information again st foreign intelligence activities. For reasons of security, we are not informed in such cases of the specific 

natur e of the national security ma tter under investigation.

In cooperating in court-ordered and national secu rity cases, we endeavo r to 

provide the very minimum assistance necessary to effectuate the particu lar 

wiretap. Under no circum stance, do we do the wiretapping itself; th at is the 

exclusive province of the appropriate law7

 enforcement officers. Nor do we fu rnish end equipm ent to be used in connection with a wiretap, such as tape recorders or j>en registers. Nor do we design or build wire tap or eavesdrop devices 

for law enforcement authorities. Furthermore, our telephone companies do not 

tra in law enforcement personnel in the general methods of wiretap ping and 

eavesdropping, nor do we provide telephone company employee identification 

cards, uniforms or tools, or tleplione company trucks.

In conclusion, I wish to assure you th at the Bell System continues to be 

wholly dedicated to the proposition that the public is entitled to telephone 

communications free from unlawful intercep tion or divulgence. We are vitally 

interested in the protection of the privacy of communications and alwa ys welcome measures and techniques that will strengthen and preserve it.

The foregoing reflects our experience in the are as of wiretapping and electronic surveillanc e since the passage of Title II I of the Federal Omnibus Crime 

Control Act in 19GS and our continuing concern for maximizing the privacy of 

communications.

I shall be pleased to endeavor to a nsw er any questions that the Subcommittee 

may have.

Mr. Drinan. I would like, to announce the hearings on eavesdropping and electronic surveillance will continue in this room on 

Monday, A pril 27. We will hear from a representative of the FBT, 

Professor William Bender of Rutgers University, and Representative 

Bella Abzug.

The meeting is adjourned. Thank you.

['Whereupon, at 1:45 the hearing was recessed to reconvene on 

Monday, April 29,1974, at 10 a.m.]

WIRETAPPING AND ELECTRONIC SURVEILLANCE

MONDAY, APR IL 29, 1974

H ouse of R epresenta tives,

S ubc omm itte e on Courts, Civil Liberties,

and th e Administr ation of J ustice of th e

Com mittee on tiie J udiciary,

Washington, D.G.

The subcommittee met a t 10:15 a.m., pui'suant to recess, in room 

“2141, Rayburn Rouse Office Building, Ron. Robert W. Kastenmeier 

(chairman) presiding.

Present: Representatives Kastenmeier Drinan, Smith, and Cohen.

Also present: Bruce A. Lehman, Counsel, and Thomas E. Mooney, 

associate counsel.

Mr. Kastenmeier. The subcommittee will come to order this morning to hear further testimony relating to wiretapping and electronic 

surveillance.

We are very pleased to welcome our first witness this morning, 

Mr. Edward S. Miller, appearing on behalf of the Federal Bureau 

of Investigation as Deputy Associate Director. Mr. Miller is in 

charge of all of the investigative activities of the Bureau in both the 

criminal and national security areas.

Before proceeding, I should explain tha t the C hair recognizes that 

Mr. Aliller is under some limitations in discussing publicly some 

aspects of national security electronic surveillance. He may, therefore, be unable to respond specifically to certain questions as the 

Chair understands it.

I might ask you to identify your colleagues, Mr. Cleveland and 

Mr. Decker, and to proceed sir. We have your extensive statement. If 

you desire you may read the entire statement or present an oral summary, whichever you choose.

TESTIMONY OF EDWARD S. MILLER, DEPUTY ASSOCIATE DIRECTOR. FEDERAL BUREAU OF INVESTIGATION, ACCOMPANIED BY

WILLIAM V. CLEVELAND, ASSISTANT DIRECTOR, SPECIAL

INVESTIGATIVE DIV ISION ; ANDREW J. DECKER, JR ., INSPECTOR,

INTELLIGENCE DIVISION

Mr. Miller. Thank vou, Mr. Chairman.

Before I begin, I will introduce my Colleagues, Assistant Director 

William Cleveland, who is in charge of what we call our Special 

Investigative Division. One of its primary tasks is conducting investigations in the organized crime field.

(203)
204

Mr. Docker, on my rig ht , is t he in spector i n charg e of o ur counter ­

intellige nce in the Inte llig enc e Division.

I will read exc erp ts from my sta tem ent—some six pages.

Mr. Ch air ma n an d members of th e subcommittee, th e gi st of the 

bills before t hi s subcomm ittee is aimed at e ith er proh ibiting all typ es 

of electronic surveillance, inc lud ing tho se whi ch Congress h as a lre ady 

considered an d fou nd desirable, or at perceiv ed actua l or po tential 

abuses of electro nic surv eillance. One bill, H.R . 13825, attempts to 

define and reg ula te the use of electronic s urv eillan ce by the Pr esiden t 

in cases in which o nly h e may have au thor ity to act un de r his con stitution al powers.

In 1968, Congres s decid ed th at electronic surv eillances pro vid ed 

an effective, and in some cases, indispensable law enf orcement tool in 

the inv est iga tion of certa in crimes. Con gress pro vid ed th at a commission would stu dy the effect of Title I I I of the Om nibus Crime 

Control and Safe Stree ts Act of 1968 6 years af te r imple me nta tion 

and wi thin 1 ye ar r ep or t it s find ings to th e Congress. If corrective or 

remedia l action ap pe ars necessary, Congress will then hav e extensive 

and objective da ta upon which to Ixase fu rthe r action. Th e commission has been fully appoint ed an d will beg in its stu dy th is year.

Any amend ment to title ITT should aw ai t th e results of the commission’s stu dy, whi ch will reflect l>oth th e value of electronic s urve illance in mo dern law en forc eme nt, an d th e measure s and difficulties in 

prote cti ng individu al rig hts whi le ut ilizing this inv estiga tive tech ­

nique.

I, like all of you, am concerned with the abuses of electronic su rveillance. Abuses red oun d to th e de tri men t of the leg itim ate , fa ir 

and effective use of electronic surve illa nce as a val uab le tool ag ain st 

crim inal activ ity a nd foreign intelligence ope rations .

Some would seek to outla w th e use of electr onic surveillan ces in all 

cases, perhap s based on the fact th at electro nic survei llance is no t 

sufficiently selec tive and often inter cepts many com mun ications not 

directly pe rta ining to the matt er un de r inv estiga tion. Th is is often 

tru e, bu t in man y cases it is no t tru e. Use of electron ic surve illa nce 

involves a delicate balancin g of pr otec tin g th e common good ag ains t 

ind ividual rig hts. Whil e some communicatio ns are i nte rce pte d which 

are extraneou s to t he offense which justifies th e surveillan ce, evidence 

of th e com munica tion s which form p art o f th e offense cannot generally be obtained in any oth er way; consequ ently, many crim es would 

go und etec ted and un prosecuted wi thou t t he use o f elec tronic surve illances. In many cases electronic survei llance s intercep t no e xtr aneous 

com munica tions, fo r exam ple, listen ing in to kidn apers’ or ex torti on ­

ists ’ telephone calls, a nd the use o f a Irody rec order by an underco ver 

agent or informa nt.

The use o f e lectron ic surv eillance i n for eig n intelligence cases is an 

absolut ely essential and ind ispensable fool. Inform ation of much 

value beyond ne utr ali zatio n is obtained in such cases.

Whil e the Con gress certainlv should direct itse lf to abuses of electro nic survei llance , it hopefully will inc lud e in its delib era tio n the 

effect such legislation might have on th e practic al necessities of 

crim inal and inte lligence investiga tions. For th at reason , I welcome 

the op po rtu nity to ap pe ar befo re you toda y to prese nt my views on
205

the bills pending before tliis subcommittee on the proper and improper use of electronic surveillances. I disagree with the complete 

abolition of electronic surveillance as an investigative tool, but I support measures to properly regulate and control its use.

There is a need for Congress to act, which need has been dramatized by recent cases, to provide for the use of electronic surveillance 

in criminal intelligence and domestic internal security investigations. 

The Keith case recognized tha t it was creating a void in the law by 

prohibiting the use of electronic surveillances in domestic internal 

security intelligence investigations by ruling t ha t the President did 

not have inherent flowers to authorize them without judicial warrant 

and invited Congress to consider procedures by which such surveillance could be obtained. The Court recognized t ha t the standard of 

probable cause might be somewhat different in justifying the need 

for an intelligence electronic surveillance than the standard required 

under th e current provisions of title II I for criminal cases.

There is a need for domestic intelligence electronic surveillance in 

some cases in the United States tod ay; however, there is no mechanism or procedure by which such surveillances can be utilized. We 

hope in the near future to present to Congress, following approval of 

the Department of Justice, a bill which will authorize the use of 

domestic intelligence electronic surveillances, with prio r judicial 

approval, under reasonable probable cause, notice, and reporting 

requirements, suited to the legitimate objectives of intelligence investigations.

Mr. Chairman, I am confident that you and the members of the 

subcommittee are aware that I cannot discuss details of electronic 

surveillance in the national defense and foreign policy areas in open 

session.

Detailed discussion in these areas could possibly allow foreign 

intelligence services to assess the success of their operations and 

adjust their efforts or tactics to avoid neutralization and penetration.

Sensitive foreign policy and foreign relations considerations are 

also involved in any discussion of this nature.

Further, detailed discussion of the mechanics of electronic surveillance practices in the national defense, foreign policy, or organized 

crime areas, would be of inestimable value to the targets by perhaps 

enabling them to take countermeasures.

If the subcommittee feels it has a need for more detailed discussion in these areas, I would be most willing to meet with you in executive session.

My prepared testimony malces a case for the value of electronic 

surveillance in combating organized crime and provides an example 

of its effective use under the regulations of title ITT. Let me summarize th at presentation merely bv saying that organized crime is a 

highly sophisticated, far-flung, and pervasive evil influence in American life today. Much of its effectiveness, like any other organization’s, depends on its communications capabilities. The telephone is 

an integral element in its success and without secure oral communications between leaders, superiors, and subordinates, it could not 

function. Title II I has done much to neutralize the efficiency of o rganized crime. Any measure which would revoke the electronic surveil35-391— 74------ 14
206

lance capability of law enforcement against organized crime would 

be a serious disservice to the American people.

My statement details, step-by-step, the manner by which a title III 

surveillance is requested, approved, implemented and regulated. I 

think you will find th at the rights of the citizen are well protected 

against unreasonable government action and are provided a fai r 

balancing against competing societal rights, both by the internal 

administrative procedures of the F BI and the Department of Justice, 

and an intervening judge.

My statement also contains some examples of the value of consensual monitoring. for example, monitoring of conversations with the 

consent, of one party to the conversation. This technique is used significantly in organized crime cases in which perju ry, intimidation, 

or murder of witnesses and destruction of evidence are not uncommon phenomena. A mechanical reproduction of a conversation and a 

law enforcement officer/witness who monitored the conversation have 

been indispensable to successful prosecution in several cases, and 

because there has been indeixmdent evidence of a conversation, the 

life of the party who consented to the monitoring who might otherwise have been the only witness, may have been saved.

As previously noted, consensual monitoring has assigned in not 

only solving lcidnapings b ut may also have saved victims’ lives.

I have also included in my prepared statement a detailed ana'lvsis 

of the bills pending before this subcommittee and the impact they 

could have on F BI operations.

Mr. Chairman, this concludes my oral statement.

Mr. Kastenmeier. Thank you very much, Mr. Miller, it is a valuable statement indeed, and even though some of the testimonv in 

your written statement was not delivered aloud, nonetheless, without 

objection, your full Statement will be made a part of the record, and 

we appreciate having it.

[The statement of Mr. Edward S. Miller, Deputy Associate Director, Federal Bureau of Investigation, follows:]

Statement of Edward S. Miller. Deputy Associate Director, F ederal Bureau

of I nvestigation

Mr. Chairman and members of the Sul>committee, the gist of the Dills before 

this Subcommittee is aimed at either prohibiting all types of electronic surveillance, including those which Congress has already considered and found desirable, or at perceived actual or potential abuses of electronic surveillance. One 

bill, II.R. 13825, atte mpts to define and regulate the use of electronic surveillanc e by the President in cases in which only he may have author ity to act 

und er his constitutional powers.

In 1968, Congress decided that electronic surveillances provide an effective, 

and in some cases, an indispensable law enforcement tool in the investigation 

of certain crimes. Congress provided that a commission would study the effect 

of Title II I of the Omnibus Crime Control and Safe Stre ets Act of 1968. six 

years after implementation, and within one year repo rt its findings to the Congress. If corrective or remedial action appears necessary. Congress will then 

have extensive and objective data upon which to base furth er action. The commission has been fully appointed and will begin its stud y this year.

Any amendment to Title II I should awa it the results of the commission's 

stud y which will reflect both the value of electronic surveillance in modern 

law enforcement, and the measures and difficulties in protecting individual 

rights while utilizing this investigative technique.
207

I, like all of you, am concerned with the abuses of electronic surveillance. 

Abuses redound to the detrimen t of the legitim ate, fa ir and effective use of 

electronic surveillance as a valuable tool aga inst criminal activity and foreign 

intelligence operations.

Some would seek to outlaw the use of electronic surveillances in all cases, 

perhai>s based on the fact that electronic surveillance is not sufficiently selective, and often intercep ts many communications not directly pertain ing to the 

ma tter under investigation. This is often true ; but in many cases, it is not true. 

Use of electronic surveillance involves a delicate balancing of protecting the 

common good against individual rights. While some communications are intercepted which are extraneo us to the offense which justifies the surveillance, evidence of the communications which form part of the offense cannot generally 

be obtained in any other way ; consequently, many crimes would go undetected 

and unprosecuted without use of electronic surveillances. In many cases electronic surveillances intercept no extraneous communications, e.g., listening in 

to kidnapers or extortionist’s telephone calls, and t he use of a body reco rder by 

an undercover agent or inform ant.

The use of electronic surveillance in foreign intelligence cases is an absolutely essential and indisi>ensable tool. Information of much value beyond neutralization is obtained in such cases.

While the Congress certa inly should direct itself to abuses of electronic surveillance, it hopefully will include in its deliberation the effect such legislation 

might have on the practical necessities of criminal and intelligence investigations. For th at reason, I welcome the opportunity to appear before you today 

to present my views on the bills pending before this Subcommittee on the 

proper and improper use of electronic surveillances. I disag ree with the complete abolition of electronic surveillance as an investiga tive tool, but I supp ort 

measures to properly regulate and control i ts use.

There is a need for Congress to act, which need has been dramatized by 

recent cases, to provide for the use of electronic surveillances in crim inal intelligence and domestic inte rnal security investigations. The Keith case recognized 

that it was creating a void in the law by p rohibiting the use of electronic surveillances in domestic internal security intelligence investiga tions by ruling 

that the President did not have inhere nt powers to auth orize them without 

judicial warrant, and invited Congress to consider procedures by which such 

surveillances could be obtained. The Court recognized that the standard of 

probable cause might be somewhat different in justifying the need for an intelligence electronic surveillance than the sta ndard required und er the current 

provisions of Title II I for criminal cases.

There is a need for domestic intelligence electronic surveillance in some cases 

in the United States today; however, there is no mechanism or procedure by 

which such surveillances can be utilized. We hope in the near futur e to present 

to Congress, following approval of the Department of Justice, a bill which will 

auth orize the use of domestic intelligence electronic surveillances, with prio r 

judicial approval, under reasonable probable cause, notice, and reporting requirements suited to the legitimate objectives of intelligence investigations.

Mr. C hairm an, I am confident that you and the members of the Subcommittee 

are aware that I cannot discuss deta ils of electronic surveillance in the national 

defense and foreign policy areas in open session.

Detailed discussion in these areas could possibly allow foreign intelligence 

services to assess the success of their operations, and adjus t the ir efforts or 

tactics to avoid neutralization and pene tration.

Sensitive foreign i>olicy and foreign relations considerations are also involved 

in any discussion of th is nature.

Furth er, detailed discussion of the mechanics of electronic surveillance practices, in the national defense, foreign policy, or organized crime areas, would 

be of inestimable value to the targ ets by perhaps enabling them to take countermeasures.

If the Subcommittee feels it has a need for more detailed discussion in these 

areas, I would l>e most willing to meet you in executive session.

My prepared testimony makes a case for the value of electronic surveillance 

in combating organized crime and provides an example of its effective use, 

under the regulations of Title III. Let me summarize that presenta tion merely 

by saying that organized crime is a highly sophisticated, far-flung, and pervasive evil influence in American life today. Much of its effectiveness, like any
208

other organization’s, depends on its communications capab ilities. The telephone 

is an integral element in its success; and witho ut secure oral communications 

between leaders and between superiors and subo rdin ates it could not function. 

Title II I has done much to neutralize the efficiency of organized crime. Any 

measure which wiuld revoke the electronic surveillance capability of law 

enforcement aga inst organized crime would be a serious disservice to the 

American people.

TIT LE II I ELECTRONIC SURV EILLAN CES

Title II I electronic surveillances have been used against organized crime in 

investigations involving rackete er influenced and corrupt org anization s; intersta te transportatio n in aid of rac keteering ; int ers tat e transmission of wagering 

info rmation; illegal gambling businesses; and extortion ate cred it transactions. 

As a by-product, evidence was also developed concerning illegal narcotics 

traf fic; pros titution; auto th e ft; alcohol, tobacco, and firearms tax vio lation s; 

government corru pti on; stolen property violations ;and local robbery and 

gambling offenses. T itle II I surveillances have been used by the FBI in br ibery; 

bank rob ber y; obstruction of justice; theft from inter sta te shipm ent; inter ­

sta te transp ortation of stolen property, and kidnaping cases.

Title II I has provided a most effective weapon in atta cking syndicated gambling and other organized illegal activities. Since 1969, Title II I electronic 

surveillances in FB I cases have led to over 1,100 convictions, and the confiscation of cash, proiM>rty, weapons, wagering paraphernalia, and contraband 

valued a t more than $7,000,000. Of approximately 2,700 organized crime subjects 

being prosecuted as of April 1, 1974, nearly 1,700 were arrested as a resu lt of 

information obtained via Tit le II I surveillances.

An example of the value of electronic surveillan ce is the DeCavalcante 

ca se :

Samuel Rizzo DeCavalcante, the head of an Elizabeth, New Jerse y, mob 

allegedly engaged in gambling, loan sharking, extortion, labor-racketeering, 

and other illegal activ ities, had been the subject of an extensive FB I investigation for some time. In Septeml>er, 1969, probable cause was established to 

indicate that DeCavalcante was involved with an individual named Alessio 

Barrass o in running one of the largest numbers operation s in the State of New 

Jerse y. A Title II I surveillance on a key bet-taking telephone at Belleville, 

New Jersey, was authorized.

This coverage confirmed that DeCavalcante, Barrasso, and others were conducting a large-scale gambling business, and enabled us to obtain additional 

court orders authorizing telephone interceptions in New’ Jersey and Troy, New 

York. In December, 1969, DeCavalcante, Barrasso, and 53 others were indicted 

on conspiracy to violate Fed eral antigambling statutes, and eventually 49 of the 

55 indicated pleaded guilty to the conspiracy charges.

Extensive investigation in this case, preceding the use of electronic surveillances, included five months of physical surveillances, motor vehicle and telephone toll record examinations, and interviews with informants, but it was 

the Title II I surveillance which made the case.

My statem ent deta ils, step-by-step, the man ner by which a Title II I surveillance is requested, approved, implemented and regulated. I think you will find 

that the rights of th e citizen are well protected aga inst unreasonable government act ion ; and are provided a fa ir balancing against competing societal 

rights, both by the intern al adm inistrative procedures of the FB I and the 

Departm ent of Ju stice, and an intervening magistrate.

THE CHRONOLOGY OF TH E US E OF TITLE II I ELECTRONIC SURVEILLANCE IN AN FB I 

CRIMINA L INVE STIGAT ION

A. Preliminary Investigation and Preparation of Affidavit

1. It is established through informant information or other general investigation, that a Federal criminal violation is being committed.

2. Fu rth er follow-up, eorrolxirating investigation is conducted through contac t with informants, physical surveillances, and general investigation.

3. An opinion of a Federal Strike Force Attorney or United States Attorney 

as to the prosecutive potential of the alleged violation is obtained.

4. An affidavit for application for a Title II electronic surveillance is prepared by the case agent after all other efforts to acqu ire necessary evidence 

have been exh austed.
209

5. The affidavit is reviewed by the legal officer in the FB I field office for 

proba ble cause and legal sufficiency and the n subm itted for review to a Stri ke 

Force Attorney or United Stat es Attorne y.

G. If the Stri ke Force Attorney or United Sta tes Attorn ey approves the 

affidavit, it is forw arded to FB I Hea dqu arte rs.

B. Review of Affidavit at FB I Headq uar ters and Depa rtme nt of Jus tice

1. The affidavit is reviewed by the Office of I^egal Counsel, case supervisor , 

his uni t chief, section chief, Deputy Ass ista nt Direct or, Assist ant Director, 

Deputy A ssociate Director, Associate Direc tor, and Director.

2. If the Director of the FB I approves the affidavit, it is forw arde d to the 

Office of Special Operatio ns, Dep artm ent of Justice, for review, and it is 

subm itted up the chain of command at the Dep artm ent of Jus tice for final 

appro val by the Ass istan t Attorney General, Criminal Division.

3. If the affidavit is approved by the Ass ista nt Attorney General, it is sent 

back to the app rop riate Strike Force Attorney or United Sta tes Attorney and 

FB I field office.

<7. Application for Court Order

1. When th e approv ed affidavit is received by the c ase agent, he files it before 

a United Sta tes District judge along with an application for the surveillance.

2. If the judge approves, he issues a cou rt ord er dire cting the FB I to condu ct the reque sted surveillance for a specified period of time which is set 

forth in th e cou rt order , usually 15-20 da ys.

3. This cou rt ord er is then served upon the telepho ne company by the FB I 

age nt to secure the necess ary technical info rma tion and assista nce to ins tall 

the s urveila nce.

D. Operati on tty the FB I of a Title I I I Electronic Surve illance

1. After the neces sary technical info rmation and assista nce is obtained, FB I 

personnel ins tal l the surveillance.

2. FBI supe rviso ry personnel at the field level including the Special Agent 

in Charge, field supervisor, and case agent, inform all personnel who will 

particip ate in the surveillance of the inve stiga tion to be conducted. The legal 

officer also advises all personnel of legal limitations concerning monito ring, 

such as husband -wife, lawyer-client relat ionsh ips.

3. A monitoring room is set up and spec ialists brie f all par ticipa ting personnel concerning the technical equipm ent and its operation.

4. Once oper ation is initiated, all surv eilla nce activ ity is closely coor dina ted 

with operation s with in the monitoring room, i.e., limited to par tici pat ing per ­

sonnel and inve stig ator s with a need to know the resu lts of the surveillance.

5. All resu lts of the surveillan ce ar e recorded, i.e., pertin ent tape s are 

tran scribed and logs a re maintain ed of all surveillances.

6. The Strike Forc e Attorney or Unite d Sta tes Attorney is kep t informed, 

on a daily basis, of the resu lts of the s urveillance.

7. The field office i s required to infor m FB I He adq uar ters every two days of 

the resu lts of t he surveillance.

8. The Strike Force Attorney or Unite d Sta tes Attorney mus t inform the 

United Sta tes Di strict Court which approved the surveillan ce of its results 

a t inte rvals specified in the order.

9. Exten sions or renew als of the surve illance are reque sted by the Unite d 

Sta tes Attorney or Stri ke Force Attorney .

E. Termin ation of the Surve illance

1. At the termin atio n of the surve illance, th e tapes are sealed and are 

retained at a locatio n specified by the Di strict Court for a period of ten years. 

Per tinent info rmation from the tapes, necess ary for fu rth er inve stiga tion, is 

made available to inve stiga tors with a need to know.

2. Results of the surveillan ce are included in affidavits to sup por t search 

an d/or arr est wa rra nts .

F. Prosecution

1. Evidence obtained during the entire inves tigation, including info rma tion 

developed thro ugh Title II interceptio n, evidence seized in raids , and inf orm ation developed thro ugh general inves tigation is pres ente d to a Fed era l gra nd 

jury . If indic tmen ts are retu rned , arr ests ar e made.
2. Upon motion of defense attorney s, a suppression hearing is generally 

held before a United States District Court judge at which probable cause, and 

the consequent legality, of all warrants, including the Title II I warrant, are 

tested.

3. Prior to tria l, the United States Distric t Court orders relevant Title III 

tapes unsealed and the government to furnish copies of these tapes and tra nscrip ts to defense attorneys.

My stateme nt also contains some examples of the value of consensual monitoring, i.e., monitoring of conversatio ns with the consent of one par ty to the 

conversation. This technique is used significantly in organized crime cases, in 

which perjury intim idation or murder of witnesses, and destruction of evidence 

are not uncommon phenomena. A mechanical reproduction of a conversation 

and a law’ enforcement officer/wituess who monitored the conversation have 

been indispensable to successful prosecution in several cases, and because 

there has been indei>endent evidence of a conversation, the life of the party 

who consented to the monitoring who might otherwise have been the only 

witness, may have been saved.

As previously noted, consensual monitoring has assisted in not only solving 

kidnapings but may also have saved victim s’ lives.

CONSE NSU AL MONITORING

In United States v. White, 401 U. S. 745 (1971) (regarding the use of a 

transm itting device concealed on the person of an informant) Justice White, 

speaking for the Court s tate d :

“Concededly a police agent who conceals his police connections may write 

down for ofiicial use his conversations with a defendant and testify concerning 

them, withou t a wa rra nt authorizing his encounters with the defe ndant and 

with out otherwise violating the latter ’s Fourth Amendment rights. . . . For 

constitutional purposes, no different resu lt is required if the agent, instead 

of immediately reporting and transcribing his conversations with the defendant, 

eith er (1) simultaneously records them with electronic equipment which he is 

carryin g on his person . . . (2) or c arries radio equipment which simultaneously 

tran smits the conversations either to recording equipment located elsewhere or 

to other agents monitoring the transm itting frequency. . . . If the conduct and 

revelations of an agent operating without electronic equipment do not invade 

the defe ndant’s constitutionally justifiable expectations of privacy, neither 

does a simultaneous recording of the same conversations made by the agent 

or by others from transm issions received from the agent to w’hom t he defendan t 

is talking and whose trustworthiness the defendan t necessarily risks.

“. . . the law permits the fru stration of actual expectations of privacy hv 

perm ittin g author itie s to use testimony of those associates who for one 

reason or another have determined to turn to the jxilice, as well as by author ­

izing the use of informants. . . . If the law gives no protection to the wrongdoer whose trusted accomplice is, or becomes a police agent, neither should 

it protect him when that same agent has recorded or tran smitte d the conversation s which are later offered in evidence to prove the Sta te’s case.”

FB I regulations require th at either the Sj>ecial Agent in Charge of a local 

field office or, in sensitive cases, FB I Headq uarters must personally approve 

all consensual telephonic overhearings. Jus tice Depa rtment regulations require 

Departmental approval for all oth er consensual monitoring, i.e., concealed 

radio transmitters or recording equipment.

The value of consensual monitoring is evidenced by the following case:

Between 1968 and 1970 two Long Isla nd businessmen had been paying off a 

usurious business loan to Joseph Randazzo and Giuseppe Maida. During this 

time the victim s alleged tha t they had been subjected to thr eats of physical 

harm , at times involving guns, kickings, and beatings. In November, 1970, 

the victims made telephone calls to Vincent Lore, an associate of Randazzo 

and Maida, who had been involved in physical attack s on the victims. These 

calls were monitored by FBI agents and incriminating evidence was obtained. 

Jus tice Departm ent authority was given to equip the victims with body 

recorders to monitor future conversatio ns with Randazzo, Maida. and Lore. 

Based in part on evidence recorded, Randazzo, Maida, and Lore were arrested, 

and eventually pleaded guilty to extorionate credit transactions.

Hoodlum loan sharking, because of the violence often associated with it, is
211

one of the most vicious and profita ble ente rpri ses engaged in by the organized 

underw orld. In this case, with out the use of consensual monitoring devices, it 

is questio nable wheth er successful prosecu tions could have been obtain ed since 

murder of the businessmen could have eliminate d the only witness es to the 

criminal activ ity.

I have also included in my prepared statem ent a detaile d analysi s of the 

bills pending before this Subcommittee and the impac t they could have on 

FB I operations.

H .R . 1 5 9 7

H.R. 1597 requires tha t electro nic surveillan ce of a United Sta tes Judg e or 

Jus tice or a Sena tor or Member of Congress can be conducted only on the 

written aut horization of the Pre side nt of the United States .

The FB I has no comment on thi s bil l; it in no way affects FB I operations.

H .R . 9 6 6 7 (ALSO INTROD UC ED AS H .R . 9 9 7 3 , H .R . 1 0 0 0 8 , AN D H .R . 1 0 3 3 ) 

H .R . 9 6 9 8 ; H .R . 9 7 8 1

Via diffe rent types of amend ments to 18 U.S.C. 2511, these bills eith er totally 

proh ibit electronic surveillance of any type, for any reason (H.R. 97 81 ), or 

require the consent of all par ties to the conversation to be monitored except 

when a judicia l wa rra nt has been issued. (H.R . 9667, H.R. 9698 ).

The FB I is opposed to H.R. 9781; and con stitu tional problems may be presented by H.R. 9667 and H.R. 9698.

Electronic surveillance is an effective, and often a unique investig ative technique by which information esse ntial to a successful prosecution or thw arting 

of foreign intellige nce or terr ois t activity is obtained which is not avail able 

from any other source. Electronic surveillan ce is an essential inve stiga tive 

tool in combatin g organized crime; it has been used effectively, fair ly, and 

with out prejudic e to individual rights in bribery, embezzlement, Hobbs Act, 

obstructio n of justic e, int ers tate theft, kidnaping extor tion, spor ts bribery, 

and rack eteer ing cases.

Congress has weighed the need for electronic surve illances in these, an d 

other types of ca se s; and, finding th at the need was real and necessary, provided a mechanism and author ity for the fa ir and effective use of electron ic 

surveillance, while protec ting the individual in his righ t to due process and 

aga inst unre asonable search and seizure —Titl e II I of the Omnibus Crime Control and Safe Stre ets Act of 3968.

Use of electro nic surveillance in these cases has been of utmost value to 

fa ir and efficient law enforcement. As the Subcommittee is aw?are, use of Titl e 

II I during the six year s since its passa ge will undergo a year-long exam ination 

by a committe e of expe rts appointed by the Congress. The committ ee begins 

its study thi s year. I am confident th at the committee’s repo rt will supp ort my 

general observations th at Title II I has provided law enforce ment with an 

effective and indispensable inve stiga tive tool, and its use has been administered 

fair ly, with out preju dice to indivi dual rights.

These bills would prohi bit even the listening in to a telephone conversation 

by a law enforcement officer n t the request of a party who was being exto rted 

or was receiving ransom instruction s via the telephone. This prac tice is often 

instrume nta l in the ret urn of the kidna ped victim safely , and in the solutio n 

of the crime.

It should not be assumed however th at a Title II I wa rra nt could be obtain ed 

in all, or even in many, of these types of cases. An alleg ation of organized 

crime loan sha rkin g originally consi sts of ju st the word of the victim, plus 

some general knowledge of the sub ject ’s background. This is gener ally not 

sufficient to supp ort a Title II I application , but at the time the victim comes 

to us he is gener ally already in some danger and there is no time for exten sive 

general investigation to suppo rt an affidavit, hence we use a consensual monitorin g device to obtai n the necessary incr iminati ng evidence rapid ly.

In kidn aping cases the call to the victim’s relat ives often occurs wit hin 

hours af ter the kidnaping; the re is no time to run a Titl e II I application 

through FB I and Departm ent of Jus tice adm inistra tive chan nels to obtain 

the Attorney’s General prio r approval, required by Titl e II I, much less pres ent 

the application to a court.
212

II. R. 9815 (ALSO INTRODUCED AS H.R. 1 10 29 )

The he art of II.R. 9815 is a prohibition aga inst any civil officer o f the United 

Sta tes or officer of the United States Armed Forces from employing any pa rt 

of the United States Armed Forces or any Sta te mil itia “to conduct inve stigations and to maintai n surveillance s over, or record or maintai n information 

regarding, the beliefs, associa tions, or political activities” of non-Armed Forces 

personnel or members of any civilian organization .

I assu re the Subcommittee th at the FB I does not util ize mili tary personnel 

in its domestic intern al security investigations.

However, H.R. 9815 pres ents serious difficulties for ou r curre nt practices, and 

our continuing inves tigative needs, in the foreign counterintelligence area . This 

is a ma tter which must be reserved for executive session. ’

n.R . 994 9

II.R. 9949 seeks to amend 18 U.S.C. 25 11 (3 ) by addin g the following 

sente nce: •

"Nothing contained in thi s para graph shall be deemed to authorize the 

President, or anyone acting or purport ing to ac t on his behalf to engage in 

burglary or any oth er illegal act that is not prohibited by thi s cha pter.”

Section 2 provides th at nothing previously enacted or her eafte r to be 

enacted by Congress shal l auth oriz e the Pre sident to engage in burg lary or any 

other illegal act with out expre ss statutory aut hor ization of Congress.

H.R. 9949 merely bolsters the interp reta tion th at 18 U.S.C. 25 11 (3 ) was 

merely Congress’s d iscla imer th at Title II I of the Omnibus Crime Control and 

Safe Streets Act of 1968 did not in any way affect cons titution al Pre sidential 

powers.

The bill neit her adds to nor det rac ts from con stitu tional Presidential 

powers to conduct foreig n affa irs; to preserve , protect, and defend the Constitutio n ; and to prot ect the States aga inst invasion.

II.R. 9949 seeks merely to make it clear th at 18 U.S.C. 25 11 (3 ) cannot be 

cited as any type of congressional aut hority for Preside ntia l action.

As such, the FB I has no comment on the bill, since it does not affect 

cur ren t FBI operations. However, while the FB I also interp rets 18 U.S.C.

25 11 (3 ) as congressional disclaimer of any int ent to affect, i.e., to expand, 

res tric t or define Presidential powers, we do, when requesting approval from 

the Attorney General for foreign counterintelligence electronic surveillances, 

cite the areas of Preside ntia l powers enumer ated in 18 U.S.C. 25 11 (3 ) as 

an indicati on th at Congress, and the people, do feel there are constituti onal 

Pres iden tial powers in these general areas.

H.R . 11 83 8

H.R. 11838 seeks to amend 18 U.S.C. 25 16 (1 ) and (2 ) by eliminating the 

provision for an “emergency” electronic surveilla nce perm itted under 18 U.S.C. 

25 18 (7 ). 18 U.S.C. 25 18 (7 ) permits an electronic surveillance to be installed 

with out prior cou rt approval in an emergency situ atio n, provided th at court 

approv al is subseq uently obtain ed with in 48 hours.

II.R. 11838 avoids the tack of atte mp ting to repeal 18 U.S.C. 25 18 (7 ) by 

amending 18 U.S.C. 25 16 (1 ) and (2 ) so th at the se subsections can only be 

read as requiring prio r judi cial approval of electronic surveillances in all 

cases.

As an indic ation of the discreti on with which the FB I utilize s Tit le II I 

electronic surveillances. I point out th at the FB I has never used the emergency 

provision of Section 25 18 (7 ) ; however, th is is merely to emphasize th at we 

recognize the sensitivity of such a provision, and to refute the notion th at 

if Congress gives the Execu tive an exception it will make the exception the 

rule.

Although we h ave never used the emergency provision, I resis t its revocation. 

Congress has recognized th at in unique seriou s situ atio ns in which urgency does 

not allow for the pre-su rveillance wa rra nt procedure the Execu tive should 

hav e the means to util ize a surveillance.

If restrictions on consensu al monitoring are effected, I can foresee wher e we 

would l>e forced to utilize the emergency provision in many kidnaping, ext ortion . and perh aps organized crime cases.
213

H.B. 13 82 5

II.R. 13825 presents both constitutional and practical problems. In general, 

the constitutional problem presented is tha t the bill would have Congress 

define and regulate powers and actions of the President in areas which have 

heretofore been referred to as constitutional. The question is then whether 

these powers are, in fact, constitutional, and if so, Congress would apparently 

have no au thority to legislate in those areas.

The practical problems presented apparently stem from a lack of understanding of how foreign intelligence services operate in the United Sta tes ; 

how electronic surveillance is utilized in th is ar ea ; and how use of the technique 

is now controlled.

The bill specifically tells the Preside nt whom he may subject to electronic 

surveillance in taking actions he deems necessary to protect the Nation against 

hostile acts of a foreign power, or to obtain essential foreign intelligence 

information, or to protect national security information against foreign intelligence activities. Under the bill, the President may only employ electronic 

surveillance agains t “foreign agents,” whom the bill defines as “. . . any 

person who is not an American citizen or in the process of becoming an American citizen and whose first allegiance is to a foreign power and whose 

activities are intended to serve the interest of that foreign power and to 

undermine the security of the United States.”

The bill tells the President how he is to implement a n electronic surveillance 

against a “foreign agent” by referring him to a new provision of Section 

2518A which emlxxlies a lesser stand ard of proof than “probable cause to 

believe a crime has l)een or is about to lie committed.”

The bill deletes that provision of Section 2511 (3) which exempted from 

Title III of the Omnibus Crime Control and Safe Streets Act of 196S those 

actions as regards electronic surveillance taken by the President “. . . to 

protect the United States against the overthrow of the Government by force or 

other unlawful means, or against any other clear and present danger to the 

struc ture or existence of the Government.” This deletion, in essence, forces 

the President into the current provisions of Title II I as regards electronic 

surveillance in all national security cases involving United States citizens.

The bill amends Section 2 511(3 ) to prohibit the contents of any communication of a “foreign agent” intercepted pursuant to a warrant issued in accordance 

with Section 2518A from being used as evidence in a court proceeding, except 

civil proceedings against “foreign agents.” Although the legislative policy 

behind the “civil proceedings” clause of this provision is obscure, the evident 

purpose of this section is to insure tha t no individual, whether a “foreign 

agent” or not, is deprived of his liberty on the basis of Information obtained 

during an interception of communications in a case wherein the lesRer st andards 

of probable cause of 18 U.S.C. 2518A had been employed to secure the 

warrant.

Recently, the Supreme Court, in United States v. United States District 

Court (407 U.S. 297 (19 72) , commonly referred to as the Keith case, noting tha t Congress specifically disclaimed any effect on the constitutional powers 

of the President in Title III , observed tha t Congress might wish to prescribe 

protective stand ards for domestic security surveillances which would differ 

from stand ards already prescribed for Title ITI criminal surveillances. The 

court commented th at different stand ards for the two kinds of surveillances 

“may be compatible with the Fourth Amendment if they are reasonable 

both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.”

H.R. 13825 evades the difficult questions presented by the distinctive character of intelligence investigations in the determination of the “balance-point.” 

at which certain intrusions into privacy incident to intelligence collection 

are outweighed by the public benefits to be gained. The bill does thus by 

transposing the “probable cause” standard of the Fourth Amendment 

as it pertains to the commission of a crime into the field of pre-crime, intelligence investigation as it relates to electronic surveillance of United States 

citizens.

It appears tha t II.R. 13825's wholesale transposition of Fourth Amendment 

criminal law standards pertaining to “probable cause” negatively affects the 

authority of the President to meet a foreign intelligence thre at in at least 

two ways: (1 ) It has forced the adoption of an impractical definition of
214

“foreign agent .” This resu lt has occurred because transposi tion of Fo urth 

Amendment sta nda rds requires that the bill define those indiv iduals whom 

the President has power to defend the Natio n aga inst as being non-United 

States citizen s in every instance . In many cases, agents of foreign intellig ence 

services are American citizens. (2 ) By excluding from trial all evidence obtained 

from an electronic surveillanec unless obtained under a wa rra nt based on 

probable cause th at a crime had iieen or was al>out to be committed, H.R.

13825 would probably preclude use of info rmation obtained from an intercept conducted with a judicial wa rra nt, und er the Section 25 11 (3 ) constitution al presidential powers provision, in the prosecution of a foreign intel ligence officer who did not possess diplom atic immunity. In many cases electro nic 

surveillance of known intelligence officers is conducted witho ut probable 

cause, in the tradition al crimin al law und erst and ing of th at term, but it 

eventual ly produces evidence of intellige nce gathering in violation of criminal 

law’s.

Section 25 18 A(2) requ ires th at app licat ion for a cou rt order authorizin g 

an inter cept aga inst eit her a “foreign age nt” (un de r Section 2 5 1 1 (3 )) or a #

United Stat es citizen (un der Section 2516 A) mus t furnish “evidence” th at 

the interc ept shall serve one of the purposes of these two sections. In the 

foreign counte rintelligence field this requirem ent presnts significant difficulties. 

Discussion in thi s are a has to be reserve d for executive session.

Snl>section 25 18 A(8) provides that anyone whose communica tions are int ercepted pur sua nt to Section 2516A be furn ishe d copies of the affidavits, the 

order, and relevan t transc rip ts with in thirt y days. Although this provision 

excepts inte rcep ts aga ins t “foreign agents” und er subsection 25 11 (3 ) its 

value is nullified by the requir ement th at the inte rcep t would have to be disclosed to anyone interc epted in communication with the targ eted “foreign 

agent.”

Pri or to considering specific res traints, or conversely, gra nts of additional 

auth orit y whethe r pert aini ng to interc eptio ns of communications or oth er 

investigative techniques, it appea rs necessary for Congress to first give full 

and careful considera tion to what it desires the FB I’s function to be, par ticularly in the intelligence area. Only in this man ner can we resolve the inconsistency between wh at the FB I views as its legit ima te and mandated objectives, 

and the lim itation s being considered on our prac tices to attain those objectives.

Mr. Kastrnmeter. You are correct in stating tha t the National 

Commission for the Review of Federal and State Laws Relating to 

Wiretapping and Electronic Surveillance will begin operations 

shortly. Our first meeting, and T am a member of tha t Commission, 

will be May 9. But, as so often happens with regard to subjects of 

national concern, the exigency of the situation tends to outrun the 

time required for the Commission’s study. For example, the National 

Commission on Pornography and Obscenity was ^tfill deliberating 

when this subcommittee was called upon to consider legislation. We •

did not. have the benefit of its final work product.

In any event, whatever legislative activity is undertaken bv the 

Congress, in the field of wiretapping, the work of the Commission 

will be beneficial, and many of us have high hopes for it. »

Has compliance with title I II , posed any extraordinary difficulties 

for the Bureau since 1968 ?

Mr. Miller. Afte r the legislation was passed, we had studied the 

procedures, we felt—and I think Mr. Cleveland will support, this— 

we felt that it was necessary for us to conduct extremely tight-knit, 

detailed investigations to develop sufficient probable cause to support 

a title TIT application. We felt that our nrobable cause statement 

and our applications for title TTT surveillances had to be highly 

detailed. We approached the problem with all sincerity, because we 

knew that we were in a sensitive area. We recognized the title TIT 

surveillance immediately as an extremely valuable tool for law
215

enforcement, and that resulted in an initial conservative approach 

on our part, and also on the pa rt of the Department, ■which I think 

has stocxl us in extremely good stead. The probable cause statements 

in our applications have been extremely detailed.

Almost without exception the title II I investigative technique 

has been highly valuable. Without it we most certainly could not 

have compiled the Tecord tha t we have compiled in the organized 

crime area. We look at, title II I as a very fine piece of legislation.

Mr. Kastenmeier. On page 2 of your statement you indicate 

your concern with abuses of electronic surveillance, and you suggest 

tha t these abuses are a detriment to its fair, legitimate, and effective 

use as a tool. What abuses did you have in mind, Miller?

Mr. Miller. Some of the abuses perhaps are real. Some of them 

are, I am sure, imagined.

Mr. K astenmeier. Whether or not they are real, abuses have been 

reported.

Mr. Miller. Yes. I think that the entire wiretapping controversy 

has been much overplayed. By that I mean the abuses that are 

alleged, perhaps because of the nature of the investigative technique, 

have gotten a tremendous amount of publicity. One of the abuses th at 

I can think of that has been alleged was in the Wounded Knee 

prosecution out in St. Paul. That situation involved a nine-party 

telephone line—it was simply a party line—which had been cut, but 

was reinstalled and paid for by the Government, in order to maintain 

communication with the occupiers and facilitate negotiation. The 

Government became a party to this line by having a phone installed 

at Road Block One. That extension tha t the Government had has 

been alleged to have been a wiretap.

Now, we do not look at that as a wiretap. To us it was merely an 

extension.

Another instance where wiretap abuse was alleged, was down in 

Gainesville during the so-called “Gainesville Eigh t” trial. Tha t 

was an unfortunate fortuitous situation. We routinely sweep our 

resident agencies and our field offices for electronic surveillances 

directed again st us. The schedule for the sweep of the resident agency 

in Gainesville, Fla., coincided w ith the beginning of the ‘Gainesville 

Eig ht” trial. The fact tha t the trial had begun th at day was 

unknown to the men who were conducting the sweep of our office 

space down there. They had also been requested to conduct a sweep 

of the U.S. Attorney’s office and the marshal’s office in the same 

Federal building. The two men who were conducting this sweep, 

which occurred somewhere in the vicinity of 5:30 or so in the 

evening, were in a wire closet looking over the pairs in the closet, and 

unknown to them, in the very next room the defense counsel had 

been given space in the Federal building. The defense counsel, 

and I believe some of the defendants, were in this room and heard 

conversations in the room next to them, which was the wire closet. 

This became quite a topic of conversation. It was reported immediately to the trial judge who held that 9ame evening very 

detailed hearings in which the defendents and our agents testified 

under oath. The telephone company was requested to bring in experts, 

and they went over the entire vicinity immediately to determine
216

whether or not this was a wiretap effort on the pa rt of the FBT. 

It was not. We would have prefe rred not to have had it happen 

because it was embarrassing to us. Whether or not it had any 

effect on the results of the tria l, we do not know. But, as I say, we 

would prefer—would ha w preferred—tha t this not happen. But, it 

did.

The situation itself was thoroughly looked into by the judge 

and resolved completely; in his opinion, it was not a wiretap effort 

on the part of the FB I. And, indeed, it was not. But, you see what 

I mean, it has been alleged that 'both these instances involved wiretap 

abuses.

Mr. Kastenmeier. On the question of responsibility, are all 

domestic wiretaps, whether or not pursuant to a warrant, cleared 

or processed by the Department of Justice in general, and the Bureau, 

in particular?

Air. Miller. In the FBT, from an investigation standpoint, we 

have responsibilities in three principal areas. The first area is 

criminal. In this area we use title III wiretaps.

The second area is counterintelligence; which, in its entirety, 

involves foreign intelligence.

Now, in these two areas, we can and do use wiretaps.

In the thi rd area, which is domestic intelligence, we do not have 

any mechanism for using wiretaps, and we have not conducted 

wiretaps since the Keith decision on June 19, 1972. And that is the 

area in which we say tha t we should discuss with Congress some 

measures to provide for wiretap procedures. If we had a wiretap 

capability in a situation like the Symbionese Liberation Army case 

in California, a domestic intelligence case, we feel tha t we could 

perhaps thw art some of the further complications th at grow out of 

such cases; for example, where the espoused revolutionary purposes 

people engage in what they call urban guerilla warfare, expropria ­

tions and tilings like that. We feel that in that area, Keith has 

created a definite void.

Mr. Kastenmeier. Yes.

Mr. Smith. Mr. Chairman, could I interrupt ri gh t a t tha t point?

Mr. Kastenmeier. Yes. The gentleman from New York.

Mr. Smith. Well. Mr. Miller, in that type of case, why can’t 

you now use title III surveillance pursu ant to court order?

Air. Miller. We have studied this problem very carefully, and 

did right from the outset on June 20 of 1972, whenever this-----

Mr. Smith. Was this rig ht after the Keith case?

Mr. Miller. Right after the Keith ca9e, yes, sir.

We studied tha t particular situation very carefully at tha t time, 

and have continued to do so since. There are two principal problems. 

The first problem is with the development of sufficient probable 

cause required by the omnibus crime bill of 1968. To develop that 

kind of probable cause is, in an intelligence-gathering effort, vir ­

tually impossible. The second problem for the FB I when conducting 

an open-ended intelligence-gathering effort, is t ha t notice of surveillance would have to be divulged at the termination of 30 days or 

whatever. T hat is the thin g tha t makes the use of title III impractical in an ongoing intelligence investigation. We have not been
217

able to satisfy either of these two req uirem ent s in domestic in telli ­

gence cases.

Mr. Cohen. Would the g entlem an yield for a question?

Mr. Smith. I will be hap py to yield.

Air. Cohen. I f I could follow up on th at , you say it is vi rtu ally 

impossible to ga th er intelli gen ce under tit le I I I fo r th is purpo se. 

IIow many attempts have you mad e to presen t a war ra nt to a cou rt 

for such a wiret ap, an d how many have been reje cted? Could you 

tell us?

Mr. M iller. In th is p ar tic ul ar area, Air. Cohen ?

Mr. Coiien. Yes.

Mr. Miller. We have not ye t been able to satis fy either ou rselves or the Dep artm en t th at we hav e ha d enough pro bab le cause, 

as traditio na lly und erstoo d on which to base a n applicat ion .

Mr. Coiie n. I f you do no t hav e eno ugh evidence fo r pro bab le 

cause, the n would n’t th at seem to negate the basis fo r a wi retap in 

the fii-st place?

Mr. Miller. I missed p ar t of y ou r qu estio n.

Mr. Cohen. If you do no t have eno ugh evidence in these cases 

to esta blis h probab le cause, wi thou t a war ra nt , then why are you 

seeking it in th e first case? I mean, if th ere is not enough there to 

get a warrant, it seems to me you sho uld not be allo wed to con duct 

a warrantless wiretap.

Mr. Miller. We ll, we have no t been able to do th at , as I say.

Now, the kin d of inv est iga tion th at we are talk ing about is an 

intellige nce -ga the ring situatio n. For exam ple, and here again we can 

go into this SL A situatio n, we wou ld like very mu ch to have long 

since obtained sufficient inte lligence inform ation to resolve th at 

problem ou t there from an inv est iga tive sta nd po int. Fr om an 

inte llig enc e-g ath ering position, we feel th at there may have been 

places where a domestic inte lligence electronic surv eillance wou ld 

have been prod uctiv e in helping to solve th e actu al kidn ap ing and 

ext ortion case its elf; however, it is ext rem ely difficult in suc h a 

case to develop the kin d of probable cause th at is necessary fo r a 

reg ular tit le I I I surv eillance. To clarify , we are no t ta lk in g ab ou t 

the actual place th at these few SL A members were ho lding the 

vic tim ; we do not, know that. We are no t bilking about th ei r tele ­

phone. We are ta lk in g abo ut somebody else’s tele pho ne who might 

bo in logistical or tactical su pp ort of th e kidn ap ing and extor tio n 

effort. Dev eloping th at kin d of pro bab le cause on this second par ty 

is extreme ly difficult. Yet, from an intelligen ce sta nd po int it could, 

and would, possibly hav e been extrem ely pro ductive in solving this 

case.

Mr. Coiien. I do no t want to use up any more o f the time.

Mr. Kastenmeter. Ju st to follow up on th e gen tlem an fro m New 

Yo rk’s question, you said you ha d two prob lems. The first is th at it 

is difficult to deve lop sufficient pro bab le cause. W ha t is th e second 

problem ?

Mr. Miller. Th e second problem is in div ulg ing to the person 

tapped, in an ongoing intelligence, gathering situation within the 

requirements of title II I. That represents a problem also, because 

the se are , in most instances, open -ended inte lligence-ty pe kin ds of 

investigations .
218

Mr. Kastexmeier. One of th e questions I wan ted to go baek to 

concerns the three classes of po ten tia l uses for electronic survei llance 

or wiret appin g. In pa rti cu lar, I am intere sted in the dis tin ction 

between th e second an d th ir d classes, th e cou nte rintelligence or 

foreig n intellige nce and dom estic inte lligence. I am wo ndering 

wh at your definition of each of these tw o classes of intelligen ce is ?

Mr. Miller. These are rea lly two diffe ren t are as th at we’re 

talking about, bu t they do overlap in tr ad e term s. In othe r words, 

when you use th e ter m inter nal security, th at could inc lud e both 

categories, both pu rely dom estic intellig ence-gath eri ng effo rts and 

also cou nterintellig ence. We like to bre ak the m dow n in orde r to 

keep o ur own min ds clear.

Count erinte llig enc e efforts on ou r pa rt, an d th at is Mr. Decke r’s 

bra nch in th e Intellige nce Div isio n, deal pr im arily with ju st wha t 

th at says, coun ter ing foreig n intellige nce services. Some foreig n 

countries un derta ke intellige nce- collection effo rts op erating inside 

ou r cou ntry. Mr. Decke r’s wor k is to counter th eir intellige nce 

efforts.

In the domestic area we are ta lk in g pr im arily about peop le who 

are U.S. citizen s or residents—people who are espo usin g rev olution , 

peop le who are ta lk in g abo ut violence, people who are talk in g abo ut 

ter roris m, inc lud ing bombings. Some of the se people have ’bor row ed 

philoso phies and tac tic s from othe r cou ntri es, bu t their ac tiv ity is 

esse ntia lly domestic.

Mr. Kastexmeier. Would an Am eric an citiz en alleged to be 

an agent of a forei gn power op erating in th is cou ntry, fall withi n 

your second categ ory while such a citizen, no t asso ciated with a 

foreig n power, f all wi thin y our th ir d c ategory ?

Air. Miller. Yes. sir. Tha t is pr im ar ily it ; although domestic 

th re ats may be philosophically associated with a hos tile foreig n 

power.

Mt. K astexmeier. But the re is no allegation th at they tak e direc ­

tion from this foreig n power?

Mr. Miller. No, sir.

Air. K astexmeier. Or are age nts per se?

Air. AIiller. No, sir. Tha t is right. An d as fa r as na tio na lity 

in the foreig n area is concerned the key word there is no t wh eth er an 

ind ivi du al is a citizen or not. A foreign pow er could, if we bu ilt a 

wall aro un d that, word “citizen ,” hav e th ei r people become citizens, 

and then opera te with imm unity. AVe look at wh at the ind ividual is 

doing ra th er th an at his citize nship ; th at is, is th is man a sp y; is 

this man a saboteur, an espionage agent, a nd so forth . If he happened 

to lie a citizen, most certa inl y th at wou ld be weighed very carefullv 

by us an d th e De pa rtm ent in discussing au tho riz ati on for a wir etap. 

Bu t, the real issue would be, even th ou gh th is fellow is a citiz en, 

is he a th re at to t his cou ntry because he is an espionage agent ?

Air. Kastexmeier. Re turning now to my earlier question. You 

were an alyz ing the t hree c ateg ories of natio nal sec urity surv eillance, 

and I was ask ing you what, role th e Bu reau played in con ducting 

domestic ac tiv ity wi retapp ing an d electro nic surveillance . Would 

any national security surveillan ce need to be clea red throug h the 

Dep artm en t of Justice, specifically th ro ug h the Bu rea u, if conducted withi n the continen tal Un ite d State s ?
219

Mr. Miller. Oh, yes. Most certainly.

Mr. Kastenmeier. In other words, it does not m atter whether it is 

the Internal Revenue Service or the Department of Defense, the 

tap would ibe, in the final analysis, accounted for by the Bureau?

Mr. Miller. The answer to that question is yes. If i t is a national' 

security wiretap situation in the United States, then the FB I 

would be the one to handle it.

Mr. Kastenmeier. Do applications come from a source external 

to the FB I, the Bureau, or the Justice Department? Sometimes the 

FB I, it would appear, might have to take the blame, but they were 

not the ones who requested the tap? For example, I do not know 

in the Wounded Knee situation whether the Department of the 

Interior or some other department might have requested it. Not all 

requests for wiretap applications originate with the Bureau, I take 

it. Is that correct ?

Mr. Miller. We considered a title III wiretap in the Wounded 

Knee situation; however, the actual application was never perfected to the point where it was approved.

Now, we handle only our own title II I situations. And if we doget them approved, then we handle the entire operation.

However, in the criminal field, Federal investigative agencies 

which can obtain title II I surveillances and they handle their own 

requests throu gh the Attorney General. And if they are approved, 

then they handle them themselves. We do not handle the mechanics 

or the collection of title II I information for other Federal investigative agencies.

Mr. Kastenmeier. For example, the Secret Service or some similar 

entity would go to the Attorney General, but the Bureau would not 

be called on to handle it?

Mr. Miller. We would not even know it. Yes, sir. The narcotics 

people, for example, if they had a title II I situation, they would 

submit their application to the Department. And if i t were approved,, 

and subsequently approved by a judge, then they would handle the 

entire thing and we would not be knowledgeable of that whatsoever.

But, in the national security area, Mr. Johnson, in 1965, I believeit was, by Presidential directive, said that all national security 

electionic surveillances would be approved by the Attorney General, 

and the Attorney General has directed that we will handle them. 

So, in those instances, as distinguished from title II I, we would 

handle the entire situation—the application for, the technical 

handling of, and the furnishing of the product back to whomever 

requested it.

Mr. Kastenmeier. What departments would make that request 

of the Attorney General and of you in the notional security area?

Mr. Miller. In the national security area there are three departments which may do so. One is the Central Intelligence Agency, 

another is the State Department, and the other is the National 

Security7 Agency.

Mr. Kastenmeier. The Defense Department does not have the 

authority to make such an application to you?

Mr. Miller. We have—to my knowledge—never handled tha t 

kind of a situation for the Defense Department.
220

Mr. K astexmeier. I have only one ot he r question before I yield. 

T have some questions in anoth er are a which I can reach late r af te r 

my colleagues have had a n o pp ortunity to prese nt questions.

Does tlie Bu rea u hav e any res ponsibi lity fo r wi retapp ing and 

electron ic su rveillance outside the U nited State s?

Mr. Miller. No, s ir, none wha tsoever.

Mi\ K astexmeier. Presu ma bly Go vernm ent agencies which, on 

behalf of the Un ite d State s, do con duct wire tapp ing an d elec tron ic 

surv eillance ab road , maintain th ei r own records in conn ection 

with such pra ctic es ?

Mr. Miller. T wou ld presume so. I have little or no know ledg e 

rega rding that kind of a sit uation.

Mr. K astexmeier. In the are a of foreign intellige nce gathering, 

T assume those agencies ga thering such intelli gen ce would probably 

have the ir own system of accountin g?

How ever, the Bu rea u has agents ab road ? Do you hav e a sep ara te 

acc oun ting fo r th e activitie s of these age nts?

Mr. Miller. We do hav e agents abroa d. We call them lega l at ­

taches. The y fun ction only in a liaison capacit y with police agencies 

in whatever forei gn coun try it would be. In London, for example, 

ou r men deal very closely with Scotland Ya rd. Th ere is an exchange. w hat we call foreig n police coop eration.

We have no ca pability whatever in the wi ret ap area outside of the 

Un ite d States.

Mr. K astexmeier. I was thinki ng of a case where an Em bas sy, 

for exam ple, in London, might hav e reason to believe th at some 

of our own people should be checked. Would the y no t go to the 

Bu rea u or yo ur officer within th e Em bassy fo r help in wireta pp in g or con ducting electronic surve illa nce with resp ect to such 

people ?

Mr. Mtller. No. Thev may discuss it with them.

Mr. K astexmeier. Th ey would hav e to have th ei r own people?

Mr. Miller. Ou r legal attach es are very qualified people, and in 

the situatio n you desc ribe, Emlnassy personnel may well discuss it 

with the agent who is there in th at ca pa city; however, he would 

not perform th at kin d of a service.Tn each of the Emb assies they 

hav e a person who is in cha rge of the sec urity of the Embassy, and 

wi retapp ing would get into a secur ity ty pe ------

Mr. Kastexmeier. An d th at would be withi n the De partm ent of 

State in that case ?

Mr. Miller. Yes. Par t, of the State Dep artm en t Security Office.

Mr. Kastexmeier. At this tim e I would like to yield ag ain to the 

gen tlem an from New York, Mr. Smith.

Mr. Smtth. Mr. Miller, does th e F B I have any procedure fo r 

assurin g the priva cy of those whose con versation s have been in te rcepted ? Fo r example, are records of con versations interc ept ed th at 

have no thing to do with wh at you are int ere ste d in des troyed at 

some time ? Is th ere any provision for pr otec tin g th e privacy o f those 

con versations?

Mr. Miller. In ans wer to your firs t question, Mr. Sm ith, no the 

record s are not destroy ed. Th e records are ke pt; however, pro visions 

fo r prote cti ng in div idu al privac y a re quite det ailed.
221

For example, if an individual is discussing a matter with his 

attorney, and the person monitoring the conversation recognizes 

this, either at the outset from the name of the individual, or from 

his own experience, then he does not monitor tha t conversation. 

Now, if it happens accidentally, then our instructions are that this 

be called to the attention of the U.S. attorney immediately, and the 

conversation—tape*and log—are sealed so t hat there is no attorneyclient conversation available to the prosecution. But, it is not 

destroyed.

In the normal routine of monitoring these wiretaps, as you say, 

there are extraneous conversations intercepted. They are recorded 

and logged, but not all of them are indexed. If you index it, 

then you have the capability of going back and finding it. Much 

information is not indexed. It is, when it is thought to be pertinent 

to the investigation being conducted. We maintain what we call our 

electronic surveillance indices, so th at in a subsequent proceeding, or 

whenever the Department is trying t o make a prosecutive determination, we can determine if a man has ever been overheard. He may not 

be the subject of the wiretap, but the Department wants to know if 

he has ever been overheard. And we check our records to see if he 

has been overheard, and if he has we furnish the information to the 

Department. All of this goes into the determination of whether to 

prosecute or not.

Now, let us say an individual has been indicted, trial has been 

set, and pretrail motions are being heard. The attorney and the 

defendant come to the court, and in their pretrial motions one of 

the questions which has come to use in most instances is have I, the 

defendant, or my attorneys, or their associates ever been overheard 

on an electronic surveillance—the scope of this inquiry has been 

extended quite broadly. Then we can check the records of the 

entire FB I, not only headquarters but every pertinent field office, 

to respond to this request from the defendant and to make sure tha t 

we give him as perfect a product as possible.

Now, in national security cases electronic surveillance results are 

reviewed in camera by the judge sitting in the case. He reviews 

the material to determine if it is pertinent to the trial, and whether 

the Government’s case is tainted by an illegal electronic surveillance. 

That determination is usually made by the judge who is sitting in 

the case before the trial ever begins, and sometimes the judge does 

determine that the material, in its entirety, should b given to the 

defendant. Sometimes he determines that it is not pertinent, has not 

tainted the Government’s case, or has not been a lead to further 

the investigation, in which case he does not direct that the material 

be given to the defendant.

Mr. Smith. Thank you, very much.

Mr. Miller. Yes, sir.

Mr. Kastenmeier. The gentleman from Massachusetts, Mr. 

Drinan.

Mr. Drinan. Thank you very much, Mr. Chairman.

Mr. Miller, I read your testimony over the weekend with the 

greatest, care, and when I read on page 3 t hat “I support measures 

to carefully regulate and control the use of wiretapping” my heart

3 5 -3 9 1 — 7' ■15
222

lea pt up. Bu t, I do no t find any measure s th at you support . You 

say th at you hope in th e near fu ture to prese nt to Congress a bill. 

Bu t, in the whole la tter par t of yo ur testimony you sho ot down 

every bill th at has been proposed to fill the void which you ad mit 

has ex isted for 2 y ear s since the Kei th decision. You men tion abuses, 

bu t when the chair ma n cross-examined you I didn ’t he ar abo ut 

abuses. Bu t, I 'would like to ask you about th e ori gin or the sources 

of these abuses so th at I can get yo ur philosop hy on th is ma tter.

Let us tak e the Dr. Kis singer ta ps , fo r example, th e taps of 13 

Governme nt employees and four newsmen. W ha t I wa nt to find 

out is, what you think could be an abuse? Is it an abuse when the 

National Security Council tells the F B I to pu t a wiret ap on these 17 

people, and the F B I complies with the request? Fou r newsmen and 

13 Governme nt employees, inc ludin g Mo rton Ilal pe rin, were wir etap ped . And Dr. Hal pe rin’s w ire tap was fo r 21 m onth s, only four of 

which he was a Governmen t employee. Were these abuses?

Mr. Miller. I do no t think so, Mr. Dr inan . Th at, of course is a 

unique situ ation, u nique to the F B I.

Mr. Drinan. Th ere were no abuses. W ha t could be an abuse? 

You admi t th at aluises hav e occurre d and th at you wa nt to help us 

to corre ct the se abuses, bu t you have no t helped me a t all, I am 

so riy to say, because I do no t know wh at wou ld be an abuse acc ording to y our p hilo sop hy.

Mr. Miller. I would say th at an abuse, in my philis ophy, wou ld 

be somebody who wiretapped an indiv idu al witho ut ha ving gone 

throug h t he a uth oriza tio n procedu res.

Mr. Drin an. T hat is not an abuse. T hat is lawlessness, sir . I wa nt 

to talk abo ut the inadequacies and lim ita tio ns in tit le ITT. and the 

bills th at are proposed by people like Se na tor Gaylo rd Nelson, and 

by the ch air ma n, and by oth ers to remedy wh at they conceive to be 

abuses. W ha t do you conceive to be abuses in the pre sen t a nd existing 

systems ?

Mr. Miller. Abuses in the pi-esent system would be th e typ es of 

situ ations tlia t you ter m lawlessness. Now, in ge tting bock to the 

oth er question on the special coverage. I wan t to 9ay th at we have 

fur nis hed inf orma tio n to the Spe cial Prosecu tor on th at issue and 

also we are in the process of fu rnishing inf orma tio n to the House 

Ju diciary Com mittee on the same issue. We are furnish ing all of 

the inf orm ation th at we have.

Mr. Drin an. But you have alr eady said there was no abuse in 

the whole Kissinger w’ire tap situation.

Mr. Miller. Well, in g ett ing b ack to th at ------

Mr. Drin an. Do you w ant to qualify yo ur answe r?

Mr. Miller. Well, I do not ter m it an abuse. Based on the th in king th at prev ailed back a t th at t ime in 1969, whenever th is tech niq ue 

was emp loye d, the Gov ernment ha d wh at I feel was a very serious 

problem.

Mr. Drin an. Yes. I am famili ar with th at , sir. I t is set fo rth in 

the br ief in Dr. Hal pe rin ’s case. I hav e no idea wh at kin d of leg islation you m ight propose. You say we hop e in the near fu tu re to 

prese nt to Congress a bill, bu t wh at would th at bill be?
223

Mr. Miller. That would be primarily, as I indicated here in the 

area of domestic intelligence collection, to see if there is some way 

for the FB I. some way to put a magistrate, a judge, or somebody, 

between the FB I and an assassin, or a terrorist, or a kidnaper, who 

is engaged in domestic, political, or urban guerilla warfare activities. 

'Phose are the things tha t I am talking about here, and the area 

where we see a void.

Mr. Kastenmeier. Would the gentleman yield?

Mr. Drinan. Yes.

- Mr. Kastenmeier. I really do not see how you make a distinction

between tha t type of case, Mr. Miller, and organized crime which is 

being tapped extensively, and perhaps for every good reason. IIow 

are these terrorists, the would-be assassins tha t you mentioned, dif-

» feren t from organized crime? Why couldn^t you, under title II I,

get a tap authorized on groups such as the SLA ?

Mr. Miller. The main problem is divulging the wiretap to the 

individual whom you have tapped, or other individuals after some 

designated period of time. Tha t is extremely liard to live with. In 

fact, it is impossible because these are open-ended intelligence gath ­

ering situations. Now, what we are talking about-----

Mr. Kastenmeier. Yes. Why would they be different tha n orga ­

nized crim e? You have the same prob lem with respect to members of 

organized crime, who are probably better equipped to deal with you 

in tha t context than these political revolutionaries who may be 

about to commit a crime.

Mr. Mili □EE. In organized crime areas, a t the time tha t we develop 

the information for the application for title II I, the crime is an ongoing crime, for example, a gambling crime. Tt is being committed 

today, tomorrow, the next day and so forth. Now, in the politically 

motivated crime areas, you are talking about things that are much 

more abstract. Individuals are talking about revolution, they are 

talking about developing plans for an assassination, they are talking 

alx>ut killing policemen, things like that. The crime, to our knowledge, is not being committed at that time. But, the plans are being 

made to commit it. We do not know when the crime is going to be 

committed. You really do not have a crime actually being com- 

„ mitted at the time. You have the propensity for the crime and you

have got the people talking about it.

For example, at one time in the SLA case, there may have been 

discussions concerning kidnaping, and the other things that were 

. done. We feel that there was a point in that case where it would

have been compatible with the best interests of the people of the 

United States to consider a wiretap to find out just what was being 

planned. The crime had not yet been committed. It was purely an 

intelligence gathering situation.

This, incidentally, is not an easy determination. We do not really 

see it as an easy problem to draw up a proposal for legislation in this 

area. We have serious problems with it ourselves.

Mr. Kastenmeier. I understand your difficulty. However, as a 

citizen, I am not. worried tha t you may have to divulge the existence 

of a wiretap to these people. I thin k maybe you ought to be doing it 

under title II I even though, as you say, you do not like to divulge
224

tilings. But, you have had to do th at with organiz ed crim e, and if 

they can cope with it as well as they have, or if you can cope with 

the m as well as you have, I have a fee ling th at it would not be 

much different in this sit ua tio n th at you talk about now.

I yield back to the gen tlema n from Massac husetts.

Mr. Drinan. Th an k you. I gathe r, Mr. Miller, th at th e legisla tion 

th at you are a t lea st th in ki ng about is no t to co rre ct abuses, bu t 

to get more power so you can have wiret aps for intelligen ce ga th ­

er in g with or wi thou t wh at is tra ditio na lly known as pro bab le 

.cause.

On pag e 11 you ind icate th at at lea st un de r title III, the court 

orde r is served upon th e tele pho ne com pany by th e F B I to secure 

the necessary technical inf orma tio n and assistance t o install the su rveillance . A hi gh official a t th e AT& T las t Fri day testified th at 

there are rou ghly 100 w ire tap s, witho ut a war rant , th at are a cknowledg ed by the De pa rtm ent of Jus tice, bu t th at fa r few er wi ret aps 

have come to the a tte ntion of t he telepho ne com pany. Does the F B I 

sometimes tap phones with ou t the know ledg e or consent of the telepho ne company ?

Mr. Miller. I am tryi ng to give you th e bes t I can from my 

recollection. M y answ er is no, th at on------

Mr. Drinan. Are you disputing this high official whose testimony 

is on the record ?

Mr. Miller. We ll, I hav e no t read his testim ony , Mr. Dr inan.

Mr. Drinan. Hi s tes tim ony was exactly as I said it, th at Mr. 

Peterson said rou ghly there were 100 wa rra ntles s wiretaps in the 

last, c alendar yea r, and the AT& T throug ho ut all of its affiliates has 

knowledge of fa r few er th an 100. An d he draw s the inevitable 

conclusion th at the F B I or the De partm ent of Ju sti ce or both are 

insta lling taps on tele phones witho ut the knowledge or consent of 

anvlxxly in the AT&T. You do not have to see th e testimony . W ha t is 

yo ur answer?

Mr. Miller. All rig ht . We ll, in the first place, the AT& T would 

no t necessarily be aw are of the wiretaps , know alxiut all of the 

wiretap situatio ns, tif an othe r telephone com pan y were involved.

Mr. Drinan. I me ant all of the affiliates o f the Bell System, and 

he has tol d us th at they hav e a reco rd of fa r few er th an 100. li e 

did no t nam e th e exact num ber. Bu t, he ind ica ted th at it was substa nt ially less th an 100, a nd he him self drew the infe renc e th at the 

F B I obviously mu st lie ta pp in g tele phones wi thou t telling anybody 

in the Bell System. And you said no, th at you do not do it, righ t?

Mr. Miller. Yes. Hi s conclusion is in cor rec t.

Mr. Drina n. W ha t is the exp lan ation of the discre pan cy in the 

numb ers ?

Mr. Miller. Th e disc repancy—th e best I could do from an explanati on sta nd po int, No. 1, we do not ta p telepho nes witho ut full 

autho riz ati on . We run these autho rizations thro ug h the phone compan ies because they do the work for us. From an exp lanation stan dpo int, I would sav th at some of these wi retap situations have been 

m existence for a conside rable period of tim e, pr im arily in the 

foreig n field an d wr itten notifica tion to the phone com pany has not 

alw ays been a practic e. T hat is of fa irly recent vintage .
225

Mr. Drin an. Wh en did you st art the new pra ctice, Mr. Mille r, of 

inform ing the telephone com pan y? When did you stop ta pp in g 

pho nes wi tho ut the perm ission of the tele phone comp any ? You 

hav e ad mitted th at you have cha nged the practic e recently. Wh en 

did you ch ang e th e practic e?

Air. Miller. No. I did no t say th at we change d the practic e of 

inform ing the telephone comp any; however, the phone com panies 

hav e n ot alwa ys require d w rit ten notice—wh ich is w ha t the A .T. & T. 

rep res ent atives must be talk ing abou t.

Mr. Decker. Dif ferent pho ne com panies have dif fer ent policies, 

and I m ean different compa nies w ith in the Bell Syste m; some require 

wha t we refe r to as a lease line lette r in whi ch we ask fo r th ei r 

assistance in pro ceeding on a line at the usual commercial rates. Now, 

your questio n seemed to presup pos e th at wh ate ver ins tal lat ion s we 

have on were pu t on in th e last year, an d th e pho ne companies were 

no t aware of the 100 th at you referre d to in the pa st year. Well, 

some of these go back over an exte nsiv e period of tim e an d I think 

th at m ight reso lve the problem you h ave as to numbers.

Mr. Drin an. Wo uld you ans wer th e question th at I asked of Mr. 

Miller, how man y are ou t th er e wi thou t the kno wle dge of the telepho ne com pany ?

Mr. M iller. None.

Mr. Decker. I do no t know of any.

Mr. Miller. Th ere are none ou t there with ou t th e knowledge 

of some phone company.

Air. Decker. If the phone com pan y is assuming th at wh ate ver we 

have on we p ut on in the l ast year, a nd they c annot come up wi th t he 

100 th at you ref erred to du rin g the pa st yea r, it would be because 

some go bac k over an extens ive p eriod o f tim e.

Air. Drin an. If th e tele phone com pany were no t leg ally required 

to do this, if they refuse to coo perate, wh at wou ld the F B I do? 

It is und er serious consideration b y the A.T. & T.

Air. AIiller. I do no t know wh at we "would do, Mr. Drin an , at 

th is point. We would most ce rta inly wa nt to discuss th e ma tte r.

Air. Drin an. Suppose the Congress made a law t h at the A.T . & T. 

may no t allow th e telephone wire s of its sub scribers to be tapp ed ?

Air. AIiller. I do no t know wh at we would do. We would have 

to disc uss tha t. Alost certa inly we would w an t to disc uss the problem 

in view of the very im po rtan t for eig n policy and coun ter int ell igence matt ers involved. We wou ld wa nt to discuss those problems 

with th e Congress, not for th e good of the F B I, an d please do not 

misunders tan d me. Th e F B I is not—we are no t do ing any of this 

work only f or th e good of the F B I.

Air. Drin an. No. I didn ’t moan th at , sir. I un de rst an d th at .

Bu t, on an othe r point, on pag e 17, you talk of the euphem ism 

about consensual monitoring, an d I am af ra id th at in my judgme nt 

th at is a mis leadin g term . I t rea lly means th at th ere is a certa in 

form of deception and en tra pm en t involved. You say on page 17 

th at F B I officials in the local field office, special agents in charg e, 

hav e to give perm ission, and in sen sitive cases, the y hav e to go to 

the F B I headquarters . Is there any record of such per missio n being 

denied fo r wh at you call euphem istica lly consensual mo nit ori ng?
220

Mr. Miller. Tho se procedures con cer ning consensual monito rin g 

deal with the te lephone itse lf.

Mr. Drinan. W ha t?

Mr. Miller. Th e tele phone itself as opposed to anoth er common 

typ e of consensual monitoring, an on-the-body recorder.

Mr. Drin an. But it involves dec eption, does it not, or en tra pm en t 

of the ind ividual speak ing to som ebody who is yo ur ag ent?

Mr. D ecker. Did you say entra pm ent?

Mr. Drinan. No. I used to teac h cri mi nal pro cedure, so I did not 

mean en tra pm en t in the tech nical sense. Bu t, it is a deception and 

misleading term . In any event, has permissio n to con duct such monitorin g ever been denied ?

Mr. Miller. I do n ot know how ofte n i t ha s been d enied.

Mr. Drin an. I would like to know if you hav e any sta tistic s on 

th at subject ?

Le t me co ntinue. I th ink you raise a v ery g ood po int where you say 

th at the Congress ha s no t ind icated clearly wha t it wants th e F B I 

to be, and you allege some inconsistencies on pag e 34 of your sta tement between wh at we wa nt an d wh at you people want. I won der 

if you would sta te those? Could you tr y to pinp oint the inconsistencies for me ?

Mr. Miller. We l-ealize th at th e en tire ar ea of wi ret aps is very 

controv ersial. We realize th at on the othe r ha nd , where autho rized, 

electronic sur vei llance is an ext rem ely beneficial inv est iga tiv e 

technique.

We nave att em pte d to analyze each bill before thi s subcomm ittee 

in ter ms of how it would affect th e electro nic surveillan ce op era ­

tions of th e F B I, inc lud ing consensual mo nitoring. When we say 

it appeal’s necessary fo r Congress to firs t give full and caref ul 

con sideration to wh at it desires the F B I’s fun ction to be, pa rti cu larly 

in the intelligence are a, we view th is no t as an audacio us lit tle investigat ive agency lec tur ing Congres s in thes e problem area s; 

we are merely try in g to pu t im po rtan t issues in perspective. We 

know t h at some of our investigative efforts, pa rti cu larly in dom estic 

intelligence colle ction, are extremely difficult to define. In the crim inal area, they are less difficult to define because t he crimes of violence, 

kidnaping , and of org anize d crim e are less difficult to define. In 

the cou nter-in telligence area our act ivities are also fairl y rea dily 

defined.

W ha t we are say ing here , NIr. Drin an , is th is: T hat we do not 

have any ha ng up s on how these pro ced ures should be set up. We 

do not have any fee ling one way or the othe r th at the procedures 

must be autho rized by the At tor ney General, fo r exam ple. Al l we 

feel is th at there are prob lems in this co un try th at require different 

kin ds of inv estiga tion to resolve. These are problem s th at affect 

the ong oing well-being o f the United States. How ever, these problem s 

are worked out, we do no t really car e as long as—and, as a matter of 

fac t, I have ha d convers ations with Mr. Peterson abo ut how this 

th in g might ope rate. We know th at there has been some crit icism 

abo ut the At torney Gen eral bein g the man who authorizes w ar ra nt ­

less wir etaps, an d I told Mr. Peterson th at the F B I does no t have 

any feelings, pr o or con, th at he should be the one to do it. Our
227

ma in concern is, th at , because the wi retap is a very valua ble investigat ive techniqu e, some effort mu st be mad e for all of us to get 

tog eth er on tins im po rta nt issue. An d if some committee were set up 

to oversee th e problem------

Mr. Drix ax. Th is is the comm ittee, sir. If this committee of the 

House does n ot do it, the n it is no t goin g to be done.

I find it significant th at you have no t men tioned the wor d priva cy 

in your testimony or in the que stio ning. I find it disapp ointi ng th at 

an ad minist ratio n whose Presiden t speaks about priva cy an d has 

appoint ed a Commission on Priva cy , can come forw ard represented 

by th e Dep artm en t of Justi ce and th e F B I who have t otally rejected 

every legisla tive pro posal to correct the abu se of wire tapp ing and 

electronic su rve illa nce , have m ade some vag ue suggestion th at maybe 

in the fu ture you may come fo rw ard wi th a bill, bu t th at is not 

very he lpful to this comm ittee. I th an k you for coming.

Mr. Kastenmeier. Th e gen tlem an fro m Maine, Mr. Cohen.

Mr. Coiiex. Tha nk you, Mr. Ch airma n.

Mr. Miller , as you can un derstand, we ar e very concern ed about 

the serious overtones and implication s of wiretaps , also with definin g th e role of the FB I in solvin g crim e, an d as I th in k you 

indicated, in preventin g it. I, like my colleague, Mr. Drina n. have 

had some experience in tea ching criminal law, and as I recall, two 

things are necessary for crime. One is th e men s rea, whi ch is the 

criminal mind, an d the oth er is the ov ert act. You get into a very 

difficult situatio n when people are ju st talk in g about comm itting a 

crim e and no t actua lly engagin g in any overt act to ca rry it out. 

Th is raise s in mv min d certain Orwe llia n nig htm are s about 

police when the F B I or some othe r Fe de ral agen cy tri es to determine wh at people are thinking about or talk ing abo ut whe n they 

have eng age d in an overt act. An d so, we are very cau tiou s on th is 

committee, as we sho uld be, with ou r Co nstitu tion. We mu st make 

sure th at the line is str ict ly draw n betw een leg itim ate dissen t and 

the talk of revolu tion. We are tryi ng to determine wh at sta nd ar ds 

have been ap pli ed in the pa st and wha t kind of a prote ction can 

we give to th e people o f t his co untry.

I think the air, as you h ave ind ica ted in your statem ent , has been 

permeated wi th a sense of di stru st and cynicism about th is Go vernment, and there is a gr ea t deal of appre hension . And I guess from 

your sta teme nt th is is based upon som eth ing more im ag inary th an 

real, if w ha t yo u w ere say ing is correct.

I also was inte rested in your sta temen t in th at in the domestic 

surveillan ce are a you become concerned wi th bomb thr ow ers and, of 

course, you may have notic ed in th e pa pe r, seve ral members of this 

committee hav e been accused of being bomb thr ow ers of sorts, an d 

have expressed some app rehension and an xie ty th at th ei r own offices 

are being wiretapped. I assume th at there is no basis for th ei r fear 

or app reh ens ion th at memliers of the Ju di ci ar y Com mittee wou ld be 

wiretapped un der th e domestic surve illa nce rat ion ale merely on 

account of the views th at they express? Is th at correct?

Mr. Miller. Ce rta inly not.

Mr. Coiiex . We are dea ling wi th wiret aps specifically un de r this 

law, bu t elec tron ic surv eillance tak es in a gr ea t deal more th an
228

simply the wiret ap, does it not? An d I would assum e th e F B I has 

at its disposal a numb er of very sophistica ted devices which do no t 

involve tapp in g wires or even tape record ings, bu t devices whi ch 

are capable of picking up con vers atio ns at the end of the room , in 

anoth er room, wi thou t the knowledge of the participa nts. Does it 

not?

Mr. Miller. We ll, when you ta lk ab ou t sop histicated devices, I 

know th at there are —from a draw ing bo ard sta nd po int—there are 

probab ly a lot of tili ngs we would like to do th at we are no t cap able 

of doing. I th in k in tire electronics are a much cre dit has been given 

to our investigative an d intelligence agencies for cap abi lities th at do 

not exist.

Mr. Cohen. For example, would the F B I have in its possession 

devices which could be pointed, let us say, a t the fa r corner- o f th is 

room to p ick up a c onversa tion taki ng plac e at the end of th is room ?

Mr. Miller. You are talking abo ut devices sim ila r to those th at 

the y hav e in professional foo tball game s where they listen to the 

sign als of th e people?

Mr. Coiien. Righ t.

Mr. Miller. Tho se devices are conceivable.

Mr. Coiien. Not conceivable. Do you have them , and do you use 

them ?

Mr. Miller. I do not have the technical capability to discuss 

our state o f the a rt.

Mr. Coiien. I guess wh at I am tr yin g to get at mi gh t fall beyond 

the ran ge of our general discussion about wi ret appin g, someone 

pu tti ng a phy sical interc eptor on a teleph one wire, bu t wh at I am 

talk ing alrout is th is whole realm of inv estiga tion of priva cy, the 

Government tryi ng to pre vent crim e from ta ki ng place. Do we have 

the typ e of sop histication th at would sim ply pick up con versations? 

It is rea dily availabl e to CB S, NB C, an d AB C, and I assume the 

F B I must have sim ila r devices.

Is th at correct ?

Mr. Miller. As I sa y, I do n ot know wha t our state of the a rt is in 

th at pa rticul ar are a. W ha t I can say is th is : If we were using any 

kind of a device like th at , the n I most certa inly would bo asked 

for the au thor ity or perm ission to use i t. I hav e neve r been asked by 

anyo ne to use th at kin d of a listen ing device. We ju st do no t use 

them. We do not see the necessity fo r it in a one to one situatio n 

where we would hav e a desire to know wha t one of the peop le is 

talking about. Fo r exam ple, one of the most vicious crimes th at we 

have in the Un ite d State s tod ay is the extor tio nate cre dit sit ua tio n 

whereby the time the case comes to us, the victim, in his own mind, 

feels he is h eadin g tow ard s his la st few days. Now, in a sit ua tio n like 

th at , th e best kin d of a device th at we would use would be a consensual mo nit ori ng of a telephone, and the oth er would be a body 

record er on the victim. Now, ra th er th an tryin g to go out to some 

mee ting plac e and aim som ething at a group, we would tak e th is 

other route instea d. I t is a fa r more effective inv estigation tech nique 

than t he kin d o f a listen ing device you describe.

Air. C ohen. Th en is it fai r to say t hat ------

Mr. Miller. I f we have them we do not use them, and I do not 

even know that we have them.
229

Mr. Coiien. Is it fair bo say tha t you do not think you have any 

such device, but if you did it lias never been used to your knowledge, 

or to the knowledge of any of your associates in the field of domestic 

or foreign intelligence? Is that correct?

Mr. Miller. A es.

Mr. Cohen. I am inquiring, here, because it does not seem to be 

specifically covered by our general discussion of wiretapping when 

we are not dealing with the wire itself, and I was interested in your 

statement tha t people who might be listening in or overhearing 

conversations at some point make the subjective judgment as to 

which conversation may stay in or be deleted.

For example, I think you mentioned in discussing the attorneyclient situation that someone could be overhearing a conversation and 

would recognize a voice as the attorney for the Chicago Seven or 

someone and, therefore, the monitor would be turne d off. And I 

am just wondering from a technical point of view how you gather 

this information? I assume i t is on tape recordings?

Mr. Miller. Yes.

Mr. Coiien. Are they then transcribed ?

Mr. Miller. In part.

The pertinent portions are transcribed, but all the conversation 

is available.

Mr. Coiien. This carries significant overtones in other areas with 

which you may be familiar. Are they edited, for example?

Mr. Miller. There is a particular purpose for every wiretapping 

situation. Portions of intercepted telephone conversations pertinent 

to a subsequent trial or presentation of facts to the U.S. attorney are 

transcribed from the tape. The whole tape is maintained. We maintain the tape, and that tape can be replayed to see what it does 

have on it a t any time, but only the pertinent portions are originally 

transcribed. There may be “Bring home a dozen eggs” types of 

situations which would not be pertinent, and these are not transcribed.

Mr. Coiien. Well, as I understand it then, the FB I does try to 

maintain a very strict adherence to confidentiality, the right of 

privacy, and the recognition of certain privileges such as the attorney-client privilege? How about physician-patient privilege?

Mr. Miller. The same. Any kind of a privileged situation.

Mr. Cohen. So that what would apply too, for example, to the 

Ellsberg situation, Ellslierg-Fielding, tha t would be a private conversation between a doctor and his patient, which would not be 

of interest to the FB I or anyone in trying to determine what Mr. 

Ellsberg is saying to his doctor, is that correct?

Mr. Miller. Yes, tha t is correct. We did not have a wiretap on 

Mr. Ellsberg.

Mr. Cohen. And had you had a wiretap on Mr. Ellsberg, or possibly his physician, any information tha t had been relayed or related 

by Ellsberg to his physician would have been deleted or simply not 

monitored ?

Mr. Miller. Well, we did not have one.

My guess would have been, tha t the agent who was doing the monitoring would have considered tha t a privileged situation.
230

Mr. Cohen. Would it have been the judgme nt of the F B I th at it 

would have been illeg al to mo nitor th at con vers ation, or sim ply a 

recognition of a p rivilege?

I moan, is it no t ju st as much of interest to you in investigatin g 

espionage, or foreig n intelligen ce or domestic intellige nce cases, as to 

wh at th at p erson un de r su spicion might be say ing to his doc tor or his 

law yer ?

Mr. Miller. We ll, the re you get int o a matter of jud gm ent . I f it 

were an espiona ge case—if a spy were ta lk in g to his doctor—prosecution in th at sit ua tio n would gener ally not be you r e nd go al ; howev er, 

if prosecu tion weie the th ing th at y ou ha d hoped for o r had in mind, 

and the int erc epted con versation wen t to the he art of the case, the 

age nt may w ell go ahead an d record the c onversa tion, b ut t hen no tify 

the Un ite d State s Attor ney so th at whate ver necessary pre cau tions 

to preserve pro secutable case could be taken. Fo r example, sometimes 

in a tit le I II case, conversation may be rec orded and just before the 

convers ation is termi nated the id entity o f the p art ies becomes known to 

the agent. Bu t, the re it is alread y reco rd ed ; then, we go to the U.S . 

att orney an d exp lain wh at hap pen ed and th e U.S. attorney will generally say seal it. An d th at is how it is handled where there is an 

acc idental ov erhe ating of a privileg ed conversation.

Mr. Coiien. B ut as a ma tte r of policy though, the F B I wou ld neve r 

engage in wiret ap or electronic surveillan ce of conversations between 

an att orne y and client or doctor and pa tie nt? Is th at a fa ir statement ?

Mr. Miller. We ll, when you pu t th e word neve r in there —we 

would not wa nt to do it, unless th e fac ts an d circumstanc es of the 

situatio n were such t hat would------

Mr. Cohf.n. To yo ur knowledge ha s it been done?

W ith ou t g ettin g int o the specifics.

Mr. Miller. No, I do n ot know of any case.

Mr. Coiien. W ha t perc entage of the requ ests for perm ission to 

apply for a court ord ered surv eillance are dis app rov ed by the Cr im ­

inal Division of the Ju sti ce De par tment ?

Mr. Miller. By th e Crimina l Div isio n ?

Mr. Cleveland. We had 112 court ord ers in 1973, and there were 

28 a dd ition al ones turned down by th e De pa rtm ent of Justice.

Mr. Cohe n. 28 requests?

Mr. Cleveland. Yes, 28 were tu rn ed down ; 112 were app roved.

Mr. Cohen. Ju st a couple more questions, and I suspect th at 

you do not hav e all of the answ ers. But , if you do I would like to 

have them for the reco rd and if not, pe rhaps you can fu rnish them at 

a later time . Bu t, how many of the wiretaps—I would like to go 

throug h the tests th at have been used by the Supreme Co uit—ar e 

related t o prote cti ng t he Nation ag ain st actua l or poten tial att ack, or 

oth er hostile acts of a foreign power? That, would be one cate gory I 

guess you would have some wiretap s. Second, to obtain foreig n intel ­

ligence inf orma tio n deemed essential to the sec urity of the Un ite d 

States. Th ird , to prote ct national sec urity inf orma tio n ag ains t fo reign intelligence activities. Fo ur th, protectin g the Un ite d States 

ag ains t ove rthrow of governm ent bv forc e or other unlaw ful means, 

and , five, aga inst any oth er clea r and present danger to the str uc ture
231

or existence of governm ent. Wou ld you be able to give us a break ­

down on those ? Not now, bu t at some othe r time ?

Mr. Miller. As I ind icated , the answer to some of those questions 

most certa inly can be furnished.

Mr. Cohen. Th an k you ve ry much .

Mr. Kastenmeier. May I inq uire of the gentlem an fro m Maine, 

an d perhap s Mr. Miller as well, with rega rd to th e five categories you 

gave, which seemed very useful, a re these identif iable categories th at 

are actua lly used?

Mr. Cohe n. These are the tests th at are used by th e court under 

the ac t, I believe.

Mr. M iller. Yes.

Mr. Cohen. I believe tli at three an d four are probably neg ated by 

the Keith decision, bu t I wou ld still like t o hav e the inf orm ation.

Mr. M iller. Yes.

Mr. Kastenmeier. Incide ntally, am plify ing the gen tlema n fro m 

Main e’s question, wh at per cen tag e o f all tap s con ducted or a uth ori zed 

by the Bu rea u involve inve stiga tio n un der cri mi nal sta tutes versus 

eith er cou nterintell igence or foreign inte lligence ga thering, or wh at 

wou ld have been domestic inte lligence gathe rin g?

Mr. Miller. All tit le I II sur vei llance s are criminal.

Mr. Kastenmeier. Yes.

Mr. Miller. Ev ery one o f them.

Mr. K astenmeier. R ight. An d how man y Fe de ral warranted wir etaps are the re versus wa rra ntles s t ap s ?

Mr. Miller. Well now, we are talk in g abo ut numb ers ag ain and 

the numb er th at Mr. Pe ter son gave you yeste rday wou ld be our 

response. Does th at -----

Mr. Kastenmeier. I do no t recall. I think there are num ber s th at 

were availabl e for a certain class. Ac tua lly, I was ask ing only fo r a 

ba llp ar k respo nse in terms of the sub sta nti al major ity of taps conduc ted. Are the sub sta nti al m ajor ity of tap s con ducted under tit le 

III?

Mr. Miller. W ell, I th in k Mr. Cleveland said 112 were autho rized 

in 1973. Now, these g enera lly wou ld lie wiretaps which were on fo r a 

period of only a few days. In th e other area, intelligen ce ga the rin g, 

as Mr. Dec ker indicated some of these would hav e been employe d for 

a period of quite some time, so it is difficult to com pare the use of 

tit le H I wiretaps with the use of wa rra ntl ess wi ret aps fo r natio nal 

sec urity purposes, liecause the y arc rea lly two dif fer ent a nim als. In ci ­

denta lly , all of the wiretaps in th e natio nal sec urity area are sub ­

mi tted to the Attor ney Gen eral every 90 day s fo r rea uth ori zatio n.

Mr. Kastenmeier. I t may be more pro ductive to tr y to ge t the figures fro m the Attor ney General on th at question.

Let me ask you then, is the re m ore activ ity in term s o f wi retapp ing 

and electronic surv eillance, in the tit le ITT area than in th e a rea outside 

of title III? I ’m talk ing about autho riz ed are as in th e Fe de ral 

Sys tem ?

Mr. Miller. Are there more in the tit le I I I are a th an in the nontit le I I I a rea ?

Mr. K astenmeier. Righ t.

Mr. Miller. I would say th at they are gener ally com parable.
232

Mr. Kastenmeier. They are comparable?

Mr. Miller. Yes.

Mr. Kastenmeier. Under title II I, what percentage would you 

identify as connected with organized crime?

Mr. Cleveland. Most of them are organized crime coses.

Mr. Kastenmeier. Most of them are?

Mr. Cleveland. Yes.

Mr. Miller. The figures in my statement indicating the productivity of title II I, reflect, th at out of 2,700 organized crime arrests, 1,700 

of them were attributable to title II I surveillance.

Mr. Kastenmeier. I have just one other line of questions, and this 

has to do with the policies governing overhearings. What system does 

the Bureau have for indexing overhearings?

Are title ITT and national security cases treated differently?

Mr. Mtller. No. They are treated primarily the same, Mr. Kastenmeier. The indexing procedures are standard. The material is reviewed by a case agent, and he would determine what was pertinent 

to the situation he is investigating, and if it is pertinent then he 

would index it.

Indexing makes the material retrievable, as I indicated to Mr. 

Smith. In a legal proceeding, if the defense and usually it does, asks 

the FB I or the Department of Justice if the defendant or his atto rney have ever been overheard on any kind of an electronic surveillance, we would be able to determine from a review of our rcords 

whether or not, the individuals had ever been overheard. If they had 

then we advise the Department. The Department handles the matter 

in camera with the judge. I f the judge feels that this information is 

necessary to the defendant for his defense, then the information is 

furnished to him.

Mr. Kastenmeier. Thank you.

Mr. Drtnan. Mr. Chairman?

Mr. Kastenmeier. Yes. I yield to the gentleman from Massachusetts.

Mr. Drinan. One last question. Mr. Miller, I assume that the FB I 

or another agency regularly collects intelligence from foreign embassies in Washington. May T ask, on the assumption tha t this is done 

and it seems to be accepted that it is done, does another agency sometimes alert the F BI to wiretap evidence that they have acquired as to 

some potential crime that might be forthcoming?

Mr. Miller. "Would another agency alert, us to a situation th at they 

felt we would be interested in? They would; yes, 9ir. We, in the intelligence community, all of the intelligence agencies in the, United 

States, the State Department, the CIA and so forth, cooperate very 

closely on intelligence matters.

Mr. Drinan. The tap that the C IA or someone else might have on 

the Russian Embassy, that is not included in the number of taps that 

you have given to us, is it?

Mr. Miller. Well, the CIA would not-----

Mr. Drinan. I am sorry, some domestic agency, or would it be the 

FBT?

Mr. Miller. I t would be the FBT. Anything domestic would be the 

FB I, yes, sir.
233

Mr. Drinan. And in the number of wiretaps of a auasi-permanent 

nature, tha t you mentioned, would the wiretaps to the embassies be 

included ?

Mr. Miller. Well, we are talking about numbers.

Mr. Drinan. What? Numbers, yes.

Mr. Miller. You are talking about numbers.

Mr. Drinan. Plain old numbers.

Mr. Miller. The numbers-----

Mr. Drinan. That you gave to Mr. Kastenmeier.

Mr. Miller. These are the total numbers.

Mr. Drinan. That would include-----

Mr. Miller. These are the total numbers.

Mr. Drinan. And every 90 days I understand tha t somebody sends 

a piece of paper to the Attorney General and he approves the continuation of these wiretaps on the embassies?

Mr. Miller. I would prefer in discussing this particular type of 

thing to brief you in closed session, Mr. Drinan.

Mr. Drinan. All right. Thank you. I yield back to the chairman.

Mr. Smith. Mr. Miller, in title II I wiretaps it would seem to me 

that once in a while some incriminating evidence against people who 

are outside of the court order, people who drifted into the conversation 

someplace would be overheard.

Are cases ever built against people who are casually overheard on 

an authorized wiretap ?

Mr. Miller. Let us take, for example, a court-authorized wiretap 

on a certain telephone instrument. Let us say it is on an illegal 

gambling operation. We do not know at the time tha t wiretap is 

authorized, everybody who is going to be a part of this network of 

crime. Now, it is entirely possible tha t in addition to the people 

whom we identify in our application as being involved in this situation, there are others involved. Pa rt of the effect of the wiretap 

itself is to identify others who may be involved. So, to identify individuals who are part of the $30,000-a-day operation, it can. But, then 

they are handled under separate considerations in ongoing investigations. They can be drawn into the network. That is why, in many 

instances following one of these kinds of electronic surveillances, you 

will have a situation where there are 65 arrests growing out of one 

title ITT wiretap, and I am sure at the time tha t the thing was 

authorized, we did not know all of the 65 people were going to be a 

part of it. But, in his prosecutive opinion, the U.S. attorney feels 

that enough probable cause has been developed both from the wiretap 

and follow-up investigation on which to base a warrant for the arrest 

of all of these individuals.

Mr. Cotten. Would the gentleman yield?

Mr. Smith. Thank you. Glad to.

Mr. Coiien. Just to elaborate a little bit further about the incidental caller or the casual caller on one of these wiretapped phones, 

would it be that you would continue to have this man or this woman’s 

name in the record, however you may not use it for any prosecution 

of that individual at tha t time, but even though it was an incidental 

caller on an unrelated matter and even a noncriminal matter, tha t
234

caller’s nam e as T understand it, rem ain s in the fiile, an d I assume 

you have com puterized filing systems, do you not?

Mr. Miller. No.

Mr. Cotten. You d on’t?

Mr. Miller. We do not. Our electro nic indices are no t comp ute rized. W e cannot assume------

Mr. Cotten. I ju st say th at I am a littl e hi t surpris ed at the lack o f 

sop histica tion in the F B I systems where you do no t even hav e equ ipment whi ch is equivalent to th at of CB S or NB C or AB C at your 

dispo sal no r do you have com puteriz ed reco rds so t hat y ou can call a 

man’s nam e or a wom an’s nam e up at a mom ent’s notice to search 

back over your reco rds or tap es an d tra ns crip ts and so foit-h. I am 

ra th er amazed at that, bu t I am sorry. Go ahead. W hy don’t you 

answer.

Mr. Miller. Well, in answer to your question. I did not, say we 

didn ’t hav e the equipm ent at- o ur disposal. Ce rta in equ ipm ent can be 

used to do certain kinds of jobs, bu t if the equipm ent is not necessary 

to perfo rm a certa in type of inv est iga tion the n there is no real need 

to have the equipment. On the m atter of aut om ated indices we do not 

have them . We do not feel it is n ecessary to have them . I t is no t th at 

gig antic a p roposition . I t can s till be handle d very, very easily ma nually.

And now, in answer to your firs t question—you cannot- necessarily 

say th at an inci dental caller’s n ame is going to be indexed. I t may or 

may not be. T hat is a jud gm ent on the pa rt of the case agent. If it 

is the. corne r grocer, or the m iniste r, or else who clea rly does no t have 

an ything t o do with the actual inv estiga tion, his name probably will 

no t le inde xed, bu t he will be on the tape which is preserved. Ho wever. for all intents and purposes his identity is not wi th us unless 

the tapes were replayed.

Mr. Cotten. Le t me just go back over th is to clarify the record if 

we could. As T under stand what you are say ing, the F B I does not 

have the sophistica ted equ ipm ent at its disposal? You do no t have 

the typ e of equ ipm ent th at I was talking abo ut with thes e zoom 

microph ones or whatever they wa nt to call it, the l>oom m icrophones, 

you do not hav e that ?

Mr. Mtller. We do not- hav e a need fo r it.

Mr. Cotten. No. Do we have the equ ipm ent itse lf?

Mr. Decker. T do not k now of any.

Mr. Mtller. I do n ot know t hat we h ave t hat equipm ent. T do know 

sim ila r equipm ent is available, ju st like these direction al football 

devices to listen t o the signals.

Mr. Cotten. We ll, the F B I does not, have it in its stockpile, let- us 

say, of inf orma tio n ga thering devices. Th ey are rea dily ava ilab le on 

the open market, to commercial networks, but you do not. see th e need 

to reso rt to thi s typ e of sop histicate d listen ing device, corr ect?

Mr. Miller. Yes. If i t were nece ssary I am sure th at we would.

Mr. Cotten. And the refore , you hav e no t done so in the pa st and 

do not foresee doing so in the futur e?

Mr. Miller. Well, I ca nnot say th at we do n ot—many of the thi ngs 

we he ar discussed are in the tec hnica l dream ing stag e, and in the-
235

realm of, “W ould it not be nice to be able to do such and such.” Bu t, 

we liave no t done tha t.

Mr. Cohen. T he only reason I am pu rsu ing thi s is because we are 

being called upon to dra ft legisla tion and in dra ft in g it I wa nt to 

be sure thait we tak e into acco unt every possib ility.

Mr. Miller. Yes.

Mr. Cohen. Whil e sit tin g on an othe r subcomm ittee, whe n one of 

the members of the Justice De pa rtm ent testified befo re us last week, 

th at I asked hypothe tically, if the chair ma n of th e subcom mittee 

were on an enemies list as someone who was hostile to a pa rticul ar 

intere st in this country , and if I had a con vers ation with him , or 

were seen soc ializing with him, would my nam e go in the file as well, 

and the ans wer was it pro bab ly would. An d I susp ect this is the line 

of que stio ning th at is bein g developed here. Wh en you hav e th e 

casual caller c alling u p on a wi ret apped phone, and records are ma intained permanently, his nam e is on those records or in the tran sc rip ts 

where tra ns cr ip ts are made. You are bu ild ing up files on inc ide nta l 

calls which may be used in the future. An d wh at we are ask ing is, 

are the re any lim its or can we define lim itatio ns upon th e pr ol ifer ­

atio n of people who are under surveillan ce? We do no t hav e any 

guidelines othe r than the ind ividual judg me nt o f the F B I agent, and 

we have to conside r whether we can draw enfo rceable sta nd ards to 

deal with this situ ation.

Mr. Miller. T ha t is the only way thus fa r th at we h ave been able 

to handle th is situ ation. In draw ing guidelines, you still ge t back to 

the judg me nt of the ind ividual who is doing it—w hether the ma teria l is pe rtinent or not pertinent. An d please un derstand, these ar e 

pro fessional people, schooled in th ei r work, who are sup posed to be 

able to m ake a det erm ina tion of relevanc y.

Mr. Cohen. Tha nk you.

Mr. Kastenmeier. On b ehalf o f t he comm ittee, M r. Miller, we wish 

to than k you and your colleagues fo r ap pe aring th is mo rning.

These 2 hours have been very productiv e and you hav e been very 

pa tie nt and we appre cia te the contr ibu tio n you have made.

Un doubted ly th ere will be fu rthe r need fo r us to get t og eth er, and 

we will leave th at to the futur e. An d in the mea ntim e, the subcommittee would appre cia te your fulfilling the requ est of the gen tlema n 

fro m Maine. Yo ur response should be dire cted to the subcommittee.

Th an k you very much for your presentat ion this morning.

Mr. Miller. Th an k you, sir.

Mr. Kastenmeier. Nex t the Ch air would like to call Mr. Willi am 

Ben der, direc tor of the Co nstitu tional Li tig ation Clinic at Ku tge rs 

Un ive rsity School of Law in Newark, N .J.

Mr. Bender has repr esented clie nts in num erou s cases inv olv ing 

nation al sec urity elec tron ic survei llan ce and wiret appin g. Th e ho ur 

is late, bu t none theless, Mr. Bende r, we appreciat e your app ear anc e.

You hav e a prepare d statem ent whi ch you may read, or if you 

desire, you can sum marize it, eit her way, it is up to you.

Welcome to the subcomm ittee.
236

TESTIMONY OF WILLIAM J. BEN DER , ESQ., AD MINIS TRATIVE

DIRECTOR, CONSTITUT IONAL LIT IGAT ION CLINIC, RUTGERS

UN IVE RSITY SCHOOL OF LAW, NEWA RK , N.J .

Mr. Bender. Th an k you, Mr. Ch air man. An d I am sor ry fo r my 

delay in arrivi ng here th is morning . T was tie d up in the Monday 

morning airpo rt syndrome.

T think T would begin by rea din g part, of mv statem ent and if it, 

becomes laborio us T will stop and then I would be gla d to try and 

answ er any questions the subcomm ittee may have. *

Fi rst. T welcome the op po rtu nity to ap pe ar before you tod ay and 

to relate some of my experienc es with elec tronic surveillan ce matt ers 

in several cases, b oth civil and criminal, in which I have appeare d as 

counsel. The cases include the following: Un ited State s v. Ah mad ,

which was the /7arrishvrg Conspiracy case; Un ited Sta tes v. Ay ers,

which was the S D S Conspir acy case in Det ro it; In Re Del ling er, et

al., a con tem pt case arisi ng out of the Chicago Seven conv ict ion ;

Uni ted S tates v. Bu ten ko, which I am pre sentl y ha ndlin g, a criminal 

espionage case in the district, of New Je rsey ; Un ited States v. Un ited

Sta tes Distric t Cou rt, which as we all know is now over; and Dellinger. et al., v. Mitchell, et al., a civil action in the Distri ct of Colum ­

bia a ris ing out of the disclosure of wi retapp ing in the Chicago Seven 

Case in J un e of 1969. Sin cla ir v. Kl ein de inst, and th at is a civil action 

ari sin g out of the disc losu re in U.S. v. U.S. Distr ict Court- and 

Me A lister, et al., v. Klein die nst , a civil action arising out of th e dis ­

closure in the Tlarris hurg S even case.

T shall attem pt, to cre ate a composite pictu re for you of the g overn ­

mental abuses of first and fourth amend ment and sta tutory rig hts 

from the public records of wiretap matt ers in these cases. Bas ed on 

these experiences, T urge you to reject legisla tion which pro vides for 

so-called national sec urity inv est iga tor y elec tron ic surv eillance of 

any kind in both foreig n and domestic concerns. T will leave the 

debate on the constituti onali ty of pro sec uto rial surv eillance au th or ­

ized by pr ior judic ial warrant to others. How ever, I do want to sug ­

gest th at if the priva cy guarantees of the fo ur th amendment, are to 

be meani ngful, the Congress must legisla te meaningful ad minist rative controls for the conduct of such prosec uto rial surveilla nce. These 

controls must, be implemented vig orously by the legisla tive bra nch .

Mr. K artenmeter. Wh en you men tion pro secutorial surv eillance, 

you arc tailrin g str ictlv about criminal or Titl e I I I wi ret appin g?

Mr. Bender. Th at is rig ht. T am ta lk in g abo ut th at surveillan ce *

wherein the law enforcement, agencies hav e sought, perm ission to 

wiret ap in order to ga ther evidence or the fr ui ts of th ei r surv eillance 

activities to f ur th er the prosecution of crime.

Now. it, strik es me th at the most, s erious revelation in these cases T 

have han dled has been the discovery th at t he Governme nt has inten ­

tionally sou ght to mislead the Fe de ral courts into believing th at 

national sec urity e lectronic surveillance was fo r inv estiga tory, intelligence ga thering purposes as contrasted with the pro secutorial electronic surveillan ce which is utilized to ga ther evidence. An d T ju st 

want to read, if T ma y, some of the comm ents by the As sistan t A ttorney General, Ro bert Mard ian , mad e du ring the Kei th case, in the
237

UjS. v. U.*S\ District Court case, which are typical of the comments 

made in the dozens of cases tha t 1 am aware of, and all of the cases 

in which I have been involved. And then I want to point out, if I can, 

the stone cold reality of what has gone on in these cases, because it is 

here where 1 believe one of the largest abuses is to be found.

Mr. Mardian put it th usly:

T his gat her in g of in fo rm at io n is no t under ta ke n fo r pr os ec ut io n of cr im in al 

ac ts, bu t ra th er to ob tain th e inte lli ge nc e dat a deem ed es se nt ia l to pr ot ec t th e 

nat io na l se cu rity . (G ov er nm en t’s Brie f, a t 16)

Mardian add ed:

We st re ss onc e ag ai n th at, in co nd uc tin g such nat io na l se cu rity su rv eilla nc es , 

the A tto rn ey -G en er al is gath er in g intelli ge nc e in fo rm at io n fo r th e Pre si de nt , 

no t ob ta in in g evide nc e fo r use in cr im in al pros ec ution, (h l. a t 19)

Mo reo ver, un lik e th e tr adit io nal se ar ch es mad e pu rs u an t to w arr an t th at 

m ag is tr at es issu e up on a sh ow ing of prob ab le cause, nat io nal se cu rity su rv ei llanc es are not desig ned to ob ta in fa ct s ne eded in a cr im in al in ve stig atio n, bu t 

to ob ta in intelli ge nc e in fo rm at io n.

Mr. Kastenmeier. If it is agreeable to you, Mr. Bender, we will 

have a 10 minute break so that members of the committee can answer 

a quorum call on the floor, and we will return directly and resume at 

1-2:25.

Mr. Bender. 1 am at yonr disposal.

Mr. Kastenmeier. A t this time the committee will be in recess.

[Short break.]

Mr. Drinan | presiding]. Would tdie meeting please come to order.

I am happy to resume this hearing and to ask Mr. Bender, in the 

absence of the Chairman, to proceed.

Mr. Bender. Thank you, Mr. Drinan.

When the Keith case finally reached the stage of oral argument 

before the Supreme Court, Assistant Attorney General Mardian 

again asserted that the case was not one, “where electronic surveillance was authorized for the purpose of obtaining prosecutive evidence in a criminal proceeding'' or a case “where the defendant was 

the target of the electronic surveillance which was authorized.”

I have quoted at length in my statement from the continuing assertions in the same vein, and I will not read them all into the record 

here. But, the point was clearly and simply made. I think the important thing for this committee to realize is this argument was universally made in all the cases, both foreign and domestic, where the 

Nixon administration chose to admit to electronic surveillance in 

recent criminal cases and submit the legality claim to the test in litigation. For example, before the trial the Government in Ahmad.

“admitted to what * * * [it] lxdieve[d] are probably conversations of 

Sister Elizabeth McAlister, one of the defendants in this case,” and 

conversations having been overheard in a national security electronic 

surveillance authorized bv the Attomev General of the United States 

[hea ring of May 24. 1971, pp. 56-57]. The Government steadfastly 

maintained from the outset that the overhearing of Sister McAlister 

was inadvertant. having nothing to do with furthering the prosecution of its case and having no relationship to trial evidence [T.78].

The Government's earlier representations, that whatever illegal 

electronic surveillance—of the so-called national security variety—it

35 33 1— 74------ 16
238

may have conducted was only for inte lligence da te ga thering, were 

prom ptl y contradi cted. FB I agent Sm ith , who initiated the request 

fo r the surv eillance in question [H ea rin g of May 2, 1972, pa rtial 

tra ns cript p. 31], and the n sup ervised the surveillan ce ope ration 

|T . 3(5J, testified in direc t opposition to the pr io r rep res entation s of 

the Gov ernmen t attorney s; and alm ost the first words out of his 

month were very cle arly and unequivoc ally stat ed ; the surv eillance 

was conducted to ga ther evidence to fu rthe r th e prosecutio n in thi s 

case [T. 24, 45, 47 ].

The same can be said for the Ay ers case, and I have set fo rth some »

of those facts in the s tate ment.

Now, af te r almost 5 y ear s of civil litigation in the De llin ger case, 

which I cite on the first page of the sta tem ent, the Gov ernment has 

turned over the requ ests for survei llance of the natio nal sec urity 

var iety and au tho riz ati ons for those survei llan ces wherein the Ch icago Seven defen dants were heard , an d other specific organiz ations 

th at were pa rties to th e liti gatio n.

I am bound bv a protective order not to reveal the con tents of 

those documents l^efore this committee. However, I wan t to strongly 

urge th at befo re th is committee considers any specific legisla tion th at 

it take up Mr. Miller of the F B I and the De partm ent officials on 

th ei r olTer. and in Execu tive session ask for and exam ine those documents. The actual inter- departm ental correspo nden ce on specific su rveillances, which I have seen, all the surv eillances I have seen, contain referenc es to the intention of using t he s urveillance for prosecutive purposes. Th e specific crim es which were sought to be inv est igated and the person to be inv estiga ted , and the prosecu tion to be 

mou nted, are all set for th in infinite detail, and I would sug ges t as 

str ongly as T know’ liow, that you ask for and exam ine this documentation .

What 1 am suggest ing is that the claim of inv estiga tory surveillance is a ruse, and it is a ruse which the Governmen t used in order1

to attempt to win the power which the court rep udiated in 77.N. v.

Z/.xS'. District Cou rt, and which it aga in is br inging before this Con ­

gress with reg ard to the foreign sec urity surveillan ces to which some 

of the legislation Indore this comm ittee refers . An d I would suggest 

th at this committee has got to pierce the clai ms in both area s if this 

legisla tion is go ing to be meaningful.

Mr. Drinan. Mr. Bende r, if I may follow up on th at for a moment.

If we do not have the votes for the total abo lition of this typ e of 

surv eillance, how can we regu late it?

Mr. Bender. We ll, I believe you hav e to reg ula te the process by 

which the age nts cond uct all surv eillance. In oth er words, specific 

records have to be designated by the leg islation, and what the agent 

does, by way of requesting an autho riz ati on , how the autho riz ati on 

comes back . and then how the dele gation to con duc t the tap is made, 

has got to l)e specified by the legislation in specific detail, and the n 

what the age nts do when they conduct th eir surv eillance has got to 

l)e mem oralized in specified wr itin g. So, for exam ple, the follow ing 

cannot occ ur: An agent conducting a national security tap sits with 

earphones on his head, and a tape record er in fro nt of him, an d a 

radio microph one by his side, and he overh ear s a conversation con-
239

ceming a criminal transaction. And lie lias the capability of directing agents in the field to take investigatory action based on what he 

has heard over the tap. Thereafter, he may or may not make a cut 

on the tape or contemporaneously make an entry in a log or send out 

a formal lead through an airtel. But, the fact of the violation of 

privacy has already occurred, and then afte r the fact, in the criminal 

case or in a civil case, when it is attempted to put it all back together 

again, it is almost, an impossible task because the whole record keeping system has been designed to obliterate, at least in terms of criminal process, the critical violation. So, I would suggest th at you have 

to have a housekeeping committee of the Congress, of the IIou9e or 

of the Senate Judiciary Committees, and tha t the activities of the 

agents conducting all surveillance has got to lie scrutinized, subjected 

to periodic review, and the legislation ought to specify tha t if any 

agent transgresses from the prescribed train of events, does not use 

the forms, does not specify the requisite information on the memoranda. then he loses his job.

And that lias got to lx? an offense, and I believe whatever the legislation is, tha t is the only way to ensure that in the administration of 

legislation there will not be any abuse.

Mr. Drixan. Mr. Bender, do any of th e bills under consideration, 

mentioned in the opening of your statement, approximate what you 

are suggesting now?

Mr. Bender. J have not seen tha t in any of the legislation tha t is 

before this committee now, and I am suggesting it as an addition.

Now, I do not want to lx* understood to suggest tha t I am in favor 

of bills which authorize surveillance. I am not. But, if we are dealing 

in the practical world where either a version of Title ITT surveillance 

for prosecutive purposes, or a version of a bill allowing for investigatory surveillance in the foreign area is to lie provided for, then to 

make the guarantee reasonable, we have to close the loopholes and 

find a way of regularizing the conduct of the officials who administer 

the legislation.

Mr. Diunan. Mr. Kastenmeiers bill attempts to do that by restricting the number of days that the wiretap can be installed, and Mr. 

KaStenmeier can speak to that, but. I think tha t is an approach, that 

it is 15 days and then it follows to 10 days on the renewal. Now. do 

you think tha t tha t is a welcome approach to stopping this openended surveillance, as they were talking about this morning?

Mr. Bender. Absolutely. T would limit it as to time and I would 

limit it as to scope and direction. And it would also have to regularize 

what happens during the 15 days so as to be meaningful.

Now, this is not to suggest tha t the only problem flowing from 

electronic surveillance is the problem of tainted evidence in a criminal case. Not so at all. The invasion of constitutional privacy occurs 

whenever the overhearing takes place, and somebody else hears someone else’s thoughts or words. But. the window into the problem that 

I have seen is when the government chooses to admit to electronic 

surveillance in the criminal case and that is-----

Mr. Drixan. If the Congress is unable or unwilling to esta blis h 

all of those* specified lim its th at you suggest, could the courts do it?
240

Mi-. Bender. Th e difficulty is th at af te r the fact there is no rea l 

way of enfor cin g such requirement. A fter the fact you arc taki ng 

testimony on cross-ex amination fro m agents in a ta in t he aring and 

the agents arc att em pting to show, to sus tain the governm ental 

burden th at the gov ernment has an ind epe ndent source fo r its evidence, ami it is in the a dvers ary p roc eedin g where one pa rty is tryi ng 

to save the case; namely, the gover nm ent , and the other pa rty, the 

defen dan t, is tryi ng to kill the case by eit he r finding ta in t th ro ug hout the inv estiga tion, or ta in t of pai ticu la r tria l evidence. So, I do 

not think in these circumstances the adversa ry system is necessa rily 

the l>est way of regu lar izi ng the conduct.

It is no secret th at the re are vi rtu ally no rep ort ed cases wherc 

federal counts hav e found ta in t follow ing electronic surveillan ce, 

and when one contrasts th at f ac t with the experienc e of findin g ta in t 

in the whole other realm of violation s of the fo ur th am end ment, I 

find it somewh at astounding . I do no t believe, by the way, th at it i9 

the product of there being no tain t. I th in k it is the prod uct of a 

system which is clandestine in natur e, and where the fac ts are controlled by the age nts engagin g in the illegali ty in the first place.

Mr. Drin an. Th an k you. I yie ld bac k the Ch air to Mr. Ka ste nmeier.

Mr. Kartenmeier. Mr. Bender, did you want to continue?

Mr. Bender. Yes. Let me pick up with a few sections of my sta tement. and T will make myself ava ilable to the committee for questions. T am looking at page G now in the middle of the page.

Inter im disc losu res by the gover nm ent in the Ay ers case, th at is 

the SD S Consp iracy case in De tro it, reveal the eno rmity of some of 

these problem s and the difficulty of ge tti ng at the tr uth in the contex t of a criminal prosecution sup pre ssion proceedin g.

Un ited States v. Ayers . No. 48104. U.S. Di str ict Co urt, Eas tern 

District of Mic higan. South ern Div isio n, was a conspir acy prosecution of the We ath erm en faction of the Students for a Democratic 

Society: the case was dismissed by the cou rt on October 15, 1973.

The Government moved to dism iss th is case because of its unwillingness to suffer the reve lation of the iden tity in adversa ry hearings 

ordered by the court of an agency th at had admi tte dly conducted 

some of the illegal surv eillance activities.

How ever, pu rsua nt to an interim order on Ju ne 4, 1973 by Hon. 

Dam on J. Ke ith for disclosure of illegal electronic surveillan ce, the 

Governmen t turned over to the defen dants 3,000 pages of tra ns cripts 

of telephone conversations cov ering eig ht months of surveillance . 

And these were surv eillances whe rc the gov ernment conceded th at 

the defen dants had sta nding and oth rw ise were entitl ed to disclosure 

follow ing the Opi nion of the Sup rem e Co urt in U.S. v. U.S . Distr ict

Court. How ever, the Government asserted th at these tran sc ripts represented full compliance with the interim disc losure; nam ely, those 

surveillan ces covered by Ke ith . Al thou gh the jud ge rese rved decision 

as to wh eth er or not the defen dants had sta nd ing to receive sum mary 

logs of the overh earin gs made du rin g this time period, in the large 

carton with the 3.000 page s of tra ns crip ts, and we insp ected those 

logs pr ior to re tu rn in g them to the government, an insp ection of 

these logs by the defen dants ind ica ted th at the Government was
241

eit he r un wi lling or unable to comply with the inter im disc losure 

order concerning s urveillance even where illegali ty and sta nd in g were 

conceded. Th e logs listed 500 ov erh earin gs du ring the 12-day pe rio d; 

in the 500 overh ear ing s 239 jw ti es were listed as “u nid entified ” by 

the government. Up on inspection, defen dants were able to determine 

that a numb er of these uniden tified overh earings were of the de fend ­

ants themselves and at least eig ht were of their attorn eys. In each 

of these instances, no tra ns cripts of th e illegal overh earings were 

pro vided by the gov ernment to the defen dan ts.

Now, in the ens uing proceeding, we debat ed with the governm ent 

the num bers of our projection s as to the size of thi s problem. We 

estimated th at at any time the Governm ent was unable to form all y 

ide ntify for record keeping pur poses one -ha lf of the pa rti cipa nts. 

The Government said th at our arith metic was somewhat overblo wn 

and it was more like 10 to 20 perc ent, at which point we 9aid we will 

concede that it is only 10 to 20 perce nt, and in a criminal case it 

makes absolutely no difference. Th e Gov ernment has got to disclose 

all instance s of illegal overh ear ing s pu rsua nt to Alde rm an v. Un ite d

Sta tes, and it has cre ated a syste m, a record keeping and disc losu re 

system , whi ch is designe d to do, or at lea st accom plishes, exact ly the 

opposite.

In the Ahm ad case, also in the Ay er s case, and I am loo kin g now 

at page 9 a t the bottom , we began to flush out some of the mechanics 

of how this system fai ls in its disclosure resp onsibility.

In the Ahm ad or Ha rri sbu rg con spir acy case the tentati ve de ter ­

mination of the pa itlcipa tio n of Siste r Mc Alister on the calls was 

surm ised bv the Government by reference to the tele phone num ber s 

th at they were called by th e subject o f the surve illa nce [T.12"|, nam ely 

the n um ber o f the convent whe re Siste r McAlister then resided along 

with oth er nuns. How ever, no effo rt was mad e to identify th e voice 

of any person calling into the tapp ed loca tion du rin g the course of 

the surveillan ce or af terw ard [T.14 ]. Unless a full nam e was mention ed in the course of a tapp ed conversation, the only means of 

identification was by way of the nam e of the pho ne serv ice subscr ibe r to whom the interc ept ed call was mad e [T.14 ], F B I Ag ent 

Sm ith recognized th at ofte n in pho ne conversations, a full nam e is 

not used. So. even in the case where the Gover nment made disclosure, 

they were unwi lling to make the for ma l assertion of identificat ion. 

Now’, this is not to say th at when agents are mo nit ori ng a live tap e 

rec oid er in front of them , and the y hav e ear phones on th ei r head, 

and a mic rophone with which they can communica te wi th an agent 

in the field, th at the y do not ind ulg e in the luxu ry of tentative ide ntification. W ith the ag ent investiga tin g Siste r McAlister in the 

Ha rrisbu rg case, he hears somelxxly who he thinks is Siste r McAlister sav “I am going to the airp or t and meet so and so”, and altho ugh he cannot say this is Siste r El izab eth Mc Alister, he does 

pick up his mic rophone and direct, a field agent to ge t out to the 

ai rp ort and see if Mc Alister shows up. Bu t, the n, in concl uding the 

sum mary log, because 1 do not hav e the full name or the ab ility to 

make a me aning ful iden tification, he ju st migh t wr ite down “Liz, 

last name unknown”, o r a phonetic spelling of a name, or “u nide ntified call plac ed, unidentified perso n”. An d he may not even bothe r
242

to reflect on the log of his own activ ity the inv est iga tor y lead or the 

airtel or some oth er writ in g that he has used in the surv eillance 

th at he has overheard in or de r to fu ither the criminal piocess. An d 

then in the ens uing ta in t he ari ng where the facts are know n only 

to the governm ent, and the only power the defe nse law yer has is to 

cross-examine the agent as to what he did , an d the reco rds are denud ed of this kin d of referenc e, then th e tas k is impossible.

Now, I suggest to von once aga in th at in the item s we saw in the 

Dellinger records, which as T indicated ea rlier T can not read here because of the pro tective order in Dellinger v. Mitehell, there is a concei ted effort within the FB I to pro tect the confidential source in the 

manner T have ju st suggested. There are specific documents where 

age nts arc told to avo id—an d I would love to quote these documents 

here tod ay—but to avoid, to use my own words, the lam entable, 

pra ctice of rev ealing the existence of illegal sources of internal repo rti ng documents for just ice reasons and in the same vein the re is 

also reference made to the practic e of ch aracter izi ng surveillan ce, 

man y surveillance s, un de r one rec ord ing system to minimize the re ­

port,ing of the exten t of the pro gram. Th ere are docu ments which 

would indicate an effort to overemphas ize the foreign involvement 

of certain organiz ations and minimize the dom estic activities of the 

org anization s. And these documents arc con temporaneous with li ti ­

gation in the cou rts concerning the very foreign sec urity pow er 

which thi s comm ittee and its cha irm an are conc erned with and pr oposing legislation. 1 sug gest to you as stron gly as T can to probe 

the specific practices liefore you consider legisla tion . An d I have 

kin d of listed the series of questions which I wou ld urg e upo n you 

in makin g those exam ina tions of records and I would Tike to read 

those into the record and then close my statem ent.

And thi s T think is wha t thi s comm ittee should find out.

1. How are age nts of the F B I instru cte d to circulate fac ts du rin g 

an investigation whi ch are gleaned from an electronic surv eillance 

source? Testimony in some cases and recently reve aled specific docu ­

menta tion in ma ter ial s covered by protective orders will show elaborate efforts to conceal electron ic surveillan ce sources. Th is practic e 

makes a showin g of ta in t extreme ly difficult and insulates illegal 

ac tiv ity from even intern al Justice De pa rtm ent controls.

2. ITow are electronic surv eillances nume rically coun ted and described to the legislative and judicia l bra nch es? These ma terials will 

show efforts to conceal the exten t of national sec uri ty electronic su rveillance s by grou ping man y surveillances under a specific repo rting 

hea din g.

3. How has the Justice De partm ent sou ght to analyze the foreig n 

an d/o r domestic ch aracter of its nat ion al sec urity surv eillance? 

These ma terials will show an att em pt to overemphasize the contacts 

an d involvement with pers ons in foreig n cou ntries by the subjects 

of certain surveillanc es to support arg um ents in court of the foreig n 

sec urity ch aracter of the electronic surveillan ces in question.

4. ITow exten sive has national sec urity surv eillance been? Di sclosed ma terials would ind ica te th at the prog ram was fa r more exte nsive tha n an ything ind icated in De partm ent of Justice statistics.
243

5. Wha t are, the constitutional consequences of the national security electronic surveillance program? Materials already disclosed indicate a surveillance program of breathtaking enormity involving 

hundreds of thousands of overhearings, authorized on fear, innuendo 

and speculation without regard to the privacy rights and rights of 

association and free speech of a free people. The program is the 

consequence of raw executive power, unchecked by this legislature 

or the judiciary. To legislate against and then to control these abuses 

a full investigation must be undertaken and specific review procedures established.

I close these remarks by asking you whether these past 2 years, 

characterized as they were by the constant invocation of the specter 

of threa ts to national security for all necessary occasions will foreclose the meaningful purs uit of your task. I would hope tha t recent 

history suffices to demonstrate tha t the shopworn talismanic incantation “national security” can no longer foreclose democratic processes. A good beginning would be full scrutiny of the entire national 

security electronic surveillance program and the legislation of substantial controls to prevent its ugly reoccurrence.

Mr. Kastf.nmeiek. Thank you, Mr. Bender, for a very helpful 

statement. 1 think as a matter of fact, if anything, the questioning 

by this committee has indicated its interest particularly in waivantless taps, or that done under the guise of national security, because 

this seems to be the most murky area. But, I understand you to sug 

gest th at tapping or surveillance conducted in behalf of intelligence 

gathering, was all right, except in that it might from time to time 

he list'd against individuals for prosecutorial purposes. This suggests 

that you were not unwilling that wiretapping and surveillance be 

used for intelligence gathering as long as if is not used against 

individual defendants in criminal proceedings.

Mr. Bender. 1 hope T did not give tha t impression. I am absolutely opposed to intelligence gathering surveillance. As Justice 

Powell suggested in District Court, intelligence gathering surveillance is the Executive writ, it is the all-sweeping, all-encompassing 

effort to know what a large group of people are doing. It is as abusive in and of itself as any violation of the fourth amendment, and 

T see no difference between intelligence surveillance of either domestic or foreign concerns and a program of mass searches of houses 

and mass interrogations. I do not want to leave th at impression with 

committee at all.

However, what I am trying to suggest is that in advocating intelligence surveillance, this Administration was attempting to hoodwink. I believe, both the legislature and the judiciary and they did 

not mean by intelligence surveillance what they said they meant. 

They specifically represented tha t they meant the program which 

the Supreme Court rebuked because, there were no standards. I think 

we can demonstrate beyond cavil tha t what they did mean was a program of gathering of evidence to prosecute when they had no probable cause, no foundation for the tap at all. Now, this is not to say 

that they did not want the intelligence data as well, tha t the Government did not want to know everything SDS was doing or everything the Panthers were doing or everything a variety of other
244

organiz ations were doi ng for its intdligenc© value. Bu t, in the specific docume ntation which we have seen, the justifi cation is th at we 

want to know in order to l>e able to prosecute so -and-so for a pa rticular crime. And in the documents where the surveillan ces are justified 

for peri odic review, the re is a process of b ra gg in g abo ut the prosecutor ial successes as these surveillance s, which ten d to go on fo r a 

long, long time. So, 1 wa nt to suggest th at we aba ndon inv estiga tory 

surveilla nce lx>cause it is con stitution ally abusive no matter how it 

is described, because it is not fou nde d upo n pro bab le cause. An d 

because it is a ruse for prosecutorial surve illa nce at all we control it 

in the most tight and careful ma nner possible kno win g th at the 

pro gra m, unless it is c ontrolled, is going to be abused.

Mr. Kastf.nmeier. T ow ard the end of his sta tem ent th is mo rning, 

Mr. Mil ler chara cte rized the three areas of wi retapp ing and su rveillance a s: one. the crim inal area under t itl e I I I where warrants are 

obtained, two. the cou nterint elligen ce or foreig n intellige nce -ca the ring field for win ch wa rra nts are not, obt ain ed, and three, the field 

of domestic intelligence. And he suggested th at pu rsua nt to the 

Ke ith case they were no t presently engagin g in any w iret ap pi ng to 

obtain domestic intelligence. Pre sum ably un de r tit le I I I the y could 

engage in domestic intellige nce wi retapp ing but he suggested two 

pro ble m: one. th at probable cause in such cases was difficult to estab ­

lish and. two, the y did not want to divulge subs equently the existence 

of the tap.

And therefore, ra th er than accept those two problems un de r title 

TTT, they just did not engage in any ac tiv ity at all in the th ird field 

of domestic intelligence. T)o you have any comm ent on th at ? Do you 

think th at is. in fac t, their policy?

Mr. Bender. W ell. 1 think that their second prob lem, the problem 

with nondivulge ncc, is not a pa rti cu larly real one because when the y 

prosecute they have to divulge anyhow unle ss the surv eillance be 

legal. And af te r th e Kei th case it is not legal. An d I would urg e th at 

the suggestion th at Mr. Justice Powell th at the Congress ena ct legislation following the Keith , case will have to be very car efu lly reconsidered in the light of the gross misre pre sen tation s as to what intel ­

ligence surveillan ce is in the underly ing record in th at case.

And I have no hes itan cy to tell you th at w*e, as the lawyers in the 

Ke ith case. will pursu e th at issue as vig orously as we know how.

Xow. as to the probable cause sta nd ard, as I un derst and the fo urth 

ame ndm ent, if the re is no prolxible cause, there should not l)e any 

surveilla nce. If there is no prob able cause th at a crim e is abo ut to 

be committed the n the re should not 1x5 a wiret ap unless there, can 

lx1, found a con stitution al area where a different sta nd ard of probable 

cause for inv estiga tory surveillance may exist.

Given our recent his tory with th at second kind of probable cause, 

and I have tried to suggest it is a ruse, I am hig hly skeptic al th at 

such a new sta nd ard of probab le cause by this Congress or the cou rt 

could ever 1x5 fou nd and I would not wa nt to see any such exception 

to title TIT or any other legislation whi ch pro vides for surveillance 

on a lesser sho win g than a show ing th at a crim e is about to lx* or is 

being com mitted under the rose of investiga toi-y surv eillance. I 

think it would lx' a ter rib le mistake and an uncon trollab le practice.
245

As to the suggestion that there has been no surveillance following 

district court, I would point this committee toward the hearings 

undertaken in Minneapolis or was it St. Paul, within the last several 

weeks arising out of Wounded Knee, where they are now about 5,000 

pages of court transcript demonstrating an effort by the FB I to wiretap the Wounded Knee participants during the negotiations that took 

place in the Wounded Knee enclave. And the court has determined 

that those surveillances were illegal and has ordered they be suppressed. and not be used in the ensuing prosecution.

j I know of no other examples by the way but I do know of that

one and the committee may want to inquire into it specifically.

Mr. Kastexmeier. I have many other questions I would like to 

ask of you, and perhaps we can continue our dialog at another time.

» These are only the opening hearings on the subject of wiretapping 

and electronic surveillance. We are not really prepared to consider 

legislation without at least another sot of hearings which will be 

more refined based on these 3 days which have been largely to inform 

ourselves of the question and try to understand its dimensions. In 

any event I would like now to yield to my colleague from New York, 

Mr. Smith.

Mr. Smith. Thank you, Mr. Chairman. Thank you Mr. Bender, 

for giving us a very interesting statement from the background of 

your extensive experience with this problem.

I take it you feel, and I think you said, tha t you do not feel there 

should be any domestic intelligence surveillance.

Mr. Bender. That is correct.

Mr. S mith. Of course if there is no domestic intelligence surveillance the big problem comes, of course, in squaring that with the 

constitutional guarantee of privacy. And here, of course, you come 

into the old argument and the ongoing argument of the right of the 

individual as against the ultimate welfare of the Nation, if anybody 

can ever make decisions in that regard.

For instance, the problem that we have, the problem th at the Congress would have, the problem the people of the country would have, 

would be we have always felt in this country tha t differing opinions 

were perfectly valid and legal, and that even a change of government, if it be done by the ballot instead of the bullet was legitimate. 

And that is what this country is about. But, an overthrow of the 

Government bv violent and revolutionary means was not contemplated in the Constitution and the feeling has been, of course, all 

along that the Government ought to be able to protect itself against 

tha t kind of activity. The difficulty is who is to 9ay when there is or might be tha t kind of activity and when there is activity tha t is protected by the Constitution. And do you see any means which we 

could devise to protect the Government of the United States against 

violent overthrow while preserving the rights of the individual under the Constitution ?

Mr. Bender. The Congress grappled with this problem in enacting 

title II I. And in those circumstances where an act of sabotage or 

treason or the like is about to or has occurred and there is a probable 

cause to get a warrant, the Justice Department can apply to the 

court and get a prior judicial warrant, as the fourth amendment re3 5- 39 1— 74 ------ 17
246

quires, autho riz ing the search and the re is even the emergency pr ovision in tit le I II which allows the Dep artm en t of Justice to act 48 

hours in advance of goi ng before a jud ge to con duc t a surv eillance 

Now, I find it interesting th at the 48-hour emergency provision, 

at least as I understood Mr. Miller’s testim ony , and from my own 

experienc e in th is field, nev er has been utilize d. The Governme nt 

has rath er chosen to go the route of inte lligence gathe rin g.

I have difficulties wi th some aspects of tit le I I I as adm inis tere d. 

Bu t, assumin g its co nstitution ali ty, and the cou rts have fou nd it to 

be constitu tional, it seems to be a much safer way to strike the ba lance th at y ou are talk ing ab ou t; th at is, the balanc e between privac y 

and the need for the Government to pro tec t i ts citizenry.

That is, When crim es aro or are abo ut to be com mitted, you get 

a warrant, and the separat ion of powe rs is fulfilled. A jud icial officer stands between the zealous prosecutor an d the accused and the 

righ ts are prote cte d in the con stituitonal fashion. I know of no way 

to answer your specific question where a gr an t of power to prote ct 

the national sec urity could be made and not abused by virtu e of its 

own weak and swe epin g definition. I hav e hoped th at we have 

learne d as a Na tion in the las t 3 years, the dang er where natio nal 

sec urity has been called ou t to justi fy some of the most hor ren dous 

abuses I believe, by a wide varie ty of people.

Mr. Smith. W ell, I ten d to agre e with you, Mr. Bende r, in th at I 

cannot see why a pro cee din g under title I II , fo r insta nce, in socalled domestic intelligen ce cases where crim e is abo ut to be committe d or has been com mitted, is as difficult for the F B I as Mr. Miller 

testified. I can un de rst an d th at it restr icts the intellige nce-g ath ering 

fun ction, bu t I ten d to agree with you th at perha ps th is is the 

only way th at you can balanc e the constitu tional gua rantees.

Mr. Bender. I th in k th at you will find in loo kin g at some of the 

record, to which I have alluded, au thor izing inv est iga tor y natio nal 

sec urity surv eilla nces , th at the re is a lar ge mea sure of fear of constitutio nally pro tected diss ent, a very lar ge mea sure runn ing throug h 

these docum ents. An d it is impossible to separate out the zeal with 

wh ich th at fea r has been pur sue d in au thor izing surveillances and 

the effort to use the criminal process in order to . in some of these cases, 

chill and deter speech and str ug gling with this prob lem. I am glad 

to hear that you are going to struggle wi th it a long time. An d I 

would hope th at you would look at th ese documents. I think th at the 

proo f of an asse rtion lies in our own recent histo ry with it. and it is 

a his tor y th at has got to be told where int ellige nce-g ath ering su rveillance has not been used in the way in whi ch it has been justified . 

It has been used in a high ly abusive fas hio n, and I do hope you 

will got, a chance to look at it and make yo ur own jud gm ent instead 

of relyin g on mine.

Mr. Smith. Th an k you.

Mr. Kastenmeier. The gentlem an from Maine. Mr. Cohen.

Mr. Coiien. Tha nk you, Mr. Ch airma n. I ju st have one question.

On page 7 of yo ur statem ent, Mr. Be nder, towa rd the bottom of 

the page you say “U pon inspection, defen dants were able to de termin e that a numb er of thes e unidentified overh earings were of the 

defend an ts themselves, and at leas t eig ht were of their attorneys.”
247

I low did you make th at determination? Do you know of yo ur own 

know ledge ?

Mr. Bender. Yes. Because the logs gave the phon e numb ers and 

it gave the fam ili ar names th at the ind ivi duals invo lved used in 

conversations with th ei r clients. One en try would be “ Skip, last name 

unkno wn” and the n the name of the defen dant, and the time and the 

dat e and the phon e n umber.

Well, Sk ip happ ens to be the nam e of the att orney whose firs t 

naan©—th at was has nick nam e, and the pho ne numb er was his office 

telephone, 90 exc ept for the rec ord ing purposes, the Government did 

not make the ide ntif ication , whi ch by the way, on its face, was 

pa ten tly ab su rd because the at to rn ey happened to be ra th er well 

known in the local goorg rap hic al are a, and his nickname appeare d 

in the press fre quently and the pho ne numb er was certa inly well 

know n, and it appeare d throug ho ut the logs in question, 90 it was 

an obvious abuse.

Mr. Cohen. We ll, we had testim ony ea rli er this mo rning, and I 

do no t know if you were pre sen t or not, th at whe never an attorney 

would be talk ing wi th his clie nt, th at the F B I agent wou ld disconnect, or not mo nitor th at convers ation. T hat seems to be in contr ast 

to your testim ony.

Air. Bender. 1 am familiar on this issue wi th a memo ran dum from 

the then Atto rney General Mit che ll instr uc tin g agents to do ju st 

th at , to in terrup t, bu t we just mad e ava ilable to the seventh circui t, 

which is consider ing the Dellin ger conte mp t case, some of the documents we fou nd in the Dellin ger v. Mitchell, the cavil case, wi th pe r­ mission of the di stric t jud ge here and alt ho ug h I can not tell you 

the exa ct words in the docu ment, in the pub lic br ief we filed we suggested th at the directive was not followe d and we cite d to a specific 

mem orandu m where a pa rti cu lar con versation between a client and 

his law yer discussing tri al str ateg y was men tion ed, with a wa rning 

at th e b ottom to be m ore car efu l in the future.

Mr. Cohen. Were the At torney Ge neral ’s guidelines an d recom ­

menda tion s lim ited to the att orney-cli en t pri vilege, or did they in ­

clud e the docto r-p atient, pries t-p en ite nt privilege s? Do they hav e 

any o f t he othe r normally recognized privilege s?

Mr. Bender. The one th at I hav e seen, whi ch I believe is dated 

Ju ly 1969, I am sorry , I guess it is Ju ly 1970 and I can mak e th at 

ava ilable to th e com mittee if you like------

Mr. Cohen. I f you would, yes.

[The document refer red to follo ws.]

J uly 14, 1969.

E xcised Copy of Memorandum of J oh n Mit ch el l F ur nish ed to th e Dist ric t

Court by Mr. Cal ho un

J. Edgar Hoover, Director, Federal Bureau of Investigation, and John N.

Mitchell, A ttorney General

ELECTRONIC SURV EIL LA NC ES

Both the Criminal and Internal Security Divisions have been reviewing the 

legal problems in connection with present and future prosecutions, in view 

of the information furnished by you concerning overhearings of some conversations in recent months of some of the defendan ts involved in the Chicago 

anti-riot case.
248

The likelihood of continued-interception of several of the Chicago defe ndants 'on existing installations does indeed present the possibility of serious legal problems arising in connection with fut ure criminal trials, particularly if a defe ndant in a pending Federal case is overhead discussing trial stra tegy or tactics with his attorney. Moreover we must also be awa re of the problems presented by an agent of the government surreptitio usly overhearing conver­ sations of a defendant which may be relevant to the criminal case. See Massiah

v. United S tates, 377 U.S. 201. In an effort to minimize the possibility of overhearing conversations involv­ ing defendants or the ir attorneys which rela te to trial strategy I have con­ cluded tha t the Bureau slmuld undertake the following precautions. The telephone surveillances which I have authorized should continue under the current directives. However, the Bureau should take steps to insu re that 

each telephone surveillance on should l>e personally monitored by a

special agent or special employee. Each such monitoring agent or employee should be instructed in writing th at he is to immediately cease monitoring, both in person and by electronic recording, and conversation as soon as he becomes aware that one of the parties to the conversation is a defe ndant in a pending Federal criminal case or an atto rney of such defendant. For the time l>eing each such agent or employee should be furnished with a list of defendants and their atto rneys who are involved in the Chicago anti-riot case so tha t he will be aware of the persons whose conversatio ns should not be monitored. A list of those defendan ts and attorneys is attached. He should also be instructed to make a notation in the log, as appropriate, that the conversation was cut off and was not overheard, after identifying the name of the defe ndant or 

attorney who was on the line which occasioned the cut-off. The same procedure should be followed with respect to the monitoring of since it api>ears tha t some of the Chicago defendants will be over­ heard in connection with some of those surveillances. It is also possible that one or more of the defendants or atto rneys would be overheard on other cur­ rently operative electronic surveillances. Reasonable precautions should be taken to prevent such overhearings. The prim ary purpose of these procedures is to avoid the government’s learn ing of defense strategy or plans in such a way as there might be an intrusion into the Sixth Amendment righ ts of a defendant. Any time a conversation rela ting to such strategy or tactics, l>e- tween any two i>ersons, takes place, the conversation should be immediately cut off as* soon as the subject ma tter of the conversation becomes apparent. If a conversation of a defendant or one of his attorneys should inadvertently be overheard and later comes to the atte ntion of a special agent, th at special agent shall immediately seal the record of the conversation, atta ching a memo­ randum certifying th at he has not and will not orally or in writing rela te the substance of the conversation to any other represen tative of the government or to anyone else except upon order from the Attorney General. This sealed log and the agent’s certification should t»e immediately forwarded to you for 

transm itta l to the appropriate Assistan t Attorney General. I know that these procedures will place an additional burden on the Bureau but I am sure you will appreciate that it is a reasonable balance in an effort to secure needed intelligence and at the same time safeguard fut ure prosecutive 

steps which should l»e taken.

Attachment.

Defendants and Attorneys in United States v. Dellinger, et al., N.D. III., 89

CR. 180.

DEFENDAN TS

David T. Dellinger 

Renn ard C. Davis 

Thomas E. Hayden 

Abbott H. Hoffman

Jerry C. Rubin 

Lee Weiner 

John R. Froines 

Bobby Seale

ATTORNEYS

Charles R. Garry 

Michael J. Kennedy 

William M. Kun stler 

Gerald B. Lefcourt 

Dennis J. Roberts

Michael E. Tiger 

Leonard I. Weinglass 

Stanley A. Bass 

Irving Bimbaum 

Howard Moore, Jr.
249

Mr. Bender. I t refers only to the attorney-client overhearings and 

does not recognize any other privileges.

Mr. Kastenmeier. That would be very helpful to the committee 

and we would appreciate receiving a copy.

Mr. Smith. If the gentleman will yield, I think that Mr. Miller 

testified this morning tha t the Attorney General's instructions covered 

all privileges.

Mr. Coiien. I t would be helpful if we can have that.

Mr. Bender. I will let the memo speak for itself. It is my recollection tha t only the attorney-client privilege is specifically mentioned.

Mr. Cohen. That is all I have.

Mr. Kastenmeier. On behalf of our committee, we want to express 

our appreciation to you, Professor Bender, for your appearance 'here 

today.

[The statement of William J. Bender follows:]

P repared Sta teme nt of William J. Bender, Administr ative Director, Constitut iona l Litigatio n Cli nic, R utgers Univ ersit y School of Law , 

New ar k, N.J.

Chairman Kastenmeier and members of the subcommittee: I welcome tlie 

opportunity to appear before you today and to relate some of my experiences 

with electronic surveillance matters in several cases, both civil and criminal, in 

which I have appeared as counsel. The cases include the following: United

States v. Ahmad, et al., No. 14950, United States District Court, Middle District 

of Pennsylvania, reported 347 F.Supp. 912 (1972, ; United States v. Ayers, et

at.. No. 48104, United States District Court, Eastern District of Michigan, 

Southern Division; In Re Dellinger, et al., 72 Criminal 925, United States 

District Court, Northern District of Illinois, Eastern Division and the Seventh 

Circuit Court of Appeals; United State s v. Butenko, United States District 

Court, District of New Jersey, No. 418-63; United States v. United States

District Court, 407 U.S. 297 (1972, ; Dellinger, et al. v. Mitchell, et al., United 

States Distric t Court, District of Columbia, No. 1768-69; Sinclair, et al., v. 

Kleindienst, et al., United States District Court, District of Columbia, No. 

610-73; McAlister, et al., v. Kleindienst, et al., United States Distric t Court, 

Eastern District of Pennsylvania, No. 72-1977. I shall attempt to create a 

composite picture for you* of the governmental abuses of Fir st and Fourt h 

Amendment and statutory Rights from the public records of wiretap matters 

in these cases. Based on these experiences, I urge you to reject legislation which 

provides for so-called national security investigatory electronic surveillance 

of any kind in lw>tli foreign and domestic concerns. I will leave the debate on 

tlie constitutionality of prosecutorial surveillance authorized by prior judicial 

warrant to others. However, I will suggest t hat if tlie privacy guarantees of the 

Fourth Amendment are to be meaningful, the Congress must legislate meaningful administr ative controls for the conduct of such prosecutorial surveillance. 

These controls must be implemented vigorously by the legislative branch.

Probably tlie most serious revelation in these cases lias lieen tlie discovery 

tha t the government intentionally sought to mislead the federal courts into 

believing that national security electronic surveillance was for investigatory, 

intelligence gathering purposes as contrasted with prosecutorial electronic 

surveillance which is utilized to gathe r evidence. Assistant Attorney General 

Robert Mardian expressed this proposition in briefs and arguments throughout 

the Keith ca se:

“This gathering of information is not undertaken for prosecution of criminal 

acts, but rath er to obtain the intelligence data deemed essential to protect the 

national security.” (Government’s Brief, a t 16,

“We stress once again that, in conducting such national security surveillances, 

the Attorney-General is gathering intelligence information for the President, 

not obtaining evidence for use in criminal prosecution.” (Id., at 19,

"Moreover, unlike the traditional searches made pursu ant to war rant tha t 

magistrates issue upon a allowing of probable cause, national security surveillances are not designed to obtain facts needed in a criminal investigation, hut 

to obtain intelligence information.” (Id., at 25,
250

“The individual overheard is not himse lf the subjec t of surveillance, but 

his conversa tion is intercepted incide ntally and wholly irrelevan tly (in respect 

to his prosecu tion ), in connection with a surveillance to obtain intelligence 

information to prote ct the nation al secu rity.” (Itl., at 39- 40)

“In this case, the defendan t, 1‘lamondon, was not the subjec t of the surv eillance autho rized by the Attorney General. lie was overheard when, fortu itou sly, 

he made a call to the telephone installatio n which was the subj ect of the 

surveillance.” (Id ., at fn. 18, 4 0)

At oral argu men t before the Supreme Court, Assistan t Attorne y General 

Mardian again asserte d that the case was not one, “where electronic surv eillance was auth orized for the purpose of obtaining prosecutive evidence in a 

crimin al proceedin g” or a case “where the defe ndan t was the tar get of the 

electronic surveillan ce which was auth orized.” (Tran scr ipt of Oral Argument 

at 8) Mard ian went on to say :

“And I thin k th at beyond question the in camer a exhibit will show that the 

purpose of the surve illance was for the sole and limited purpose of obtaining 

counte r-intelligence information as distin guish ed from prosecutive evidence in 

a criminal case.” (Id., at 24)

“In the Alderm an case, . . . the surveillance was authorized for the purpose 

of obtaining prosecutive evidence to be used in a crimin al case, and it was 

direct ed aga inst the defendant. . . . In this case we have a situ atio n, as in 

('lay, where, as I said, the defendant unf ortu itiously —or for tui tou sly , depending on the outcome of this case—happened to call the wrong number.” (Id .,

at 25)

“The only purpose is, as I have st at ed : one, to obtain the on-going intelligence necessary to comi»ete in the area of foreign affairs, and the on-going 

intelligence necessary for this nation to pro tect itse lf aga inst not only Its 

foreign foes but its domestic foes.” (Id ., at 79)

This argum ent was universally made in all the cases, both foreign and 

domestic, where the Nixon adm inis tration chose to admit to electronic sur ­

veillance in recent crimina l cases and subm it the legality claim to the test in 

litigation. Fo r example, before the tri al the govern ment in Ahmad, “admitted to 

what . . . [i tl belie vefd ] are probably conversatio ns of Sister Eliza beth 

McAlister, one of the defendants in this case,” and conversations having been 

overhe ard in a “national” security electronic surveillan ce authorized by the 

Attorney General of the t ’nited States . (Hearin g of May 24. 1971, pp. 56- 57.) 

The government stea dfa stly maintained from the outset th at the over hear ing 

of Sister McAlister was inad vertant, having nothi ng to do with fur the rin g 

the prosecution of its case and having no relation ship to tri al evidence. (T .78) .

The government’s earlie r representations, th a t, whateve r illegal electro nic 

surveillance (of the so-called “national securit y” var iet y) it may have conducted was only for intelligence data gathering , were promptly contradicted. 

F.B.I. Agent Smith, who initiated the reque st for the surveillance in question 

(He aring of May 2. 1972, partial tra nsc rip t p. 31 ), and then supervised the 

surveillance operation (T .3 6) , testified in dire ct opposition to the pri or repr esentation s of the government attorney s; the surveillance was conducted to 

gat her evidence to fu rth er the prosecution in this case (T.24. 45, 47 ).

In its answ er to the motion seeking disclo sure of electronic surveillance 

filed to the indictm ent, in the Ayers case, the government characte rized its illegal electron ic surveillan ce activi ties as they affect, this case as follows:

“A review of the records of the Departm ent of Just ice has established that 

the defendan ts Lind a Evans. Dianne Dongld, Russell Neufeld, Jan e Spielman, 

Robert Burli ngham were never the subje cts of dire ct electronic surveillance, 

nor were any premise s in which they had a pro prie tary inter est. However, the 

said defe ndan ts did par tici pat e in conversation s th at are unre lated to this 

case and which were overheard by the Fed eral Government during the course 

of electro nic surveilla nce expressly auth orized by the President actin g through 

the Attorney General.”

An examination of the disclosed logs dem onst rated tha t this statem ent was 

paten tly false. Thi s tap was directed at the nationa l office of an organization 

of which these defe nda nts were members at a time when the government 

al’eged these defe ndan ts, the subjec ts of the tap, were form ulating the conspiracy for which they were indicted. They, con trar y to the assertion above, 

“were . . . the subje cts of direct electron ic surveillan ce.” and the tap was on 

the phones of an orga nization wherein they had constitutiona lly protected 

expectation of privacy.
251

These fac ts and like circum stances in oth er cases have been pieced together 

hit by hit in criminal cases. The conclusion—th at the claim of a “fortu tious 

over hear ing” on an intelligence tap was a delibera te falsehood, designed by 

this adm inistra tion to hoodwink the jud icia ry into gra nting the nation al security exception to the Fou rth Amendment—is borne out by recent events. Civil 

Discovery, af ter almost live year s of litig atio n in the Dellinger case, has resulted in the disclo sure of documentation which pierces the fraudule nt claim 

of intellig ence electro nic surveillance once and for all. A prot ectiv e order 

prohibits the revela tion of specifics to this Committee. However, I strongly 

urge tha t before any legisla tion is reported out for floor action, th at thi s Committee seek out from the Justice Dep artm ent the requests for nationa l secur ity 

electronic surveilla nces and the auth oriz atio ns allowing them. This documenta tion will dem onstrate the ext ent of the abuses and the need for corrective action.

Inte rim disclosures by the governm ent in the Ayers case reveal the enorm ity 

of some of these problems and the difficulty of gettin g at the tru th in the context of a criminal prosecution suppression proceeding.

United Sta tes v. Ayers, No. 48104, United Stat es Dis tric t Court, Eas tern 

Dis tric t of Michigan, Southern Division, was a conspirac y prosecution of the 

Weath ermen faction of the Stud ents for a Democratic Soc iety ; the case was 

dismissed by the Court on October 15, 1973.

The govern ment moved to dismiss thi s case because of its unwillingne ss to 

suffer the revelation of the identity in adv ersa ry hearings ordered by the court 

of an agency that had conducted some of the illegal surveilla nce activitie s.

Pur sua nt to an interim order on Jun e 4, 1973 by the Honora ble Damon J. 

Keith for disclo sure of illegal electro nic surveillance, the governm ent turn ed 

over to the defe ndants 3.000 pages of tra nsc rip ts of telephone conversations 

covering eight months of surveillance. The governm ent asse rted th at these 

tran scr ipts repre sente d full compliance with the inte rim disclosure. Although 

the judge reserve d decision as to whe ther or not the defe ndan ts had stan din g 

to receive summary logs of the overhearings made durin g thi s time period, 

twelve days of logs were inad vert entl y included with the 3,000 pages of tra nscripts. An inspectio n of these logs by the defe ndan ts indicated th at the government was eith er unwilling or unable to comply with the inte rim disclosure 

order concerning surveillance even where illegality and stan ding were conceded. The logs listed 500 overhearin gs duri ng the twelve day pe rio d; in the 

500 overhearin gs 239 par ties were listed as “uniden tified” by the government. 

Upon inspection, defe ndan ts were able to determ ine th at a number of these 

unidentified overh earings were of the defe nda nts themselve s and at leas t eight 

were of the ir attorney s. In each of these instan ces, no tra ns cri pts of the 

illegal overhearings were provided by the government to the defen dants .

Simple arit hm etic shows the enorm ity of the problem if the tap operated 

for eight months nt the same level. More tha n 12,000 overhearings with more 

than 5,000 unidentified voices occurred.

I don’t believe the disclosure failures in virtua lly all nationa l security 

electronic surveillan ce cases are mere happe nstan ce. The indexing and reporting 

systems within the Depa rtme nt of Jus tice functi on so as to avoid rather tha n 

allow requ isite disclosures in the cirim inal process: In the Ahmad case 

F.B.I. Agent Gary Owen Wat t, a superviso r of the F.B .I.’s domestic intellig ence 

division, super vised the general search of records (T .5 4) , pu rsu ant to a let ter 

from the Jus tice Dep artm ent atto rne ys (T .5 7) , in ord er to disclose any electronic surveillance as to defendants, the ir atto rne ys or any unind icted coconspirators . The means for asc erta inin g the existence of surveillan ce is an 

F.B.I. index comprised of an alph abetical list of names (T .57) . Inde x cards 

would indic ate tha t a telephone belonging to the person listed, was tapped, 

tha t someone was overh eard who called into the installatio n, “the dat e the 

installat ion was insta lled might be also includ ed in the file, and the location 

. . . possibly” (T .58) . Unidentified callers who may only use first names who 

call into a tapped insta llation would not be reflected in the index (T .5 9) . 

Agent Wat t was not certain if the fact of the existence of unidentified callers 

on the tap would be listed in some manner. No index is kept by inve stigatin g 

subject, by name of case or by place. The only way to determ ine whethe r someone has been overheard is to search for a name alpha betic ally in an index 

file (T .61). Watt knew of no other method with in the departm ent of determ ining whether or not a par tic ula r indiv idual has been overhe ard (T .6 1- 62 ). The 

only way to determine if a residence had been overheard would be if the resi-
252

deuce was identified with a name in the index (T.65). The defendan ts’ submission to the govm ment of a list of places, wherein they had an expectation 

of privacy, to assist the government in searching its files, was a worthless 

exercise because, "if his name wasn’t mentioned, his name wouldn’t be included 

in the indexes [sic]” (T.67). Where several jieople share d a residence with 

a tapped phone, only the name of the telephone subscribe r would app ear on 

the index, not the other users of the phone. No search was made for an item 

"Religious Sacred Heart of Mary,” the residence of Defendant Sister McAlister, 

one of the places listed in defendan ts’ motion (T.77).

In the Ahma d or Harris bur g conspiracy case the tentative determination 

of the participation of Sister McAlister on the calls was surmised by the government by reference to the telephone numbers th at were called by the subject 

of the surveillance (T.12), namely the number of the convent where Sister 

McAlister then resided along with other nuns. However, no effort was made 

to identify the voice of any person calling into the tapi>ed location during 

the course of the surveillan ce or afterw ard (T.14). Unless a full name was 

mentioned in the course of a tapped conversation, the only means of identification was by way of the name of the phone service subscriber to whom the 

intercepted call was made (T.14). F.B.I. Agent Smith recognized th at often 

in phone conversations, a full name is not used, as was the case with the two 

logs before the court where only a first name, to wit, “Liz” was used (T.15). 

The agent also recognized the possibility th at names are not always used 

(T.18), making identification by names impossible. The mechanical devices 

which recorded the phone nuihbers of out-going calls from the tapped location 

could not register the phone numbers of incoming calls, so incoming calls were 

not formally identified for record-keeping purposes.

This is not to suggest that agents’ overhearing calls or conversations during 

the course of an investigation lack the capa bility of acting on the ir “ten tative ” 

identifications. The problem faced by defe ndants is tha t the reality of the 

government’s prosecutive use of electronic surveillan ce is carefully concealed 

from judicial scrutiny.

I urge this subcommittee to deeply probe the Justice Depa rtment during 

these d elibe rations on the following issues :

(1) How are agents of the F.B.I. instructed to circu late facts during an 

investigation which are gleaned from an electronic surveillance source? Testimony in some cases and recently revealed specific documentation in materials 

covered by protective orders will show elab orate efforts to conceal electronic 

surveillance sources. This practice makes a showing of tai nt extrem ely difficult and insulates illegal activ ity from even inte rnal Justice Department 

controls.

(2) IIow are electronic surveillances numerically counted and described to 

the legislative and judicial branches? These materials will show efforts to 

conceal the extent of national security electronic surveillances by grouping 

many surveillances under a specific reporting heading.

(3) How has the Justice Department sought to analyze the foreign and/o r 

domestic chara cte r of its national security surveillances? These materials will 

show an attempt to over-emphasize the contacts and involvements with persons 

in foreign countrie s by the subjects of certain surveillances to suppo rt arguments in court of the foreign security chara cter of the electronic surveillances 

in question.

(4) How extensive has national security surveillance been? Disclosed materials would indicate that the program was fa r more extensive than anything 

indicated in Departm ent of Justic e statistics.

(5) What are the constitutional consequences of the national secu rity 

electronic surveillance program? Materials alre ady disclosed indicate a sur ­

veillance program of breath-takin g enormity involving hundreds of thousands 

of overhearings, auth orized on fear, innuendo and speculation with out regard 

to the privacy rights and rights of association and free speech of a free people. 

The program is the consequence of raw’ executive power, unchecked by this 

legislature or the judiciary . To legislate against and then to control these 

abuses a full inve stiga tion must be undertaken and specific review procedures 

established.

T close these remarks by asking you whether these past two years, characterized as thev were hv the constant invocation of the spectre of thr eats to 

national security for all necessary occasions will foreclose the meaningful pursuit of your task. T would hope tliat recent history suffices to demonstrate that
the shop-worn talis man ic inca ntati on “national secu rity’’ can no longer foreclose democ ratic processes. A good beginning would he full scrutin y of the 

enti re national secu rity electronic surveillan ce program and the legislation of 

sub stan tial controls to preven t its ugly reoccurrence.

Mr. Kastenmeier. AVitli that, the Chair will also announce tha t 

statements of Congresswomen Abzug and Mink, Congressman Kemp, 

and Dr. Lapidus mil be accepted for th e record and tha t the record 

will be kept open for a period of two weeks during which time other 

relevant material and statements can be received for inclusion 

therein. •

[The statements referred to above follow:]

Statement of Representative Bella S. Abzug

Mr. Chairma n and members of the subcommittee, I apprecia te the opportuni ty of appeari ng before you today to discuss a subjec t about which I feel 

most stron gly and to speak in sup port of two bills which I have introdu ced 

to gua ran tee to indiv idua ls their cons titution al righ ts of privacy , H.R. 9698 

and II.R. 9815.

The first of these bills would make a simple but significant change in Section 

25 11 (2 ) (c ) and (d ) of Title 18 of the United Stat es Code. It would provide 

tha t wire and oral communications can be intercepted with out a judicia l warran t only if all the par ties to the communication give prio r consent. The second 

bill, H.R. 9815, would prohib it inves tigations, surveillance, or data-k eeping by 

the mili tary into the beliefs, assoc iations or political activitie s of civilians and 

civilian organizations.

For many years, I and several of my colleagues in both bodies of Congress 

have spoken out in decrying the viola tions of privacy and other indiv idual 

rights perpe trated by the governm ent in the guise of its legitimate functions. 

But ou r voices seemed to fall on deaf ears. Now, however, the protec tion of 

privacy has become a more popu lar issue and even a “fashionable” legisla tive 

subject. In this session of Congress alone, more than a hundred different bills 

and resolutions rela ting to priva cy have been introduced and are now being 

considered by several committees of the House. A recent Ha rri s I’oll indicated 

tha t the general public, by 77 per cent to 14 per cent, overwhelmingly favors 

passage of legislation to curb the abuse s of governmental wiretapping and bugging. And las t Feb rua ry even Preside nt Nixon, in creatin g his Committee on 

the Right of Privacy, headed by Vice Pre sident Ford, recognized the dange rs 

to our democ ratic ins titu tion s th at invas ions of privacy repre sent. Perh aps it 

took the shocking disclosures of the Wa terg ate scand als to awaken the general 

public and my colleagues to the rea litie s of life in this electronic age and to 

the urge nt need for legislat ion to place some lim itations on unbri dled government snooping. Wha teve r the causes for the change in atti tud es, I am delighted 

tha t it has come about, tha t the time is now ripe for passage of legislation 

that will put an end to ever-incrasing governmental intrusio ns on citiz ens’ 

priv ate lives. The heari ngs which thi s subcomm ittee is now conduc ting give 

me hope th at we may still be able to check, before it is too late, the dr ift 

towa rds tot alitarian ism and thoug ht control which must ensue when every 

aspect of an individu al's life is subje ct to electro nic monitoring.

These words may sound overly dra ma tic but the re is no more insidious 

invasion of priva cy tha n electronic surveillance. It is insidious not only because 

of its covert nature —even now this subcommittee does not know how many 

war ran tles s wire taps were approved by the Departm ent of Jus tice in 1973— 

but because it reaches into the inner most aspects of an individu al's life, to his 

thoughts and beliefs, to those basic righ ts th at are guarant eed by the Fi rst 

Amendment. As Ramsey Clark stated when, as Attorney General, he testified 

in support of the Right of Privacy Act of 1967 (S. 928) :

“Nothing so mocks privacy as the wir etap and electronic surveillance . They 

are incompatible with a free society and justified only when that society 

must protect itse lf from those who seek to destroy it. ”

T agree wholehearted ly.

The use of wire tapping and electronic surveillance is relative ly recent, 

dati ng only from the invention of the telephone. With the incre asing soph istication of electronic devices, undoubtedly the use of such devices has kept pace
254

with their refinements though none of us can claim to know the real extent 

of this use. Aside from Congress’ need to know the extent of warrantless wiretaps authorized by the Department of Justice, we have no idea of the degree 

to which unauthorized wiretapping has been engaged in by Federal agents or 

to what extent other types of electronic surveillance have been employed. 

With out this knowledge, we cannot begin to measure the value or necessity 

of electronic monitoring in the area of crime control or nation al security.

Since the invention of the telephone, the microphone, and recording devices, 

tlie courts and the Congress have been attempting to reconcile this necessity 

with the fundamental constitutional righ ts guaranteed by the First, Fourth and 

Fifth Amendments. The issue of the use in a criminal tri al of evidence obtained 

by wiretapping first came before the U.S. Supreme Court in 1928, in. Olmstead

v. United Staten, 277 U.S. 438 (1928). On a five to fou r vote, the Court held 

that wiretapping was not within the confines of the Fo urth Amendment, inter ­

preting the search and seizure proscription as applying only to physical property and tangible items. In a vigorous dissent, Mr. Justice Brandeis st at ed :

“To protect [the right to be left alone], every unjustifia ble intrusion by the 

Government upon the privacy of the individual, whatever the means employed, 

must be deemed a violation of the Fourth Amendment . . . There is. in essence, 

no difference between the sealed lett er and the private telephone message . . . 

The evil incident to invasion of th e privacy of the telephone is far greater than 

th at involved in tampering with the mails. Whenever a telephone line is tapped, 

the privacy of the persons at both ends of the line is invaded and all conversations l»etween them upon any subject . . . may be overheard.”

Six years later, Congress enacted the Federal Communications Act of 1934, 

48 Stat. 1103, Section 005 of which provided that “. . . no person not being 

authorized by the sender shall intercept any communication and divulge or 

publish the existence, contents, purport, effect, or meaning of such intercepted 

communication to any person.” Unfortunately, no well-established consistent 

body of case law developed in the years th at followed. The leading Supreme 

Court cases, before the enactment of the Omnibus Crime Control and Safe 

Streets Act of 1968, were Berger v. 2Vew York, 388 U.S. 41 (1967), and Katz v. 

United Staten, 389 U.S. 347 (1967), in which the Supreme Court in essence 

adopted Justice Brandeis’ dissent in the Olmstead case, and held that electronic eavesdropping was subject to the requirements of the Fou rth Amendment. Mr. Justice Stew art, speaking for the Court in the Katz case, (389 U.S. 

at 352-353) st at ed :

“We conclude that the underpinnings of Olmstead and Goldman have been 

so eroded by our subsequent decisions tha t the ‘tres pass’ doctrine there enunciated can no longer be regarded as controlling. The Government's activities 

in electronically listening to and recording the petitioner’s words violated the 

privacy upon which he justifiably relied . . . and thus constituted a ‘search 

and seizure’ w ithin the meaning of tlie Fourth Amendment.”

In 1968, following the Berger and Katz cases. Congress attem pted to resolve 

the dilemma by enactment of the Omnibus Crime Control and Safe Streets 

Act. This, as you no doubt recall, was during a period when “crime in the 

streets” was becoming a major political issue and crime control was more 

popular than the protection of privacy. Although certain types of wiretapping 

and electronic eavesdroyiping were prohibited and criminal sanctions and civil 

remedies were provided. Congress for the first time, in Title TII. specifically 

authorized the use of electronic surveillance in criminal investigations and 

specifically exempted natio nal security cases from any of the restrictive provisions of the Act. Here again those two fam ilia r catch-alls—criminal investigations and natio nal security—were used to justify governmental invasions 

of privacy.

One of my bills. II.R. 9698, which is identical to IT.R. 9667. introduced by 

Rep. Ixmg and co-snonsored by twenty five other Members of the House, would 

amend 18 U.S.C. Section 2511 (2) (c) and (d) by providing that wire and 

oral communications can be intercepted lawfully without a judicial wa rra nt 

only if all the partie s to the communication give prior consent. The present 

Act reouires the consent of onlv one party to the communication. The Dep artment of Justice is opposed to this bill as it is to all proposed amendments to 

Title III . First, the Justice Department argues, its “successes require (them) 

to recommend that Title ITT remain unchanged.” Electronic surveillance techniques have allegedly been most effective, if not indispensable, in combatting 

organized crime. As the Justice Department has yet to furnish any concrete
255

evidence in suppo rt of this allegation. I have no way of knowing how valuable— 

necessary —electronic s urvei llance has been in c ontrolling crime.

Second, the Jus tice Dep artm ent argues, HR 901)8 would negate any efforts 

to obtain evidence by inve stiga tive procedures th at have consis tently been 

approv ed by the Supreme Court. It is true th at the Court has draw n a distin ction between electro nic surveillan ce witho ut the consent of any of the parties, 

requirin g a court orde r and a showing of probable cause, and the monitoring 

of conversations with the consent of only one |>arty. As recently as United State n v. White, 401 U.S. 745 (1 97 1) , a closely divided Supreme Court adher ed 

to its old ruling tha t the use of bugged inform ers was outside the requir ements 

of the Fou rth Amendment. The railroads app ear to be th at one who confides— 

or talk s to—anoth er assum es the risk that his confidence may be disclosed 

and the risk is no different even if the othe r person is recordin g or broad casting the first person ’s disclosures. I submit th at these cases are bad law. The 

number of sep ara te opinions in the White case and the lack of a majorit y opinion are evidence of the lack of consensus in this are a. Moreover, if existin g 

law perm its the inter ception of communica tions with out a wa rra nt or any 

showing of probable cause or even of reasonableness with out the prio r consent 

of all the par ties to the communication—and the White case and Section 2511 ( 2 )( c ) and (d ) so indicate—t here is a clea r need for a change in the law. 

The Federal Communica tions Commission, in ins tituti ng the “beep tone rule’’ 

and in prohibitin g eavesdropping by radio devices unless all par ties to the 

communication consent, has alre ady recognized this need. The FCC regulations, 

however, lack effective sanc tions —only disco ntinu ation of teleph one service 

or a $500 fine. My bill, however, would make willful interception, disclosure, 

or use of a wire or oral communication with out the pri or consent of all parties 

subj ect to the exist ing crim inal pen alties and civil remedies provided in Title 

III. As the existing provisions for court ordered interceptions in criminal 

investiga tions would still be avail able, it can hard ly be argu ed—as l»oth the 

Jus tice and Defense Dep artm ents do—th at the amendmen t proposed by HR 

9698 would seriously ham per crime control activ ities.

Although HR 9698 would amend only one section of Title II I. increas ing 

the types of cases in which a judi cial wa rra nt would be require d, there are 

oth er bills presently before thi s subcommittee which would make more sweeping changes. Rep. Drin an’s bill, for example, HR 9781, would elim inate all 

provisions of the Act auth oriz ing electro nic surveillan ce and would reta in 

only those sections prohibiting the interception , use, or disclo sure of any wire 

or oral communication with out the pri or consent of all par tie s to the communication. II.R. 13825, introd uced by the Chair man of thi s subcommittee and 

identical to a bill introd uced by Senator Nelson, would provid e specific co ntrols 

for the use of electro nic surveilla nce in “national sec urit y” cases. Following 

guidelines suggested by the Supreme Court in the Keith case (Un ited States

v. United Sta tes Dis tric t Court, 407 U.S. 297 (1 9 7 2 )) , it would prohi bit all 

wa rra ntless wire or oral intercep tion s (exc ept for one pa rty consensual int erceptions and others enum erate d in Section 2511 ( 2 )) , but would require less 

tha n a showing of “probable cause" to obtain a judi cial wa rra nt to authorize 

surveilla nce of a foreign power or its agents.

Because of my own opi>osition to Title II I of the Omnibus Crime Control and 

Safe Streets Act, I am convinced th at more basic changes are needed than 

those proposed in my bill. In the area of criminal inves tigation, for example, 

the sta ndard s set forth in Section 2518, even if strictly adhere d to—as the 

Jus tice Dep artm ent so pain stak ingly ass erts has been done—are hard ly adequa te to meet the test of “narro wly circum scribed ” surv eilla nce required by 

the Kcrffcr and Kats cases. Per hap s electronic surveillance , by its very nature, 

can never conform to the strict requi reme nts of the Fo urt h Amendment, even 

when such surveillance is conducted pur sua nt to a judi cial wa rra nt. As the 

ACLU has pointed out in its excellent presentation before thi s subcommittee, 

“the technology itself stan ds in the way of any kind of effective control.”

It is cert ainly arguable that even cour t auth orized elect ronic surveillance, 

as conducted under Title III, may be proscribed by the Fo urt h Amendment. 

Ther e is no doubt, however, th at wa rrantless wire taps and monitoring conducted by the government in the guise of “natio nal sec urit y” pres ent a clea r 

threa t to our basic First Amendment rights. Because of the imprimatur of 

“secu rity.” thes e activ ities are shielded by a veil of secrecy not only from 

the indi vidu als subjected to surveilla nce but from the cou rts and the Congress 

as well. And, unless they are known, they canno t be sub ject to challenge or to
256

control. It is only in recent yea rs that we have begun to learn of government 

spying anil snooping dati ng back to the sixties. AVe may never learn the full 

extent of this activ ity. More recently, we have hea rd sordid accou nts of 

incidents occuring during this Adm inistratio n—spying activities, wiretapping, 

anil other forms of surveillance directe d at law abid ing citize ns suspecied 

only of engaging in political dissent or viewed as politica l “enemies”—all 

undertaken by the fede ral government in the name of "national secu rity.”

A 1971 Senate subcomm ittee report revealed, for example, th at duri ng the 

Iate'19 60 's extens ive spying was secretly conducted by 1500 agents of the 

Defense Intellige nce Agency on more tha n 100,000 civilia ns. Anti-w ar activist s, 

blacks, and stud ents were imrticular targ ets. After disclosure of this illegal 

political surveillance in 1971, the Pentagon issued str ict regulation s aga inst 

spying on civilians. Yet a Senate committee recently learned tha t the U.S. 

Army has continued to maintai n numerous surve illance operations on civilians 

in the United States .

The Departm ent of Defense, in its testim ony before this subcommittee, 

unequivocally stat ed that it does not conduct electronic surveillance of civilians 

not affiliated with the Depa rtment. It cited DOD Direc tive 5200.27, which expressly forbid s such prac tices “except in narrowly defined circum stanc es.” 

It did not, however, expla in the natu re of those circumstances .

The DOD testimony indic ated, however, that neit her the Omnibus Crime 

Control Act nor its DOD regulations apply to its acti vities outsid e U.S. te rr itory. Its overseas activitie s, even when dire cted at United Stat es citizens, 

are governed by the Sta tus of Forces Agreement and the law’s of the host 

country. There app ear to be no constra ints on its spying activities, or any 

explanations deemed necess ary for the lack of c onst rain t.

During the 1972 Pre sidential campaign, army aut hor itie s sent intelligence 

agents to infi ltrate a bran ch of the U.S. Democratic par ty in Berlin, as well 

as an offshoot of the American Civil Liberties Union and a group of Pro tes tan t 

missio naries supporteil by the World Council of Churches. For at leas t a year, 

these agents photographed members, acquir ed lists, opened mail, copied corre ­

spondence, and reported on the activities of the Berli n Democratic Club and 

Concerned Americans in Berlin. An auto grap hed copy of a photograph of 

George McGovern was solemny regarded as a suspicious document and duly 

noted. The agen ts’ attempt , apparently, was to link the Berlin Democrats 

to so-called lef tis t groups in America and to the Ea st German communists . . . 

ju st as McGovern supi>orters in this country were hara ssed and put on “enemy 

lists.”

Although the United States Army sought to jus tify the surveillance of these 

American civilia ns on “natio nal secu rity” groun ds—th at is, they were resjionsible for “dissidence” among American troops—nothing even remotely 

subversive was ever discovered and no action was taken agai nst any of these 

civilians. But the danger lies in the fact that these mili tary agents collected 

reams of dat a on the personal lives and politie s of American citizens and 

delivered them to an undercover army “counte rsubv ersive” intelligence unit. 

Repo rts were then forw arded to the chief intellig ence officer in Europe who 

was lat er promoted to a top intelligence job in Washington.

Senator Lowell Weicker turn ed the docum entatio n of this spying over to 

the Senate Armed Sendees Committee, but very litt le happened. The Army 

explain ed tha t such spying was legal in Germany. West German officials even 

cooperated by tapping telephones themselves. Fu rth er, they said, it was not 

political in nat ure —'though no one seems to have been keeping records on any 

cha pter s of CREEP in Europe.

It is hardly necessary to comment on the intimidation tha t resu lts from 

this kind of snooping. Were it allowed to continue unchecked, the democratic 

process would wit her away. Fortuna tely, vigilant citize ns and concerned memiters of Congress will not allow this to hapjien.

My bill. II.R. 9815, which is identic al to a bill introd uced in the othe r lxtd.v 

by Senator Ervin, is specifically direct ed at this kind of unco nstitutional 

surveillance. The bill would prohibit use of the Armed Forces or of any Sta te 

militia to conduct inve stiga tions into, maintai n surveillance over, or record 

or main tain infor mati on rega rding the lieliefs, assoc iations or political activities of any civilians or civilian organizations. The bill provides crimin al 

penalties for civil or mil itar y officers .who viola te these provisions and also 

provides civil remedies for damag es and for inju ncti ve relief.
257

It is clear that there is a real need for legislation in this area. U.S. citizens, 

only because they are situated abroad, are being denied their constitutional 

rights, not by any foreign natio n but by an arm of the U.S. government. This 

the DOD 1ms admitted. With re«i>ect to Defense Department activities in this 

country, it should be clear by now that we can no longer rely on the military 

to observe its own regulations. I urge you to give favorable consideratio n to 

this bill, not onl to rectify the situ ation in the Defense Department, but to 

gua rantee to all U.S. citizens the ir First Amendment rights.

Testimony of Representative P atsy T. Mink

Chairman Kastenmeier and distin guished members of the Subcommittee, I 

appreciate this opportunity to speak in support of legislation to protect our 

citizens’ righ t to privacy.

I am a co-sponsor of H.R. 9973, the principal sponsor of which is Congressman Long of Maryland. This legislation is the same as his own bill, H.R. 9667, 

and is one of those being taken up in these hearings.

The purpose of this hill is to require the consent of all persons whose communications are intercepted under cer tain provisions rela ting to types of eavesdropping. Specifically, it would amend Title 18 of the United States Code to 

provide "I t shall not be unlawful under this chapter for a person to electronically record or otherwise inte rcept a wire or oral communication where 

all i>arties to the communication have given prior consent to such interception 

unless such communication . . . (was) for the purpose of committing any 

criminal or tortious a c t. . .”

We are seeking to forbid any taping or oth er listening-in on conversations 

until all partie s involved have been informed of it. Courts would still have 

the ixnver to authorize wiretaps for investigations of crim inal activities or 

because o f urgent natio nal secu rity needs.

The need for this change was made clea r by the disclosure of the White 

House taping system, in which recordings were made of Government officials, 

members of Congress, foreign diplomats, and White House staff members 

witiiout the ir knowledge o r consent.

Unfortunately , the development of our laws as construed by various court 

rulings is th at it is now jierfectly legal to tape record the conversation of 

someone else as long as one par ty knows of and consents to such recording. In 

other words, I might call another person on the telephone, tape our conversation, and use it for my own purposes and use it without fea r of violating 

the law.

Obviously, this practice poses grave danger to our historic concept of the 

Right of Privacy. Every American assum es he has a legal, constitutional right 

to a certain privacy in his conversations whether in his own home, office, or 

elsewhere. Yet this is not the case, since the law* as construed by courts permits interceptions as I have outlined.

The only way we can resto re guaranteed privacy, and at the same time 

perm it criminal investigations where authorized by a court, is to enac t this 

change in our laws. If somebody wished to record a conversation for legitimate, 

non-criminal puri>oses, such as to keep a historic record, he would need only 

so advise the other p arties and secure their permission.

I believe this legislation is sorely needed to close a deplorable gap in our 

laws adversely affecting each American's rights. I urge its adoption by the 

Subcommittee.

Congress of the United States,

House of Representatives, 

Washington, D.C., A pril 10, 197}. Hon. R obert W. Kastenmeier,

Chairman, Subcommittee on Courts, Civil Liberties, and the Adm inistration of

Justice, Comm ittee on the Judiciar y, Washington, D.C.

Dear Bob: Fir st, you are to be con gratula ted for scheduling public hearings

on pending legislation relating to wiretapping and other forms of electronic 

surveillance. It is a subject on which Congress has not moved for fa r too 

long.
I am forw arding herew ith a Statement on this subjec t matter, specifically 

’on my bill, II.It. 11838, to require pri or court approval on all wire tap and 

electron ic surveillance orders. I would appreci ate it if this Stat eme nt could 

be put into the record of your proceedings on the first day of the hearin gs.

If there is anything which I can do to mobilize colleagues on th is matter, 

please let me know.

Until then, I am,

Sincerely,

J ack Kemp.

Statement of Representative J ack Kemp of New York

Mr. Chairm an, the subje ct of wiret appin g and other forms of electronic 

surveillance is a ma tter intertw ined with the rig ht to privacy —the right to 

l»e let alone, the right to be left alone. It is a rig ht which forms the basis— 

serves so to speak as the common denom inator—of such protections as those 

shielding the indivi dual against unw arrant ed searc hes and seizures, snooping 

investigations and fishing expeditions by author ities, the inspection of personal 

papers, records, and effects.

Support for this right runs deeply in the spirit of Anglo-American ju ris ­

prudence. As Mr. Jus tice Brandeis olxserved in his 1928 opinion in Olmstead 

against United State s, the makers of ou r Federal Cons titution recognized the 

significance of man’s spiritu al nature, of his feelings, and of his intellect. They 

knew tha t only a pa rt of man's spiritu al nat ure , of his feelings, and of his 

intellect. They knew th at only a pa rt of man's spiritu al natur e—the pain, 

pleasure and sati sfac tion of life—is to be found in mat erial things. They 

sought to prote ct Americans in the ir beliefs, their thoughts, th eir emotions, 

and the ir sensitiviti es. They conferre d, over and aga inst the Government 

itself, a right to be left alone—a righ t to priv acy—the most comprehensive of 

rights and the righ t most valued by civilized men. From that awarene ss 

arose the adoption of our Bill of Rights, conta ining the essen tial protection s of 

the individual, giving to the individual the force of law to say to an agent 

of the Government, "No, you cannot come into my house or into my life, by 

any means, with out my consent or the full requi rements of law and due process.”

Certa inly, on some issues before this House and the Congress, ther e must 

be no retr eat from our resolve. The insuring of adequate safeguar ds to prote ct 

the individual’s righ t to privacy, in all its myriad of forms, is such an issue. 

Th at is why I am so impressed with the Subcommittee moving a t this time 

towards the consideration of legislation to remedy the shortcomings in pres ent 

law as to wireta pping and electronic surveillance.

TH E PROVISIONS OF H.R . 11 83 8

Mr. Chairm an, on December 7, 1973, I introduced the measure H.R. 11838 

a bill to amend sections 2516 (1 ) and (2 ) of title 18 of the United States Code 

to assure that all wire taps and other interceptions of communications which 

are autho rized under those sections have prio r court approva l. The key here 

is “prior court approval .”

The bill is short in length but long in importance, for the obtaining of court 

approval as an afterthou ght when one perceives th at evidence gathered might 

have to be introdu ced in court on one hand and the obtaining of prio r court 

approv al in all insta nces before infor mation is gathe red on the other hand is 

difference between inade quate protection of righ ts and more adeq uate prote ction. This is, therefore, a crucial distinction.

Why is this legislation desirable?

TH ERE IS A LOOPHOLE IN TH E PRESEN T LAW’

Chap ter 119, Wire Interc eption and Inte rcep tion of Oral Communications, 

of title 18 of the United State s Code is the applicable Federal law governing 

the interception and disclosure of wire and oral communications.

In short, this law prohibits such interceptions and disclosures, except in 

those specifically defined instan ces in which the Attorney General of the 

United States, or any Assis tant Attorney General specifically designated for 

such purpose by him, obtains auth orit y, upon application to a Federal judge
259

of competent juri sdic tion to make an interce ption. It also auth oriz es the 

princ ipal prosecuting atto rney of any State, or the princ ipal prosecuting at to rney of any political subdivision thereo f, if such attornej- is auth orized by a 

sta tut e of the State to make applicati on to a Sta te cour t judge of competent 

juri sdictio n for an order auth oriz ing or approving the interception of wire or 

oral communications.

There is a loophole or escape valve built into the pres ent tex t in each instance, to w it : The langua ge—“an order authorizi ng or approving” and “when 

such inter ception may provide or has provide d”—allows a Federal agency or 

a Sta te or local prosecutor to first inter cept, then the reafter get a retroactive 

approval. Clearly, the langua ge j»ermits retro acti ve approval of wiretaps and 

oth er interceptio ns. One is left with an impression that these agencies may, 

in fact, seek a court appro val only if they determ ine that the evidence gathered might be used in court and ther efore ought to be safe guar ded by an 

appearance of having been prop rieto us and in compliance with due process 

requirements.

I must sta te for the record th at I have no specific knowledge of pa rtic ula r 

instances of governm ent wir etaps where subse quen t approval, af ter the fact, 

was obtained. The Depa rtme nt of Jus tice has not provided the Congress, to 

the best of my knowledge, with a disclosure on the rati o between interceptions which are done pu rsu ant to a pri or court ord er and those which are 

approved retroactiv ely. But, it is not unreasonable to assume, since such retroactive appro val is customarily soug ht when the govern ment wishes to proceed 

in open court with the disclosure of information obtain ed thro ugh the interception, tha t there might be some instances, perh aps many, where because 

infor mation is not to be used in open court, the govern ment does not obtain 

even retroactive approval—no approval at all—thereby failing to meet the 

requirements of the law. It is, furth er, inte rest ing to note th at the disclosures 

made by the government on the exten t of interception s during recent years 

have been couched in terms of court-appro ved interce ptions.

Mr. Chair man, I do not inten d to offer testimony today on the more basic 

subjec t of whether interceptio ns should be auth orized at all, or unde r what 

pa rticu lar circumstances . My purpose is to draw to the att ent ion of the Subcommittee the loophole in the present law, for surely, irrespective of what 

else is decided by the members of this Subcommittee and your paren t body, 

this loophole ought to be plugged.

Only when there is prio r approva l—requiring full prior disclosure to a member of the Bench, giving him thereby an opportunity to refus e to gra nt such 

approval if he deems it unw arr ant ed—are the righ ts of our citizen s more adequate ly protected agai nst intru sion and interferen ce by government. The 

histo ry of the Bench and Bar in our country shows clea rly th at cer tain restr ain ts flow nat ura lly from an awarene ss on the pa rt of law enforcement officers th at certain proced ural requirements must be met in ord er to successfully 

conclude an investigation or prosecution. These res tra int s are one of the most 

effective gua ran tees of the righ ts and liber ties of our people, collectively and 

as individuals.

I respe ctfully request the Subcommittee to act favorably ui>on the provisions of the bill which I have introdu ced. I am aware th at its provisions 

may well be incorporate d wholly in a bill of larg er scope; th at is und erst and ­

able and it may be desirable. But the poin t is clear : We must tigh ten this 

loophole.

Statement of Dr. Edith J. Lapidus, Professor of Constitutional Law at

Queens College of the City University of New York

Mr. Chair man, members of the Committee: My name is Edith J. Lapidus. 

I am a member of the New York Ba r and am adm itted to prac tice before the 

United Sta tes Supreme Court. I teach Constitutio nal Law at Queens College 

of the City Unive rsity of New York and hold a Ph.D. degree in Political Science 

from the City University. My book. “Eavesd ropping on Tri al,” with a Foreword 

by Senator Sam J. Ervin Jr. , was release d by Ilay den Book Company Inc. of 

Rochelle Par k, New Jersey, in Janu ary 1974. It prese nts an ana lysis and 

evalu ation of the law and prac tice und er Title II I of the Omnibus Crime 

Control and Safe Streets Act of 1968 in which Congress, for the first time in 

the history of the United State s, sanctioned wiret appin g and electronic sur ­

veillance by government officials.
I deeply appreciate this opportunity to app ear before you and to discuss 

the problems associated with government eavesdropping and the conflict that 

it raises between the individual's right to privac.v and society’s need for effective law enforcement in dealing with crime. This complex and controversial 

subject has suffered in the past from ideological and political partisan ship , 

and (at least before “Waterga te” ) from public indifference. In my study of 

wiretapping and electronic surveillance under Title III of the 1968 Act, I have 

tried to be as objective, unbiased, and imp arti al as possible, and to offer 

some constructive and realistic proposals.

This Statement is based largely on my findings as reported in “Eavesdropping 

on Tria l”, but it also includes proposals suggested by events that have occurred 

since the book went to press and furth er reflection. Problems of court-ordered wiretapping and electronic surveillance by law enforcement officials are emphasized in this Stateme nt and discussed in detail. Criticism of warrantless eavesdropping, a serious loophole in Title II I considered fully in my book, 

is merely outlined here.

PURPOSES AND PROVISIO NS OF TIT LE II I

Tiitle II I is one of eleven “Titles” in the Omnibus Crime Control and Safe 

Streets Act of 1968, passed by Congress in the wake of a nationwide fear of 

crime and clamor for “law and order.” It pur ports to serve a dual functio n:

1. To protect the privacy of individuals by banning private eavesdropping, and prohibitin g manufacture, sale, possession, or advertising of eavesdropping 

devices designed prim arily for surre ptitious interception.

2. To combat organized crime and oth er serious offenses by giving law 

enforcement officials an effective tool—interc eption of wire and oral communications, under specified conditions and with proper safeg uards.

The 1968 law is an atte mpt to balance “liberty” against “law and order.” 

It prohibits interception of wire and oral communications and then makes 

certain exceptions: designated Federal and Sta te officials are authorized to 

intercept such communications in the case of specified offenses, provided they 

comply with procedures detailed in the law. The heart of this procedure is 

the obtaining of a court order from a judge of designated courts, sim ilar to a 

wa rrant for search and seizure. In some instances, eavesdropping by law enforcement officials in perm itted without court order.

COURT-ORDERED EAVESDROPPING

The safeguards to individual privacy sought to be provided by Title II I consist of requiring a court orde r before a government official may intercept a 

wire or oral communication. A judge is to decide whether or not an orde r 

shall be issued, and the interception is subject to supervision by him. Title II I 

lists a wide variety of offenses for which a cou rt order may lie obtained, the 

Federal officers who may apply for a court order, the judges to whom applications must be presented, and the necessary findings by the judge of “probable cause” on which orders are to be based. Sta te officials may also apply 

for court orde rs to wiretap or conduct electronic surveillance provided the 

par ticular State enacts a law conforming to T itle I II.

An order may be granted for a period not exceeding thirty days, with an 

indefinite number of renewals, each for a period up to thirty days. Notice of 

the interception must be given to the persons named in the order or application, and to others in the discretion of the judge, within ninety days after 

termination. Judges and prosecuting officials are required to file reports on 

each orde r with the Administrative Office of the United States Courts in 

Washington, D.C., and th is agency, in turn, must file an annual repo rt with 

Congress.

/ Heavy penalties are provided for violations of Title I I I : imprisonment up 

to five years and a fine of $10,000 or loth. Civil damages are also recoverable— 

actual damages but not less than liquidated damages computed at the rat e of 

$100 a day for each day of violation, or $1,000, whichever is higher: punitive 

damages and counsel fees and other litigation costs are also recoverable/C onversations intercepted unlawfully are barred from introduction in evidence.

These seemingly simple provisions for court-ordered eavesdropping by government officials have raised some difficult legal and prac tical questions and 

generated much heate d discussion. They purport to comply with requirements 

of the United States Supreme Court laid down in two landmark decisions
handed down in 1967, Berger v. New York (388 U.S. 41) and Ka tz v. United States (389 U.S. 347), and law enforcement officials claim th at the ir practices 

follow the mandates of the Supreme Court. Berger stru ck down as unconstitutional a New York law jiermitting court-ordered eavesdropping on the ground 

tha t the sta tute was “too broad in its sweep” and failed to provide adeq uate 

judic ial supervision or protective procedures. In Katz, the Supreme Court held for the first time tha t electronic surveillance constitu tes a “search and 

seizure” subject to the protections and limitations of the Fourt h Amendment 

to the United States Constitution which pro vid es:

“The right of the people to be secure in the ir persons, houses, papers, and 

effects, aga inst unreasonable searches and seizures, shall not be violated, and 

no Warrants shall issue, but upon probable cause, supported by Oath or 

affirmation, and particularly describing the place to be searched, and the 

persons or things to be seized.”

Critics of Title II I protest th at the safeguards sought to be provided by the 

court order requirements are inadeq uate; th at many terms and clauses in 

the law are ambiguous; th at State and Federal officials are misinterpreting 

some provisions and failing to carry out others. My study of the law and practice under Tit le II I has led me to the conclusion that there is validity in these 

criticisms, and I shall discuss them in detail lat er in this Statement. Even 

the most ard ent proponents of government eavesdropping will admit, I think, 

that no acceptable balance between liberty and “law and order” can be 

achieved without cla rity in the law, existence and observance by law enforcement officials of proi>er standard s and guidelines, and scrupulous adherence 

to the safeguards sought to be provided by Title III.

EA VE SDRO PPING W IT H O U T COURT ORDER

In addition to court-ordered eavesdropping, the Federal law permits wiretapping and electronic surveillance by government officials withou t court orde r in two broad types of cases: (1) during a forty-eight-hour emergency, and 

(2) to protect “national secu rity” under autho rity of the President. Emergency situations are described as involving two types of conspiratorial ac tivi ty : 1 

Threatening national security, and 2 cha rac teristic of organized crime.

The emergency clause [Sec. 2518 (7 )] has been widely attack ed as vague, 

oi>en to abuse, and unconstitutional. The term “national security” is not defined, and the law does not indicate what offenses are “char acteristic of organized crime.” No report is required to be filed, and there is no way of knowing how much “emergency” eavesdropping lias been going on. The law requires 

that all conditions necessary for issuance of an order under Title II I be present 

before emergency surveillance begins, but it seems unrealistic to assume that 

these conditions will always be satisfied. The conclusion is compelling th at 

if emergency eavesdropping without cou rt ord er should be perm itted at all, 

it should be restric ted to cases involving a threat to actu al or potential attack 

by a foreign power, collection of foreign intelligence information, or investigation of espionage activity.

In addition to the emergency clause, exemption from court order requirements is provided for national secu rity related eavesdropping undertak en 

“by authority of the Pre sident” [Sec. 2511 (3 )]. Title II I declares that nothing 

in the Act shall limit the constitutional power of the Preside nt to take measures hat he deems necessary: 1. To protect the Nationa aga inst actual or 

potential att ack or other hostile acts of a foreign power; 2. To obtain foreign 

intelligence information deemed essential to the security of the United States; 

or 3. To protect national security information aga inst foreign intelligence 

activities.

Nor is any limitation to be placed on the constitu tional power of the President to protect the United States against: (1) overthrow of the Government 

by force or other unlawful means, or (2) any other clear and present dang er 

to the str ucture or existence of the Government. Interception without court 

order must, however, be “reasonable,” if the communications are to be received 

in evidence in any trial, hearing, or o ther proceeding.

Wa rran tless eavesdropping under presiden tial author ity has raised a storm 

of protest that has not yet fully subsided. Many who were willing to accept 

oourt-ordered eavesdropping to combat crime denounced the provision dispensing with judicial sanction as highly ambiguous and unco nstitutional. Objections 

increased in bitterness when the Government claimed that national secu rity

35-3 91—7' 18
262

may involve threats from domestic groups as well as from foreign powers, and 

it was revealed tha t Federal agencies had topped the telephones of political 

dissidents without court order. On June 19, 1972, the United States Supreme 

Court ruled, by a vote of 8 to 0, tha t presidential autho rity to protect the 

nation does not give the Government power to tap without court order the 

wires of domestic radicals who have “no significant connection with a foreign 

power, its agents, or agencies” (United, States v. District Court, 407 U.S. 297).

The opinion in the case aga inst the District Court was written by Justice 

l’owell. While the decision was hailed as a victory hy civil libertarians, the 

objections to warrantless eavesdropping in national security cases have by 

no means subsided, nor are the problems fully resolved. The Government may 

still claim tha t some radicals whose phones have been tappe d without court 

do have “a significant connection with a foreign power, its agents, or agencies,” 

thus removing them from Fourth Amendment protection. The decision of the 

Supreme Court may also have left a loophole hy suggesting th at tradition al 

warrant requirements were not “necessarily applicable” in domestic security 

cases. f,

United States v. District Court is a first step in outlawing government 

eavesdropping without court order in domestic secu rity cases. Wa rran tless 

interception circumvents the “probable cause” requirement, and no disclosure 

to a judge or anyone else need ever he made. There is no way for Congress or 

the public to know how much eavesdropping is going on if no court order is 

obtained. "Domestic security” is a vague concept, and it may be difficult to 

determine if a threat is foreign or domestic without first tapping or bugging.

If adequ ate delineation is impossible, then the wa rra nt procedure should lie 

required in all cases and no “national secu rity” exception to a court order 

should exist. For a detailed discussion of warrantless eavesdropping in so-called 

nation al security cases, see “Eavesdropping on Tr ial,” page 96 et seq. Since 

publication of the book, I have come to the conclusion th at Congress must 

make it impossible to engage in illegal eavesdropping under the shield of 

“national secu rity” by requiring a court order in this type of investigation. H.R.

9781 introduced hy Mr. Kastenmeier on March 28, 1974 in the House of Representa tives appears to effect such a change in Title II I by defining a “foreign 

age nt” and requiring a court order in national secu rity cases.

CONSE NT EA VE SDRO PPI NG

One of the exceptions from court order requirements of Title II I is “consent” 

eavesdropping. Section 2511(2) (c) declares that it is not unlawful for a law 

enforcement officer to intercept a wire or oral communication if he is a party 

to the communication or if one of the parties gave prior consent to the interception. This provision of the law was no innovation in policy. If reflected the 

decisions of the United States Supreme Court which, over a period of two 

decades, had generally sanctioned eavesdropping with out a wa rra nt if one of 

the parties to the conversation gave his consent to the interception.

Prior to enactment of Title II I the leading cases on the subject of consent 

eavesdropping were On Lee v. United States, 343 U.S.747 (1953) and Lopez v. '*

United States, 373 U.S.427 (1963). On Lee involved third-par ty monitoring of 

conversations; Lopez ruled on single-party info rmant “bugging.” In On Lee,

the Supreme Court upheld the righ t to wire an info rma nt for sound in order 

to transm it state ments of a suspect to police officers listening at a receiver outside the building. In Lopez, a government agent was equipped with a pocket <

wire recorder which recorded conversations of a cab aret operator offering a 

bribe to an agent to help him conceal tax liability. The Supreme Court ruled 

that the evidence and th at there was no violation of the Fou rth Amendment to 

the Constitution, although no wa rra nt had been obtained.

The tradition al principle on which the valid ity of consent eavesdropping without a warrant rests is that a party to a conversation takes his chances that the 

oth er partic ipant may increase his present or future audience. Justice Brennan, 

dissenting in Lopez, protested that “in a free society people ought not to have 

to watch the ir every word so carefully.”

Since enactment of Title II I, the Supreme Court has help that the Fou rth 

Amendment is not violated by governmental electronic eavesdropping effected 

by wiring an informant for sound, having him talk to the suspect, and then 

having agents to whom the conversation is transm itte d repeat the communications at the suspect’s trial (United States v. White, 401 U.S.745 (1971)).
263

Deep cleavages in the Supreme Court on the subj ect of consent eavesdropping 

were revealed by the opinions of the Jus tices in White. The Court reversed the 

judgem ent of tlie Court of Appeals and upheld Whit e’s conviction by a vote of 

G to 3, but no agreemen t could be reached on a maj ority opinion.

The plu rali ty view in White, expressed by Jus tice White, had the supp ort 

of Chief Jus tice Burger and Justice s Ste wa rt and Blackmun. Jus tice Brennan, 

who had disse nted in Lopez concurred in the resul t, but only on the technical 

ground tha t Kat z v. United Sta tes was not retroactiv e. Jus tice Black concurred 

in the judgem ent, hut only because of his view tha t electronic surv eilla nce is 

not a search and seizure subjec t to the Fo urt h Amendment. Dissenting opinions 

were tiled by J usti ces Douglas, Harlan, and Marshall.

According to the plu rality opinion, the question to be decided was th is : what 

expectations of privac y are cons titution ally “justif iable ”—what expectatio ns 

will the Fo urt h Amendment prote ct in the absence of a war ra nt ? A police 

agent who conceals his iden tity may write down his convers ations with a defendant and test ify concerning them with out a war ran t. No differ ent result, 

said the Court, is required if the agen t records the conversation s with elect ronic equipment car ried on his person (a s in Lopez} or car ries radio equipm ent 

which tranm its the conversations to recording equipment located elsewh ere or 

to agents monitoring the tra nsm itti ng freque ncy (a s in On Lee and in White}.

The three dissenters, Justice s Har lan, Douglas, and Marshall, objected to 

equipping agen ts with ea ve sd ropin g devices in the absence of a cou rt order, 

but approved of use of info rmants with out jud icia l supervision. Some criti cs 

suggested that “a fa r gre ate r dang er to ou r free society is presented by the 

prospect that friends and associates may be employed as government spies” 

than by e quipping info rma nts with electronic tra nsm itting devices. The issue as 

Justice Harlan saw it in his dissentin g opinion was whet her “uncontrolled 

consensual surveilla nce in an electronic age is a tolerable techn ique of law 

enforcement, given the values and goals of our political system.” He considered 

third -party moiiitoring a gre ate r invas ion of privacy than single -informant 

bugging. Thi rd-p arty bugging, he believed, underm ined th at confidence and 

sense of secur ity in dealing with one a nothe r th at is cha ract eris tic of individual 

relations between indiv iduals in a free society.

The dissen t of Jus tice Douglas in United Sta tes v. White was much sha rpe r 

than tha t of Jus tice Ila rla n. Jus tice Douglas could see no excuse for not seeking 

a wa rra nt in the Whit e case. He based his diss ent not only on the Fou rth 

Amendment ban on unrea sonable search and seizure, but also on freedom of 

speech gua ranteed by the First Amendment. Must everyone live in fear th at 

every word he speaks may be tran sm itte d or recorded, he asked. He could 

imagine nothing tha t has a more chilling effect on people ex pressing th eir views 

on im p rt an t matter s. (Consent eavesdro pping and White are discusse d more 

fully in “Eavesdroppin g on T ria l”, p.28 et seq.) .

Several bills have been introduce d in the House of Representatives to eliminate the exception of “consent eavesd roppin g” from court order requirements 

of Titl e II I, and to perm it a person to record electronica lly or other wise int ercept a wire or oral communication only where all par ties to the communication 

have given prior consent to such interception (II.R. 9667; 9781; 9698 ; 9973; 

10008; 103 31). This is an ideal solution to a troublesome problem, but a proposal to outla w wa rra ntless consent eavesd roppin g will undoubtedly meet with 

fierce resistance by law enforcement officials and others. This type of electro nic 

surveillance is reported to he used in tens of thou sands of inve stiga tions each 

year. The prac tice is so firmly entren ched in law enforcement and the burden 

of dealing with crime is so great that public supp ort for outlawing one-part yconsent eavesdrop ping is fa r from certa in. Businessmen and privat e indiv iduals 

who routinely record telephone conversatio ns can be expected to join in defending the practice.

DEFECTS IN COURT-ORDERED EAVESDROPPING

Seven problem are as of court-o rdered eavesdropping have been identified 

th at require att ent ion by Congress or the cou rts and that must be solved if 

wireta pping and electronic surveillance by law enforcement officials is to be 

permitted to co nti nu e:

1. Offenses for which an orde r may be obtain ed are pra ctic ally unlim ited, and 

are not restricted to those characteristic of organized crime or seriou s offenses, 

despite the avowed purpose of the law.
2. The provision th at the application and order shall describe the type of 

communication sought to be intercepted does not comply with Supreme Court 

requirements a s to particu lari ty.

3. Judge-shopping is possible, and there is opp ortunity for laxness in supe rvising interception of conversations.

4. Overhearing of innocent conversation s and privileg ed communications under present procedures api>eare to be unavo idable and may be cons titution ally 

imi»ermissible.

5. The thir ty-d ay perio d allowed for liste ning in, with an unlimited number 

of extensions each up to thi rty days, may pro tra ct eavesdropping excessively 

and violate requi rements of the Supreme Court.

6. The law is ambiguous as to who is to be notified of the eave sdropin g, who 

may object, and when motions to suppress evidence may be made.

7. Reports required to be filled are inad equa te to inform the public and to 

form the basis for evalu ation of opera tion of Tit le II I.

Both legal and practic al problems are involved in these weaknesses of courtordered eavesdrop ping under Title II I, and each one of the seven problem 

areas will be discussed separately.

OFF EN SE S COVERED

The resaon for enactmen t of Title II I of the Omnibus Act of 196S offered 

most frequently and with greates t fervor by its supi>orters was, and still is, 

that it is an indisp ensable tool in fighting organized crime. Congress acknowledged thi s need in its intro ductory findings in the law. Critic s of govern ment 

eav esd rop ing ins ist th at the law perm its eavesdropping in inve stiga tion of 

many offenses th at are not and will not be associated with organized crime. A 

long list of offenses for which Federal officers may seek a court orde r appears 

in Sec. 2 51 0( 1) of Tit le I I I :

(a ) Offenses rela ting to espionage, sabotage, treason, riots, ajid enforce ment 

of the Atomic Energy Act of 1954.

(b ) Violation of Federal law rest ricting paym ents and loans to labo r organizations, or offenses in labo r racketeering.

(c ) Bribery of public officials and witnesses and sporting contests, unlawful 

use of explosives, trans miss ion of wage ring info rmation . . . obstructio n of. . . 

law enforcement. Preside ntia l assa ssina tions , kidnapping and as sa ul t; int erf erence with commerce by threats or viol ence; inter sta te and foreign travel or 

transp orta tion in aid of racketeerin g; influencing opera tions of employee benefit 

plan . . . etc.

(d ) Counterfeiting.

(e ) Ban krup tcy fra ud ; manu factu re, impo rtatio n, receiving, concealment, 

buying, selling, or dealing in narcotic drugs, marihuana, or other danger ous 

drugs.

(f ) Extortion, including exto rtionate credit transact ions .

(g ) Conspiracy to commit any of the enum erate d offenses.

These offenses were selected, according to the Senate Report on Title II I, 

because they were cha racteristic of the act ivities of organized crime or because 

of their seriousness (No. 1097, p.97). However, eavesdropping in any offense 

seems to be s anctioned on the theory th at organ ized crime has not limited itse lf 

to the commission of an y par ticula r offense.

The list of offenses in which Sta te officials may obtain a cour t order is 

short er, but perh aps even broade r tha n th at of the Federal government [Section 

2 51 6 (2 )] . The State list ajipears to be prac tica lly unlimite d. Sta te sta tut es may 

authorize eavesdrop ping in connection with : . . . . the offense of murde r, kidnapping, gambling, robbery, extortion, or dealin g in narco tic drugs, mar ihu ana 

or other dange rous drugs, or other crime dange rous to life, limb, or prope rty, 

and punishable by imprison ment for more tha n one yea r [or any conspiracy to 

commit a ny of th ese offenses.]

Except for th e one-year impris onment lim itation in cer tain cases, the law 

appea rs to contain no limitatio n as to the natur e of the offense covered. It may 

be argued th at the re is no need to limit the natur e of the offenses. On t he oth er 

hand, it must be recognized that the re is gre at poten tial for abuse inhe rent 

in permitting eavesdroj>ping over a wide spectrum of offenses. The open-ended 

clause “punish able by impris onment for more tha n one year ” has been attacked 

as an ina ccurate way of distinguish ing between serious and petty offenses.
265

Have court orders been obtain ed only for offenses cha rac teristi c of organized 

crime or seriou s offenses, the avowed targ ets of Title II I? The natur e of the 

offense for each court order granted and a summary of these offenses appear 

in each annual rei>ort to Congress by the Adm inistrativ e Office of the United 

States Courts. At both Federal and Sta te level, eavesdropping has been used 

most extensively in gambling and narco tics cases. Combined, these two offenses 

accoun ted for 85 i>ercent of all court orde rs duri ng 1971 and 1972. The reports 

do not reveal whether organized crime was involved or the seriou sness of the 

offense. It is possible th at many of the targ ets were small- time gamblers and 

narcotics peddlers, investigation of whom does not justify costly wiretapping or 

electronic surveilla nce.

Congress should take ano ther look at the offenses for which a court orde r 

may be obtain ed. Invasion of privacy of innocent persons is inevitable in wiretapp ing and electronic surveillance. It may be justified in cases of organized 

crime and serio us offenses where other inves tigative techniq ues are inadequate, 

but not in ordi nary cases. Meanwhile, some sel f-re stra int on the pa rt of prosecuting officials and volu ntary curb s on indi scrim inate use of this powerful tool 

would seem to be in o rder.

SPECIFIC OFFENSE OR STRATEGIC INT ELL IGENCE

An applicati on for a court order must show tha t a pa rticu lar offense has 

been, in being, or is alxmt to be committed [Sec. 25 18 (1 ) (b ) (1 ) ]. Thi s would 

seem to limit applic ation s to those seeking specific information abou t a particu ­

la r crime—tha t is, tactic al as distin guished from stra tegic intelligence. Stra tegic 

intellige nce consists of general info rma tion on the crim inal acti vities of an 

indivi dual th at may enable officials to link him to other suspe cts or to some 

specific crime. Is stra tegi c intellige nce gath erin g outlawed by Title II I? Ther e 

is some justificat ion for the view tha t it is banned. Per hap s Congress should 

reexam ine th is problem and attem pt some clarific ation. The use of electronic 

devices to obtai n strategi c intellige nce adm ittedly has gre at pote ntial for abuse.

Eavesdropping for stra tegic intellig ence is furth er complicated by Sec .2517(5) 

which per mits interception and use of a communication rela ting to an offense 

other than th at specified in the orde r if the judge finds, on subsequent applic ation, th at the contents of conversations were interc epted as provided by Titl e 

III. The United Stat es Court of Appeals for the Ten th Circuit upheld this provision in United States v. C'oj? (449 F.2d 679 (1 97 1 )) . In May 1972 the United 

States Supreme Court refuse d to hear an appeal, over the objection of Just ice 

Douglas, Bren nan, and Marshall (Cox v. United States, 405 U.S.932).

For a more detailed discussion of stra teg ic and tact ical intelligence, see 

“Eavesdropping on Tri al,” p.76 et seq. A bill introd uced in th e House of Repre ­

sentatives on December 7, 15)73 (H.R. 118 38) appe ars to deal with this problem, 

but its purpose and wording requ ire clarification.

TH E PAR TICULA RITY REQ UIR EMENT

Title II I requires that the applicat ion and order shall conta in a par tic ula r 

description of the type of communication sough t to be intercepted [Sec. 2518 

( l ) ( b ) and Sec. 25 18 (4 ) (c ) ]. In Berg er v. New York (38 8 U.S.41 ) however, 

one of the two 1967 land mark decisions of the Supreme Court with which Title 

II I pur por ts to comply, the Court made it clear th at it was necessary “to 

describe with par ticula rity the conv ersations sought ,” other wise the officer 

would be given a roving commission to seize any and all conversation s.

In litig atio n atta cking the con stitutio nality of Tit le II I, it is almo st inv ariably claimed that merely describ ing the type of conversation does not comply 

with Berger. Since it is practic ally impossible to describe a pa rti cu lar conversation sought, especially in offenses of a continuing natur e such as gambling 

and bookmaking, the prosecuting official is faced with a real dilemma. To 

comply fully with Berger, the partic ula rly requirem ent of Tit le II I would have 

to be narrowly construe d, and str ict enforcement would make the law prac tically unusable. Jus tice Black ant icip ated the problem of “par tic ularity ” in his 

dis sen tin g opin ion in Katz v. United Sta tes (38 9 U.S.34 7) ; he could not see 

how one could “describe” a fut ure conversation . Jus tice Douglas has repeatedly 

observed tha t it would lie extremely difficult to name a pa rti cu lar conversation 

to be seized and there fore any such atte mp t would amou nt to a general wa rra nt,
266

the very abuse condemned by the Fourth Amendment (See United States v. District Court, 407 U.S. a t p.333).

What does “type of communication” mean? If all that Title II I requires is a 

state ment of the nature of the offense to which the conversation is to relate, 

then the provision is meaningless, for details of the partic ula r offense have 

already been set forth in the application and stated in the order. If it means 

a particular description of a partic ula r conversation, then compliance may be 

im]>ossible. The meaning of “type of communication” takes on added importance 

by the requirement in Title III tha t interception must end automatically when 

the described tyi»e of communication has first been obtained, unless the application shows probable cause to believe th at additional communications of the 

same type will occur later [Sec.2518(l) (d) ].

The issue of "particu larity ” may eventually he settled by the United States 

Supreme Court. Meanwhile, Congress might effect some clarification by requiring tha t an applicant for a court order descrilie the communications sought to 

l>e intercepted as specifically and in as deta iled a manner as possible. This 

would discourage the prac tice of merely repeatin g the nature of the offense r

that is being investigated.

JU D G E-S H O PPI N G FOR COURT ORDERS

A heavy burden is placed on Federal and State judges to whom applications 

for court orders are presented. Before he signs an orde r to wiretap or conduct 

electronic surveillance, the judge must determine whether all the requirements 

of the law are satisfied. He must make findings as to “probable cause” and 

decide if the facts in the application show th at normal investigative procedures 

have been trie d and failed , or reasonably appear to be unlikely to succeed if 

tried or to be too dangerous [Sec.2518(3) (c) ]. An orde r may require periodic 

reports to the judge showing what progress has been made and the necessity 

for continued interception. Judges have responsibility for safeguarding the 

records. The law also gives the judge disc retiona ry i>ower to decide whethe r 

certain individuals shall be notified of the eavesdropping, and what portions of 

the recordings shall be made available for inspection.

The onerous duties and responsibilities of the judge in government eavesdropping make it an unattrac tive job to sign an order, even for those Federal or 

State judges who favor this technique of law enforcement. The prosecuting 

official who wants a wa rrant to wiretap or use electronic surveillance must find 

a judge who is willing to issue it and take on all the judicial duties imposed by 

the law. A wide choice is open to the applicant, for an order may lie signed by 

any judge of competent jurisdiction. This is defined in Sec. 2510(9) as : (a) A 

judge of the United States district court or a United States court of app eals; 

and (b) A judge of any court of general crim inal jurisdic tion of a State who 

is authorized by a statute of that State to enter orders authorizing interceptions of wire or oral communications.

No safeguard aga inst “judge-shopping” is provided by Title III. Practical 

necessity forces applicants to pick a judge who is known to be receptive to 

eavesdropping and at least reasonably lenien t in signing orders. Selection of a ** friendly judge is almost always possible, partic ularly in State practice. If law 

enforcement officials can shop around for a complaint and undemanding judge, 

the dangers of abuse of privacy through eavesdropping may he greatly increased. How is this to be remedied? Competent, alert, and aggressive judges 

are the key to maintaining the safeg uards provided by law. (

Congress cannot control the calilier of State judges, or even the Federal judiciary. Tt can. however, remedy one obvious gap in judicial supervision of courtordered eavesdropping: progress reports to judges should be mandatory and not discretionary. The Act now provides that an order may require periodic 

reports to the judge showing what progress has been made and the necessity 

for continued interception [Sec.2518(6)]. Progress reports are intended to serve 

ns a check on the continuing need to conduct the surveillance and to prevent 

abuse. Federal judges are reported generally to requ ire progress reports. Few. 

if any State judges have specified in the court order that progress repo rts shall 

be submitted, although some say th at they receive oral progress repo rts from 

time to time. This may seriously undermine judicial supervision of the operator 

who is listening to intercepted conversations and of the law enforcem ent official 

who is handling the investigation.
267

OVERHEARING INN OC EN T OR PRIVILEGED CONVERSATIONS

Congress knew tha t government eavesdropping would inevitably result in 

intercepting innocent conversations and tried to deal with the problem. The law 

requires tha t "every order and extension . . . shall contain a provision tha t [it] 

shall be conducted in such a way as to minimize the interception" of innocent 

conversations |Sec.2518(5) ]. How is it to be kept to a minimum? The law does 

not say, other than to limit the time period of interception and to require tha t 

it term inate "upon atta inm ent of the auth orized objective.

Those who opposed passage of Title III in 11)68 were particularly concerned 

that many irrelevant and innocent conversations would be overheard. Unfortunately, the ir apprehensions app ear to have materialized in both Federal and 

Sta te practice. Monitoring agents have not been t rained adeq uately to recognize 

innocent conversations as such and to stop recording them. They simply do not 

know when to stop listening. Adm inistrative regulations are needed to control 

the agents who man the monitoring devices. For recommendations of the American Bar Association, see “Eavesdropping on Trial ”, pp.215-216.

The problem of overhearing many innocent conversations is furth er complicated by the fact that Title II I does not state clearly that automatic recording 

is barred and tha t live monitoring must be used. In automatic recording conversations are recorded on tapes without liste ners and are later played back at 

intervals, the frequency depending on the circumstances and on the practice 

established in a par ticula r office. The automatic device records all conversations. In lire monitoring, also called “manual recording”, police officers or 

agents sit continuously at the receiving station, listening to the recordings and 

making notes of relevant conversatio ns on a typewrite r or in longhand. The 

recorder can be shut off when innocent, irreleva nt, or privileged conversations 

are taking place, if they can be recognized a s such.

Before 1968. in States where court-ordered eavesdropping was permitted, it 

was common practice to use automatic monitoring and play back the record at 

twenty-four-hour intervals. Since Title II I requires that a wiretap cease when 

the conversation sought has been obtained, and that the interception be conducted in such a way as to minimize interception of communications not covered by the court order, it would app ear that auto matic monitoring is now 

illegal. Monitoring is done by agen ts or police officers whose knowledge, judgment, and integrity cover a wide range. Each person interviewed was asked 

whether he used live monitoring or auto matic recording. Those convinced tha t 

live monitoring is required by the 1968 law said they alwa ys use it. Those who 

were unaware or uncertain of the need for live monitoring furnished answers 

indicating that automatic recording is still used (see "Eavesdropping on Trial” 

pp. 126-128, 164]. This is a ma tte r th at could be clarified by Congress. Automatic recording should be banned.

A disproportionate number of innocent conversatio ns seems to have been overheard in some cases; in one investiga tion reported to the Adm inistrative Office 

of the United States Courts, 400 telephone calls were intercepted to get one 

incriminating conv ersation; in ano ther over 1,000 for 20. In a thi rd case 1.342 

intercep ts were reported to have been made, not a single one of which was 

incriminating. Even if i>olice officers are instructed not to listen to non-incriminating conversations, no guidelines are available to determine whether a conversation is “criminal” or not. Some adm inistra tive regulations are needed to 

control extended interception of innocent conversations by monitoring agents. 

Trainin g programs have been suggested by the Law Enforcement Assistance 

Administration, but the LEAA’s autho rity to put such programs into effect is 

limited.

Overhearing privileged communications, such as conversatio ns between doctor 

and patient, atto rney and client, priest and penitent, is a problem th at para llels 

interception of innocent conversations, although it does not happen as frequently. Sec.2517(b) of Title II I provides that such communications shall not lose 

the ir privileged cha rac ter whether the interception is lawful or unlawful. This 

atte mpt to protect privileged communications does not app ear to have been 

very successful. Most monitoring agents are ill-equipped to decide when a communication is privileged and to stop listening, and the United States Department of Justice is reported to have issued instructions to record all conversations. including privileged communications (see “Eavesdropping on Trial,” 

p. 160).
268

TIME PERIOD FOR INTERCEPTION OF CONVERSATIONS

A court orde r may allow interception of conversations to continue for a 

period up to thirty days, with an unlim ited number of thirty-day extensions 

[Sec. 2518(5)]. The time length raises policy as well as constitutional problems. Should it he so long? In Merger v. A’eic York, the Supreme Court disapproved of surveillance over a period of sixty days and called it "ind iscriminate 

seizure.” In Katz v. United State s, the Court 'turned to a case-by-case approac h; 

in this instance intercep tions covered a very brief period. A narrow construction of Berger would seem to indicate that interception for an entire thirty-d ay 

period, particu larly with extensions, constitutes a general search and is therefore unconstitutional.

Many State court orders have provided for interception during the maximum b

thirty-day period, and renewals have been granted freely. Federal orders, on 

the other hand, have generally limited the period to fifteen days. United States 

law enforcement officials expressed the opinion th at if applications were more 

conservative tha n the law required and asked for a sho rter period of intercep- f

tion tha n perm itted by Title III, the prospects for sustaining the wiretap in 

the courts would be improved.

Requests for orders covering a longer period tha n is necessary fru strate the 

specific requirements of the law. State and Fed eral officials claim th at an 

extended period is needed where the offense is a continuing one, but some 

admitted frankly th at extensions were sometimes asked in order to postixme 

giving notice of the interceptions. It may be argued th at the thirty-d ay period 

does not square with Ka tz in United States in which the Supreme Court expressed approval of interception of specific, not continuous conversations. The 

gran ting of an unlimited number of thirty-d ay extensions also gives rise to the 

suspicion th at a law enforcement official may be engaging in “strategic intelligence” surveillance instead of attem pting to obtain specific evidence of a crime.

Congress should reconsider the time period allowed for interceptions in Title 

III. The conservative section of the American Bar Association (ABA) recommended a maximum initial period of fifteen days in 1971; the more liberal 

Criminal Law Council of the ABA proposed a reduction to five days, with one 

extension of five days. The American Civil Liberties Union would like to see all 

renewals of court orders eliminated. A compromise in reduction in the time 

period allowed for interception conversations should not be too difficult for 

Congress to reach.

H.R.13825 introduced in the House of Representatives by Mr. Kastenmeier 

with resj»ect to “national secu rity” eavesdropping limits the period of a court 

order to “no longer than is necessary to achieve the objective of the authorization nor in any event longer than fifteen days.” An extension of the order is 

limited to ten days in II.R. 13825. This would seem to be a reasonable period 

of time for all court-ordered eavesdropping.

NOTICE OF EAVESDROPPING, OBJECTIO NS, AND DISCLOSURES

Serious ambiguities are created by the provisions of Title II I requiring notice *

of eavesdropping and perm itting aggrieved persons to object to the use of evidence obtained. Some inju red persons may never be given notice, and it is not 

clear who has “standing” to object or what should be disclosed. The law requires th at notice shall be given no later tha n ninety days after termination 

of interception to the persons named in the order or application. In the discre- (

tion of the judge, other parties to intercepted conversations may also be given 

such notice “in the inte rest of justice” [Sec.2518 (8 )( d)] .

The purpose of the notice is to give “aggrieved persons” an opportunity to 

make olijections by a motion to suppress evidence. An aggrieved person is 

defined as anyone “who was a party to any intercepted wire or oral communication or . . . against whom the interception was dire cted ” [Sec.25 10(ll) ]. Under 

this definition, an individual may be incriminated by an unlawful interception 

and yet have no “stan ding” to object. A person may be “aggrieved,” yet the 

judge may decide that no notice shall he given to him. Furthermore, the notice 

need not state exactly wh at conversations were intercepted; it is left to the 

judge to determine what portions, if any, of the overheard conversations shall 

be available for inspection. The duty of causing sendee of the notice is placed 

on the judge, and he may postpone it indefinitely.
269

Title II I is also ambiguous as to tclien an aggrieved person may move to 

suppress evidence obtained by eavesdropping. Section 2518(10) (a) says it must 

be made “before the tria l, hearing or proceeding,” unless there was no opportunity to do it or the person was not awa re of the grounds of the motion. Is 

the motion premature if made before arrest and indictment?

Some of the unce rtainties with respect to notice, objections, and disclosure 

may lie clarified by the courts, but this is one aspect of Title II I of the Omnibus 

Act of 1JK5S that could profit from legislation by Congress. The law leaves much 

to the discretion of the judge, but the judge really relies on the law enforcement official handling the case. Some officials circumvent the effects of the 

notice requirement, or at least postpone it, by asking for extensions of the 

court order. New probable cause as to why the wire tap should be continued 

must be shown, but this does not seem to be too difficult to do, judging from the 

number of extensions granted. Judges must rely on the law enforcement officials 

and app ear to be easily convinced that an extension is necessary.

The following proposals deserve serious consideration by Congress: (1) make 

« mandatory the giving of notice to indiv iduals whose wire or oral communica-

’ tions have been intercepted, within th irty days after expiration of the court

order; (2) limit the power of the judge to postpone giving notice, par ticu larly 

where the individual whose communication is intercepted is not engaged in a 

continuing criminal enterprise; (3) requ ire th at persons entitled to notice be 

given, on request, a copy of the order and application, and information as to 

conversatio ns overheard. These proposals are included in H.R.13825 introduced 

in the House of Representatives by Mr. Kastenmeier on March, 1974 and cited 

as “Surveillance Practices and Procedures Act of 1974.”

REPORTS ON COURT-ORDEREI) EAVE SDRO PPING

Thre e reports are required by Sec.2519 of Title I I I :

1. Report by the judge issuing or denying an order, with in thirty days after 

expiration of the order or its denial.

2. Rej>ort by prosecuting officials in Janu ary of each yea r on each application 

for an order o r extension during the preceding year.

3. Annual report to Congress by the Adm inistrative Office of the United 

States Courts in Washington, D.C., in April of each year, on the number of 

applications and orders and a summ ary and analysis of the data requ ired to be 

filed with it by judges and prosecuting officials.

The repo rts of judges and prosecuting officials, both Fed eral and State, are 

made to the Administrative Office of the United States Courts. This Office, in 

turn, collates the information obtained and renders a report to Congress that is 

largely statistical. The system set up in Title III for filing reports was designed 

to keep Congress and the public informed as to the extent of eavesdropping 

throughout the United States, offenses for which it was used, man ner in which 

surveillance was conducted, identity of prosecuting officials who applied for 

orders and judges who signed them, cost, and the results of interceptions. It 

was also to serve as a basis for ev alua tion of effectiveness of operation of Title 

v II I by a 15-member Commission scheduled to come into existence after the law

had been in effect for several years. This Commission is now in the process of 

formation.

All three repo rts have been widely criticized on the ground that they neither 

inform adequately nor furnish sufficient data for meaningful evalu ation of 

I eavesdropping under Title III. Much of the criticism appears to be justified.

Prosecuting officials and judges use a standard form of report prep ared by the 

Adm inistrative Office of the United States Courts to comply with Title III 

requirem ents pursua nt to regulations issued by that Office. Some of the items 

in the form of report are vague and convey no significant information. Many 

law enforcement officials do not tak e the reports very seriously, and judges are 

inclined to find them a nuisance and leave the job of filling in the form to the 

prosecuting official. At least six items in the report of prosecuting officials have 

l»een identified as lacking in clarity :

1. Areraye frequency of intercept per day.—Suppose during a thirty-day 

period no interceptions occurred, except on the last day when there were thirty 

interceptions. Is the average frequency one? How could such an average be of 

any significance? This item might be improved to require a statem ent of the
total number of days in which interceptions actually occurred, out of the tota l 

number of days authorized.

2. Number of persons whose communications were intercepted.—Does this 

mean the number of i>eople using that pa rticular phone or calling that number, 

whether or not the ir conversations were rele vant to the ma tter under investigation?

3. Number of communications intercepted.— Suppose calls are made, but 

nobody picks up the telephone, as often happens. Is the telephone number called 

to be counted as an intercei>tion? I believe th at attem pted as well as concluded calls should be included.

4. Number of incriminating communications intercepted.—Wh at is an incriminating conversation? A phones B and says: “I will meet you in ten minutes.” 

Is this incriminating ? If one wants to show that many incriminating statements are overheard in order to prove th at court-ordered wire tapp ing and 

electronic surveillance are effective, many calls can be included as “incriminating” th at others may find innocent.

5. Number of convictions.—A conviction may be obtained in a case subject to 

a wiretap order, but this does not mean th at the conviction resulted from the 

wiretap. Officials should be required to indicate whether conversatio ns intercepted were used as evidence in obtaining a conviction, and whethe r in the ir 

opinion these intercepted communications contributed sub stantially to conviction. They should also indicate what other investigative techniques were used.

(5. Cost.—Some prosecuting officials find this item so ambiguous and troublesome tha t they leave it blank. It should be made clear that a statem ent is required of the exac t amount paid to each investiga tor and all other individuals 

who spent time on the particular wiretap. It should include cost of equipment, 

plant, and any other items of exixuise involved in intercepting conversations, 

recording, and making logs and transcripts. Only by str ict adherence to this 

requirement can evaluation of eavesdropping on the basis of cost be meaningful.

The Annual Report to Congress has been useful in publicizing the number of 

court orders issued, the geographic areas in which eavesdropping (predominantly wiretapping) has taken place, the names of prosecuting officials who 

applied for court orders and the judges who signed them, and the general 

nature of offenses involved. Criticism lias focused on the summary and analysis 

by the Adm inistrative Office o f: (1) the number of incriminating conversations 

intercepted, and (2) cost.

The Report to Congress submitted at the end of April 1973 states that “approxim ately one-half of the conversational intercepts produced incriminating 

evidence.” The report stresses averages; only a close look at each listing would 

reveal tha t in one Federal case only 10 out of 500 intercepts were incriminating 

(2% ). and in ano ther case 3 out of 191 intercep ts (.015%) ; in a third, none out 

of 1.342 (0% ). Congress and the public should lie made awa re of the limitations of the Annual Report and its potential for providing misleading information.

As to cost, the Annual Report to Congress summarizing repo rts of prosecuting officials and judges for the year 1972 indicated tha t the cost of an intercept 

ranged from $5 to $82,628. and tha t the average cost for 805 orde rs for which

cost was reported was $5,435. What eva luate purpose can be served by such 

statistic s, without relating cost to the results of the intercep ts?

No information is included in any repo rt with respect to forty-eight-hour 

emergene.v wire taps without court order or warran tless eavesdropping in socalled “national secu rity” cases.

EVALUATION OF EAVESDROPPING UNDER TITLE III

Wiretapping and electronic surveillance by Government can be justified, according to its supporters, by a balancing process. The individual’s righ t of privacy and freedom in a democratic society has to be baanced against the needs 

of law enforcement and the effectiveness of eavesdropping. Equilibrium is 

achieved, it is claimed, when official eavesdropping is permitted, with adequate 

safeguards to protect privacy.

The balance approach to the problem of governmental intrusio ns into privacy 

is difficult to apply. To strike a balance between competing inte rests, the elements on both sides must be measurable and capable of being weighed in similar 

terms. The righ t to privacy and freedom, however, does not lend itself to accurate measurement. Nor is it easy to assess eit her need or effectiveness of eaves-
271

dropping in establishin g “law and order.” Wha t questions must he asked to 

determ ine if an acceptab e balanc e has been reached?

As to the right to privacy, one mus t ask whet her intr usio ns aga inst innocent 

persons have been minimized by the safeguar ds provide d by the law and have 

been car ried out in practice. Some weight must also be given to the pote ntial 

for abuse inheren t in wiretapp ing and electron ic surveilla nce and to whet her 

Title II I has reduced illegal eavesdropping. As to law enforcement needs and 

effectiveness of eavesdropping, it must be determined whethe r public secur ity 

has been strength ened by use of Title II I against organ ized crime and serious 

offenses. Has the law been used aga ins t the targ ets intende d, and has it resulted 

in convictio ns of top echelon offenders. The sens itivit y of the pubilc in a society 

that places a high value on “freedom ” must also be considered in weighing the 

right of privacy aga inst law enforcement needs, and thi s depends on who are 

the subj ects of surveillan ce and for wha t purpose wires have been tapped.

M IN IM IZ IN G INV ASI ON OF PRIVACY

Invasio n of privac y can be reduced to some exte nt by limiting the dura tion 

of court orders to a short i>eriod, restric ting them to serious cases where less 

intr usive tools of law enforcement are clearly not servicea ble, and supervising 

monitoring of conversations closely. Court orders und er the 1968 law’, most of 

them for wiret appin g, have auth oriz ed interceptio ns for periods tha t appea r 

excessive; they have been exten sively agai nst indiv idua ls in all levels of gambling and narco tics, and supervision of monitoring agen ts has not been very 

stringe nt.

The most care ful scrutin y by an imp artial judge of applicati ons for court 

orders, and continued judicia l concern throu ghou t the period of the order, are 

essential if safe guards are to be meaningful and invasion of privacy is to be 

kept to a minimum. The ease with which it is possible to go to a frien dly judge 

who will sign an order for wha tever period a prosecuting officer asks, and the 

fai lur e of Sta te judges to requ ire wri tten progress reports, leave the door 

open to unjustified invasions of privacy. The conclusion is inescapa ble th at to 

the exte nt tha t safe guards provided by Title II I are ambiguous, the sta tut e as 

enact ed is inad equa te in prot ectin g the right to privac y. Insof ar as the ideal ot 

continuing scrutiny by an imp arti al mag istrate has not been realized in practice, the protec tions aga ins t undu e invasion of privacy have not been frilly 

applied. In balance, privacy has been weakened.

lias Titl e II reduced illega l eavesdropping? The tru th is th at the re really is 

no way of knowing how much illegal eavesdrop ping has been going on. Each 

person interviewed in obtaining dat a for my study and repo rt on eavesdrop ping 

und er Title II I was asked whe ther he beieved that inve stiga ting agents were 

eavesd roppin g illegally despi te Tit le II I which makes legal wiretapping and 

electronic surveillance available. Some said illegal eavesdropping was possible, 

others said it was probable, and a few were positiv e th at conversations not 

covered by court orders were being intercepted (see “Eavesdropping on Trial ,” 

p.1 99) . Those who favor eavesdropping unde r Title II I are inclined to minimize 

the pote ntial for ab us e; those who oppose it are sure th at illegal eavesdropping 

is extensive . There is no hard evidence to indic ate th at Tit le II I has made any 

appreciable difference eith er in incre asing or reducin g illegal eavesdropping, 

but the temp tations for illegal eavesdropping und er color of law cannot be 

ignored.

TH E NEED FOR EAVESDROPPING

Opinion has been and continues to be divided on the need for wiretapping 

and electronic surveillance in law enforcem ent. Before Tit le II I was enacted in 

1968, many law enforcem ent officials testified in Congressional hearings tha t 

eavesdroppin g was an indisp ensable tool in dealin g with organized crime. 

Other s claimed it was a costly, wasteful, lazy-man’s weapon, a thr ea t to innocent i>ersons, and useless aga ins t top echelon criminals. No one has ever succeeded in proving need, or even in defining it cearl.v. Nor has it ever been 

settl ed who should hear the burde n of proving need. How, then, is need to be 

weighed in a balancing process? As a sta rt, altern ativ es to eavesdropping would 

have to be analyzed , and time and cost facto rs compare d. Would the same 

resources devoted to normal types of surveillance produce equal or bet ter 

resu lts or no resu lts at all ? If Titl e II I has not been used effectively aga inst 

organized crime or limited to seriou s offenses, the need for eavesd roppin g to 

promote public safety is weakened in balanc ing it aga inst invasio n of privacy.
Operation of Titl e II I since 1968 has dem onst rate d neither need nor lack of 

need for eavesdropping. Nor does the infor mati on required to be furn ishe d in 

reports unde r Title II I fur the r the examination and analy sis of need.

EFF ECT IVENES S OF EAVESDROPPING UNDER TIT LE III

Has Titl e II I been effective? If it has not, then the balance is tipped in favor 

of the righ t of priv acy and aga inst wiretapp ing and electron ic surve ilanc e in 

law enforcement. “Effectiveness” is a vague concept. One fac tor that Congress 

seems to have considered significant in “effectivenes s” is the number of arr est s 

and convictio ns th at resu lt from eavesdropping. This item of infor mati on must 

be included in the repor t of the prosecuting official [Sec.25 19( 2) (c ) ( f ) ]. But 

the reports do not show any meanin gful relation between eavesdropping and 

arr est s or convictions. If a court orde r to wir etap has been obtained in a case 

and eventually a conviction results , does this mean th at the wir etap was “effective” ? The wir eta p may have produced no useful evidence and the conviction 

may have been obtain ed on evidence secured by other inve stiga tive techniques. 

The law requires the prosecuting official’s repo rt to include “a general assessment of the impo rtance of the inter ceptions, ” but the forms examined person ­

ally by me rev ealed that th is item is fre quently left blank.

Those who favored eavesdropping before the law was passed now claim it is 

effective. Those who opposed it question the adequacy of the sta tis tic s th at 

purp ort to show effectiveness. Law enforcement officials are incline d to say th at 

arr est s and convictions could not have been obtained witho ut wireta pping. 

Critics of govern ment eavesdropping, however, can alwa ys cite imp orta nt investigations in which it proved to be of insignificant or no value compared with 

normal techniques.

It can be conceded tha t eavesdro pping has been effective in some cases in 

obtaining arrests and convictions. This does not prove th at other methods of 

surveillance would not have been equally productive. Nor, in determin ing effectiveness of Title II I, can the quaity of an ar re st or conviction be ignored. If 

Tite II I has been successful in appre hending only small-tim e offenders and has 

failed to reach lead ers of organized crime, then court-ordered eavesdropping 

has missed its mark.

Title II I has been used most extensively in gambling and narc otics cases. 

Criminologists claim that the efforts of law enforcement in offenses such as 

these, which involve willing par ticipan ts, can have only limited effectiveness, 

no ma tter what tools are used. So long as the public wan ts the services provided and the demand is not satisfied thro ugh awful channels, the illegal activ ­

ities will continue. Sociologists are inclined to ag re e; they deplore the tendenc y 

of forces favoring government wire tapping and electronic surveillan ce to deny 

the relat ionsh ip between crime, slums, and poverty.

Since need and effectiveness are such elusive elements and defy accu rate 

measurement, some othe r facto rs must be found if the balanc ing process is 

used in eval uatin g eavesdropping. Perhap s one should weigh competing values. Is the appreh ension of some crim ina suspects worth the risks to privacy inherent in eave sdropping? If wireta pping and electro nic surveillance are allowed 

under a law that is ambiguous, and carried on witho ut clea r sta nd ard s and 

uniform guidelines by a large number of officials in a wide var iety of cases 

withou t adequate controls, the risk s may be too great.

The 15-member “National Commission for the Review of Feder al and State 

Laws Rela ting to Wire tappi ng and Electronic Surveillance” provide d for by 

Sec.804 of the Omnibus Crime Control and Safe Stre ets Act of 1968 (as 

amended in 1970), has come into existence. The President of the United Stat es 

lias appointed seven members; four members of the Senate have been appointed 

by the President of the Senate. The Speaker of the House of Representatives 

has not yet desig nated the four remaining members of the Commission from 

the House. The Commission is to file a repo rt with in two yea rs af te r its form ation and then go out of existence.

The function of this Commission is “to conduct a comprehensive study and 

review of the operation of the provisions” of the law in orde r to determine its 

“effectiveness.” Does “operat ion” refe r only to proce dures and pract ice, witho ut 

consideration of ambiguities in the aw? The scope of the Commission's function 

does not seem to include the extent of govern mental intrusio n and whe ther 

eavesdrop ping has l»een excessive. The “need” for wiretappi ng and electronic 

surveillance seems to be assumed; the Commission is instr ucted only to deal 

with “effectiveness.”
273

Is the Commission to consider whe ther Title II I has been effective in banning 

priv ate eavesdropping t Effectiveness of the law prohibiting inte rcep tion s by 

priv ate individu als must depend largely on receip t of compla ints and vigorous 

enforcem ent. Sta te officials repo rt th at few, if any, complaints hav e been received since passage of Title III . Detection of unlawful wire tapp ing is difficult, 

and it may be even harde r when an electro nic device is installed. The De partment of Jus tice app ears to have been more active than the Sta tes in dealing 

with privat e eavesdropping under Titl e II I, but few prosecu tions have resulted. 

For a discuss ion of the ease with which the ban on private eavesdropping can 

be circumvented, see “Eavesdropping on Tr ial”, pp.42-43.

Congress should give serious consideration to crea tion of an impar tial, unbiased, non-political agency on a contin uing basis to oversee government eaves ­

dropping. The Commission provided for by Title II I has a limit ed life for a 

narro w and ra th er ambiguous purpose, and its composition makes it vulne rable 

to political pressure. Government eavesdro pping has great potential for abuse, 

as we all know by now. If wireta pping and electro nic surveilla nce by law 

enforcem ent officials is to be allowed to contin ue under law, period ic check of 

Federal and Sta te prac tices is e ssential.

No mean ingful evaluati on of eavesdrop ping und er Titl e II I can be made by 

any Commission with out takin g into account ambig uities in the law, lack of 

clear stan dar ds, and fai lur e to establish uniform guidelines; these may cre ate 

thre ats to privacy and liberty that are intol erab le in a free society. A review 

of Title II I mus t ferre t out inform ation in the field, beyond the sta tis tic al da ta 

in the reports. In add ition to examin ing whe ther the protections offered by the 

law are adeq uate , it must be determined whether they have been weakene d in 

practice. Modifications are surely needed in both law and procedure.

6UMM AB Y OK PROPOSALS

Congress has sanctioned govern ment eavesdroppin g as a law enforcement 

tool, and Americans must live with—at leas t unt il Congress repeals Tit le II I 

of the Omnibus Crime Control and Safe Streets Act of 1968, the Supreme Court 

declares it unc onst itutional, or the Execu tive orders its agencies not to use it. 

Since none of these events is likely in the foreseeable future , the att ent ion of 

Congress and the public must l>e direc ted to minimizing invasion of privac y 

and maximizing meanin gful law enforcement by correc ting defects in the law 

and weaknesse s in pract ice. The following proposals are made with full aware ­

ness of the conflict between the two objectives—pro tectin g privacy and dealing 

with crime—an d the difficulties in reconciling them.

1. Clarify ambiguous provisions of Tit le II I, par ticula rly with respe ct to: 

persons ent itled to notice tha t eavesdropping has take n place; when motions to 

suppress evidence may be ma de ; wh at conv ersations are to be deemed “incrimina ting;” wha t is mea nt by “type” of communication to be set forth in the 

applica tion and orde r; gath erin g of “stra teg ic intelligence, ” use of live monitoring and banning of auto matic recording .

2. Limit eavesdropping to organized crime and serious offenses. Per hap s Congress should consider amending Title II I to define “organized crim e” and 

“serious” offenses.

3. Esta blish unifo rm procedures and sta nd ard s for Fed eral and Sta te officials. 

Automatic recording should be eliminated immediately as a ma tte r of practice, 

withou t waiting for legisla tion to th at effect. Prog ress reports to judg es should 

be made man dato ry by la w ; meanwhile judges should be urged to requ ire them. 

The time j)eriod requested for court orders should be as shor t as possible, and 

legislation should be introduced to limi t th e perio d to fifteen days, with one 

renewal of ten days—except possibly on a clea r showing th at the offense is a 

continuing one and th at additional exten sion is required. Congress should consider auth orizing adm inis trative regulations to control agents who man the 

monitoring devices. The Law’ Enforcement Assistance Adm inistratio n should be 

urged to prep are and carry out trai nin g progra ms.

4. Improve repo rting requirem ents. Congress should consider amen dmen t of 

Sec.2519 of Title II I to clarify the info rmation to be furnished by prosecuting 

officials as Indicated in this Statement. The Annual Report to Congress should 

also be clarified.

5. Check Federal and Sta te practices periodically. This should be done by a 

watchdog with no vested int ere st in the success or fail ure of Tit le II I. A 

perm anen t agency should be empowered to make periodic examin atio ns of
Federal and Sta te statutes and procedu res, and hold public hearing s on law 

and practice. The inquir ies of thi s agency mus t be independent and go beyond 

the sta tist ica l repo rts and summ aries subm itted to Congress annua lly.

These are minimal proposals to resto re a balanc e between the rigllt of privacy and law enforcement requirements. Not much more tha n a year ago, a 

knowledgeable and experienced member of th e House of Repr esen tativ es estimated that not more tha n forty Congressmen could be induced at that time to 

consider any amendment to Titl e II I of the Omnibus Crime Control and Safe 

Stree ts Act of 1968. The prospects for remedying defects and weaknesses in 

the law in both House and Senate app ear to have improved considerably. The 

public has become painfully awa re th at widespread wiret appin g and electronic 

surveillance, legal and illegal, are a serio us threa t to personal lil>erty. The 

great potentia l for abuse and misuse in official eavesdrop ping has cast its 

shadow on the purp orte d safe gua rds provided in Tit le II I. If the law is not 

clear, if the power of surveillance is dive rted to unintended purposes, if it is 

used indis crim inate ly for minor offenses, eavesdropping as a tool of law enforcement can be completely lost.

H.R. 9781 introduce d late in 1973 in the House of Repr esen tativ es is, in effect, 

a reaffirmation of the righ t of priva cy and complete reject ion of government 

wire tapping and electron ic surveillance. Banning governm ent eavesdro pping 

may not have pres ent appeal in the face of rising crime, but the pendulu m may 

swing the oth er way if defects in law and prac tice are not cured. Clar ity in the 

law, promulgation of uniform sta nd ard s and guidelines, str ict est conformity by 

officials with all available safeg uards , and con stan t vigilance by Congress, the 

Courts, and the public are impe rativ e if the righ t of priva cy and the lawful 

use of eavesd roppin g as a tool of law enforcement are both to survive .

U n it ed Sta tes Su pr e m e C o u r t D ec is io n s

Page

Berger v. New York, 388 U.S. 41 (1967)__________________________ 4, 18, 24

Cor v. United States, 405 U.S. 932 (197 2)................................................... 17

Katz v. United States, 389 U.S. 347 (1 96 7) ........................................... .. 4, 10, 14, 25

Lopez v. United States, 373 U.S. 427 (1963)............................................... 9, 10, 11

On L ee v. United States, 343 U.S. 747 (1 95 3) ........................................... 9, 11

United States v. District Court, 407 U.S . 297 (197 2)_________ _____7, 8, 18, 19

United States v. White, 401 U.S. 745 (1 9 7 1 ). ........................................... 10, 11, 12

[Subsequently, the following report was received from the Department of Tra nsporta tion :]

D epa rtm ent of Tra nsp ort ation,

Off ice of th e Secretary of T ran spo rta tion,

Washington, D.C., May 13, 1974.

Hon. P eter W. R odino, J r.

Chairm an,

Committee on the Judi ciary ,

U.S. H ouse of Representati ves,

Washington, D.C.

Dear Mr. C ha irma n : The Dep artm ent of Tra nsp orta tion would like to take 

this opportunity to offer to the Committee our views on H.R. 9815 and H.R. 

11629, bills

“To enforc e the first amendment and fourth amendm ent to the Constitution, 

and the constitu tion al righ t of privacy by prohibiting any civil or milit ary 

officer of the United States or the mili tia of any State from using the Armed 

Forces of the United States or the mili tia of any State to exerci se surveillance 

of civil ians or to execute the civil laws, and for other purposes.”

These bills would add a new section, 1386, to cha pter 67 of title 18, United 

Stat es Code, to proh ibit the use of the armed forces of the United States , with 

certain exceptions, for investigation or surveillance of any person not a member 

of the arm ed forces, or of any civili an organ ization, regarding their beliefs, 

associations, or iwditical activities. An amendmen t to cha pte r 171 of titl e 28, 

United Sta tes Code, would auth oriz e indiv iduals to bring a civil actio n for 

damages and obta in other equita ble relie f for violation of the proposed section
1386 of tit le 18 and to permit class actio ns to enjoin those activities. These bills 

would also amend the Posse Comitatus Act (18 U.S.C. 1385) to bring the Coast 

Guard, Navy, and Marine Corps within the coverage of th at statute.

Within this Department, the Coast Guard conducts inve stiga tions rela tive to 

our sta tut ory responsibilities which would be adversely affected by these bills. 

These investigations are conducted in the following area s:

a. Investigations to assist the Coast Guard in the performance of its powers, 

duties, or functions under the general autho rity of the Commandant (14 U.S.C. 

9 3 (e ));

b. Criminal investigations und er the implied authority of the Uniform Code 

of Military Ju stice (10 U.S.C. 831) ;

c. Investigations relating to the general law enforcement and secu rity responsibilitie s of the Coast Guard (14 U.S.C. 2, 89, and 91, and 50 U.S.C. 191) ;

d. Investig ations regarding civilian personnel security conducted under Executive Order 10450;

e. Surveillance of vessels under sections 101(4) and 101(8) of the Por ts and 

Waterwa ys Safety Act (33 U.S.C. 1221 et seq.) ;

f. Special surveillance over cer tain foreign vessels which enter United States 

ports, in accordance with Executive Order 10173 and National Security Decision Memorandum 82 (as authorized by 50 U.S.C. 191) ;

g. Investigations pursuant to the adm inistra tive of the laws rela ting to merchant vessel j»ersonnel (46 U.S.C. 214, 221-249, and 50 U.S.C. 191) ; and,

h. Investigations pur suant to the review of marine casualties (33 U.S.C. 1223 

and 46 U.S.C. 239).

Due to the Coast Guard’s role as an organization with both civil and military 

responsibilities, the impact of these bills on the Coast Guard differs substan ­

tially from the ir impact on the oth er armed forces. If the Coast Guard is to 

effectively meet its responsibilities, it is essential that the autho rity for these 

investigatory and surveillance functions not be unduly restricted. We, therefore, object to these bills inso far as the prohibitio ns proposed therein would be 

applied to the Coast Guard. If these bills were to be considered favorably, we 

would recommend th at section 2 be amended So exclude the Coast Guard by 

using a phrase o the r than “armed forces” which is defined in these bills and 10 

U.S.C. 101(4) as including the Coast Guard.

Section 5 of these bills would expa nd the scope of the Posse Comitatus Act to 

include the Coast Guard. We do not object to this change. It would not inhibit 

the Coast Guard from carrying out its historic law enforcement duties as they 

are specifically authorized by Acts of Congress, including 14 U.S.C. 89; and 

therefore fall within the exception to 18 U.S.C. 1385.

The Office of Management and Budget advises tha t, from the standpoint of 

the Administration’s program, the re is no objection to the submission of this 

report to the Committee.

Sincerely,

Rodney E. Eyster,

General Counsel.

Mr. K astexmeier. U ntil the com mittee at some po int in th e fu ture 

reconvenes for considera tion o f thi s question, t he su bcommittee s tan ds 

adjou rne d.

[W hereu pon, at 1 :10 p.m. the subcom mittee was ad journe d, subject 

to the c all of the Ch air .]