Peleased under the John F. Kennedy Assassination Records Collection Act of 1992 [44 mac 2107 Wotel . Cases: NW 55064 Date: 11-17-2017
Bn, Felt eee |! . | Mr. Boker wcaoe *f J Mr, Calidhan —-— Mr. Cleveland —— UNIsED STATES DEPARTMENT OF“)USTICE Mr. Metmieldt ——- M: Ge--ordt —— ay WASHINGTON, D.C. 20530 Mr. Hea Mz. fenkins . Mr Marshall —-~ Mx Conrad ——— Address Reply to the July 20, 1973 Nel wites | ES. — { Division Indicated , am and Refer to Initials and Number . ' ne meee a f : oe \ ty . . 1 Be ess) : ff £ = . . - f. Boise Sne Sea” . . Mr. Bowers s : “ ™ , Mr. Herington —_. i i ; He, Conmy ——-— } “4 €@ MEMORANDUM FOR: Mr. Clarence M. Kelley Mi, Bovdley ont iba oS, ~Director, FBI Mre. Hogon —. & 7 - ' . { ethan x FROM: William BD. Ruckelshaus ao | a? 3 SUBJECT: | * sapstantivertsues Regarding oL. - the Future of the FBI : | | tA” : Ty vey Pursuant to our conversation earlier this week, I hereby f | co submit a list of issues that will undoubtedly be coming up from !  y time to time regarding the present and future status of the FBI. a ot This list is by no means exhaustive, but is a good starting point _n<2- from which to go forward and come to grips with many of the i | problems that will have to be addressed in the near future in one ~ sd i form or another. The list, in no particular order, is as follows: | * roa | PE OREN ag “ ; 1. Wiretaps. The whole question of wiretaps should be neU meet a ae reviewed with a view toward developing a firm Department -wide Gad 4 "SoS 4 policy on the issues involved. \ . ~ s as x3 2. The issue of whether the function o § intelligence gathering <= -—- el ; should be separated from the law.enforcemiént function of the. FBI. at This issue should be studied with particular reference to those * Sei countries which have adopted this division and a clear analysis of er FR Pros and cons developed. From this analysis again should at a clear ‘policy. \ \ Bf AZune y | Bi a) 3. The statutory basis for the. FBI's intelligence gathering Df \ ifunctions. Is there any statutory basis? Is the whole function based ; i ‘i on Presidential and Attorney General directives ? Should a ATE 3 = a - statutory basis be sought? ; 8 RECOS rie 222 (| ae us { , me : RL? is AUG 8 173K ) —— =< XERQY,, document is wrenrtikin Ba hponse to your request and is not for dissemé~ o : A : tion outside ydrg Committees, Jts use IST Mutha bo ofjicramproceedings by "RY ues 16 ISP our Cummittee ad % conteneinay.mut be, disclosed to aaa aaa a SON i 8D AUG 2 ais nel without the expifess approval of the EBI f——— i A | aw W Spode, Doha: g2p3054) ABaat's | hoe. oP j- 27 73 Speed £4
4, Should the FBI Director be appointed for a term of years? | (All the issues surrounding the appointment and tenure of the Director should be explored. ) F 5., Should the FBI be an independent agency or continue as part los the Justice Department ? The pros and cons of this recurrent question - should bé analyzed again with the purpose of adopting a firm policy. 6. Assuming the FBI remains a part of the Justice Department, what should be the relationship of the Director to the Attorney General? All the organizational and substantive relationships should be examined 7. Investigative techniques. The whole question of the variety of techniques from clearly legal to clearly illegal should be examined in some detail. In addition, the question of authorization and of Congressional oversight should be touched upon in this examination. 8. The whole question of files and their disclosure must be studied with a view toward understanding why files are kept, what categories of files there are, what information is contained in the files and whether the purposes for maintaining files are being met under present policy. In the issue of disclosure, when, where, and to whom must also be thoroughly examined. 9. The question of a Civilian Review Board for the intelligence gathering activities of the FBI should be examined. This is a recurrent . suggestion which came up at the Princeton conference in addition to other forums. 10. What should be the relationship between the FBI and the other Departments and Agencies. of the Federal Government? To what extent should the FBI keep tabs ori,other Departments and Agencies through the development of sources eat in those Agencies ? Il. Should the FBI have f eign officers reporting. directly to the Director ? This list is not exhaustive, but should get us started toward an indepth examination of some of the problems facing the Bureau in the future. WDR:fhm _ NW 55084 DocId: 32989541 Page 4 1¢ % took we rake testes eat Sones saree nine 66 Geb sa wehbe tutalla a av: FERRI Dn jeter ete tema? 4 Oh pamteenen #7
i j i | ; i i } | £ ¥ t H , { i 5 i | 1 Memete Assoc. Dir, Asst. Dir: Admin. _.__ Comp. Syst. Files & Com. Gen. Inv. Ident. _ Inspection Intell. Leboratory Plan. & Eval. Spec. Inv. ___.. Training ____. Legal Coun, Cong. Serv. Corr. & Crm. Research Press Off. Telephone Rm. aw “SOE Doc _AND AUTHORITY IXYOOMESTIC ~ eee . L a re 1 -Mr. T. J. Smith os ‘the Department for study recently in connection with a request madeu ser 7G f Mr. William D. Ruckelshaus ‘The Deputy Attorney General - Designate August 24, 1973 Director, FBI CS ee oT J wersdieloa 1- Mr. Mintz 1- Mr. E.S. Miller o” ae 5 s > 4 be vow INTELLIGENCE INVESTIGATIONS — Re .. he + Ld ! Reference is made to my memorandum to the Attorney General August 7, 1973, captioned as above, which among cther things proposed that an Executive order be issued which would define FBI responsibilities concerning Federal statutes relating to the national security. My memorandum made reference to new guidelines recently issued in manual form and te a study which was prepared in August, i972, at the request of Acting Director L. Patrick Gray, Il. On August 15, 1973, Mr. Jack Goldkiang, Office of Legal Counsel, Department of Justice, called Mx. Nicholas P. Callahan's office and referred to the guidelines and study mentioned above. He said that these documents are likely to be pertinent to his analysis of the proposal set forth in my memorandum, and he asked that the two documents be made available to him. For your information, the guidelines referred to are the recently revised Section 87 of our Manual of Instructions concerning Investigations of Subversive Organizations and Individuals. As you know, our Manual of Instructions has not heretofore been disseminated outside the FBI, although this particular Section (87) was loaned to of the Department by Senator Edward MM. Kennedy. E fo gh wen b> Sv . Be ioe 2810 - * The study made in August, 1972, for aie Gray was fog written and intended purely for in-house use and deliberations and” j was not prepared for purposes of dissemination or use by any agency otitside the FBIy,4 .4a SEE NOTE PAGE TWO pe ech eettred \innresponse to yous eR t and is not for}dt GATE tation “Gutside wth mtisee. Its use is E official proceellings “Oy an f ry en, G\yanttitee and the con tent may nut be Se rosed to unauthorized hy , oer TJS: bjr (6) 4 nout the express approval of the FBI . MAIL room [1] TELETYPE UNIT [_]} 1d:32989541 Page
a HW 55064 a Mr. William D. Ruckelshaus The Deputy Attorney General - Designate a However, we recognize that these two documents may ” assist the Department in analyzing our proposal concerning the issuance ’ of an Executive order and therefore I am enclosing a copy of the two documents requested by Mr. Goldklang. We request that these documents not be disseminated outside the Department of Justice; that the documents not be duplicated or photographed; and that, if possible, they be returned to the FBI after they have served their purpose. If you, or members of your staff, feel that additional infor- mation would clarify our proposal, it is suggested that consideration be given to arranging conferences between members of your staff and the FBI officials in the Intelligence Division and our Legal Counsel's Office who have conducted considerable research into the matter. a Enclosures - 2 NOTE: See memo T. J. Smith to Mr. E. S. Miller dated 8/23/73, captioned as above, prepared by TJS: bjr. ‘ f DoclId: 327989541 Page 7
. + @ SO a a eae nS sagt da aad WH ish boi hen coe lice ed arate Vol ees an eriae PEST SMBY WLAN (ar CrEN, Ly NOP ODT LNS ISSUE: Should the Intelligence Gathering-Function of the FBI Be Separated From the Law Enforcement Function of the FBI? ” Note that the issue, as originally raised, referred to law enforcement and intelligence functions. What was meant by intelligence was the missions of internal security and counterintelligence. Criminal’ intelligence, e.g., against organized crime, was intended to fall within the law enforce- ment mission. However, the functions of the FBI do not neatly fall within “intelligence” and "law enforcement" categories. Internal security cases are both intelligence and law enforce- ment operations, and counterintelligence sometimes involves arrests and prosecutions, i.e., law enforcement. To most accurately reflect the diverse missions of the FBI the terms law enforcement, internal security, and counterintelligence will be used throughout this paper. : Preface — , . 1. The Problem: revolves around the question whether the three missions can be accommodated by one agency. That is, axe thoy eo digtinear yn nature that an organizathional struc ture set up to perform one of the missions absolutely cannot perform the others; or can all three missions be accommodated but’ only to the detriment of the others; or can all the missions be adequately performed by one agency? 2. The Present Policy: is that all three missions are per- formed by the FBI. The FBI organizational structure is pri- marily a unitary one, i.e., there is one organization with a multiplicity of .responsibilities, .which can be broken down into three general missions, law enforcement, internal secu- rity (domestic) and counterintelligence (foreign). The organization's personnel are hired and catalogued into one of three general functional categories, agent, steno, and to a lesser degree, clerks, without further differentiation based on mission, i.e., no employees, with rare exceptions, are criminal or counterintelligence specialists, all are gener- alists and are regularly interchanged among the three general missions. The administration of cases at headquarters and, to a lesser extent, the conduct of investigations in the field follow the same format in all three general areas of responsi- bility.-: , . L
” i 2 The underlying rationale for, and history behind, these concepts is: ® Personnel - the generalist allows for a highly flexible, mobile force which can be deployed, generally solely on the basis of manpower needs, i.e., any agent can do -any . job in the FBI. There are some exceptions; some employees have unique abilities which tend to make them less mobile in the eyes of administrators, e.g., language or technical factors in the case of agent deployment and promotion; they are more determinative in cases of clerks: special employees, translators, etc. Administration of cases and conduct of invest these were originally geared to accommodate a relatively criminal and civil investigative matters, and as the responsi-~ bilities of the organization grew they were modified and ada within the unitary structure, to accommodate the various missions. Thus they are quite similar in all three missions. 3. . The Tssues Raised: re a. Are the missions of law enforcement, internal ; 1 security, and counterintelligence separable? ST ee aan tA 7 Cae NEU S ete tre? Ve COUT CL PEave 2 ODED Terr ROU ane SNOT Sts a UOT tn ma ww 7 aration possible, practica) oli a ow e or desirable? BK oth O fH ome?) c. Can the three missions be accommodated in one organization? d. By doing so, do any of the missions suffer? - . e. If all three missions can be accommodated i . one agency, is the FBI currently doing it the . best way possible? ” £. %QIf not, is it practically or politically feas -ble or desirable to change the FBI's way of = forming the mission? g. Why are other Western intelligence services separate from law enforcement agencies? HW 55064 Docld:329899541 Page 9 ’ :
Dr ee TOL ae EL to Dn nai no a BL a ‘ Wire wn one Te aE pores ‘ete taemat a ee nee ee td anatahi ani Me\s lanes trove acnshatuiads via ordigamicad Fe cogent te encom apnemanennnaryniin: ©: oe ae eo @° 4, Options for Future Policy: The missions of law enforcement, internal security, and counterintelligence are separate, distinct and distinguishable functions, even though each partakes a little of each other. Law enforcement is investigation after a crime has been .committed to identify suspects and build a, case for prosecution; counter- intelligence is the identification, penetration and neutralization of foreign intelligence activity in the U. S.; and internal security is identification and thwarting of home-grown plots to subvert the government and activities within the U. S. in illegal support of foreign causes, whether by U. S. citizens of foreigners. . The missions overlap to some degree. For example, law enforcement requires some intelligence collection, and is intimately concerned with internal security criminal acts, e.g., foreign related terrorist bombings, skyjackings, gunning, and subversive groups' kidnappings; bank robberies, bombings, etc. Counterintelligence sometimes results in criminal prosecution, and some internal security groups are funded by, and act on behalf of, foreign intelligence services. Internal security is a hybrid; the bacic for ite investigation is that ante nolitically motivated, are being committed in violation of the U. S. criminal law. Yet, the investigation may be a continuing effort, based on continuing acts threatening the internal security without actually violating the criminal law, and thus the investi- gation is more like a counterintelligence investigation, than like the typical law enforcement closed cycle of crime, investicati and prosecution. While counterintelligence could adequately, and with, more success in some cases, be handled by an organization totally separate from one with law enforcement powers, internal security work, in many cases, is directly rélated to criminal prosecution. There has been little effort, and less success, in most English speaking Western democracies in prosecuting domestic “subversives," even those with foreign ties; however, prosecution is often a principal, if not primary, objective in cases involving emigre bombing and harassment of foreign diplomatic establishments, fund and arms procurement for foreign political groups, politically motivated te:rorist acts, @.g., skyjacking, etc.
; > os . An examination of the services of the democracies mentioned above, viz., Britian, Australia and Canada, reveal — that all do distinguish between the pure law enforcement function and the counterintelligence/internal security function; however, there is not a total separation of the functions. For example, the British Security Service (MI-5) handles counterintelligence exclusively with MI-5 case officers, but places it's internal security investigations in the hands of the Special Branches of the local constabularies (comparable to the intelligence divisions oftlocal U. S. police departments). The Australian Security Intelligence Organization (ASIO), i i modeled after MI-5, and of recent vintage (post W.W.II), handles all counterintelligence and internal security investi- gation with its own officers; however, it is rivailed to some extent in the internal security field by the Intelligence Bureau of the national Commonwealth Police. The Royal Canadian Mounted Police, a truly national police force, with extensive local and Federal jurisdiction, has branched. off its intelligence division into a new, near autonomous Security Service, with operational procedures more akin to MI-5 and ASIO than to traditional law enforcement. ot In short, these countries recognize that the political, social and foreign policy considerations which ; must qo into counterintelligence and internal security investi- gations make them a different animal from "routine" criminal investigation; yet, they also recognize that the agency with internal:-security jurisdiction must also have an intimate and close working relationship with a law enforcement agency. Complete separation, at least of the internal security fEunction from law enforcement, does not appear to be ai” ‘\practically feasible. .MI-5 and ASTO were oviginated without ey Cra law enforcement powers, and MI-5 candidly admits it would SUSE See oS ISR LI ED wide Rabe asa oye like-to become part of a national police force. RCMP Security wer” Service case officers would not consider surrendering their P police powers. Separation of the counterintelligence function would be more practically feasible; however, the commingling of counterintelligence and internal security interests, and the threat of a merger of the counterintelligence function. with the positive foreign intelligence collection agency, especially in the U. S., are both practical and political reasons militating against this course. oA meg Sid Page i1 \ HW o55064 Docld: 32989541 a cece
| @&. @ Separation of the internal security function also presents serious political considerations. Internal security " or as some say, at least in reference to its "subversive" investigations, political intelligence, is the mdst controversial of government's intelligence collection activities. In the U. S., this function was originally given to the FBI which - had established for itself a repptation for being responsible, competent, and most importantly, politically neutral, and had the confidence of most Americans. It is recognized that this reputation is not etched in stone, and that because of the diversity of peoples, political views, and activities tolerated in the U. S. no internal security agency can, using human judgement, attempt to fulfill its responsibility without offending someone, sometime, someplace. It-is to the advantage of an internal security agency, which is subjected to such political pressures, to be somewhat insulated by being part of a larger, respected organization whick has a high profile as a competent and fair investigative agency in the less politically complex law enforcement and counterintelligence fields. Adding to this- insulation is the tradition of FBI political independence, and tie uew Conysesslunual UlUnccen with kheepiuy the PDE poritlically in@ependent. While the law enforcement and counterintelligence wings of the FBI dislike the controversies into which its internal security wings drags the FBI name, separation of internal security into a separate agency would probably subject it to more intense political pressures, both from within the administration and without, which pressures it might not be capable of withstanding. Such separation appears politically unfeasible and undesirable. “ - Practical considerations against divestiture of the counterinteiligence and internal security fuictions from the FBI are that: basic criminal investigative experience equips men in many areas to be intelligence officers; a pool of trained criminal investigators is available to the intelligence missions to draw from, either on an ad hoc emergency basis, e.g., seizure of an embassy or political kidnapping or skyjacking, or as candidates for the position of intelligence officer;° a divestiture might result in the loss to the counterintelligence and internal security wings of the. effective use of the FBI name, reputation, and contacts and sources built-up over years using the FBI name. ~ 5a oad j WW 55084 DoclId: 32989541 Page 12
SSC REQUEST OF 10/2/75 File Copy HW 55064 Docld:32989541 Page 16 a - Co
a) a Ne 3 fas eae j to Foe. -, 1 - Mr. Mintz . ee 1 - Mr. E. S. Miller 7 . 1- Mr. T. J. Smith ‘ ¢ , Mr. William D. Ruckelshaus September 20, 1973 ¢ The Deputy Attorney General - Designate - ] . 1- Mr. J. F. Miller “s Director, FBI ae ty Frac ISSUES REGARDING ast G THE FUTURE ‘OF THE FEI soe aaeatalaiaed — DO. . ao... oF 7. r [ech mica, DuUuwYV eas [fa PIL Bane ~421rcf Reference is made to your memorandum of August 20, 1973, i . detailing a format to be followed in setting forth our responses to your memorandum of July 20, 1973, captioned "Substantive Issues Regarding \ the Future of the FBI." Attached is an undated study of 17 pages with | | a five-page appendix captioned "Electronic Surveillance." an This study was prepared in response to your July 20, 1973, | request, prior to receipt of ycur format memorandum of August 20, 1973. af The responses to most of the questions raised in your August 20, 1973, iN memorandum are contained in this study. Rather than repeat points \ considered in this study, it is attached and it is recommended it be read N? i ‘priory to the attached paper dated September i4, 1973, written according Ps - to your suggested format. This second paper considers issues raised in N aw _ your August 20, 1973, memorandum not discussed in our first study, e.g., é f "Options for Future Policy." Attached to the September 14, 1973, paper , is a copy of a petition for rehearing in U.S. v. Ivanov, and a duly 11, . ° be, 1973, memorandum concerning the !vanov ease to that date. These attach- oy o ments pertain to a discussion of foreign national security electronic Pa surveillance in the September 14, 1973, paper. secrets) si ai y 19s REC? G6 - 160 - 35/3" RQ: UY CAUTION?” THE APPENDIX TO Chine UNDATED PAPER CAPTIONED ferEct 4 yp ? - ‘PRONIC SURVEILLANCE," AND THE JULY 11, 1973, MEMORANDUM ARE_..o.f tee J _ CLASSIFIED "SECRET, NO FOREIGN ee enone eee = a X ABROAD." SENT SROH D9 ROK P : Q Din pncloe 4 pos eg H . ‘\ er Lf iN ve 4 r ois a y BY pects | b> re 3 a} Mite JEM ale, HINTERTL ATTACHE \ se E es&Com — (8) a 14 h. inv. Vt , i 3 Dae 5 yg | NATION (cuRrty’ AG: male " ‘sl ate Disclosure c fe Regs Ay 4 a Criminal Sanetiors ‘ . mie ~ yy . The “foove memorandum and énclosures are in response to the ‘. le “alia. Attor ney General Ruckelshaus' A norende of :7/20 and 8/20/73 concern- Si Mind’ *Substan issues Regarding the Future of the FBI." These materials are ae “Ap PeSRans Wed JtupreBMPeR Ne "Wiretaps." . Docld: SEGA pe 17 a a
A> T e | gy 1 { . , . rho t * ry yt oe . fe) e . . aN < can be if . . , ae eyed i ‘ on , . - “ . : st , 3. i ° ‘ * . . . “% as 2 } e ae . * “ - i < : a 2 ‘ ae i of . a a ; ~ . wo a i i. H j . t . . : : . m3 : This documenk’ is:  prepamed ink responsé te your ‘request and ts. not for Hissemnt~ nation outside .wour Committee, | ‘Tés use ts limited to official ‘proceedings by. eur Commiitiée and thé conter* may .rivt.-be disclosed to’ untuthorized person : wil ‘weithout. thé eupress approval of the. FBI. . Beh Sy . -—SBGRELP MATERIAL ATTACHED ; - “3 mo oy. 3 WW 55084 gest CG. ‘100 - BS/3 vee ee ey ee DoclId: 32969541
TSR —— = —— t Lg Ye : " . t. ~ oo? . - A, . + > [a : ts ‘. tant ” " iy oa ay vipee wee . . e t . . on . e : . s . on bots ' . ‘. -. : Ty ., . Lee ee, “ . . *S a “ ~ ° ay : an . . :. . . TABLE OF CONTENTS ‘e e nd 2 Sg ie he an a . Pane . . . . ween as Authorization of Consensual, Title III, and National Security Electronic Surveillances ... AY Consensual e e e ° - ° e . °o ° e e e ° 6 : e ae Be Title IIIT. .... . . . — . ee . “e Soe . os C. National Security. .. . conceals we ee my Background of Federal Electronic Surveillance . Law e e e © e- e e c ee e . AJ c e e e es e oe 6 o es e Say, National Sécurity Electronic Surveillance. ... ce (TAA. Domestic . 2... : , oe eo ele we ete a . 1. The Keith Decision... ....0.. ee Piet) J" 2. “Guidelines and Procedures Currently Used , ot -by the FBI and the Department of Justice in Determining Whether a Proposed National “Security Electronic Surveillance Falls — 7 : Within/Without the Keith Decision. ... 7 “3. Status... oe ete ec be ew we ee e Ll j B, Foreign. eo ee e ° - . * e ° . : © ee . a e 11 & _ Iv. Value of National Security Electronic | . . Surveillances eo © e «© “e e© &9 #© # © @ © #@# © @ @ @ « 13 . “VW, Domestic "Internal Security" Electronic Surveil- - Jance: Alternatives to Keith Prohibition. ... 14 Appendix e e ° ° e es . e e : . o e e e e e e e * e . i NN N HW ASNed Docld:32969541 Page 19
3 rn fa) . . ‘ . . Lee, ary a "ts Cote : fo) 1 . . : . . ' eee - 7a . ‘ee AT 4 cone : . ne . \ Ly ' - : : . : Ns ere ees . .o a a a . woe ve ¥ ° e . . I. AUTHORIZATION OF CONSENSUAL, TITLE III, AND NATIONAL ' | SECURITY ELECTRONIC SURVEILLANCES i ¥ The legal foundation for each of the above types of electronic surveillance differs, and in part as a con- sequence of that, the administrative procedure for securing authorization to use each type differs. A. Consensual ; - The current law is that as long as one party to a conversation, whether over the telephone or in person, cansents to a monitoring of that conversation by another or a recording of that conversation by another or by himself, such a monitoring or recording is'‘legal, and may be introduced into evidence ‘in a legal proceeding. At present, the monitoring or recording of telephone conversations by the FBI with the consent of one of the parties, e.g., via a device attached to the consenting party's telephone or a monitoring via use of an extension telephone, is authorized ‘internally within the FBI by either a Special Agent in Charge .or, if the case is “sensitive," by a Headquarters official, generally the Director. On the other hand, the present policy with regard to consensual monitoring of nontelephone conversations, es g., body or hidden recorders or transmitters, is that the Attorney General must approve these in advance, except in an emergency, at which time the Director (or someone designated by him) can approve them and then promptly notify the Attorney General. The method of requesting Attorney General approval, or of notifying the Attorney General of the exercise of the emergency authorization, is a memorandum to the Attorney General setting forth the identity of the target, the background of the case, and the reason for-the request or authorization. B. Title III These electronic surveillances are permitted by act of Congress for the purpose of gathering evidence of enumerated crimes. A requirement for the submission of an affidavit to a court showing probable cause that a crime is being committed and that evidence not obtainable otherwise - Can be obtained via the electronic surveillance is set \ HW 55004 Docld: 32969541 Page 26
. . . Sn gen Rn ANE S seeaetc apn atte atte ee . at Py n ete forth in the statute.. Current procedure is to submit to the Attorney General a copy of the affidavit the FBI proposes to submit to the court, with a cover memorandum setting forth the background of the case. The affidavit has been worked out - between FBI field personnel and ‘the local United States or | a Strike Force attorney, and between FBI Headquarters personnel : and Department of Justice attorneys before submission to the Attorney General. The Attorney General either approves . , or disapproves proceeding with the application for court . / approval via a memorandum to the Director.  e National Security i ae The continuous position of the Department of Justice and several Presidents has been that the President has the constitutional power to authorize warrantless electronic surveillances in the exercise of his Articles ITI and IV responsibilities “to conduct foreign affairs" and - , :. “to protect the States against invasion." This power has "generally been exercised by the Attorney General for the President. While not specifically approving this interpre- tation or intending to grant or restrict any powers along ' these lines, but rather as a declaration of noninterference, Congress, when it passed Title III, stated in 18 U.S.C. 2511(3). that nothing in Chapter 119, Title 18, of the U.S.C. or in Section 605 of the Federal Communications Act of 1934 limited the con- stitutional powers of the President (whatever they might be) to authorize electronic surveillance: (1) to protect the Nation against actual or potential attack or other hostile acts of a foreign power; (2) to obtain foreign intelligence information deemed essential to the security of the United States; (3) to iN - protect national security information against foreign intelligence q activities; (4) to protect the United States against the over- ° throw of the Government by force or other unlawful means; (5) (to protect) against any other clear and present danger to the ' structure or existence of the Government. a cen eee ne, In United States versus U.S. District Court for the Eastern District of Michigan (407 U.S. 297), commonly called the Keith case after Judge Damon Keith, the Supreme Court held ° that the President did not have the power to authorize warrant~ less electronic surveillance directed against purely domestic organizations (and their members). The Court stated that the issue in Keith fell within the language of categories 4 and i a HW 55084 DoclTd: 32999541 Page 21
. requesting approval for initiation or continuation of an 5, as above, of 18 U.S.C. 2511(3), and that it was not deciding on’cases. involving individuals or organizations that had a "significant connection" with a foreign power. Consequently, since Keith, the only requests for. national security warrantless electronic surveillance referred to the Attorney General for approval involve individuals or organizations with a "significant connection" with a foreign. power. The procedure for submitting these requests is uniform. The Director submits to the Attorney General a memorandum electronic surveillance on a particular individual or organizaticzn: an attachment which is a summary of background information and ‘the circumstances on which the request is based; and a memorandum from the Attorney General to the Director approving the electronic surveillance based on, and in the language of, one or more of categories 1 - 3 of 18 U.S.C. 2511(3). If the Attorney General approves the electronic surveillance, he signs and returns this latter memorandum and keeps for his records a copy of the Director's memorandum to him and a copy of the attached . summary. ok - ; a. oh . * HW 55064 Docld:32989541 Page 22 fE EO mate
, =< = . . & et. : . y ‘ " ae } . . i . oF eo Pee ae” . an a ~ ys *. .° oF tht. & wor . ° - . oo XI. BACKGROUND OF FEDERAL ELECTRONIC SURVEILLANCE LAW , The term electronic surveillance encompasses both wiretapping (tap), i.e., the interception of a telephone conversation by a third party, and microphone surveillance . (bug), i.e., the interception of a nontelephone conversation by means of a microphone which can lead either to a recorder or merély transmit the conversation to a third party, or both. Both wiretapping and microphone surveillance can be conducted with or without the knowledge and consent of the parties to the conversation. Consensual monitoring, i.e., tapping or bugging with the consent of one of the parties to the conversation, has generally been held to be legal, and is not considered in the following | discussion. . ABE Carte OL rmts EEE TERA RT MRE? THER cE Heme OOO MAS W bapee The separate development of the law pertaining, to wiretapping and microphone surveillance is, since passage of ‘Title ITI of the Omnibus Crime Control and Safe Streets Act of 1968 and the Keith decision, apparently of historical interest - Paap HC . Prior to Title III and Keith, the law that developed around electronic surveillances concerned itself primarily with the admissibility of evidence obtained from electronic surveillances rather than with the basic issue of the ‘"legality"” of electronic surveillance itself. ‘Evidence, or evidence obtained from leads, gathered via wiretapping was excluded from any criminal prosecution on the basis that pre- ‘sentation of such evidence was a "disclosure" prohibited by Section 605 of the Federal Communications Act; and evidence, or evidence obtained from leads, gathered via a microphone surveil- . lance or a wiretap was excluded if it was determined the instal- lation required a "trespass" and was thus an unlawful search and seizure. (These decisions often turned on technicalities such as minimal physical penetration by a "spike mike.") Title III established the Congressional intention that electronic surveillance, under specific conditions, is to be lawful and the evidence obtained therefrom admissible. Title III also, while not conferring any statutory authority on the President, indirectly recognized that he was authorizing warrantless electronic surveillances in matters
_ HW 55084 DocId:32989541 Page 24 meee affecting’national security, and stated that Title III or Section 605 of the Federal Communications Act did not- affect any such powers. he might have. ; Title III did not distinguish between wiretaps and microphone surveillances, and court decisions since Title III involving both criminal and national security matters seem to be drifting away from the artificial bases _ ; that distinguished these electronic surveillances in the past A and are looking at the real issue of governmental powers ; ‘4 versus Fourth Amendment rights and the right to privacy. The requirement of prior judicial review, the element on which Keith turned, is a new factor in judicial consideration of electronic surveillances, introduced by Title III. a oe one