oe 4 “IIT. NATIONAL SECURITY ELECTRONIC SURVEILLANCE .e wt A. Domestic er. i. The Keith Decision The case originated as U. S. versus Plamondon, . [. et al., and involved Federal prosecution of defendants accused - Of bombing the CIA office in Ann Arbor, Michigan, in September, 1968. Pursuant to a defense motion, Federal _ Government electronic surveillance records were checked and revealed Plamondon had been intercevted via a national security : Wiretap on the Black Panther Party office in Oakland, California. Foe “Under current court procedure regarding national “* gecurity electronic surveillances, the Government is required . to disclose to the court all interceptions; the judge then oe determines whether the interception was legal or illegal. ; If he finds it to be illegal, he orders the prosecution to ‘make available to the defense all the logs and tapes pertaining ‘to the interception so that the defense can determine if any , OF the case against it is based on illegally obtained eléctronic surveillance evidence. The trial Judge Damon:Keith held that the President had no power to authorize electronic surveillance of the Black Panther Party without prior judicial approval, i.e., a Warrant, that therefore the wiretap was illegal, and the j prosecution had to turn the logs and tapes of the conversation - over to the defense. “ ’ Pee peE sent ' & The Government appealed this decision to the ~ Supreme Court, thus the case at that level was titled U.S. versus U.S. District Court for the Eastern District of Michigan, commonly called the Keith case. Aermenprnes. na On June 19, 1972, the Supreme Court affirmed Keith's decision and held that the President has no warrantless, national security power to authorize electronic surveillance of domestic organizations (or their members). The Supreme Court defined a domestic organization as one having no “significant connection" with a foreign power, its agents or agencies. - Ge ! Seemed re FANCONI RINNE EOIN MURMUR FOUR ERENT 9D HW 55064 Docld:32989541 Page 25 7
The Justice Department, in the words of Deputy Assistant Attorney General Kevin J. Maroney before the Senate Subcommittee on Administrative Practice and Procedure on June 29, . 1972, stated that it understands "significant connection” to :. mean that the domestic organization must be substantially ‘financed by, or in active collaboration with a foreign power for the purpose of committing unlawful activities against the United States Government. . . ".. 2, Guidelines and Procedures Currently Used by the FBI and °° the Department of Justice in Determining Whether a “7, Proposed National Security Electronic Surveillance Falls ‘+ Within/Without the Keith Decision . Co The Keith decision applies solely to a domestic Te organization (and its members ) with no significant “connection with a foreign power." The issues are what constitute a "domestic organization" and "significant _eonnection.' The Department of Justice has issued the FBI no formal . oral or any written guidelines on these issues. . The reason is that the standard to be applied 4s a "facts and circumstances" test in each case in the light of the Supreme Court's language in the Keith case and the ‘Department of Justice's position as stated by Mr. Maroney before the Subcommittee. : The Supreme Court in Keith said that while it was "attempt (ing) no precise definition" the scope of its decision was limited to a “domestic organization...composed of citizens of the United States...which has no. significant connection with a foreign power, it agents or agencies." The Court also recognized the difficulty in distinguishing "between _ ‘domestic' and 'foreign' unlawful activities directed against the Government of the United States where there is collabora- tion in varying degrees between domestic groups or organizations and agents or agencies of a foreign power." i ra 4 & i . t i 5 .¢€ i ° 4 5 k 5 | ; i | “ 2 z i ° F] i i F H : g i i : 3 - z s H The Subcommittee asked the Department of Justice what level of foreign dominance and control of a domestic group would be considered sufficient to bring the group into the area of foreign activities on which the Court has not yet ruled. Maroney replied: ATOR REPT opt TEESE ott a0 ~JPe- “ Ny . mettoeeryconmesanmneyrsiee ipewntiene esi eet Rrex HY_55084 DocTd:32989541 Page 26
* etl pe ee . ete oe, ee . . bo wee . war te a ee . . . “- + ou Cs eee wa s ve - 7 - added.) ‘Phe Keith decision has ‘suggested a standard of "significant connection with a foreign power, its agents or’agencies.' We do not interpret this as meaning casual,. unrelated contacts and communications with foreign governments or agencies thereof. We would not try to apply this standard without the presence of such factors as substantial financing, control by or active collaboration with a foreign government and agencies thereof in unlawful activities directed against the Government of the United States. Obviously, such factors will be present in a very minimum number of situations. (Emphasis added.) . . mos "ET wish to assure ‘the (sub) Committee on behalf of the Attorney General, that the Department of Justice accepts both the letter and the spirit of the Court's ruling in the Keith case. It is the intention of the Executive Branch to utilize electronic surveillance in present and . future national security matters in full and ungrudging application of the rationale of the decision." (Emphasis “fhe FBI carried on an informal dialogue with - the Department of Justice after the Keith decision in an attempt to establish some general guidelines in the abstract, but the discussions eventually came back to the above language, and the conclusion that each case requires a facts and circum- stances test,: and an exercise of the independent judgment of the Attorney General on the facts presented. -As a result, the FBI submitted some borderline cases, which it recognized as such, to the Attorney General in order to get a feeling of how he and the Department of Justice applied the above standard to specific fact situa- tions. Some were approved, some refused. As a result _the FBI feels it has-a fairly clear idea of the outer limits, beyond which no electronic surveillance will be approved. The lack of formal guidelines beyond the Court's language and Maroney's testimony presents no practical or administrative difficulty within the FBI. As Maroney noted, the factors he related would be present in a very minimum number of cases. That is true. Prior to Keith, domestic national security electronic surveillances conducted by the FBI had been winding down for some time. At the time of the Keith Gecision only six, four telephone and two microphone, were in| | HW_A5084 Docld:327989541 Page 27 3 i i E ; f i i t | many, ene a > a an ale eat Aisha ie el ne iat eee nite eal weed net nae ater ae eater ee at « s alllnectehe netenaemeniaodiaaieitianunenanmsaid seateneke aii
Yer ise SS . rand ie effect. The few cases in which are present some of the ~~ factors noted by Maroney are subjected to joint scrutiny by, and discussion between, FBI field and Headquarters supervisory personnel, and only after these feel the FBI may have a case does the field initiate the request, which must be personally “approved by the field supervisor and the Special Agent in Charge. Upon receipt, the Headquarters supervisor drafts a memorandum to the Attorney General, setting forth all pertinent facts, including those showing foreign involvement, on which f the request is believed justified. He must also be able to i -justify the request in the language of one or more of the first. three categories of 18 U.S.C. 2511(3). The request is presented through channels (i.e., Headquarters unit chief, section chief, branch chief, Assistant Director of the Intelligence Division, Associate Director, and Director) to the Attorney General who i ‘must make an independent judgment. ° sl ono ‘There are arguments pro and con that the lack of - formal written guidelines pose an added threat to the Fourth 3 Amendment rights or right to privacy of a domestic organization or individual. The argument that it does pose an added threat worsa _seem to be based on the supposition that formal guidelines would -be exclusive, and binding in all instances. Any guidelines - issued would probably be moré illustrative of the above standard than definitive. Formal written guidelines made available to the public might curtail criticism that we are operating without a definitive standard, however, they might also trigger criticism that they are too vague, not inter- pretive of the Court's intent, etc.; and, should a case arise that does not fit squarely within the guidelines but could possibly be justified on a broader standard, reasonably -within the Court's language, we could be criticized for not . adhering to our own guidelines. Both career professionals in : \, the FBI and Department of Justice attorneys review the electronic ‘ surveillance request for need, sufficiency, and legality. The q, Department of Justice. has committed itself, and the FBI, to ‘abiding by the letter, spirit, and rationale of the Keith Gecision (and has expanded upon the decision to the extent of Maroney's testimony). If legal action ensues, whether criminal or civil, the courts in looking at the legality of a national security electronic surveillance are bound only by the Keith Gecision regardless of any Department of Justice guidelines. _ In summary then, the procedure is: the FBI does not submit a request to the Attorney General for approval of an electronic surveillance upon a domestic organization composed of
United States citizens, unless it has a "significant connection" with a foreign power, its agents or agencies; by "significant connection" the FBI and the Department of Justice understand that the domestic organization must be substantially financed by, controlled by, or in active collaboration with such foreign power for the purposes of committing unlawful activities against the United States Government. The FBI presents its request to 7: Attorney General with all the facts and circumstances on which th reguest is_ based, and he must exercise an independent judgrient 4 _to whether the request falls within this standard and the letter, spirit, and rationale of the Keith decision. | REKERARKER Es ‘Senator Kennedy has expressed concern in the past that a political appointee, the Attorney General, rather than ‘career professionals, is the final authority on these matters. ' | This is a two-edged sword. If the ultimate authority were non- public career professionals, there would be less response from them than from the appointee of an elected official to public pressure criticizing procedures and decisions. J On the other hand, the Attorney General's decision . could possibly be based more on personal political attitudes and motivation than on his interpretation of the jaw. The present procedure attempts to meet both short- comings. The Attorney General ‘does not recommend or initiate _electronic surveillance requests; they are initiated by and processed through severai levels of career professionals who at each step judge whether the request falls within the standard. The request is then sent to the Attorney General, who refers it to the Internal Security Section, Criminal Division, of the Department for its independent judgment, before he makes the’ ultimate decision. Thus, any electronic surveillance request, if it makes it to the Attorney General, has already been approved by the career professionals. It is arguable that a career professional might be more cautious if he, and his agency, bore the final authority and responsibility rather than passing both on to another agency. There is no airtight response to this; it is a question of human motivation, sense of obligation, duty and responsiblity. The impulse to be less than diligent is countered by an employee's professionalism and career considerations. ; . KEKKEKERER - 10 - woe ay
3. Status ’ The President has no warrantless power to authorize purely domestic national security electronic surveillances. He may have the power to subject’ domestic targets to electronic surveillance, but these electronic surveillances must be subjected to prior judicial review, i.e., a warrant, before. installation. Admissibility of evidence obtained from such electronic surveillances is a correlative question, not yet’ Girectly considered. Presumably, such evidence would be admissible. B. Foreign Te OR - The legality and admissibility of evidence issues” have not yet been directly considered by the Supreme Court. The issue of "legality," based on whether prior judicial review is required (key issue'in Keith), was resolved in the Govern- ‘ment's favor by the United States District Court, District of ' |New Jersey, in United States versus Ivanov. Following an ex “ * parte, in camera inspection of the surveillance logs by the <aistrict court and argument on the legality issue by the parties, the court sustained the authority of the Attorney General to “acquire foreign intelligence information by warrantless electronic “surveillance. , The United States Court of Appeals for the Third Circuit reversed and remanded, assuming, arguendo, that the President did have such authority and that therefore any electronic surveillances in the case were legal. Further, the Appellate Court felt it had to assume "in the present posture" of the case, ‘that the case was in fact built on electronic surveillance evidence. Consequently, the Appellate Court held that since ‘the case arose prior to cassage of Title III, Section 605 of the Federal Communications Act of 1934 applied, and it prohibited "divulging" of electronic surveillance results as evidence in court. . The issue of the legality of foreign national security electronic surveillances is also currently under advisement by , the United States Court of Appeals for the District of Columbia Circuit in the case of United States versus Enten. In Keith, the Supreme Court specizically noted that two lower courts (the Fifth Circuit Court of Aspeals in United States versus Clay, - .l.- W.55084 DocId:32989541 - Page 30 ee se eee ener ce a roan a deka chase uleahekaael Lateainataadeh eh hh ete NTO 2 Heme petite repent wees oe Ameer Sete pas
- O£ the activity, viz., foreign intelligence gathering,: _prior to Title III and Keith. can NY “em Ya 430 F.2d 165 (1970) and the. United States District Court, Central District of California in United States versus Smith, 321 F. Supp. 424 (1971)) have held that “warrantless surveillance... ‘May be constitutional where foreign powers are involved." . The argument that even foreign related electronic’ surveillances should be subject to initial judicial review is based on the argument that this is the only guaranteed method of protecting the Fourth Amendment rights and right to privacy of aliens, and United States citizens who might be involved. The argument on the other side is that the nature and objective’ the needs the many nonprosecutive factors to be considered, do not lend themselves to effective consequently, the Govern- of security, and often the time element, or efficient initial judicial review; “ment must be granted a measure of confidence to utilize this technique on its own authority, with the safeguards of protection from conviction or the remedies of a civil action available to any target of an electronic surveillance, if the Government -abuses this authority. This area-is still in limbo, the same condition as Until Ivanov and Enten, or more likely until a post Section 2511(3) espionage case, actually built on electronic surveillance evidence, are decided by the Supreme Court, the Government, to be safe, must be willing to ‘sacrifice a criminal prosecution to obtain electronic surveil- lance intelligence. -~ 12 - i532 41 Page 31 PERE FEEL EF crest +
IV. ‘ VALUE OF NATIONAL SECURITY ELECTRONIC’ SURVEILLANCES (See classified Appendix) . a ¥ a - . a “4 s ad . < % ¢ * “ % - ry Be - a a ~ “ * ° “ « ae , : - ’ 2 . . ~” . - 4 -
Q "oat sont ve a * - . Cc . ote . « . 1 wos . t ot . . . wd ‘ - 1 . . x. . ~ . a 4 oar - Poe 7 “a ta . , vo ° V. DOMESTIC "INTERNAL SECURITY" ELECTRONIC SURVEILLANCE: .¢ ALTERNATIVES TO KEITH PROHIBITION There are several elements within United States society which pose a threat to the safety and tranquility of segments of that society, e.g., police officers, symbols of the "Establishment," etc. While some of these elements claim to be “revolutionary” and claim as an ultimate objective the overthrow of the United States Government, there is no respon- ‘Sible opinion that feels any of these elements have any chance of success in toppling the Government. Yet, they do pose a significant threat of inflicting serious, and sometimes ex~- tensive, damage on individuals and property. i é E i 5 £ t “E : . In combatting these elements, law enforcement is confronted with the opposite of its usual task. Ordinarily, law ‘enforcement is confronted with a completed crime and investigates - to identify suspects and to prove guilt; in these cases it has » the suspects, e.g., individuals or groups have said they intend to murder police officers, bomb buildings, etc., so law enforcement's job is then to thwart commission of the crime. This is an intel- ligence investigation. It is conducted prior to a threatened criminal act, not after the act, and as such ranges wider and ‘ looks into more fawcets of the suspect's behavior. Yet, it is , not a "fishing expedition"; it is based on some solid indication _ ‘that the suspect intends tor and has the capability of,. committing " some crime. lett ah ane elie eel oa cee! tae ere .Because of the exaggerated rhetoric of many of these elements, which never do actually commit a crime, the difficulties in identifying specific individuals as suspects, in showing a cause-effect relationship between the urgings and claims of grouo leaders and:‘the act of the actual triggerman or bomber, and in showing suspected imminence of the criminal act, it is almost impossible to make a probable cause showing, as we understand _ that term today, to support a warrant for restricted types of investigation. Essentially what law enforcement has, or depending on your emphasis, all that law enforcement has, is a suspicion, based on stated criminal objectives of these elements, claims of -- criminal accomplishments, and indications from behavior and attitudes, that these elements may engage in destructive criminal behavior sometime in the future. : - 14 - \ \ 232989541 Page 33