FOREIGN INTELLIGENCE ELECTRONIC SURVEILLANCE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000500040009-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 306
• Document Creation Date: December 19, 2016
• Document Release Date: September 20, 2005
• Sequence Number: 9
• Publication Date: February 8, 1978
• Content Type: OPEN

Appr
16ftaINTEITIGEN@EDELICIF
SURVEILLANCE
ie0040009-6
BEFORE THE
SUBCOMMITTEE ON LEGISLATION
OF THE
PERMANENT
SELECT COMMITTEE ON INTELLIGENCE
HOUSE OF REPRESENTATIVES
NINETY-FIFTH CONGRESS
SECOND SESSION
ON
H.R. 5794, H.R. 9745, H.R. 7308, AND H.R. 5632
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1977
JANUARY 10, 11, 17, AND FEBRUARY 8, 1978
Printed for the use of the Permanent Select Committee on Intelligence
U.S. GOVERNMENT PRINTING OFFICE
28-615 WASHINGTON: 1978
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PERMANENT SELECT COMMITTEE ON INTELLIGENCE
(Established by IL Res. 658, 95th Cong., 1st sess.)
EDWARD P. BOLAND, Massachusetts, Chairman
CLEMENT J. ZABLOCKI, Wisconsin
BILL D. BURLISON, Missouri
MORGAN F. MURPHY, Illinois
LES ASPIN, Wisconsin
CHARLES ROSE, North Carolina
ROMANO L. MAZZOLI, Kentucky
NORMAN Y. MINETA, California
WYCHE FOWLER, JR., Georgia
TnomAs K. LATIMER, Staff Director
MICHAEL J. O'NEIL, Chief Counsel
PATRICK G. LONG, Associate Counsel
JEANNE M. MCNALLY, Clerk
BOB WILSON, California
JOHN M. ASHBROOK, Ohio
ROBERT McCLORY, Illinois
J. KENNETH ROBINSON, Virginia
SUBCOMMITTEE ON LEGISLATION
MORGAN F. MURPHY, Illinois, Chairman
ROMANO L MAZZOLI, Kentucky ROBERT McCLORY, Illinois
EDWARD P. BOLAND, Massachusetts
WILLIAM P. FUNK, Professional Staff Member
BERNARD RAMO, Jr., Professional Staff Member
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CONTENTS
HEARING DAYS rage
Tuesday, January 10, 1978 1
Wednesday, January 11, 1978 79
Tuesday, January 17, 1978 123
Wednesday, February 8, 1978 165
LIST OF WITNESSES
TUESDAY, JANUARY 10, 1978
Testimony of Griffin B. Bell, Attorney General of the United States;
accompanied by James Adams, Deputy Associate Director for Investi-
gation, Federal Bureau of Investigation; and John Harmon, Assistant
Attorney General, Office of the General Counsel, Department of Justice_ 13
Testimony of Adm. Stansfield Turner, Director of Central Intelligence;
accompanied by Anthony Lapham, General Counsel, Central Intelli-
gence Agency 45
Testimony of Adm. Daniel J. Murphy, Deputy Under Secretary for
Policy, Department of Defense; accompanied by Deanne Siemer,
General Counsel, Department of Defense 58
Testimony of Carl H. Imlay, General Counsel, Administrative Office of
the U.S. Courts; accompanied by Lisa Kahn, Administrative Office,
U.S. Courts 66
WEDNESDAY, JANUARY 11, 1978
Testimony of John H. F. Shattuck, executive director, American Civil
Liberties Union; accompanied by Jerry J. Berman, legislative counsel,
American Civil Liberties Union
Testimony of Louis H. Pollak, dean, University of Pennsylvania Law
School
91
98
TUESDAY, JANUARY 17, 1978
Testimony of John S. Warner, legal advisor to the Association of Former
Intelligence Officers, and former General Counsel, Central Intelligence
Agency 124
Testimony of Robert Sheehan, Committee on Federal Legislation, New
York City Bar Association 126
Testimony of Arthur S. Miller, professor, National Law Center, George
Washington University 138
Testimony of Morton Halperin, project on national security 143
WEDNESDAY, FEBRUARY 8, 1978
Statement of Hon. Edward M. Kennedy, U.S. Senator from the State of
Massachusetts 166
Statement of Hon. Charles E. Wiggins, U.S. Representative from the
State of California 185
Statement of Hon. Robert F. Drinan, U.S. Representative from the
Commonwealth of Massachusetts 189
Statement of Philip A. Lacovara, Esq., Hughes, Hubbard & Reed 210
Statement of Hon. Laurence Silberman, Dewey, Ballentine, Bushby,
Palmer & Wood 217
(III)
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APPENDIXES
Page
Appendix A. H.R. 7308, 95th Cong., 1st sess 235
Appendix B. H.R. 9745, 95th Cong., 1st sess 265
Appendix C. Letter from Attorney General, Griffin B. Bell, to Hon.
Morgan F. Murphy, January 26, 1978 287
Appendix D. Letter from 12 civil liberties groups to Attorney General
Griffin B. Bell, April 19, 1977 289
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FOREIGN INTELLIGENCE ELECTRONIC
SURVEILLANCE
H.R. 5794, H.R. 9745, H.R. 7308, and H.R. 5632
TUESDAY, JANUARY 10, 1978
HOUSE OF REPRESENTATIVES,
SIIRCOMMIITEE ON LEGISLATION OF THE
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
147 ash,ington, D .0 .
The subcommittee met, pursuant to notice, at 9,07 o'clock a.m., in
room 2362, Rayburn House Office Building, the Honorable Morgan F.
Murphy, chairman of the subcommittee, presiding.
Present: Representatives Murphy (presiding), Mazzoli, and Mc-
Clory.
Also present: Thomas K. Latimer, staff director; Michael J. O'Neil,
chief counsel ; Patrick G. Long, associate counsel; Bill Funk, and
Bernard Raimo, professional staff members.
Mr. MURPHY. The meeting will come to order.
Will the witnesse,s who are going to testify please stand and raise
your right hands, please.
Do you swear and affirm that the testimony you are about to give
to the committee is the truth, the whole truth, and nothing but the
truth?
Attorney General BELL. I do.
Mr. HARMON. I do.
Mr. ADAMS. I do.
Attorney General BELL. It is the only time I have ever taken an
oath without protesting. I take the position that as a lawyer I am
entitled to testify as I would in court, because I am a lawyer, but
since it is in the Intelligence Committee, I am not protesting this
morning. I don't want to lose my right to protest before other com-
mittees though.
Mr. MURPHY. Thank you, Mr. Attorney General. We appreciate
your attendance here today and your assistahee.
We are going to let the press take about 2 or 3 minutes of film and
still pictures and then we are going to ask them to leave the room, if
they would, during the testimony.
Mr. Mazzoli will be here. His plane was a little late.
FA brief recess was taken.]
Mr. MCCLORY. I was listening to the news this morning, Mr. Chair-
man. It said the hearings were on the CIA relations with the press.
I just wanted to be sure what the hearings are about this morning.
(1)
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You see, I get my news from the media, and they indicated this was
a hearing on the CIA and the press. I think that was last week's. I
was here last week for those hearings.
Mr. MURPHY. I can assure my colleague that the hearings today
are on the Foreign Intelligence Surveillance Act.
These hearings will come to order. By way of an introduction, let
me begin these hearings by noting that the Permanent Select Com-
mittee on Intelligence is a brandnew committee. Today marks our
first introduction to a very complex but very important area of intel-
ligence activity, electronic surveillance for the purpose of collecting
foreign intelligence.
Before the subcommittee thday are four bills. All deal with elec-
tronic surveillance within, the United States directed against any per-
son, be he a U.S. citizen or not.
Three of the bills provide for a judicial warrant procedure to au-
thorize these surveillances. Of these, the administration's bill,1 intro-
duced by Mr. Rodin?, chairman of the Judiciary Committee, and the
Railsback bill agree in nearly all respects.
The Kastenmeier bill also requires a warrant but greatly restricts
the scope of activity that it can authorize.
Lastly, the McClory bill 2 provides for an entirely different ap-
proach, where the Attorney General, the Assistant to the President
for National Security Affairs, and the President himself must per-
sonally approve each surveillance proposal.
All the issues presented by these bills are unresolved by the com-
mittee as we begin the hearing process. However, several points, in-
cluding the uncertainty of present law in this area, the possibility
that the communications of American citizens and permanent resi-
dent aliens may be intercepted as a result of the Government's foreign
intelligence gathering, and a desire to place all the activities of the
Government within the bounds of accountability established by law,
argue for statutory action.
I particularly want to preface the remarks that Judge Bell will
make this morning by applauding the cooperative spirit which this
administration has exhibited in drafting its legislative proposal.
The Attorney General and all the other affected members of the
administration have solicited and welcomed congressional participa-
tion in the drafting process.
It is my hope and that of the committee to continue that coopera-
tive spirit in these hearings as well as in the committee's consideration
in the future of related issues like charter legislation.
I would at this point like to yield to my colleague from Illinois, a
member of the subcommittee, Mr. McClory, who I would hope will
summarize his statement.
Mr. MoCLony. Thank you very much, Mr. Chairman.
I do ask leave to file my entire statement for the purpose of the
record since it does elaborate on my position with regard to this entire
subject.
Mr. MURPHY. Without objection, it will be entered into the record.
['The prepared remarks of Representative Robert McClory follow:]
'See appendix A.
2 See appendix B.
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PREPARED STATEMENT OF HON. ROBERT MCCLORY
Essential to the defense and security of our Nation is the ability to gather
and analyze foreign intelligence information. It is that information which is so
vital to the day-to-day conduct of American foreign policy and necessary for
insuring the security of this great Nation. The information must be timely,
accurate, and kept secure.
These requirements, however, pose a serious problem unique to open societies
which must have this information in order to safeguard the freedoms inherent
in their democratic form of government It is not the information which causes
the problem. Rather, it is the means by which the information is collected which
raise fundamental constitutional questions.
When two provisions of the Constitution appear to be in direct conflict,
legislators must rise above partisan considerations and execute their talents in
the best interests of this Nation.
The legislation which we are undertaking to consider in this Subcommittee
today poses for us this precise dilemma. The most efficient and timely method
to obtain foreign intelligence information is by the use of electronic surveillance.
But electronic surveillance of American citizens or aliens who are in this
country legally raises substantial questions in light of the guarantees provided
by the Fourth Amendment to the Constitution. The conflict we must resolve is
the President's power and, indeed, responsibility to conduct foreign affairs
under the auspices of the Constitution and the right of the people to be pro-
tected from unwarranted search and seizure.
Most agree that it is time to establish legislative criteria which will permit
the Executive to carry out its foreign affairs responsibilities with proper secur-
ity and at the same time insure that the civil liberties of the American people
are at all times safeguarded.
The Supreme Court has not resolved the question of whether surveillance
without a warrant conducted for the purposes of gathering "foreign intelli-
gence" is in violation of the Fourth Amendment or is precipitated by a Presi-
dential power based primarily on Article II of the Constitution. Several au-
thorities? have concluded that the answer to this fundamental conflict is to
require that all foreign intelligence electronic surveillance be conducted only
after the judicial branch authorizes a warrant. I am not convinced that this
resolves the fundamental issue at hand. It is imperative for the President to
obtain accurate and timely foreign intelligence information. At the same time,
the President's judgments about the necessity of the information must be pre-
sumed to be reasonable. And the reasonableness of a carefully weighed decision
by the President without the necessity of prior judicial approval must satisfy
the mandates of the Fourth Amendment.
What so many of the proponents of prior judicial approval of foreign intelli-
gence surveillance fail to understand is the differences in the, circumstances
which necessitate "searches and seizures" for law enforcement and those neces-
sary for foreign intelligence gathering. The purposes are, indeed, different;
therefore, the procedures to authorize such "searches and seizures" should be
different. To require a judicially determined probable cause standard for au-
thorizing electronic surveillance to solve a crime is a long standing practice.
When, however, obtaining national security information becomes the objective
of the electronic surveillance, the standard for authorization must be based on
different criteria.
It is with these considerations in mind that I have introduced H.R. 9745
which retains within the Executive?where it should be?the authority to ap-
prove national security foreign intelligence surveillance. This legislation would
require approval of all electronic surveillance by the President, Attorney Gen-
eral, and the Assistant to the President for National Security Affairs. This
approval is non-delegable. By requiring the consensus of the President and the
two highest ranking national security officers to approve such surveillance, it
is clear that this proposed statutory authority would only be utilized in the
most narrow of circumstances.
The Supreme Court has never held that surveillance conducted for the pur-
pose of foreign intelligence gathering must have prior judicial approval based
on probable cause. The lower federal courts have spoken directly on the issue.
In fact, just last year, the Ninth Circuit declared that "foreign security wire-
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taps are a recognized exception to the general warrant requirement (of the
Fourth Amendment)", United States v. Buck, 548 F.2d 871, 875 (9th Cir. 1977).
Moreover, it would be intolerable for courts, without the relevant informa-
tion, to review and perhaps nullify the Executive's action on properly held
secret information. And, even if the courts sit in camera it may well be im-
possible to safeguard this information.
As the Supreme Court has held, decisions involving foreign intelligence should
be retained solely in the political departments of our government?the Execu-
tive and Legislative?for the issues involved "are delicate, complex, and in-
volve large elements of prophecy. They are and should be undertaken only by
those directly responsible to the people whose welfare they advance or imperil.
They are decisions of a kind for which the Judiciary has neither the aptitude,
facilities, nor responsibility and which has long been held to belong in
the domain of political power not subject to judicial intrusion or inquiry."
H.R. 9745 provides that the Executive will be checked?not by the Judiciary
but by the Legislature. Annual reports of foreign intelligence surveillance must
be made to the appropriate Congressional committee.
There are other differences between my bill and the Administration's ver-
sions. Some provisions of the Administration's bills would, in my opinion,
severly limit our intelligence capabilities, for example, surveillance of an indi-
vidual who is suspected but cannot be proven to be in contact with foreign
intelligence groups would not be permitted under the Administration's bill.
United States citizens who are recruitment targets of foreign intelligence groups
would not be liable for electronic surveillance. This, also, would severely re-
strict our counterintelligence capabilities. Moreover, by requiring perhaps un-
realistic standards for the information which may be sought by surveillance,
these bills further restrict what may be vital intelligence activities relating
directly to our national security.
The strengths and advantages of H.R. 9745 are clear. It is a bill which re-
sponds adequately and realistically to the major needs of foreign intelligence,
in terms of scope, security and timeliness. There are numerous checks on pos-
Rible future abuses of the authority being granted here, and safeguards for
our civil liberties. The legislation provides procedures for necessary account-
ability and effective oversight by Congress and the courts. H.R. 9745 is a
realistic balance between our necessary foreign intelligence and national se-
curity needs and the liberties which we are determined to defend through
such activities.
Mr. MCCLORY. Let me say that in my view, essential to the defense
and security of our Nation is the ability to gather and analyze for-
eign intelligence information. It is that information which is so vital
to the day-to-day conduct of American foreign policy and necessary
for insuring the security of this great Nation. This information must
be timely, accurate, and kept secure.
These requirements, however, pose a serious problem unique to
open societies which must have this information in order to safe-
guard the freedoms inherent in their democratic form of govern-
ment. It is not the information which causes the problem; rather, it
is the means by which the information is collected which raises fun-
damental constitutional questions.
When two provisions of the Constitution appear to be in direct
conflict, legislators must rise above partisan considerations and exer-
cise their talents in the best interests of the Nation.
Most would agree that it is time to establish legislative criteria
which will permit the Executive to carry out its foreign affairs re-
snonsibilities with proper security and at the same time insure that
the civil liberties of the American people are at all times safe-
guarded.
The Supremo Court has not, up to this time, resolved the question
which is confronting us here today.
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It is with these considerations and others which are set forth in
my statement that I have introduced H.R. 9745, which retains
within the executive, where in my opinion it should be, the author-
ity to approve national security foreign intelligence surveillance.
This legislation would require approval of all electronic surveillance
by the President, the Attorney General and the Assistant to the
President for National Security Affairs. This approval is non-
delegable. By requiring the consensus of the President and the two
highest ranking national security officers, such surveillance would
only be utilized in the most narrow of circumstances.
H.R. 9745 provides that the Executive will be checked, not by
the Judiciary, but by the Legislature. Annual reports must be filed
before the appropriate Congressional committee.
There are other differences between my bill and the administra-
tion's version, which I might say, is patterned after a version de-
veloped by former Attorney General Edward Levi. Some provisions
of the administration's bill would, in my opinion, severely limit our
intelligence capabilities. For example, surveillance of an individual
who is suspected but cannot be proven to be in contact with foreign
intelligence groups would not be permitted under the administra-
tion's bill. United States citizens who are recruitment targets of
foreign intelligence groups would not be liable to electronic surveil-
lance. This, also, would severely restrict our counterintelligence
capabilities. Moreover, by requiring perhaps unrealistic standards
for the information which may be sought by surveillance, these bills
further restrict what may be vital intelligence activities relating
directly to our national security.
The strengths and advantages of H.R. 9745, which is my bill, are
clear. It is a, bill which responds adequately and realistically to the
major needs of foreign intelligence in terms of scope, security, and
timeliness. There are numerous checks on possible future abuses of
the authority being granted here, and safeguards for our civil liber-
ties. The legislation provides procedures for necessary accountability
and effective oversight by Congress and the courts. II.R. 9745 is a
realistic balance between our necessary foreign intelligence and
national security needs and the liberties which' we are determined
to defend through such activities.
Thank you, Mr. Chairman.
Mr. Munrny. Thank you, Mr. McClory.
I would like to introduce the other member of our subcommittee,
the very distinguished member from Kentucky, Mr. Mazzoli.
Mr. MAzzota. Thank you very much, Mr. Chairman. I have no pre-
pared remarks. I may later submit prepared remarks for the record.
I would like to welcome our distinguished witness and his colleagues
today, and to thank you, Mr. Chairman, for having taken the leader-
ship on a very important piece of legislation. As we all know, time
is really pressing. We are in the second session of the 95th Congress.
This bill is a very important one. It is the centerpiece of the new
approach toward foreign intelligence, and with respect to our com-
mittee, one of its major pieces of legislation.
So I thank you for even calling these meetings during the so-called
recess. I think it shows how intensely interested our committee and
our chairman are in trying to get this bill moving.
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So I think you are to be congratulated and we have a pretty full
plate of fruit on the table for this one.
Mr. MUMMY. Thank you, Mr. Mazzoli.
Mr. Attorney General, let me on behalf of the committee welcome
you here today and thank you for accommodating this committee.
[The prepared statement of Attorney General Bell follows:]
PREPARED STATEMENT OF GRIFFIN B. BELL, ATTORNEY GENERAL
Mr. Chairman and members of the committee, I am pleased to testify before
you today in support of H.R. 7308. This legislation would authorize the use,
subject to court approval, of electronic surveillance to obtain foreign intelli-
gence and counterintelligence information within the United States.
In my view, this bill is one of the most important measures before Congress
this year. As you know, foreign intelligence electronic surveillance has been
conducted by our government for many years without explicit statutory au-
thorization or regulation. While these surveillance techniques are extremely
useful in gathering intelligence information, they also intrude upon the privacy
of their subjects. Thus, their use raises a difficult problem, that of finding the
proper balance between the vital need of this country to protect its security by
collecting foreign intelligence information, and the equally important need to
protect the civil liberties of persons in the United States and American citizens
abroad.
Only in the last few years has this problem received the public attention
that it deserves. The Executive Branch has in the past dealt with this problem
in particular cases without the guidance of a public law that authorizes proper
actions, prohibits the improper, and draws a clear line between the two. This
bill is a first step toward changing that situation. I believe that it strikes a
proper and reasonable balance between the vital interests at stake.
Clandestine intelligence activities might be considered an anomaly in a free
society. Virtually all functions of our government are subject to exacting
scrutiny by means of legislative oversight, judical review, press comment, and
ultimately, citizen control in the voting booth. On the other hand, clandestine
intelligence activities, by their very nature, must be conducted by the Execu-
tive Branch with a degree of secrecy that insulates them from the full scope
of these review mechanisms. Such secrecy in intelligence operations is essen-
tial if we are to preserve our society, with all its freedoms, from foreign
enemies.
We are all aware that there have been abuses of electronic surveillance in
the past. Strict internal measures taken by this Administration and the previous
one are designed to prevent their recurrence. But no matter how effective these
executive safeguards are, and I do believe they are effective, legislation would
seem to be in order as an added protection.
This bill was developed by means of extensive consultation between members
of the Executive Branch representing all the affected agencies and a substantial
number of interested members of the Legislative Branch. The high degree of
bipartisan cooperation among Executive and Legislative officials that led to the
drafting and introduction of this bill has continued during its consideration by
the Congress. The Senate Judiciary Committee held prompt hearings and has
reported the bill, known as S. 1566, with a number of amendments that are fully
acceptable to the Administration. The Senate Intelligence Committee has held
hearings and will soon mark-up the bill.
I am particularly gratified by this Committee's prompt consideration of the
legislation, exemplified by today's hearings. The debate is further enhanced by
three other bills also before the Committee. I recognize the serious thought that
has gone into all of these proposals?H.R. 5632, introduced by Representative
Kastenmeier ; H.R. 5794, introduced by Representative Railsback ; and H.R.
9745, introduced by Representative McOlory. While the Administration remains
committed to H.R. 7308 as the best way to resolve the sensitive and difficult
issues raised by foreign intelligence electronic surveillance, we have all bene-
fited from the hard work of these Congressmen.
For the Committee's information and assistance, I am submitting copies of
my testimony before the Senate Judiciary and Intelligence Committees. These
statements discuss in greater detail some of the issues I am touching on here.
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I would particularly call your attention to the improvements in this bill over
a similar measure introduced in the last Congress. First, the current bill recog-
nizes no inherent power of the President to conduct electronic surveillance.
Second, a prior judicial warrant is now required for all targeting of Americans
in the United States for electronic surveillance of their international com-
munications. Third, judicial review authority in the warrant procedure is
strengthened. I would like now to review briefly the major features of H.R.
7308.
The bill authorizes the Attorney General to approve applications for warrants
to conduct electronic surveillance within the United States for foreign intelli-
gence purposes. Applications would be made to one of seven district court
judges publicly designated by the Chief Justice of the United States.
A warrant application may be approved only if the judge finds that the
target of the surveillance is a "foreign power" or an "agent of a foreign
power." These terms, defined in the bill, ensure that no United States citizen
or permanent resident alien could be targeted unless there is probable cause
to believe that he is engaged in clandestine intelligence, sabotage, or terrorist
activities for or on behalf of a foreign power in violation of the law, or that
he is, under the direction of a foreign intelligence service, clandestinely col-
lecting or transmitting information or material under circumstances which in-
dicate the transmission of such information or material would be harmful to
the security of the United States.
The bill provides safeguards, termed "minimization procedures," to limit the
acquisition, retention, and dissemination of information regarding United
States persons that does not relate to the purposes for which surveillance was
authorized. Moreover, in order to ensure that the information sought by sur-
veillance is indeed "foreign intelligence information" necessary to our security,
a warrant may be issued only if a certification to that effect is made to the
court by the Assistant to the President for National Security Affairs or a
similar official. If the target of surveillance is a United States person, that
certification is reviewable by the court under the familiar "clearly erroneous"
standard.
Because of differences in the types of targets for electronic surveillance, the
bill creates two different types of warrants. A special warrant requiring dis-
closure of less sensitive information to the judge and allowing surveillance for
up to one year is available where there is no involvement of United States
persons. A more detailed warrant application is required for targeting U.S.
citizens and permanent resident aliens, and surveillance is limited to 90 days.
A procedure for emergency warrantless surveillance for up to 24 hours is pro-
vided. Extensions beyond the authorized 90-day or one year periods require re-
application through the same procedures and with the same judicial findings
as original applications.
Oversight is accomplished by means of annual reports to the Administrative
Office of the United States Courts and to the Congress of statistics concerning
applications and warrants. The President is committed to providing other in-
formation necessary for effective oversight to appropriate Congressional Com-
mittees in executive session.
In closing, I cannot stress too much the importance of the enactment of this
legislation. As the Committee is aware, the process of drafting comprehensive
statutory charters for the intelligence agencies is well underway both in the
Executive Branch and in Congress. That process, however, requires exhaustive
consideration of many difficult issues that remain unresolved. In contrast, most
of the major policy questions involved in the wiretap bill have been resolved.
If enacted, the bill would stand as a significant monument to our national com-
mitment to democratic control of intelligence functions and would spur com-
pletion of charter legislation.
As President Carter noted when he announced this bill, "one of the most diffi-
cult tasks in a free society like our own is the correlation between adequate
intelligence to guarantee our nation's security on the one hand, and the pres-
ervation of basic human rights on the other." It is a very delicate balance to
strike, but one which is necessary in our society. In my view this bill strikes
the proper balance. It sacrifices neither our security nor our civil liberties, and
assures that the dedicated and patriotic men and women who serve this coun-
try in intelligence positions will have the affirmation of Congress that their
activities are proper and necessary.
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ATTACHMENT A
PREPARED STATEMENT OF HON. GRIFFIN B. BELL, ATTORNEY GENERAL OF THE UNITED
STATES BEFORE THE SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES OF TEE
SENATE JUDICIARY COMMITTEE
Mr. Chairman and members of the committee, I am pleased to appear here
today to testify in support of S. 1566, a bill to authorize applications for a
court order approving the use of electronic surveillance to obtain foreign in-
telligence information within the United States.
There are many difficult questions involved in striking a balance between the
need to collect foreign intelligence to secure the safety and well being of this
nation and the concurrent need to protect the civil liberties of all persons in
the United States and United States citizens abroad. Only in the last few years
has this problem received the public scrutiny which it has so long deserved.
Past administrations and this administration have confronted this problem
daily in dealing with particular cases without the aid of legislation to authorize
that which is proper, to prohibit that which is not, and to effectively draw the
line between the two.
This bill is the first step in what will be for me and many others a continu-
ing effort to fill that void. We in the :Executive branch are well aware of the
abuses of the past; internal measures have been taken both by the prior admin-
istration and by this administration to assure that those abuses cannot recur.
Even if these safeguards are as effective as we believe, they have not been
arrived at through the process of legislation.
This is significant for two reasons. First, no matter how well intentioned or
ingenious the persons in the Executive Branch who formulate these measures,
the crucible of the legislative process will ensure that the procedures will be
affirmed by that branch of government which is more directly responsible to
the electorate. Second, any lingering doubts as to the legality of proper intelli-
gence activities will be laid to rest.
As you are aware, the bill before us has been the product of very close co-
ordination between members of the Executive Branch representing all the
affected agencies and members of this Committee, the Senate Intelligence Com-
mittee, and the House Judiciary Committee. As Senator Bayh said on the
occasion of the President's announcement of this bill, this is one of the finest
examples of cooperation between the Executive Branch and the Legislative
Branch, and I hope that statement will be as accurate after the passage of
this bill as it was at the time it was originally made.
I believe this bill is remarkable not only in the way it has been developed,
but also in the fact that for the first time in our society the clandestine intel-
ligence activities of our government shall be subject to the regulation and
receive the positive authority of a public law for all to inspect. President Carter
stated it very well in announcing this bill when he said that "one of the most
difficult tasks in a free society like our own is the correlation between adequate
intelligence to guarantee our nation's security on the one hand, and the
preservation of basic human rights on the other." It is a very delicate balance
to strike, but one which is necessary in our society, and a balance which can-
not be achieved by sacrificing either our nation's security or our civil liberties.
In my view this bill strikes the balance, sacrifices neither our security nor our
civil liberties, and assures that the abuses of the past will remain in the past
and that the dedicated and patriotic men and women who serve this country
in intelligence positions, often under substantial hardships and even danger,
will have the affirmation of Congress that their activities are proper and
necessary.
Before discussing some of the more important provisions of the bill in any
detail, I believe it would be helpful at this point to give an overview of the bill.
The bill provides a procedure by which the Attorney General may authorize
applications to the courts for warrants to conduct electronic surveillance within
the United States for foreign intelligence purposes. Applications for warrants
are to be made to one of seven district court judges publicly designated by the
Chief Justice of the Supreme Court. Denials of such applications may be ap-
pealed to a special three-judge court of review and ultimately to the Supreme
Court.
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Approval of a warrant application under this bill would require a finding by
the judge that the target of the surveillance is a "foreign power" or an "agent
of a foreign power." These terms, defined in the bill, ensure that no United
States citizen or permanent resident alien may be targeted for electronic sur-
veillance unless a judge finds probable cause to believe either that he is en-
gaged in clandestine intelligence, sabotage, or terrorist activities for or on
behalf of a foreign power in violation of the law, or that, pursuant to the
direction of a foreign intelligence service, he is collecting or transmitting in a
clandestine manner information or material likely to harm the security of the
United States. The judge would be required to find that the facilities or place
at which the electronic surveillance is to be directed are being used or are
about to be used by a foreign power or an agent of a foreign power.
As a safeguard, approval of the warrant would also require a finding that
procedures will he followed in the course of the surveillance to minimize the
acquisition, retention, and dissemination of information relating to United
States persons which does not relate to national defense, foreign affairs, or
the terrorist activities, sabotage activities, or clandestine intelligence activities
of a foreign power. Special minimization procedures for electronic surveillance
targeting entities directed and controlled by foreign governments which are
largely staffed by Americans are also subject to judicial review.
Finally, the judge would be required to find that a certification has been
made by the Assistant to the President for National Security Affairs or a simi-
lar official that the information sought by the surveillance is "foreign intelli-
gence information" necessary to the national defense or the conduct of foreign
affairs of the United States or is necessary to the ability of the United States
to protect against the clandestine intelligence, terrorist, or sabotage activities
of a foreign power. Where the surveillance is targeted against a United States
person, the judge can review the certification.
The bill creates two different types of warrants. A special warrant which
will not require as much sensitive information to be given to the judge is only
available with respect to "official" foreign powers?foreign governments and
their components, factions of foreign nations, and entities which are openly
acknowledged by a foreign government to be directed and controlled by that
government. The other warrant is applicable to all U.S. citizens and permanent
resident aliens.
The judge could approve electronic surveillance for foreign intelligence pur-
poses for a period of ninety days. For a special class of foreign powers, the ap-
proval can be as long as one year. Any extension of the surveillance beyond that
period would require a reapplication to the judge and new findings as required
for the original order.
Emergency warrantless surveillances would be permitted in limited circum-
stances, provided that a warrant is obtained within 24 hours of the initiation
of the surveillance.
For purposes of oversight, the bill requires annual reports to the Adminis-
trative Office of the United States Courts and to the Congress of various sta-
tistics related to applications and warrants for electronic surveillance. The
President is committed to providing to the appropriate committees of Congress
in executive session such other information as is necessary for effective over-
sight.
Turning now to specific provisions of the bill of particular importance, I
would like to point out the three specific areas in which this bill increases pro-
tections for Americans as against a similar bill proposed last year (S. 3197).
First, the current bill recognizes no inherent power of the President to con-
duct electronic surveillance. Whereas the bill introduced last year contained an
explicit reservation of Presidential power for electronic surveillance within the
United States, this bill specifically states that the procedures in the bill are the
exclusive means by which electronic surveillance, as defined in the bill, and the
interception of domestic wire and oral communications may be conducted.
Second, the bill closes a gap that was present in last year's bill by which
Americans in the United States could be targeted for electronic surveillance of
their international communications. In this bill such targeting will require a
prior judicial warrant.
Third, in the bill last year judges were never allowed to look behind the
executive certification that the information sought was foreign intelligence in-
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formation, that the purpose of the surveillance was to obtain such information,
and that such information could not reasonably be obtained by normal investi-
gative techniques. In this bill, when United States persons are the target of
the surveillance the judge is required to determine that the above certifications
are not clearly erroneous. While the clearly erroneous standard is not the same
as a probable cause standard, it is the same basis of review which courts ordi-
narily apply to review of administrative action by executive officials, which
administrative action may also directly and substantially impinge on the rights
of Americans. We believe it is not unreasonable that where high executive
officials with expertise in this area have certified to such facts, some degree of
deference by the court is appropriate. This is especially so because the judges
will be called upon to consider highly sophisticated matters of national defense,
foreign affairs, and counterintelligence. The wide difference between such issues
and the questions normally addressed by judges in warrant proceedings, con-
ducted ea parte without an adversary hearing, is a major reason for adopting a
standard other than probable cause.
Thus, the protections for Americans in this year's bill have been substantially
Increased over the protections of last year's bill.
The bill provides for warrant applications to be authorized by the Attorney
General or a designated Assistant Attorney General. This provision will permit
the option of eventually delegating some of the substantial administrative
burden of reviewing individual case files. I am committed to personally review-
ing and authorizing all electronic surveillance requests of the types covered by
the bill until the bill has been signed into law and, after that, for a sufficient
period to determine how the bill is working in practice and how the courts are
interpreting the standards of the bill. The purpose of an eventual delegation of
authority to make warrant applications would be to ensure that each individual
surveillance request file receives a thorough review by an Assistant Attorney
General whose time is not as constrained as that of the Attorney General. I
would follow the same practice as I do now for applications for use of elec-
tronic surveillance in general criminal cases under 18 U.S.C. 2510 et seq. which
are delegated to the Assistant Attorney General for the Criminal Division?I
would receive weekly reports on applications authorized and refused. I would
also direct ray designee to consult with me on cases which present difficult
policy problems in light of standards I would set for consideration of warrant
applications.
In response to last year's bill, a concern was expressed involving the so-
called non-criminal standard for the definition of an agent of a foreign power.
A United States person may be made the target of an electronic surveillance
under this bill, as I have said before, only if he engages in clandestine intelli-
gence activities, sabotage activities, or terrorist activities for or on behalf of
a foreign power which activities involve or will involve violations of federal
criminal laws, or if he engages in activities under the circumstances described
in Section 2521(b) (2) (B) (iii) found on page 4 of the Committee print.
This so-called non-criminal standard in Subparagraph (iii) is extremely
narrowly drawn. There are few, I believe, who would maintain that the activity
described therein should not be a basis for electronic surveillance or even the
basis for a criminal prosecution. The objection to this subparagraph, I feel, is
not based upon a belief that the subparagraph's standards are too broad, but
rather that as a matter of principle a United States person should not be made
a target of an electronic surveillance unless there is probable cause to believe
he has violated the law.
As a principle this is a worthy goal, but it is important to keep certain factors
in mind. First, this principle is not constitutionally required; there are numer-
ous searches which the Supreme Court has found constitutional both with and
without a warrant where there is no probable cause to believe a crime has been
committed. These range from administrative searches and custom searches to
stop-and-frisks and airport searches. In the case of United states v. United
states District Court the Supreme Court indicated that the probable cause
standard of the Fourth Amendment in intelligence searches did not necessarily
mean probable cause to believe that a crime had been committed. Thus, it is
our considered belief that the standard in Subparagraph (iii) is constitutional.
Second, even though we might desire that the activities described in Sub-
paragraph (iii) be made criminal, I believe that, depending upon the facts,
it is possible that the activity described therein would not be held to be a
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violation of any current federal criminal statute. On the other hand, when a
United States person furtively, clandestinely collects or transmits information
or material to a foreign intelligence service pursuant to the direction of a
foreign intelligence service and where the circumstances surrounding this
activity indicate that the transmission of the material or information would be
harmful to our security or that the failure of the government to be able to
monitor such activity would be harmful to the security of the United States,
then I believe that whether or not that activity is today a violation of our crim-
inal statutes, the government has a duty to monitor that activity to safeguard
the security and welfare of the nation. Third, there is a certain danger in ex-
tending the criminal law, the purpose of which is to prosecute, convict and nor-
mally incarcerate the perpetrator, merely to satisfy the principle that electronic
surveillance should not be undertaken absent a criminal violation.
The Department of Justice is undertaking at this time to review the espionage
laws for the purpose of making them comprehensive in the areas in which
prosecution is warranted and generally to rationalize this area of the law. This
undertaking is quite difficult, as illustrated by the fact that the controversial
espionage provisions of the former S. 1 were the result of just such an under-
taking. I can only assure you today that we will do our utmost to draft re-
vised espionage laws in such a way that the non-criminal standard might be
repealed.
Another issue which has been the cause of some concern is the treatment of
non-United States persons; that is, illegal aliens, foreign crewmen, tourists,
temporary workers, and other aliens not admitted for permanent residence.
Director Kelley will present to you persuasive reasons why the facts require
different treatment for such persons whose contacts with or time within the
United States is likely to be extremely limited. I would like only to make the
point that it is our considered view that such differing treatment wholly con-
forms to the Constitution. There is no doubt that the Fourth Amendment pro-
tects aliens in the United States as well as United States citizens. And under
this bill a prior judicial warrant is equally required for all aliens within the
United States, whether permanent residents or not. The standards for this
warrant are slightly different for certain aliens, however. The bill reflects
generally a distinction between different types of persons or entities; that is,
the showing for a foreign power is less than for a natural person; the showing
for an alien who is an officer or employee of a foreign power is less than that
which is required of other aliens; and the showing required for non-resident
aliens is less than that for United States persons, which includes resident
aliens. There is a rational basis for each of these distinctions, and this is suffi-
cient to assure that the differing standards do not violate the Equal Protection
Clause. Therefore, we believe this differing treatment is wholly in accord with
the Constitution of the United States.
There have been some questions raised as to what agencies of the United
States Government would be involved in electronic surveillance under the bill
and what if any change this would mean from current operating procedures.
I do not believe that this bill would make any change in which agencies would
In fact conduct electronic surveillance or receive its product. Generally only two
agencies would be engaging In electronic surveillance under this bill and that
would be the FBI and the National Security Agency. Which agency would be
involved might depend on various factors, including the nature of the target,
the purpose of the surveillance (whether the purpose was for positive foreign
Intelligence or counterintelligence), and the type of electronic surveillance in-
volved. The respective military services would have the power to engage in
electronic surveillance for counterintelligence purposes on military reservations.
The CIA is, of course, barred from conducting electronic surveillance within
the United States. There is, however, a large degree of cooperation and coordi-
nation between the various intelligence agencies on particular electronic sur-
veillances. For example, the need for a particular electronic surveillance might
come from the State Department, the CIA might be the agency who had de-
veloped the particular equipment to be used, the FBI might be the agency to
in fact conduct the electronic surveillance, the product of the surveillance might
go to another agency for analysis, with only the analyzed product then going
to the State Department. The bill does not make any specific limitations on
which agency may conduct electronic surveillance, and I do not believe that
such a limitation would be advisable. Not only are the organization, structure,
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and duties of the intelligence community subject to some change, but the de-
velopment of capabilities and technologies by differing agencies cannot be ac-
curately predicted in advance. There will of course be restrictions on the dis-
semination of information obtained from electronic surveillance not only for
security purposes but also to comply with the minimization procedures that
the court would order. Again, I do not believe specific limitations as to specific
agencies would be advisable in the statute itself.
There is, I know, a desire on the part of several members of both this Com-
mittee and the Senate Select Committee on Intelligence to extend statutory
protections to Americans abroad who may be subjected to electronic surveil-
lance. This desire is shared by the Administration. The Justice Department, in
coordination with members of the various affected intelligence agencies, is ac-
tively at work on developing a proposed bill to extend statutory safeguards to
Americans abroad with respect to electronic surveillance for intelligence or law
enforcement purposes. There are, however, special problems involved in over-
seas surveillances, some of which arise out of the fact that the United States'
legislative jurisdiction is limited overseas. In the next several months, again
after close coordination with interested Members of Congress, we expect to be
able to present proposed legislation on this subject.
In closing, I would urge that this bill be swiftly enacted into law as a
significant first step toward outlining by statute the authority and responsi-
bility of the Government in conducting intelligence activities.
ATTACHMENT B
PREPARED STATEMENT BY HON. GRIFFIN B. BELL, ATTORNEY GENERAL OF' THE UNITED
STATES BEFORE THE SUBCOMMITTEE ON INTELLIGENCE AND THE RIGHTS OF
AMERICANS OF THE SENATE SELECT COMMITTEE ON INTELLIGENCE
I am pleased to appear before you today to testify in support of S. 1566, a
bill to authorize applications for a court order approving the use of electronic
surveillance to obtain foreign intelligence information within the United States.
I wish to take this opportunity to thank this Committee for holding these
hearings promptly, without waiting for the Judiciary Committee's report of the
bill. Given the crowded legislative docket facing the Senate, if S. 1566 is to
pass the Senate this session, the same spirit of cooperation between the Admin-
istration and Congress, and indeed within Congress, which has been demon-
strated thus far must continue.
Except for one matter, which I know concerns several of the Members of this
Committee, I would like to submit my prepared statement before the Judiciary
Committee as my prepared statement before this Committee. The one matter
not covered in detail in that statement is the question of extending S. 1566 to
cover all United States Government surveillances worldwide.
Before S. 1566 was introduced the Administration seriously considered pro-
posing a bill which would cover all electronic surveillances, not just those
within the United States. Because the work on a bill limited to surveillance in
the United States was already far advanced and because there was a desire to
enact legislation on this subject as soon as possible, it was decided not to at-
tempt to expand the bill to cover overseas surveillances. It was expected to
take several months to iron out the problems which are unique to overseas
surveillances, and such a delay would have doomed any hope of legislation on
electronic surveillance this year.
At the time S. 1566 was introduced, the Administration announced that it
would undertake, in cooperation with interested Members of Congress, to draft
separate legislation covering overseas surveillance. We have been engaged in
that task for almost two months, and the issues are still not resolved within
the Executive Branch. This is due to the number and complexity of the prob-
lems uniquely involved in overseas surveillances, and the difficulty in creating
and maintaining meaningful safeguards in light of those problems.
While I am not prepared to go into great detail over these problems here,
some of which could only be discussed in Executive session, I can say that
many of the problems arise out of the fact that overseas there is a fair degree
of cooperation between our Government and the police and intelligence services
of other nations, and surveillances undertaken are not exclusively for our pur-
poses. The level of cooperation in surveillances, moreover, can span the entire
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spectrum from situations where we effectively can control all aspects of the
surveillance to situations where we have virtually no control. Restrictions or
limitations on such surveillances could result in the loss of cooperation. These
cooperative ventures would require adjustments of one form or another in all
aspects of S. 1566, if it were to be used as the vehicle for reaching overseas sur-
veillances. It will not be a simple matter to apply to electronic surveillance
abroad the provisions of S. 1566 relating to the standards for approval, the
information to be given to the judge, and the limitations in the order itself.
A separate problem, not directly related to the joint operation problem is the
standard under which Americans may be made the target of a surveillance.
Under S. 1566 in almost all cases an American will have to be violating Federal
law to be targeted for electronic surveillance. Yet in most eases our laws do
not have extraterritorial effect, so that activity in the United States which
would violate our laws, would not be a violation if committed abroad. Even
more problematic is the fact that overseas there may be a need for electronic
surveillance against Americans for positive foreign intelligence purposes, as op-
posed to counterintelligence purposes. An easy example is the American citizen
who emigrates or defects to another country and rises to a position of power
and influence in a foreign government.
In dealing with these problems one must keep in mind that overseas the
foreign intelligence need for electronic surveillance is probably more critical
than within the United States. The conditions under which our personnel must
operate can include clandestine activities in hostile areas and often involves
activities where our ability to engage in electronic surveillance at all is ex-
tremely fragile, because it must be covertly conducted in territory not under
our control.
In raising these problems, however, I do not mean to suggest that they are
insurmountable. I do not believe they are. I mention them only to illustrate
what I believe to be the inadvisability of attempting to cover overseas sur-
veillance in S. 1566. It just cannot be done by means of a few simple amend-
ments. The yet unresolved problems, some of which I have mentioned, suggest
that if S. 1566 were to be delayed pending their resolution, there would be no
legislation this session.
I am, therefore, restating the Administration's commitment to draft separate
legislation providing safeguards for Americans abroad from electronic sur-
veillance by this Government for both intelligence and law enforcement pur-
poses. I cannot provide a date by which such legislation will be ready, because
It depends in part upon the resolution of some difficult policy problems. I can
pledge, however, to move forward with my part of this project as expeditiously
as I can responsibly do so. My staff has already reported to me on productive
meetings that have been held with the staff of this Committee on this subject.
In closing, I urge that this issue not be allowed to cause delay of the passage
of S. 1566.
TESTIMONY OF HON. GRIFFIN B. BELL, ATTORNEY GENERAL OF
THE UNITED STATES; ACCOMPANIED BY MR. JAMES ADAMS,
DEPUTY ASSOCIATE DIRECTOR FOR INVESTIGATION, FEDERAL
BUREAU OF INVESTIGATION; AND MR. JOHN HARMON, ASSIS-
TANT ATTORNEY GENERAL, OFFICE OF THE GENERAL COUNSEL,
U.S. DEPARTMENT OF JUSTICE
Attorney General BELL. Mr. Chairman and members of the com-
mittee, I am pleased to testify before you today in support of H.R.
7308. This legislation would authorize the use, subject to court ap-
proval, of electronic surveillance to obtain foreign intelligence and
counterintelligence information within the "United States.
Congressman 1VIcClory has alluded to the fact that former At-
torney General Levi had a major part in developing this legislation
in the last Congress. I want to pay tribute to Attorney General Levi.
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That is a correct statement. Probably no single person in the history
of the Nation has done more in the foreign intelligence field from the
standpoint of developing guidelines and restrictions and controls on
the intelligence system than did Attorney General Levi. The differ-
ence between his approach and my approach, which was generally the
same as Congressman McClory's approach, is that we want to bring
the court, deliberately bring the courts, the judiciary into the process
because we have had a crisis in confidence as regards our intelligence
system, and it has been my view that the American people trust the
courts. They will feel more comfortable with the intelligence system,
secret as it must be, if they thought the courts were in the process.
That is the fundamental difference between the approaches.
I have nothing against Congressman McClory's bill. That would
be an improvement over the present system. The question is do we
want to bring the judiciary in.
In my view, this bill is one of the most important measures before
Congress this year. As you know, foreign intelligence electronic sur-
veillance has been conducted by our Government for many years
without explicit statutory authorization or regulation. While these
surveillance techniques are extremely useful in gathering intelligence
information, they also intrude upon the privacy of their subjects.
Thus, their use raises a difficult problem, that of finding the proper
balance between the vital need of this country to protect its security
by collecting foreign intelligence information, and the equally impor-
tant need to protect the civil liberties of persons in the United States
and American citizens abroad.
Only in the last few years has this problem received the public
attention that it deserves. The executive branch has in the past dealt
with this problem in particular cases without the guidance of a public
law that authorizes proper actions, prohibits the improper, and draws
a clear line between the two. This bill is a first step toward changing
that situation. I believe that it strikes a proper and reasonably balance
between the vital interests at stake.
Clandestine intelligence activities might be considered an anomaly
in a free society. Virtually all functions of our government are sub-
ject to exacting scrutiny by means of legislative oversight, judicial
review, press comment, and ultimately, citizen control in the voting
booth. On the other hand, clandestine intelligence activities, by their
very nature, must be conducted by the executive branch with the
degree of secrecy that insulates them from the full scope of these
review mechanisms. Such secrecy in intelligence operations is essen-
tial if we are to preserve our society, with all its freedoms, from
foreign enemies.
We are all aware that there have been abuses of electronic surveil-
lance in the past. Strict internal measures taken by this administra-
tion and the previous one are designed to prevent their recurrence.
But no matter how effective these executive safeguards are, and I do
believe they are effective, legislation would seem to be in order as an
added protection.
This bill was developed by means of executive consultation between
members of the executive branch representing all the affected agen-
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cies and a substantial number of interested members of the legislative
branch. The high degree of bipartisan cooperation among executive
and legislative officials that led to the drafting and introduction of
this bill has continued during its consideration bythe Congress. The
Senate Judiciary Committee held prompt hearings and has reported
the bill, known as S. 1566, with a number of amendments that are
fully acceptable to the administration.
The Senate Intelligence Committee has held hearings and will soon
mark up the bill.
I am particularly gratified by this committee's prompt considera-
tion of the legislation, exemplified by today's hearings. The debate
is further enhanced by three other bills also before the committee. I
recognize the serious thought that has gone into all of these proposals,
11.1e. 5632, introduced by Representative Ka stenmeier ; H.R. 5794, in-
troduced by Representative Railsback ; and H.R. 9745, introduced by
Representative McClory. While the administration remains com-
mitted to H.R. 7308 as the best way to resolve the sensitive and diffi-
cult issues raised by foreign intelligence electronic surveillance, we
have all benefitted from the hard work of these Congressmen.
For the committee's information and assistance, I am submitting
copies of my testimony before the Senate Judiciary and Intelligence
Committee.1 These statements discuss in greater detail some of the
issues I am touching on here. I would particularly call your attention
to the improvements in this bill over a similar measure introduced in
the last Congress. First, the current bill recognizes no inherent power
of the President to conduct electronic surveillance, and I want to
interpolate here to say that this does not take away the power of the
President under the Constitution. It simply, in my view, is not neces-
sary to state that power, so there is no reason to reiterate or iterate
it as the case my be. It is in the Constitution, whatever it is. The
President, by offering this legislation, is agreeing to follow the statu-
tory procedure. So that was apparently a big issue in the last Con-
oress and I consider it to be a nonissue now.
Second, a prior judicial warrant is now required for all targeting
of Americans in the United States for electronic surveillance of their
international communications. Third, judicial review authority in the
warrant procedures is strengthened.
I would like now to review briefly the major features of H.R. 7308.
The bill authorizes the Attorney General to approve applications for
warrants to conduct electronic surveillance within the United States
for foreign intelligance purposes. Applications would be made to one
of seven district court judges publicly designated by the Chief Justice
of the United States.
A warrant application may be approved only if the judge finds that
the target of the surveillance is a "foreign power" or an "agent of a
foreign power." These terms, defined in the bill, insure that no -U.S.
citizen or permanent resident alien could be targeted unless there is
probable cause to believe that he or she is engaged in clandestine in-
telligence, sabotage, or terrorist activities for or on behalf of a for-
eign power in violation of the law, or that he or she is under the
1 See attachments A and B of Attorney General Bell's prepared statement.
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direction of a foreign intelligence service, clandestinely collecting or
transmitting information or material under circumstances which
indicate the transmission of such information or material would be
harmful to the security of the United States.
The bill provides safeguards, termed "minimization procedures,"
to limit the acquisition, retention, and dissemination of information
regarding U.S. persons that does not relate to the purposes for which
surveillance was authorized. Moreover, in order to insure that the
information sought by surveillance is indeed foreign intelligence in-
formation necessary to our security, a warrant may be issued only if
a certification to that effect is made to the court by the Assistant to
the President for National Security Affairs or a similar official. If the
target of surveillance is a U.S. person, that certification is reviewable
by the court under the familiar "cleverly erroneous" standard.
Because of differences in the types of targets for electronic surveil-
lance, the bill creates two different types of warrants. A special war-
rant requiring disclosure of less sensitive information to the judge
and allowing surveillance for up to 1 year is available where there is
no involvement of U.S. persons. A more detailed warrant application
is required for targeting U.S. citizens and permanent resident aliens,
and surveillance is limited to 90 days. A procedure for emergency
warrantless surveillance for up to 24 hours is provided. Extensions
beyond the authorized 90-day or 1-year periods require reapplication
through the same procedures and with the same judicial findings as
original applications.
Oversight is accomplished by means of annual reports to the Ad-
ministrative Office of the United States Courts and to the Congress
of statistics concerning applications and warrants. The President is
committed to providing other information necessary for effective over-
sight to appropriate congressional committees in executive session.
In closing, I cannot stress too much the importance of the enact-
ment of this legislation. As the committee is aware, the process of
drafting the comprehensive statutory charters for the intelligence
agencies is well underway, both in the executive branch and in Con-
gress. That process, however, requires exhaustive consideration of
many difficult issues that remain unresolved. In contrast, most of the
major policy questions involved in the wiretap bill have been resolved.
If enacted, the bill would stand as a significant monument to our
national commitment to democratic control of intelligence functions
and would spur completion of charter legislation.
As President Carter noted when he announced this bill, "One of
the most difficult tasks in a free society like our own is the correlation
between adequate intelligence to guarantee our Nation's security on
the one hand, and the preservation of basic human rights on the
other." It is a very delicate balance to strike, but one which is neces-
sary in our society. In my view, this bill strikes the proper balance.
It sacrifices neither our security nor our civil liberties, and assures
that the dedicated and patriotic men and women who serve this
country in intelligence positions will have the affirmation of Congress
that their activities are proper and necessary.
Mr. Chairman, I would be glad to attempt to answer questions.
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Mr. MURPHY. Thank you, Mr. Attorney General.
Your statement states the issue with clarity, and I agree that the
charter legislation coming up is going to be very involved, and a very
difficult task for this committee.
Attorney General BELL. We, at a very early date, should have
Executive Order 11905 ready as rewritten. I think it will be of
considerable assistance to the Congress in formulating the charter
legislation.
Mr. MURPHY. We appreciate that. I know the President has stated
that this is to be given priority, and we will be cooperating. Hope-
fully, we can get this bill out this year.
Mr. Attorney General, the ACLU has claimed that the noncriminal
standard is unnecessary because activities which fall within its scope
would be violative of the espionage laws. The Justice Department has
claimed that the standard is necessary because not all activities within
its scope would necessarily violate the espionage or other laws. Would
it be acceptable to you to make the noncriminal standard a statutory
presumption of a violation of the espionage laws in the same manner
that after 21 hours a kidnaping is presumed to violate the Federal
kidnaping law?
Attorney General BELL. This proposition just came to my attention
this morning, Mr. Chairman, and I don't agree with the ACLU, but
I am committed to trying to work out a compromise.
I would like to get back to the committee with an answer in writ-
ing to your question on the presumption. I am not willing?I think
we have a good security system now, and as the Attorney General and
really the agent of the President, I am not willing to jeopardize the
present system, and I don't want to appear to be a hard-liner, but
I am the one that has been mainly sponsoring this legislation. I would
like to have a good system. I would like to have the public have addi-
tional safeguards, but I am not willing to do anything to jeopardize
the security of the Nation, and that is the reason we don't agree with
the ACLU's position, and they think?their view is one way and ours
is another, but if we can find a compromise, we will do so. The Senate
has asked us to do that, too, but at the end, the bottom line, I couldn't
agree to anything that would make our security system less effective
than it is now.
Mr. MURPHY. Mr. Attorney General, in your view would the term
"clandestine intelligence activities for or on behalf of a foreign
power" include the situation where a U.S. newspaper editor was a
knowing KGB agent engaged in planting false and deceptive propa-
ganda on behalf of the KGB for pay?
Do you believe such activity should be enough to subject one to
electronic surveillance under this bill?
Attorney General BELL. That's a very difficult question. The fact
that you have imported a newspaper editor into the hypothetical
makes it even more difficult. I don't want to get into a first amend-
ment problem. The clandestine intelligence activity for and on behalf
of a foreign power included in the bill, I am not certain I can answer
that. He is not collecting, he is planting. I think I will defer to my
lawyer John Harmon here to see if we can get a clear answer to that.
It is an unusual question.
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Mr. Munruy. In the administration bill you talk about the Chief
Justice selecting seven judges around the country. Would this be
totally left to his discretion?
Attorney General BELL. Excuse me?
Mr. MURPHY. Would this be totally left to the Chief Justice's dis-
cretion?
Attorney General BELL. It would be, it would be. I would attempt
to work with the Chief Justice to be certain that a majority of them
would be in the Washington area, because after all, that is where we
are operating most of the time. Most of all this operation is in the
Washington area, but this would have to be carefully thought out,
and then the Chief Justice would have to think about how long he
wanted these people to serve, would have to have security measures,
would have to be provided, would have to check the personnel out
which would be engaged in the process to the extent that they could
get top clearance. There are a good number of things that would have
to be done before we put this system in place.
Mr. MURPHY. Mr. Attorney General, the allegation has been made
that judges, since they are insulated from a lot of things in their
lives and are forced to limit their contacts with people, may not be
suited to this type of very detailed and specialized work in intel-
ligence.
Do you have any views on that?
Attorney General BELL. As you know, I was a judge myself one
time, and I handled some foreign intelligence matters on the bench.
I never did find it to be a great puzzle of any sort, something that a
man of normal intelligence ought to be able to face and resolve.
Since I have been !Attorney General I have had occasion to defer
a matter to a Federal district judge. The only difficulty I had was he
didn't have any safe place to keep paper. We finally installed a safe
in his chambers. I had suggested that he might want to place the
papers in the FBI Building in Washington for safekeeping on a
trust receipt, and the matter went off the track somewhere because
his law clerk decided they didn't want to do it, and I later talked to
the judge, and he didn't know we had made him that offer. That is
the only thing that went wrong with it. But the papers are in a safe
that we provided, and the case, which I will give you in executive
session, was terminated successfully in the interests of the United
States.
So I think these judges can handle it, and there are probably some
judges on the bench who have had foreign intelligence experience
either in the Government or in the military, which is the government,
too, I needn't say, but I don't know that it is necessary to select some-
one on that basis.
I think that the series of Attorneys General, the top people in the
FBI, had to learn foreipi intelligence. There are a lot of lawyers in
the Justice Department who have had to learn it, lawyers at the De-
fense Department, CIA, so I don't think it is an insurmountable
thing. I would have some apprehension, naturally, in meeting with
the Chief Justice about the people he selected.
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Mr. Mtrarar. This is not a question I was going to get into, but
I could see down the line that if there are an excessive amount of
applications being made for electronic surveillance and these appli-
cations are approved, the allegation would be made that the Chief
Justice has got in-house judges, so to speak, people that are very
friendly toward granting applications. Of course, there is no sure
way of guaranteeing it, but I just wonder, would you consult with
the Chief Justice as to the selection?
Attorney General BELL. I Will. I intend to, and I would urge upon
the Chief that he rotate these judges on a periodic basis; I think
probably 3 years would be a reasonable time for a judge to serve in
this capacity. I think 1 year would be too short. Three would prob-
ably be a good time.
I want to talk with him about that, and then we would have to put
in some safeguards against judge shopping. The public would not
like to see us do that.
Mr. MURPHY. I would hope that we just wouldn't select judges
from this area. I mean, it is a pretty big broad country out there,
especially west of the Appalachians. We might suggest that you go
to the different areas, and take a judge from amongst the people, so
to speak.
Attorney General BELL. That is going to be a difficult problem on
the personnel who serves as the judge. I have to sign off on these
things, and I find most of them reach my office between 6 and 7 at
night on the last day. So we are going to have to get some judges
working long hours to begin with. It's going to be hard to get papers
to Chicago or Los Angeles. So I don't know how we are going to
work this out.
It may be seven judges is too few. I can see how you would need
probably three to five in the Washington area. You could use Vir-
ginia, the District of Columbia, and Maryland to get a cross section
or balance; but if you wanted some more just to have them stationed
around over the country, we probably ought to have more than seven,
have one in Florida, one in Texas, one in Illinois, so forth, just when
we needed them.
Mr. MURPHY. Well, I find that the farther you get from this city,
the problems of the world and the country don't have the same
seriousness or drama attached to them as they do in this town, and
sometimes I think better reasoning and clearer judgment are brought
to bear on an issue.
Attorney General BELL. As you know, I have stated publicly that
I favor letting useful information come in through the iron curtain
of 1-495, and I also favor getting out of here and going to talk to
the people over the country. I believe that very strongly.
But the intelligence apparatus is situated here in the Washington
area, and so you would naturally have to go see judges in the Wash-
ington area. It has to go through the steps under this legislation. You
have got to get it over to the National Security Council, and we have
to process this first, and then we have got to go find a judge and
present it.
Now, if we could get maybe 2 or 3 days' leadtime built into this
system, maybe we could use judges in other parts of the country.
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These are matters that we handle, not the sort of a thing where you
need an input that you would need in the political area. You pretty
-well know whether something is in national security or not, once you
see the facts, whether it is counterintelligence or just intelligence, or
lawbreaking which involves national security.
So I think it wouldn't be too bad to have most of the judges here
in this area.
Mr. MURPHY. Mr. McClory.
Mr. Mcaorty. Thank you, Mr. Chairman.
[Pause.]
Attorney General BELL. Let me just say one thing. Mr. Harmon
just called to my attention that I am the last person in the step be-
fore it reaches the judge, so I suppose I could set up some kind of a
system to use some judges in other parts of the country if the com-
mittee thinks that is necessary.
Mr. MURPHY. It is my feeling, Mr. Attorney General, that people
beyond 1-495 think that everything is done here in Washington, and
that we are all part of one great bureaucracy. In view of our past
history and things that have been done in the name of national se-
curity, it would help if we could select judges from around the coun-
try. I know there are some good judges out there.
Attorney General BELL. Oh, yes.
Mr. MURPHY. I think the core of your statement is to get the peo-
ple to trust in the Government. We can do this if we reached out to
places other than New York or Washington, D.C., for these judges.
[Pause.]
Attorney General BELL. I was talking with Mr. Adams. We think
we can work out something; sometimes where the judge needed addi-
tional information, you would have to send someone there. You
couldn't talk over the telephone, but we think we can work this out.
It may be that you ought to extend and enlarge the number from '7
to 9 or 11 so we can have some sufficient number, but I believe we
can work it out so we can have some judges in other parts of the
country participating.
Mr. McaoRy. Judge Bell, just as a preface to the questions that
I am going to ask you, I want to first of all state very frankly and
forthrightly that I am aware of certain abuses and certain excesses
with respect to electronic surveillance of American citizens in the
past. I think we have somebody in the audience today who will be
a witness next week who was subjected to an electronic surveillance,
under the guise of national security, for an extended period of time.
It has been popularly, at least prominently described as an abuse or
an excess, and it along with other instances has given rise to this
reaction which is a result of this legislation which was advanced
under the Ford administration and is continuing under this admin-
istration.
So recognizing that, I want to nevertheless ask questions which I
think are extremely pertinent to this subject which is going to have
a tremendous impact on the entire intelligence gathering and intelli-
gence capability of our Nation. It also is going to involve much in
the way of individual civil rights or fourth amendment rights against
unlawful searches and seizures.
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First of all, it is clear, is it not, that under the administration bill?
which says that electronic surveillance which is covered will require
a judge to issue a warrant?involves not only American citizens, and
not only persons living in the United States under permanent resi-
dence requirements, but also involves foreign embassies, involves
foreign agents involves foreign governments and involves the homes
and persons of foreign personnel who may or may not be foreign
agents. It covers all persons, does it not?
Attorney General BELL. It does.
Mr. McCLoar. The only difference is with respect to so-called
United States persons; the issue of probable cause is different. In
other words, there is no probable cause really shown with regard to
a foreign government or a foreign agent, is there? All you have to
show is that the person is a foreign agent and state that the place
where the electronic surveillance is going to take place is a facility,
and then of course, indicate that you are going to minimize the com-
munications that you are going to intercept, but the judge has to
accept your representation and issue a warrant in that case.
Attorney General BELL. You have got to have some showing that
you are going to collect intellience.
Mr. McCimay. Foreign intelligence, right.
Attorney General BELL. I do that every day. That is a difficult
question. It is not just that you show it is a foreign power or a foreign
agent. You have got to go one step further.
Mr. MCCLORY. Well, let me say this quite frankly. You don't abuse
or violate any American citizen rights at the present time under the
authority that you exercise?
Attorney General BELL. I certainly have not.
Mr. MCCLORY. No, and we don't want to. So under this legislation
what we would do is we would continue a practice on an assurance
that you are already performing as Attorney General.
Attorney General BELL. That's correct.
Mr. MOCLORY. Now, who are the?
Attorney General BELL. But the American people may hot think
I am doing so well. Otherwise we wouldn't need this legislation.
Mr. McCLoar. So we are projecting some imagery and not some
reality, perhaps.
Attorney General BELL. Well, in a democratic society people have
to trust the Government. Otherwise you go under. We are trying to
build un a system of trust.
Mr. MoCLoav. Exactly, and when we exercise responsibility, we
should have accountability, should we not?
Attorney General BELL. Right.
Mr. IvroCLony. That is why we have the House and Senate Intelli-
gence Committee, and you have no objection to that part of my legis-
lation or the administration bill which requires accounting to the
Congress with respect to wiretaps or other forms of electronic sur-
veillance.
Attorney General BELL. None whatsoever. I have been accounting
right along.
Mr. MrCLoity. Right. I wonder if you feel that the accountability
is adequate since it only requires an annual report. Wouldn't it im-
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22,
prove the situation?it would as far as I am concerned, as a member
of this committee, if we had quarterly reports. Would you have any
objection to that?
Attorney General BELL. None whatever.
Mr. MCCLORY. Now, who are they?in your opinion, as the chief
lawyer and the chief law enforcement officer of our country, who are
"the people" that are referred to in the fourth amendment? Do you
think they include foreign agents, foreign governments, foreign em-
bassies?
Attorney General BELL. I don't think they include them, but they
include resident aliens, and I have got some doubt about what the
Supreme Court might do about others. It might be that they would
apply to anyone in our country.
Mr. MCCLORY. Now, under the Vienna Convention, don't all these
embassies and these embassy personnel, don't they enjoy immunity
when they are in our country?
Attorney General BELL. Well, they do from prosecution.
Mr. MCCLORY. But they don't as far as electronic surveillance is
concerned, in your opinion.
Are you uncertain about that?
Attorney General BELL. I have got very firm views, but I don't
think I want to state my views publicly.
Mr. MoCLolly. But there is uncertainty about that, is there not, as
far as the policy of this administration is concerned?
Attorney General BELL. I would say there is some uncertainty. I
don't know about as a policy of this administration. I would deny
that. I mean, it has been said to me that I am often wrong, but seldom
in doubt. But I have got my own views about the Vienna Convention.
Mr. MCCLORY. Wasn't the policy of the last administration, not-
withstanding the Vienna Convention, that we did have a right to
electronically surveil foreign embassies, foreign personnel who were
here?
Attorney General BELL. I don't know about the views of the last
administration. I wouldn't want to comment on that, but I would
say that there is some doubt about what the Vienna Convention means
in this context, and I would think it was not only to our Nation but
that doubt might be in the minds of other nations as well, so I don't
think we are?I want to make the point, I don't think we are treat-
ing the convention any different from anyone else.
I think it is important to say that we are just not the only ones
that are following the courts.
Mr. MCCLORY. I assume a great deal of our intelligence activities
are carried out because we have to respond to the intelligence activi-
ties other nations are exercising vis-a-vis our Nation. Recent reports
which have reached me indicate that there are many, many more KGB
agents filtering into this country than there ever were before, to the
point where the FBI feels that it is not capable of monitoring all
that these people are doing.
Do you question that?
Attorney General BELL. I don't question that at all. Now, we have
opened our ports, 40 ports to the Russian ships and what you say is
correct. It is a problem. Also, there is a problem in the -visa program.
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If you want to take?if you will permit me to give you one more
problem.
Mr. Mcaoinr. I would like you, if you would, in presenting writ-
ten information to this committee following the hearing, give me
your interpretation of who the people are who are included in the
fourth amendment.
Attorney General BELL. We would be glad to do that.
Mr. Mcaorty. And indicate whether you think foreign agents and
foreign governments are included among the people.
Attorney General BELL. I can tell you now I don't think that, but
we will give you a definitive answer.
Mr. MCCLORY. Well, aliens who are not here under any right or
permanent residence.
Attorney General BELL. All right.
[The information referred to follows:]
DEPARTMENT OP JUSTICE,
Washington, D.C., April 18, 1978.
Hon. EDWARD P. BoLAND,
Chairman, Permanent Select Committee on Intelligence, House of Representa-
tives, Washington, D.C.
DEAR MR. ClIAIRMAN : During the hearings on H.R. 7808, Representative
McClory asked the Attorney General for his views on whether foreign agents,
foreign governments, and aliens temporarily in the United States were among
"the people" who the Fourth Amendment states shall be "secure in their per-
sons, houses, papers, and effects against unreasonable searches and seizures."
After examining the question, we have reached the following conclusions. First,
aliens temporarily within the United States are protected by the Fourth
Amendment even if illegally present or acting as agents of a foreign power.
Second, foreign states as states have no rights against the United States under
the Fourth Amendment. Third, the extent to which foreign diplomatic per-
sonnel are protected by the Fourth Amendment depends upon the extent to
which the United States and the sending state have agreed to identify their
presence and acts with the acts of the sending state.
As a preliminary matter, it is desirable to define the class of aliens whose
rights are at issue. The bill defines individual United States persons to include
United States citizens and aliens lawfully admitted for permanent residence am
defined in ? 101(a) (2) of the Immigration and Nationality Act, 8 U.S.C.
? 1101(a) (20). Since a lawful permanent resident alien must be capable of
becoming a citizen,1 individual United States persons are all present or poten-
tial citizens. All other aliens lawfully or unlawfully present in the United
States are under the bill non-United States persons (hereafter "NUSPs").'
I. INDIVIDUAL NON-U.S. PERSONS
As a fundamental attribute of sovereignty, all persona within the territorial
jurisdiction of the United States are subject to its laws unless the Government
has consented to allow them immunity. Schooner Exchange v. McFadden, 11
U.S. (7 Cr.) 116, 136 (1812). Conversely, all persons subject to the jurisdiction
of the United States are entitled to the basic personal liberties guaranteed by
the Constitution. See Matthews v. Diaz, 426 U.S. 67, 77 (1976) ; Wong Wing v.
United States, 163 U.S. 228, 237-38 (1896) ; Vick Wo v. Hopkins, 118 U.S. 356,
372 (1886). Thus, an illegal alien can only be convicted of a crime, including
the crime of illegal entry, under procedures conforming to the Fifth and Sixth
Amendments. Wang Wing v. United States, supra. Similarly, illegal aliens en-
joy the protection of the Fourth Amendment. See United States v. Brignone-
I See Immigration and Nationality Act, ?? 101(a) (207, 212(a) (22), 8 U.S.C. ?? 1101(a)
(20), 1182(a) (22).
2The Immigration and Nationality Act, ? 1101(a) (15), 8 U.S.C. ? 1101(a) (15) pro-
vides for 12 classes of aliens who may be temporarily admitted. The time they are per-
mitted to remain is set out in 8 CFR ? 214 (1977). Illegal aliens, of course, may be
deported. Immigration and Nationality Act ? 241(a), 8 U.S.C. ? 1251 (a).
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Ponce, 422 U.S. 873, 882-83 (1975) ; Illinois Migrant Council v. Pilliod, 540
10.2d 1062, 1068 n. 5 (7th Cir. 1976) ; At Yu Lai v. INS, 445 F.2d 217, 219 (D.C.
Cir. 1971).
While there is a paucity of case law in the area, the existing cases indicate
that alien employees or agents of a foreign government are in the same posi-
tion as other aliens. That is, unless the United States has consented to grant
them immunity, they are fully subject to its laws while in its territory. United
States v. Egorov, 222 F. Supp. 106, 107-08 (S.D. N.Y. 1963) ; United States v.
Melekh, 190 F. Supp. 67, 87-89 (S.D. N.Y. 1961). It would follow that they are
within the protection of the Fourth Amendment.
The Supreme Court unanimously took this view in libel v. United States,
362 U.S. 217 (1960). Through a defecting subordinate, the FBI knew that Abel
was a Colonel in the KGB, the controller of an espionage operation, and an
illegal alien.' The FBI procured his arrest by the INS on an administrative
deportation warrant and searched his hotel room after he had been arrested. He
was convicted of espionage on evidence produced by the search. The Court held
that the arrest and the subsequent search were valid under general principles
of Fourth Amendment law; it expressly stated that "the nature of the case,
the fact that it was a prosecution for espionage, has no bearing whatever upon
the legal considerations relevant to the admissibility of evidence." Abel v.
United States, supra, 362 U.S. at 219. While the four dissenters disagreed on
the merits of the Fourth Amendment issue, they agreed that the Fourth Amend-
ment applied to the case. Id. at 241-48 (Douglas, J.), 248-56 (Brennan, J.).
Colonel Abel is as clear a case as we are likely to see of a MTV who is a
known foreign agent. If the Fourth Amendment applied to his arrest and
search, it N dinienit to tirgite that any NtSP Withbut an ?facial immunity is
het pkoteeted arainst tftteaShintble searches and SeNures.
2. roaming St Alta
AA stated OM, the Otnistittition Blahs the parer of the United States to
art Upon persons *he Ste stlbjeet to its itiitherity. As a nation among nations,
however) the United ghat& is tidthOr Subject rier sovereign, but one among
etritals. See Vatted Stkiett EXpOrt CO., 209 U.S. 304, 315-18
16); Chitiese? Etegicsit4 Vaifes, 10 U.s.381, U04-06