FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 HEARINGS BEFORE THE SUBCOMITTEE ON INTELLIGENCE AND THE RIGHTS OF AMERICANS OF THE SELECT COMITTEE ON INTELLIGENCE OF THE UNITED STATES SENATE NINETY FIFTH CONGRESS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000400010006-3
• Release Decision: RIFPUB
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• Document Page Count: 316
• Document Creation Date: December 19, 2016
• Document Release Date: September 14, 2005
• Sequence Number: 6
• Publication Date: January 1, 1978
• Content Type: REGULATION

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FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
HEARINGS
SUBCOMMITTEE ON INTELLIGENCE AND THE
RIGHTS OF AMERICANS
SELECT COMMITTEE ON INTELLIGENCE
UNITEI) STATES SENATE
NINETY-FIFTH CONGRESS
SECONI) SESSION
So 1566
JULY 19, 21, 1977 AND FEBRUARY 8, 24, 27, 1978
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FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
HEARINGS
SUBCOMMITTEE ON INTELLIGENCE AND THE
RIGHTS OF AMERICANS
SELECT COMMITTEE ON INTELLIGENCE
UNITED STATES SENATE
NINETY-FIFTH CONGRESS
SECOND SESSION
S. 1566
JULY 19, 21, 1977 AND FEBRUARY 8, 24, 27, 1978
U.S. GOVERNMENT PRINTING OFFICE
94-628 WASHINGTON : 1978
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402
Stock Number 052-070-04477-2
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SENATE SELECT COMMITTEE E ON INTELLIGENCE
(Established by S. Res. 400, 94th Cong., 2d sess.)
DANIEL K. INOUYE, Hawaii, Chairman
BARRY GOLDWATER, Arizona, Vice Chairman
BIRCH BAYH, Indiana
ADLAI E. STEVENSON, Illinois
WILLIAM D. HATHAWAY, Maine
WALTER D. HUDDLESTON, Kentucky
JOSEPH R. BIDEN, JR., Delaware
ROBERT MORGAN, North Carolina
GARY HART, Colorado
DANIEL PATRICK MOYNIHAN, New York
CLIFFORD P. CASE, New Jersey
JAKE GARN, Utah
CHARLES MCC. MATHIAS, JR., Maryland
JAMES B. PEARSON, Kansas .
JOHN H. CHAFEE, Rhode Island
RICHARD G. LUGAR, Indiana
MALCOLM WALLOP, Wyoming
ROBERT C. BYRD, West Virginia, Em Officio Member
HOWARD H. BAKER, JR., Tennessee, Em Officio Member
WILLIAM G. MILLEn, Staff Director
EARL D. EISENHOWER, Minority Staff Director
AUDREY H. HATRY, Chief Clerk
SUBCOMMITTEE ON INTELLIGENCE AND THE RIGHTS OF AMERICANS
BIRCH BAYR, Indiana, Chairman
JAKE GARN, Utah, Vice Chairman
ROBERT MORGAN, North Carolina CLIFFORD P. CASE, New Jersey
DANIEL PATRICK MOYNIHAN, New York JOHN H. CHAFES, Rhode Island
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CONTENTS
Tuesday, July 19, 1977----------------------------------------------- I
Thursday, July 21, 1977_______________ 5
Wednesday, February 8, 1978------------------------------------ ----------------------------------------- 1 87
Friday, February 24, 1978-------------------------------------------- 185
Monday, February 27,1978-------------------------------------- 21.1
LIST OF WITNESSES
TUESDAY, JULY 19, 1977
Testimony of Griffin B. Bell, Attorney General of the United States ;
accompanied by John M. Harmon, Assistant Attorney General, Office
of Legal Counsel ; Frederick D. Baron, Special Assistant to the Attorney
General ; and William Funk, Office of Legal Counsel_________________ 11
TFZURSOAY, JULY 21, 1977
Testimony of Adm. Stansfleld Turner. Director of Central Intelligence ;
accompanied by Anthony Lapham, General Counsel ; Adm. Donald Al.
Showers, Special Assistant, Intelligence Community Staff, and George L.'
,Gary; Legislative Counsel--------------- ,_
Testimony of Ms. Deanne C. Siemer, General Counsel, Department of-De-
fense; accompanied by Adm.'Bob Inman, Director, National 'Seairlty
Agency ; and Rowland Morrow, Director, Counter-Intelligence, Depart-
ment of Defense--------------------------------------------------
58
Testimony of Harold Saunders, Director of Intelligence and Research,
Department of State----------------------------------------------
64
Testimony of Herbert J. Hansell, Legal Adviser, Department of State____
65
WEDNESDAY, FEBRUARY 8, 1978
Testimony of John Shattuck, director, Washington office, American Civil
Liberties Union; Jerry J. Berman, legislative counsel, American Civil
Liberties Union ; and Morton Halperin, Center for National Security
Studies -------------------------------------------------- - ----
110
Testimony of Steven B. Rosenfeld on behalf of the Committee on Federal
Legislation, the Association of the Bar of the City of New York --------
132
Testimony of Mr. David L. Watters, Washington Representative, Ameri-
can Privacy Foundation--------------------------------------------
178
Appendix A. Letter from Attorney General, Griffin B. Bell, to Senator
Robert Morgan, Sept. 21, 1977_______________________________________
231
Appendix B. Letter from Attorney General, Griffin B. Bell, to Senator
Birch Bayh, Feb. 28,1978___________________________________________
232
Appendix C. Fordham Law Review___________________________________
238
Appendix D. Excessive use of Intrusive techniques (findings, Church
committee, final report, book II) ------------------------------------
261
Appendix E. Political abuse of intelligence information, (findings, Church
committee final report, book II)__________________________
288
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IV
MATERIAL FOR THE RECORD
Prepared statement of Senator Joseph R. Biden, Jr., and additional views page
on S. 3197 ---------------------------------------------------------- 6
Prepared statement of Hon. Griffin B. Bell, Attorney General ; before the
Senate Judiciary Committee, Subcommittee on Criminal Laws and Pro-
cedures ----------------------------------------------------------- 12
Letter from Griffin B. Bell, Attorney General, to Senator Robert Morgan,
Sept. 2, 1977------------------------------------------------------- 27
Prepared Statement of Adm. Stanfield Turner, Director of Central Intel-
ligence on S. 1566-------------------------------------------------- 46
Statement of Adm. Stanfield Turner, Director of Central Intelligence at
hearings before the Subcommittee on Criminal Laws and Procedures of
the Judiciary Committee, on Foreign Intelligence Surveillance Act of
1977 -------------------------------------------------------------- 47
Prepared statement of Harold Brown, Secretary of Defense______________ 58
Prepared statement of Deanne C. Siemer, General Counsel, Depart-
ment of Defense---------------------------------------------------- 61
Preparted statement of Harold Saunders, Director of Intelligence and
Research, Department of State______________________________________ 65
Prepared statement of Herbert J. Hansell, legal advisor, Department of
State ----------------------------------------
Prepared statement of Prof. Christopher H. Pyle, Mount Holyoke College. 87
Prepared statement of Walter D. Huddleston, U.S. Senator from the
State of Kentucky------------------------------------------------- 109
Prepared statement of John H. F. Shattuck, director, Washington office
and Jerry J. Berman, legislative counsel, American Civil Liberties
Union ------------------------------------------------------------- 110
Prepared statement of Steven B. Rosenfeld on behalf of the Committee on
Federal Legislation, the Association of the Bar of the City of New York_ 132
Letter to Senator Daniel Inouye from George M. Hasen, chairman, Commit-
mittee on Civil Rights, Jan. 24, 1978_________________________________
Prepared statement of David L. Watters, Washington representative,
American Privacy Foundation --------------------------------------- 148
Markup hearings on S. 1566-Foreign Intelligence Surveillance Act of
1978 -------------------------------------------------------------- 185
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S. 1566
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
U.S. SENATE,
Si;Bcoir1ITTEE ON INTELLIGENCE
AND THE RIGHTS OF AMERICANS
OF TIIE SELECT COMMITTEE ON INTELLIGENCE,
TVashington, D.C.
The subcommittee met, pursuant to notice, at 10:01 a.m., in room
6226, Dirksen Senate Office Building, Senator Birch Bayh (chairman
of the subcommittee) presiding.
Present: Senators Bayh (presiding), Inouye, Hathaway, IIud-
dleston, Morgan, Hart, Garn, and Chafee.
Also present : William G. Miller, staff director; Audrey Hatry,
chief clerk of the committee.
Senator BAYII. We will convene our hearings. Our full committee
chairman is en route, and pending his arrival, perhaps I would ask the
Attorney General's indulgence -For a brief opening statement to try
to put the foundation on what we are doing and why we are here, ana
I will ask my colleague from North Carolina and other colleagues if
they care to also have any opening comments.
The Subcommittee on Intelligence and the Rights of Americans of
the Senate Select Committee on Intelligence is today beginning hear-
ings on S. 1566, the Foreign Intelligence Surveillance Act of 1978.
Our first witness is the distinguished Attorney General Griffin Bell,
and Mr. Attorney General, as busy as you are, we appreciate that you
and your top staff people would take time to be with us here. I know
from the discussions we have had, really from our first meeting, of your
intense interest in resolving this problem, and I think what you have
done while Attorney General means that the words you spoke during
your confirmation hearings were words of substance and not words of
rhetoric. Those of us who knew you had no doubt, and hopefully some
of the doubting Thomases have had their doubts removed.
The hearings will continue on Thursday, July 21, when we will hear
from the Director of Central Intelligence and representatives of the
Departments of State and Defense. An additional hearing is scheduled
for Monday, August 1,* to receive testimony from outside witnesses
and representatives of interested groups. All the members of the full
committee have been invited to participate in these hearings,
*This hearing was cancelled and took place Wednesday, February 8, 1978.
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Because some aspects of foreign intelligence surveillance will re-
quire the discussion of classified information, the subcommittee in-
tends to take further testimony from administration witnesses in
executive session. These will include representatives of the Depart-
ment of State, Department of Defense, Justice Department, the FBI,
the CIA, and the National Security Agency.
The subcommittee is taking up the bill before the Judiciary Com-
mittee has reported it because of the importance of completing our
hearings by the August recess. I will say to my colleagues of the com-
mittee I have discussed this with the chairman of the Judiciary Com-
mittee and both of the ranking members of the subcommittee that is
considering this, and they are glad that we are moving as rapidly as
we are.
We anticipate that the Judiciary Committee will report the bill,
with some modifications, before our hearings are over. Until then, the
subcommittee will examine the act in the form it was originally
introduced.
This bill is an important first step towards full-scale legislative
regulation of the intelligence activities of our country. We hope to
furnish to the people of our country the kind of legislative charter,
the kind of wiretap legislation that they have every right to deserve,
and we hope to finish our considerations of this bill promptly so that
the committee can move on to deal with further measures not only to
clarify the authority and structure of the intelligence community, but
also to place clear legal limits on the full range of intelligence activi-
ties which may affect the rights of Americans.
One of the main subjects we have asked the Attorney General to
address is whether this act could be amended to cover surveillance of
U.S. persons abroad. The present bill protects Americans only when
they are in the United States, and there are no minimization pro-
cedures to limit the use of information about Americans acquired in-
directly from international and foreign communications.
We have also asked the Attorney General to discuss with us the
practical consequences of the act, the standards and procedures con-
templated for making the Executive certifications required by the act,
and appropriate procedures for congressional oversight. An additional
matter of concern to the subcommittee is the circumstances in which
the information acquired about Americans who are not targets of
surveillance may nevertheless be used or disseminated.
Other questions involve the relationship of the act to the Vienna
Convention, and to the legal and human rights obligations of the
United States toward foreign visitors in this country.
Last year, as all members of this committee know, the Intelligence
Committee renorted a similar bill, S. 3197, which failed to reach the
Senate floor. During the Attorney General's confirmation hearings, I
asked about the possibility of the administration supportinn a new
bill with changes designed to resolve the misgivings some of us had
about the original bill. A number of areas for imnrovement were dis-
cussed with officials of the Justice Department. The bill before us to-
day incornorates at least in part three significant changes proposed
in those discussions.
The most important change is the extension of the bill, Ind the
court order requirement, to targeting of the ,international communica-
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tions of Americans who are in the United States. I might point out this
is a very important feature that was not covered in the bill last year.
For the first time, now, targeting of international communications of
Americans who are in the United States is covered in this bill.
A second significant improvement is judicial review of the execu-
tive certification that surveillance of an American is necessary to ob-
tain foreign intelligence information. Third, the bill states clearly
that its standards and procedures are the exclusive means by which
electronic surveillance as defined in this act may be conducted. There is
no exception for the President to authorize such surveillance on his
own for matters that were not contemplated by Congress, and I think
it speaks well of the President of the United States. For the first time,
to my knowledge, in history we have a President of the United States
who does not claim implied authority, but sends his right arm, the
Attorney General of the United States, up here to support and indeed
to help in drafting of legislation which governs the exclusive means by
which Presidential authority may be exercised in this very contro-
versial yet critical area.
However, and here again I speak, I guess, just in my judgment,
but as one who has studied this over a couple or 3 years, I just want
to say that even though this loophole is now closed for the surveillance
covered by this bill, in my judgment there is still room for the Presi-
dent to claim inherent authority to target Americans abroad for sur-
veillance and to use information about Americans acquired directly
from surveillance of international communications. Until Congress
enacts legislation in this area, the foreign intelligence surveillance
activities of the Executive branch will continue to raise serious prob-
lems for the rights of Americans.
I think it is important for us to look at how we can make what I
think is a much better bill an oven better bill, and I want to thank
you again, Mr. Attorney General, and your assistants for their close
cooperation with the committee during the development of this bill.
We have not yet resolved all of our differences; and sometimes the
Justice Department must represent the views of other agencies as
well as its own position, but it has been a privilege to have a chance
to develop the kind of working relationship we have had.
We are all aware of the delicate combination of interests that
bring us together. Nobody is naive enough to not understand the need
to have good, efficient, honest intelligence gathering agencies that
have the best expertise available to protect us from those who would
take away our freedom, but certainly in this day and age we don't
need to be reminded that it is equally important for us to give those
tools and provide that framework to those who serve our intelligence
community in a manner that also protects the rights of individual
Americans.
Tliis is supposed to be and I firmly believe it is one of the real
distinctions between. our society and others, that we are able to meet
the needs of the Government as a whole without transgressinm Ion the
rights of individual American citizens, and it is to that goal t.at this
committee is working, and I am sure the Attorney General is equally
dedicated.
Could I ask my colleague from Kentucky if he has opening re-
marks he would like to make at this time?
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Senator HUDDLESTON. Thank you, Mr. Chairman. I would like to
join you and the other members in welcoming the Attorney General,
Mr. Bell, to the opening day of hearings by the Senate Select Com-
mittee on Intelligence on the Foreign Intelligence Surveillance Act
of 1977. Now, this bill has generated considerable discussion, as we
all know, and in many ways is a product of congressional investiga-
tions of our intelligence agencies. The abuses which were discovered
in the area of warrantless wiretaps made clear the necessity for
legislative action, and unlike many previous administrations, the Ford
administration, particularly Attorney General Levy, the Carter ad-
ministration, particularly Attorney General Bell, have worked closely
with the Congress in fashioning corrective legislation.
I would like the record to show my appreciation for the work of
these two administrations and for the leadership shown by the dis-
tinguished senior Senator from Indiana, the chairman of the Senate
Select Committee's Subcommittee on Intelligence and the Rights of
Americans, along with Senator Garn, the vice chairman of the Sub-
committee on Intelligence and the Rights of Americans. He has done
a masterful job in preparing legislation in this area. He did so last
year, and his work this year has led to a number of improvements in
the bill that is before us as he himself detailed.
Now, the abuses which have led to the presentation of this legis-
lation were the result of actions taken on the basis of claims of in-
herent Presidential power. Like so many other fields or other areas in
the field of intelligence, there was no legislative guidance for the
officials of our intelligence community. Neither the need to surveil
Americans for foreign intelligence purposes nor the procedures to
be followed were ever established by Congress, and I believe that
it is important that Congress now make such determinations, striking
a balance between the need to protect our national security and the
need to protect the rights of Americans.
This legislation is the first piece of charter legislation for the
intelligence community, and is the first of many which will be brought
before the Select Committee. Other legislation which I intend to intro-
duce during the session will provide a charter for what is now the
Director of Central Intelligence, as well as charters for the CIA, the
NSA, and the domestic security activities of the FBI. Special care
will be taken to protect the rights of Americans. At the same time, the
need for strengthening our vital intelligence agencies will be given
the utmost attention.
So, because of the importance of this bill and because of its strong
ties to other charter legislation that is now being reviewed by the
Subcommittee on Charters and Guidelines, I am looking forward with
great interest to hearing the Attorney General this morning, and I
appreciate the opportunity, Mr. Chairman, to participate in the Com-
mittee's activities.
Senator BAYH. I will say to my distinguished colleague from Ken-
tucky, I appreciate your thoughtful observations relative to the
Senator from Indiana, and it has been a privilege, I think, to see this
committee work together and to understand the need to have a close
relationship between its subcommittees and the missions that we are
carrying, and the importance of establishing charters on which our
intelligence activities can be based cannot be exaggerated as far as its
importance is concerned, and indeed, it is in good hands.
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Does the distinguished Senator from North Carolina care to get us
off to a good start this morning?
Senator MORGAN. Mr. Chairman, just a word. Judge Bell, where I
am from, we are not used to opening statements in court. We go ahead
and try a case and then take the last speech to the jury, but it is not
often I have a chance to lecture the Attorney General of the United
States, so I might as well take advantage of it.
Judge Bell, I have some apprehensions about this bill. I might just
say by way of introduction that when I came to the Senate 21- years
ago, I guess you could have classified me as a rather conservative,
staunch law and order man, having come from a position as attorney
general of my State, and head of a department in which I had the
State Bureau of Investigation, and I had a great deal of respect for
Federal law enforcement agencies.
To be sure, I complained about the lack of cooperation between the
Federal Bureau and the local law enforcement agencies, but that, I
think, was to be expected, but after sitting through months, weeks
and months and almost years, a year and a half of hearings about the
intelligence agencies, and when I say that I include all of them, I
have become dubious of everything we do, and perhaps too much so.
I was one of those who did not vote for the wiretap bill that was
before this committee last year. I had a number of reservations
about it.
First of all, the seven judges, it seemed to me, left room to do a
little judge shopping if you wanted to. Second, as I recall it, there
was no real provision for the judges to look back of the certification
to see whether or not the certification was based upon reasonable or
probable-facts. Let's put it that way rather than getting into the
probable cause area.
I was disturbed about the lack of criminal standards. One of the
things I was disturbed about was the statement which could have been
interpreted as recognizing the inherent power of the Presidency to
wiretap in terms of national security, and of course some of those
things have been eliminated, but as I have studied your testimony
before the Judiciary Committee, and as I have studied other matters
before me, and I have got more here than I can study, I just want to
say that each time I keep coming back, time after time after time
again, to the statement that was attributed to Attorney General Harlan
Stone in 1924, and the more I am convinced, the more I see, the more
I hear, the more I am convinced that Justice Stone was right, and that
maybe we ought to stick to that guideline, and if we can't stick to it
with the present state of the criminal laws, maybe we ought to change
the criminal laws.
At the risk of being repetitious, I just want to read this one state-
ment, because I have made a conscientious effort to read everything
that I can about this, and every time I think I have reconciled myself
to these new theories, and new thresholds, I find myself coming right
back to what lie had to say, and here is what he had, to say.
There is always. a possibility that a secret police may become a menace to free
government and free institutions, because it carries with it the possibility of
abuses of power which are not always quickly apprehended or understood.
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We found that out, that many of the things, abuses that we are
learning now in all of the agencies that took place years ago, they
were not quickly apprehended.
"It is important," he said, "that activities be strictly limited to per-
formance of those functions for which it was created, and that its
agents themselves be not above the law or beyond its reach.'' The
Bureau of Investigation is not concerned with political or other
opinions of individuals. It is concerned only with our conduct, and
then only with such conduct as is forbidden by the laws of the United
States. When a police system passes beyond these limits, it is danger-
ous to the proper administration of justice, and the human liberty
which should be our first concern to cherish, and that is where I start
from.
If you have anything that you could help persuade me of the cor-
rectness, or that this bill is better, I would be glad to hear from you
as we go along. Thank you.
Senator BAYII. Thank you, Senator Morgan. As I have said to you,
sir, I, too, have struggled with the criminal standards test, and I want
to come down foursquare where you just put us. I finally was able to
resolve this in my own mind with it very carefully drawn exception,
but that was a part of the negotiating process, not a matter of first
wishes, and I appreciate your bringing our attention to this matter.
We cannot overemphasize it.
Senator MoRGAN. When I think I have it resolved, I wake up the
next morning and it is not.
Senator BAY1I. I have gone through that same kind of sleep-and-
awake process. We appreciate the fact that as busy as our full com-
mittee chairman is, that he has had the opportunity to get with us at
the start of our hearings. Senator Inouye, do you have some opening
comments that we might share this morning?
CHAIRMAN INOUYE. I just would like to welcome our Attorney Gen-
eral and thank him for his cooperation. General, your staff has been
extremely cooperative with the committee and we are very grateful
for that. I think with this spirit of cooperation this matter should be
law soon.
Senator BAYH. I should note that a distinguished ranking member
of our subcommittee, Senator Garn, had every intention of being here
this morning. He got caught up in some emergency problems like we
all have on occasion. I understand he will be along shortly, as quickly
as he can get here, and we are looking forward to his being here.
Also, Senator Biden has submitted a statement that he would like
included in the record, along with his additional views on S. 3197,
which our full committee considered in the last Congress. Without
ob'ection, they will be inserted in the record at this point.
The statement of Senator Biden along with his additional views re-
garding S. 3197, 94th Congress, follow:]
STATEMENT OF SENATOR BIDEN AND ADDITIONAL VIEWS ON S. 3197
I welcome the hearings that begin today on S. 1566, the Carter administra-
tion's electronic surveillance legislation. I view S. 1566 as a substantial improve-
ment over S. 3197, similar legislation proposed by President Ford in the last
Congress.
Last year I was a member of this Subcommittee and spent considerable time
with the Chairman and other members attempting to bring S. 3197 into line with
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our view of the Fourth Amendment. The Committee adopted, with a few modi-
ficati-ons, an amendment I proposed to S. 3107 that would have created a more
precise standard for the use of electronic surveillance in national security cases-
a standard more consistent with the Fourth Amendment. I am pleased to see
that much of that language remains in the present legislation.
When S. 3197 was reported from the Select Committee last summer, I voted
in favor of reporting the bill but I expressed my lack of enthusiasm in additional
views. I ask unanimous consent that those additional views be reprinted at this
point in the Subcommittee's record. I ask that those views be incorporated be-
cause they summarize many of my present concerns with the legislation.
In brief I mentioned three basic areas which I thought required additional
attention and which served as the basis of my objection to hasty consideration
of the legislation. Those concerns were as follows: (1) The constitutionality
of the legislation; (2) the "inherent authority" provision; and, finally, (3) the
impact of the legislation upon legislative charters to be drafted by the
Committee.
As the result of negotiations between the Committee, the staff and the Intelli-
gence Community, substantial progress was made in the last year. The legisla-
tion eliminates the so-called "inherent authority" provision of S. 3197 and covers
NSA intercepts, an idea which I and other critics of the bill proposed in the
last Congress.
The new legislation does not, however, resolve my concerns about its con-
stitutionality. As I pointed out in my statement last summer, the Fourth Amend-
ment has basically two components in its protection of the privacy of Americans.
First, a citizen's privacy cannot be invaded unless a judicial officer issues a
warrant authorizing a search and second, the judge must have probable cause
to believe the search will seize particular evidence of criminal activity. Un-
fortunately the focus of the debate over the constitutionality of this legislation
has been upon the first element of the Fourth Amendment-whether or not a
warrant need be required. In expanding the warrant requirement to NSA inter-
cepts and eliminating the so-called "inherent authority" exception, many be-
lieve the constitutional problems with this legislation have been solved. As I
pointed out last summer, and as I reiterate today, I do not believe the constitu-
tional issues have been totally resolved until the second element of the Fourth
Amendment has been addressed. So long as this legislation permits intercep-
tion of private conversations where the judge has not required the government
to prove that specific evidence of crime will be seized, then I believe the legis-
lation is constitutionally defective.
I still have doubts about proceeding with legislation such as this which
addresses only one basic technique used by the Intelligence Community before
it has developed legislation which charters the Intelligence Community to con-
duct investigations in the first instance. In adopting legislation such as this,
out of context, the Committee and the Congress might prejudice their efforts to
regulate the use of informants, physical surveillance and other necessary intru-
sive techniques. This Committee has still not formally proposed its legislative
charters for the Intelligence Community and, therefore, I still feel the wiretap
bill should be a second priority to the development of those charters.
Finally, last summer I pointed out that at the same time we were attempting
to clarify the responsibilities of national securities agencies, that we would also
attempt to modernize statutes such as the Espionage Statute which control the
behavior of private persons who might in some way jeopardize the national
security. At the heart of this concern was the debate which raged last summer
over application of electronic surveillance to unwitting U.S. citizens who might
violate some old vague criminal statute or violate no statute but simply be
engaged in communications with a foreign agent. In the course of my study of
the problem of secrecy in the Intelligence Community in my capacity as chair-
man of the Secrecy Subcommittee, I have become increasingly aware of this
problem. I have found that our espionage statutes and other statutes relating to
the use of classified information are exceedingly vague. Ambiguities in these
statutes are a threat not only to civil liberties but to national security. Basing
electronic surveillances upon a, violation of these statutes doesn't seem a par-
ticularly wise course at this time.
Since last summer and as a result of my work on the Secrecy Subcommittee,
I have become increasingly aware that the problem of secrecy and concern in the
Intelligence Community over protecting sources and methods has a way of under-
cutting the equal and just enforcement of the criminal laws. I have discovered
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cases in which the Intelligence Community's overriding concern for secrecy has
led them to forego legitimate espionage investigations and other enforcement of
the criminal statutes out of fear that sensitive information might be disclosed
in the course of criminal trials. I am aware that this basic issue has been touched
upon in the course of negotiations over S. 1566. For example, there are sections of
this legislation that deal with the requirement that the Intelligence Community
disclose to judges passing on warrants information relevant to the request for
electronic surveillance.
Since the Secrecy Subcommittee will be looking further at many of these
same issues, it is of some concern to me that the Committee is proceeding with
legislation which may in some way prejudice our inquiry. This latter point is
just one more reason why this Committee should be exceedingly careful in
processing this legislation and should make it clear to the Executive Branch
and in particular to the Intelligence Community that although we are taking
positions on matters that have an impact on other parts of our work we do
not intend them to prejudice positions we might take on subsequent legislation.
In conclusion, I view this legislation in much the same light as I did S. 3197
after it had been processed by this Committee last summer. It is a substantial
improvement over its predecessors. However, I am not sure whether it is an
adequate improvement over existing law. I, therefore, will work to improve it
within this Committee and will reserve the right to vote against the bill when it
comes up in this Committee and, if necessary, when it reaches the Floor.
ADDITIONAL VIEWS OF SENATOR BIDEN ON S. 3197
I am not enthusiastic about S. 3197, even as amended by the Senate Select
Committee. However, inasmuch as the Justice Department agreed to a good faith
effort to compromise, I am voting to report this bill. The Committee adopted, with
a few modifications, an amendment I proposed on the controvesial definition of
"agent of a foreign power."
My concerns about this bill fall into three major areas : (1) I am still concerned
about the constitutionality of this bill; (2) I wish the Committee had modified or
eliminated the so-called "inherent authority" provision of the bill; and finally (3)
I am concerned that the Committee's action in approving this bill not prejudice
its efforts to develop legislative charters for intelligence agencies.
In 1967, in two landmark decisions, Berger v. New York, 388 U.S. 41, and
Katz v. United States, 389 U.S. 347, the Supreme Court held that the Fourth
Amendment to the Constitution applied to electronic surveillance. In essence,
that meant that the basic right to privacy of American citizens encompassed
private conversations and could not be violated by the government without a
compelling need.
The scheme the founding fathers developed, in the Fourth Amendment, to
police invasions of privacy has two basic parts. First, an American's privacy
cannot be invaded unless a judicial officer issues a warrant authorizing the
search and second, the judge must have probable cause to believe that the
search will seize particular evidence of specific criminal activity.
Ever since the Katz and Berger cases the Justice Department has been at-
tempting to engraft, exceptions to these standards for national security elec-
tronic surveillance. After a brief, and I must say, quite cursory review of the
national security electronic surveillance program of the FBI, I now under-
stand why they feel compelled to engraft such an exception upon these rules.
Much of their electronic surveillance has not met these two standards. Of course,
their inability to meet these standards resulted in dangerous invasion of pri-
vacy, including the abusive electronic surveillance revealed by the Church
Committee.
This bill is an attempt to regularize national security electronic surveillance
through a statutory warrant procedure. Unfortunately the emphasis in drafting
this procedure has been upon the first part of the Fourth Amendment, that is
the warrant procedure, and not the second, that there be probable cause that
the search will seize particular evidence of specific crimes. Therefore, S. 3197,
as introduced, had an elaborate warrant procedure for judicial review of requests
for electronic surveillance but prohibited the judge from requiring that the gov-
ernment show that the surveillance would overhear conversations about specific
criminal acts threatening to the national security.
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To my mind both parts of the Fourth Amendment are of equal importance.
After all it was the abuse of so-called "General warrants" and "Writs of assist-
ance" in colonial America and 18th century England which led to the Fourth
Amendment. Both of these abusive warrant procedures were used by the British
Crown to suppress dissent through the harassment of gross invasions of privacy
in the name of enforcing the tax laws in the colonies and the so-called seditious
libel laws in Great Britain. The Framers of the Fourth Amendment recognized
as the major abuse in these warrant procedures their failure to "particularly
describe" the place to be searched or things to be seized. Ironically, these
abusive searches, which gave rise to the Fourth Amendment, were also con-
ducted in the name of national security---the revolutionary refusal of our fore-
fathers to be taxed without representation and the propensity of critics of the
Crown in 18th century England to engage in seditious libel.
At the beginning of our negotiations, Attorney General Levi insisted that it
was impossible for the FBI to comply with both parts of the Fourth Amend-
ment. Indeed, he argued that the FBI did not have to comply with both parts,
relying on a series of so-called administrative search Supreme Court cases
which permitted looser Fourth Amendment standards. These cases, involving
one-time searches of houses violating housing codes or car searches for illegal
aliens, simply cannot be relied upon for 90 days of electronic surveillance of
Americans who, under the bill as originally proposed, may be engaged in legal
political activities (such as lobbying Congress for more arms for Isreal or
Egypt at the behest of either country).
Apparently, the Attorney General saw the frailty of that argument and, in
the course of our negotiations, accepted amendments to the definitions section
of the bill. These amendments refine such vague terms as "clandestine intelli-
gence activities," so that before authorizing electronic surveillance the judge
must he satisfied that the American is engaged in specific acts, with very limited
exceptions, criminal acts. It was the Attorney General's movement on this ques-
tion that convinced me that, in good faith, I should acquiesce with Committee
approval. of the bill.
I am. still troubled by the outcome. We may not have gone far enough to pass
constitutional muster. For example, the bill still permits electronic surveillance
of some activities which in and of themselves are not criminal. Furthermore,
on a more fundamental level this bill goes well beyond existing electronic sur-
veiillance law and Fourth Amendment cases and says in effect that where there is
probable cause that the subject of a search is engaged in criminal activity, there
is no need to satisfy the judge that the search will seize evidence of that criminal
activity (in the case of electronic surveillance that the subject will engage in
criminal conversations on the phone). I have substantial doubts about the con-
stitutionality of that doctrine, although the majority of my colleagues and the
Department of Justice do not. As the Supreme Court said in another landmark
Fourth Amendment case, the same year it decided Katz and Bergelr:
"There must of course be a nexus-automatically provided in the case of
fruits, instrumentalities or contraband--between the item to be seized and
criminal behavior. Thus, in the case of "mere evidence", probable cause must be
examined in terms of cause to believe that the evidence sought will aid in a
particular apprehension or conviction." Warden v. Hayden, 387 U.S. 294 (1967).
II. THE INHERENT AUTHORITY SECTION
Section 2528 of the bill preserves intact the concept of inherent presidential
authority to spy on Americans. This was of course the basic argument in de-
fense of many Watergate Illegalities. It is the only authority for the Federal
government's huge National Security Agency electronic surveillance program.
The Department of Justice and my colleagues have made an honest effort
to write this language with neutrality so that Congress is not on record
for or against the doctrine of inherent authority. The reasons for doing so are
persuasive. The Federal government must be able to continue its essential NSA
Programs directed at hostile foreign powers.
Unfortunately, it may be impossible to write language on this matter which
is neutral in effect. Congress is on notice of NSA abuses, including project
SHAMROCK and the watchlists both documented by the Church Committee.
Congress is on notice of the myriad of abuses engaged in by other intelligence
agencies and by non-intelligence officials, in the course of the Watergate matter,
undertaken in the name of this doctrine. For Congress to act in this area and
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deliberately skirt NSA and at the same time leave undisturbed inherent authority
may be viewed by some courts as sanctioning the doctrine.
I can imagine the defendants in the present FBI burglary investigation argu-
ing that Congress did not abolish the doctrine of inherent authority when it
had the chance; and therefore the doctrine exists ; and that they were acting pur-
suant to what they believed was a valid exercise of that doctrine. Indeed any
Watergate defendant, and former intelligence official who engaged in illegal
surveillance might make that argument.
Furthermore, I ani not convinced that Congress is aware of every intelligence
program engaged in or planned by the Federal government. What additional
programs have been or will be undertaken in the name of "inherent authority"
without congressional knowledge? Are we giving a signal to the courts and
the Executive branch that there still is an area which we feel is beyond public
scrutiny through the Congress in enacting section 2528? That is certainly not
the message we intended and I hope that is not the message that is received.
III. THE IMPACT OF S. 3197 ON THE LEGISLATIVE CHARTER DRAFTING
Certainly one of the most troublesome aspects of S. 3197 is its impact upon
our efforts to develop meaningful legislation is in effect a "backdoor" charter
for foreign intelligence activities.
Unfortunately, we have not had time to have a comprehensive staff or agency
briefing on the so-called counterintelligence and positive intelligence activities of
the Federal government within the United States. Specifically, we have not care-
fully examined the existing statutory authority for such activities. We know, in-
deed Attorney General Levi has admitted, that there are not adequate statutes
for their present programs. This is the reason why we have had to authorize,
in the revised definitions of S. 3197, electronic surveillance of Americans not
engaged in criminal activities.
We learned in the course of hearings on this bill that the FBI and other com-
ponents of the federal intelligence community collect information on the clan-
destine intelligence efforts of foreign nations-counterintelligence. The Federal
government Is also engaged in so-called positive intelligence programs. As I under-
stand it, positive intelligence includes collection within the United States of in-
formation on all the activities of a foreign power or its agents regardless of
whether the activities are intended to harm the United States.
In the past the Executive branch has taken a rather expansive view of its
responsibilities to seek positive intelligence and counterintelligence. For ex-
ample, counterintelligence might include not only efforts to counter Soviet
espionage programs directed at our military and defense secrets but the relation-
ship of American oil companies to ARAMCO in anticipation of an oil boycott.
Positive intelligence could involve not only surveillance to determine the Soviet
Union's problem with its wheat harvest, but efforts on the part of Soviet or
Indian trade attaches to discreetly contact grain cooperatives in this country in
anticipation of seeking grain to supplement their inadequate harvests.
The legal authority for such investigations by the Department of Justice, es-
pecially investigations directed at American citizens, Is dubious at best. The
statute which is usually cited as authority for FBI investigations reads as
follows :
"28 U.S.C. 583. Investigative and other offlciaZs; Appointment
"The Attorney General may appoint officials-
(1) to detect and prosecute crimes against the United States ;
"(2) to assist in the protection of the person of the President; and
"(3) to conduct such other Investigations regarding official matters under
the control of the Department of Justice and the Department of State as
may be directed by the Attorney General."
This section does not limit the authority of departments and agencies to in-
vestigate crimes against the United States when Investigative jurisdiction has
been assigned by law to such departments and agencies.
Since such investigations are by definition non-criminal and, of course, un-
related to the protection of the President, all such authority rests on the cryptic
"such other investigations" language of 533(3). This vague section has an inter-
esting history. It was originally enacted in the code before the enactment of the
Espionage Act of 1917 to provide authority for classic counterespionage investi-
gations. However, the vague language was also the authority which J. Edgar
Hoover cited for the initiation of domestic intelligence programs of recent
infamy.
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The statutes upon which other intelligence agencies base their counterintelli-
gence and positive intelligence responsibilities within the United States are no
more precise. The National Security Act Which created the central Intelligence
Agency assumed that all of the existing agencies had such intelligence collection
authority within the United States. The extent to which it grants such authority
to the CIA is not clear at all.. The National Security Agency, which conducts by
far the largest amount of foreign intelligence (counterintelligence and positive
intelligence) electronic collection, is not even a creature of federal statute and
furthermore, is completely exempt from the restrictions of the. Wiretap bill.
Indeed, one of the few federal statutes which might be said to confer any foreign
intelligence jurisdiction on the Federal government (the Export Administration
Act [50 U.S.C. App. ? .9401, et seq.], setting some limits upon the export of
? industrial technology) expires in September of this year. [50 U.S.C. ? 2413]
Therefore the basic federal statutes outlining the prohibited or regulated
activities of American citizens who work with foreign governments and the
statutes outlining the responsibilities of the intelligence community to investi-
gate such activities are in a complete shambles. Indeed, present state of these
statutes is clearly a threat to civil liberties. The ambiguities and conflicting
jurisdictions inherent in these statutes undermine the national security as well.
We have reluctantly decided to proceed with legislation authorizing electronic
surveillance of activities without first clarifying whether they are covered by
existing law.
I believe that it is incumbent upon this Committee and the Congress to commit
ourselves to revising these statutes and creating meaningful statutory charters
and criminal and regulatory statutes in this area. The Americans who routinely
deal with foreign entities and the agencies of the intelligence community must
both know what their government expects of them in terms of the national
security..
I would have ?preferred to see the Committee create (within the context of
S. 3197) an incentive to correct this chaos in the United States Code, a chaos
which may permit innocent Americans to unknowingly jeopardize. the national
security and may lead the intelligence agencies to abuse the rights of Americans.
I would have. preferred to see a provision of the bill requiring that troublesome
areas of S. 3197-warrantless surveillance of Americans by NSA and surveil-
lance of noncriminal activities by all agencies=be terminated in two years
unless explicitly authorized in new legislative charters. This assumes that both
the Executive branch and the Congress concur on the high priority of setting;
this area of the law in order. I believe that it. can be done within two years and
if it cannot by the end of that period Congress can grant an extension. Regard
less, the national security, the Constitution and the painful, lesson of abuses
which have grown out of the failure to clarify these laws require such a com-
mitment. Unfortunately, the Department of Justice. would accept no such
amendment.
In conclusion, I view S. 3197,,. as amended by the Select Committee, as a
definite and substantial improvement over the bill as approved by the Judiciary
Committee. I am not sure whether it is .an adequate improvement over existing
law. I therefore reserve the right to vote against the bill when it reaches the
floor.
Mr. Attorney General, I think we have vented our spleen moderately
hers this morning, and now why don't we got down to the reason for
being here? We would like to hear your, thoughts on this legislation.
TESTIMONY OF' GRIFFIN B. 'BELL, ATTORNEY GENERAL OF THE
UNITED STATES;. ACCOMPANIED BY JOHN M..HARMON, ASSIST-
ANT . ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL; FRED
ERICK D. BARON, SPECIAL ASSISTANT TO THE. ATTORNEY.
GENERAL; AND WILLIAM FUNK, OFFICE OF LEGAL COUNSEL
Attorney General BELL. Senator Bayh, Chairman Inouye, Senator
Huddleston, and Senator Morgan, I havo a very short statement. It
would probably be more productive to have a question-and-answer
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session. I know many of you have questions. That has come out in your
opening statements. So, I will read this short statement, and then try
to answer questions.
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 in-
formation within the United States.
I wish to take this opportunity to thank this committee for holding
these hearings promptly, without waiting for the Judiciary Com-
mittee'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 Administration and Congress, and indeed
within Congress, which has been demonstrated thus far must continue.
Except for one matter, which I know concerns several of the mem-
bers of this committee, I would like to submit my prepared statement
before the Judiciary Committee as my prepared statement before this
committee.
Senator BAYH. Without objection, it is so ordered.
[The prepared statement of Hon. Griffin B. Bell follows:]
PREPARED STATEMENT OF HON. GRIFFIN B. BELL, ATTORNEY GENERAL OF THE UNITED
STATES, BEFORE THE SENATE JUDICIARY COMMITTEE, SUBCOMMITTEE ON CRIMINAL
LAWS AND PROCEDURES
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 intelligence
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 he for me and many others a continuing
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 administration
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 intel-
ligence 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 Committee,
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 intelligence
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
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tasks in a free society like our own is the correlation between adequate intel-
ligence 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 necesary in our society, and a balance which cannot 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 dedi-
cated 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.
Approval of a warrant application under this bill would require a finding by
the judge that the target of the surveillance is ia "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 engaged
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 n finding that pro-
cedures will be followed in the course of the surveillance to minimize the acqui-
sition, retention, and dissemination of. information relating to United States per-
sona 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 en-
tities 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 similar of-
ficial that the information sought by the surveillance is "foreign intelligence in-
formation" 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 avail-
able with respect to "official" foreign powers-foreign governments and their
components, factions of foreign nations, and entities which are openly acknowl??
edged by a foreign government to be directed and controlled by that govern..
ment. The other warrant is applicable to all U.S. citizens and permanent resi-
dent aliens.
The judge could approve electronic surveillance for foreign intelligence pur??
poses for a period of ninety days except where the surveillance is targeted against;
the special class of foreign powers, and in such cases the approval 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 Administra-
tive Office of the United States Courts and to the Congress of various statistics
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 oversight.
94-628-78-2
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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 protections
for Americans as against a similar bill proposed last year (S. 3187),
First, the current bill recognizes no inherent power of the President to conduct
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 intercep-
tion 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 ex-
ecutive certification that the information sought was foreign intelligence infor-
mation, that the purpose of the surveillance was to obtain such information, and
that such information could not reasonably be obtained by normal investigative
techniques. In this bill, when United States persons are the target of the surveil-
lance, 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 ordinarily
apply to review of administrative action by executive officials, which adminis-
trative 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, conducted ex parte without
an adversary hearing, is a major reason for adopting a standard other than prob-
able 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 bur-
den of reviewing individual case files. I am committed to personally' reviewing
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 tie courts are interpret-
ing 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 electronic 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 my 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 in-
telligence 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 nar-
rowly 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.
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As a principle this is a worthy goal, but it is important to keep certain fac-
tors in mind. First, this principle is not constitutionally required ; there are
numerous searches which the Supreme Court has found constitutional both
with and without a warrant where there is no probable cause to believe a criipe
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 nec-
essarily mean probable cause to believe that a crime had been committeed. Thus,
it is our considered belief that the standard in Subparagraph (iii) is consti-
tutional. Second, even though we might desire that the activities described in
Subparagraph (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
violation of any current federal criminal statute.
On the other hand, when a United States person furtively, clandestinely col-
lects or transmits information or material to a foreign intelligence service
pursuant to the direction of a foreign intelligence service and where the cir-
cumstances surrounding this activity indicate that the transmission of the ma-
terial 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 criminal 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 extending the criminal law, the purpose of which
is to prosecute, convict and normally 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 espio-
nage 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 controver-
sial espionage provisions of the former S. 1 were the result of just such an.
undertaking.-I can only assure you today that we will do our utmost to draft
revised 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 war-
rant are slightly different for certain aliens, however. The bill reflects gen-
erally 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 sufficient 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 involved. The
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respective military services would have the power to engage in electronic surveil-
lance 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 coordination between the
various intelligence agencies on particular electronic surveillances.
For example, the need for a particular electronic surveillance might come
from the State Department, the CIA might be the agency who had developed 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, and duties of the intel-
ligence community subject to some change, but the development of capabilities.
and technologies by differing agencies cannot be accurately predicted in advance..
There will of course be restrictions on the dissemination 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
.rnittee and the Senate Select Committee on Intelligence to extend statutory pro-
tections to Americans abroad who may be subjected to electronic surveillance.
This desire is shared by this Administration. The Justice Department, in co-
ordination with members of the various affected intelligence agencies, is ac-
tively at work on developing a proposed bill to extend statutory safeguard 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 sig-
nificant first step toward outlining by statute the authority and responsibility
of the Government in conducting intelligence activities.
Attorney General BELL. Thank you. The one matter not covered in,
detail in that statement is the question of extending S. 1566 to cover
all U.S. Government surveillances worldwide.
Before S. 1566 was introduced, the administration seriously con-
sidered proposing a bill which would cover all electronic surveil-
lances, 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 attempt 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 surveil
lances, 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 2 months, and the issues,
are still not resolved within the executive branch.
This is due to the number and complexity of the problems 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,
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and intelligence services of other nations, and surveillances under-
taken are not exclusively for our purposes. The level of cooperation in
surveillances, moreover, can span the entire 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 ad-
justments of one form or another in all aspects of S. 1566, if it were
to be used as the vehicle for reaching overseas surveillances. It will
not be a simple matter to apply to electronic surveillances abroad the
provisions of S. 1566 relating to the standards for approval, the in-
formation to be given to the judge, and the, limitations in the order
itself.
A separate problem, not directly related to the joint operation prob-
lem 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 sur-
veillance. Yet in most cases 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 surveil-
lance against Americans for positive foreign intelligence purposes,
as opposed 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 over-
seas the foreign intelligence need for electronic surveillance is prob-
ably more critical than within the United States. The conditions
under which our personnel must operate can include clandestine ac-
tivities in hostile areas and often involves activities where our ability
to engage in electronic surveillance at all is extremely 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 unsurmountable. I do not believe they are. I mention them
only to illustrate what I believe to be the inadvisability of attempting
to cover overseas surveillance in S. 1566. It just cannot be done by
means of a few simple amendments. 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 surveillance by this Government for both intelligence and
law enforcement purposes. I cannot provide a date by which such
legislation will be ready, because it depends in part upon the resolu-
tion of some difficult policy problems. I can pledge, however, to move
forward with my part of this project as expeditiously as I can re-
sponsibly 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.
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I know, Mr. "Chairman, there are a lot of questions, and I will do my
best to answer them. I have brought my brains along with me to fill
the breach where I fail, so I have John Harmon and Frederick Baron
and William Funk on my staff who work in this area. John Harmon
is the head of the Office of Legal Counsel.
Senator BAYH, '[.'hank you, Mr. Attorney General. We recognize
the presence of your able assistants. Fortunately for them, you brought
your own brains as well as the ones you referred to seated on either
side of you. [Laughter.]
Let me pursue the one major point that you mentioned. in your
statement. You know in the deliberations we had prior to the intro-
duction. of the bill l: expressed a willingness, the desire, really, to co-
operate so we could move the best possible bill. I did express concern,.
both an obligation to try to look more carefully, more definitively at
this particular problem than you were prepared to, understandably..
Now, you mentioned the example of an American who might be in
hostile territory, our agents would be operating in hostile territory,
thus it would be difficult to utilize the same kind of standard abroad
as it is to be utilize in the United States. It would be helpful if we
differentiated. This is not unique in the way our Government has tried'
to govern its response to problems in the collection of intelligence,,
governing intelligence, to try to separate out some countries where it
might be more difficult to operate than others, and in those countries
where we have a close working relationship, part of a mutual reliance
and support mutual principles, we would require the same standards
as we require in our own country, but in other countries that would
meet the definition that you describe, hostile territory, however you".
might want to describe it, I don't think we want to get into that here,.
but would it be possible to differentiate on that basis to help resolve
some of the problems that you might see?
Attorney General Br/rr,. That is possible. I have not been working
with my committee on this bill. My interest in protecting American
citizens overseas stems from the conversations we had at my Senate,
confirmation hearings. When Vice President Mondale and I took this
legislation to the President, we told him we were both committed to
some protection for Americans overseas; and that when he announced
the administration's support of this particular bill, we would ap-
preciate him saying that we were going to move forward immediately-
on some protection for overseas Americans-Americans who happened
to be overseas.
I had people working on this problem even before that time. I have
not reviewed all of the, problems and obstacles they have 'found, but
I can say that my staff is working on it, and they are not trying to
find obstacles. They have an affirmative attitude. They are trying to,
find ways to do this. I am committed to it. and as I' say, the Vice
President is and our President is. The only thing I can say about the
sort of suggestion you made is that the committee ought to con-
sider it, and the staff ought to consider it, and we ought to move as
fast as we can.
Senator BAYIr. I would like to explore any obstacles or suggestions
for overcoming obstacles we can right down to the witching hour
on this bill. I know you and the President are committed, and I have
said so publicly, and I believe you, to try to move a bill to protect
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American citizens wherever they might go. We all recognize the fact
that as far as intelligence gathering, the impact that has on Ameri-
can citizens or any outer rights that American citizens have, we don't
take off our citizenship and leave it when we depart the shores of
this country, and to establish a dual standard really concerns me.
I am not unaware of the legislative complexities, the difficult nature
of resolving these problems, but the concern I have is also a legis-
lative one.
As well-intentioned as you are and the Vice President is and the
President is, this bill has been like trying to run in sorghum molasses
in January. I mean, it is a tough, difficult, straining kind of job, or
more important, and what concerns me is that once we have given
birth to this bill, and it is statutory on the books, I wonder if we
might not have. run out of gas as :Far as the ability to move any kind
of legislation. In other words, we have a great deal here to deal with
the problem at home. We understand it is more important. It affects
more Americans than those abroad, and once we have discharged that
responsibility, I wonder how many of our colleagues and how many
citizens will have said, well, they have done enough already.
Attorney General BELL. There is a decision here in the District of
Columbia by district Judge Jones involving Americans overseas.
Once we enacted -this legislation, we could make a respectable argu-
ment to a court that if you wanted to surveil an kinerioan overseas
we could- go to one of the seven judges and get an order, the same as
we would on an American in this country. If we can build on this one
court decision, it is possible that the apparatus of this bill might
cover Americans overseas.
We don't know that now. I started out thinking that we ought to
extend this bill to Americans overseas, I viewed it as a simple thing
but people who are experienced think it is not simple. I don't know.
If we go ahead and pass this, we would commit to try to use this bill
as a vehicle for getting orders covering surveillance of American
citizens overseas.
A. lot of times you can get a. statute and build on it by court de-
cision. In fact, a lot of people probably object to that sometimes. It
goes .beyond filling the interstices, as Cardoz calls it. Some people say
the court just changes laws or statutes. I think this would be maybe
in the nature of filling in interstices, if we could ask one of -these
seven judges to issue orders on overseas surveillance. I would try t'ha,t.
That might simplify it if we could do that.
Senator BAYn. If a case like that were to arise, would you be pre-
pared to have the Justice Department argue on the side of extending
the provisions of this act to cover American citizens abroad?
Attorney General BEr r . I would. We took that position on some
matter the other day that might involve something overseas, and the
same district court decision. Before that decision was rendered, it
was not thought possible to get a court order in such circumstances,
because there is no statutory method for such a thing. Now, through
this bill we are going to build in a court procedure. We would com-
mit to try to do this with respect to overseas surveillance, and it might
solve the problem.
Senator BAYH. Well, that commitment rests easier than no commit-
ment. Let me say in all respect I think we all understand that is more
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to the chance or the whim, if you please, or the good judgment of a
given judge at a given time in the future, and it is not as certain as
trying to get it in this particular legislation. Let me ask you
Attorney General BELL. I am not trying to keep you from going
ahead with your own thoughts.
Senator IBAYII. I understand.
Attorney General BELL. I am just telling you what we might be able
to do.
Senator BAYir. It is comforting to know that you would be prepared
to do that. Let me look at two types of problems that you refer to in
your statement to see if there is perhaps room in which we can at least
move into this area to some extent with your support. The first is that
the surveillance abroad, of course, often if not always has to be
(lone with the cooperation or involve the cooperation of foreign police
and intelligence services, and the second is that there must be different
targeting standards for Americans abroad.
Now, as I read the bill, a requirement for minimization procedures,
to limit the use of information, that is one of the things we are con-
cerned about, how information found abroad or anything else is used
as it relates to Americans, whether they are targeted or not. I don't
think the minimization, which is a critical thing, would be affected by
these problems. The requirement applies to the use of information by
the U.S. Government. It does not make any difference who is targeted,
or it seems to me it could be structured in such a way it doesn't make
any difference where the information is picked up.
In other words, would it cause any problem to add a requirement
in the minimization section that minimization procedures be followed
for handling any information acquired abroad about U.S. persons?
In other words, when our Government gets the information, whether it
is acquired or that citizen is abroad or at home, as far as the minimiza-
tion, having those machines or having our system automatically throw
into the wastebasket information about citizens that don't meet a
certain standard, couldn't that be applied to citizens while they are
abroad, information that is collected abroad?
Attorney General BELL. Well, I would have to say that is half a
loaf. If we go that far, then you have just got one more step to apply to
Americans overseas, to put them under this bill: the minimization
procedures. Now, if it is up to me to put them in, the Attorney General,
I will do it. I have no objection to telling me to do it. Who else would
do it? Would it be some judge? Would we go to some American judge,
one of these seven, and say, we are getting ready to surveil somebody
in West Berlin, and we want you to approve minimization?
If we are going to do that, we might as well say, well; what about an
order? So, I don't know that that fits in well. If the Attorney General
is to be charged with that duty, it suits me fine, because we do that now,
and maybe we should be on a statutory injunction to do it.
Senator B AYH. Well, that could be a temporary, at least certainly
a better step than having nothing there at all, it seems to me,, because
the collection of information per se is not what is dangerous; but what
is dangerous is the philosophy expressed by a colleague from North
Carolina in quoting Justice Stone that sort of on the present they are
waiting, and that information can come back to haunt you later on.
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Attorney General BELL. Well, I think you might charge the
Attorney General, whoever the Attorney General might 'be. I think
that would be a great improvement over what Chief Justice Stone
did. Senator Morgan was talking about Stone. It is too bad Stone
didn't do something to insure his words. We never had any statutes.
You know, he selected J. Edgar Hoover as head of the FBI, and I
have been looking since I arrived in Washington for some charter
or statutory authority on domestic security matters. I don't object
to statutory commands or injunctions. I think that the FBI does not
object. So if you want to put that in the legislation, it would be find
with us.
Senator BAYFU. Thank you, sir. What about the targeting, the other
part; of this particular problem where this has to be done, and oft--
times is done, anyhow, with the cooperation of foreign governments..
Couldn't we establish certain standards, legally enforceable standards.,
so that when we were cooperating with a foreign government, they
would understand what standards we intended to be applied. to Ameri-
can citizens if they were targeting on them?
Attorney General BELL. That is a problem. How can we tell a
foreign government that they have got to get under our standard?
Maybe we are just cooperating. Maybe we are just going along with
foreign police.
Senator BAYI. Let me tell you how. Let me just give you a specific
example which I think we both know is probably the rule rather
than the exception. Mr. X, a citizen of the United States, suspected.
of being involved in clandestine activities with a foreign power, oper-
ating abroad, would not be applied in this country, might not be
applicable under this standard. We don't have the capacity to bug
Mr. X's telephones, so we go to the German secret police, or the police
in Bonn, and ask them to do it for us.
Now, it seems to me that if we ask a foreign power to do something
like that for us, we also can suggest what the standards are to be
applied before they do it, can we not?
Attorney General BELL. Right. That is an easy case. Now, let's
take a hard case, one where the Foreign Intelligence service is going
to surveil anyway.
Senator BAYH. But do you have any objection to that particular?
Attorney General BELL. No, not the first one, not the one you posed.
But the Foreign Service they might be preparing to surveil an Ameri-
can citizen anyway, and they tell us they are going to do it. We can't
stop them, and yet we know about it. We are tainted. That can happen.
Or there can be one where you are just working a case together, and
maybe in that middle ground you can get an American court order.
It would take a good deal of judgment about this. This is, see, the
case I am committed to, where we would go to the judge ourselves,
and that would be where our people wanted to do something, but
based on what I have learned about, say, the DEA operations over-
seas, there is a great deal of cooperation with foreign governments,
foreign police.
Frederick Baron just handed me a note that we ought to discuss
this further in executive session. What we are saying now, of course,
is perfectly all right to be talking about here, but we cannot cover
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too many details. Sometimes it is necessary to discuss particular cases
as examples. Last week I was working with my staff on what to do
about some of the FBI domestic security investigations, and we were
trying to devise a rule to help guide our thinking, along with Senator
Iluddleston on charter legislation. I concluded we never would get a
good rule until we could run through about 10 or 15 cases, study facts,
and we would come up with a rule. We started doing that, and I think
this is that sort of a thing. I think we would probably have to talk
to our friends in CIA about this.
Senator BAY-11. I understand there are some things that we know
what the hardships are when we meet the tough case, and what I
would like for us to try to do, and here again I just get back to what
I said a moment ago, which I guess is a matter of legislative judgment,
taking your judgment and our collective judgments and see whether
we feel there is going to be enough staying power to pass two bills in
the foreign intelligence area. I am very concerned, Mr. Attorney Gen-
eral, that it is going to take all of us, mustering our strength and
cooperation, to get one good bill passed, without discharging that re-
sponsibility and then having to come back and get what we all under-
stand is a very minor part of the problem compared to the major one
of how we conduct intelligence in this country.
Attorney General BELL. I think that is a very good point. It is
hard to get a major piece of legislation. enacted. We will not take the
process lightly. I will be glad to meet with my people again and see
if there is any way possible to devise some kind of an amendment
here, so that we could argue to an American court that they had
authority.
Senator BAYa. I think there is common ground. We will proceed,
but I have a number of questions, and I have been watching the clock.
I would rather confine my questions so we will have time and then I
can come back if I have others.
Our distinguished ranking member, Senator Garn, is here. Do you
have questions or comments, Senator Garn?
Senator GARN. Just a brief comment, Mr. Chairman, on this partic-
ular point. I am sorry, Mr. Attorney General, I was late, but I only
serve on three committees, and all three of them met at 10. o'clock this
morning, gas usual. That Senate reorganization really helped us, didn't
it? But on this particular point of whether this problem of American
citizens overseas should be in two bills or incorporated in this area,
I do believe we need to address that problem.
You know from our previous conversations that although I am a
co-sponsor of this bill, I am not an enthusiastic supported. I think it is
a good bill. If I were writing it alone, there would be some things that
I would change, but on balance it is sufficient that I could cosponsor it.
I do think we run the danger if we try to put too much more into the
bill that I could no longer support it, for whatever that is worth. It
may not be worth very much, but nevertheless, I would prefer-let's
make that statement at this time-to see the problem of Americans
abroad handled separately, as we originally talked about doing. That
was one of the reasons I decided to support this particular bill since
we would address that problem in a separate one. There are trade-offs
that are going to have to be decided, we must decide whether to push
and incorporate everything into one omnibus bill or not.
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Attorney General BELL. The thought I intended to convey was that
I did not want to appear recalcitrant, to have a closed mind. If some
way on the merits it appeared that we ought to amend the bill, we
would certainly consider it. We think it is very much in the public in-
terest to pass this bill. If we can do what Senator Bayh wants, we
would certainly look at it.
Senator GARN. Well, I agree with you completely, and I hope you
don't misunderstand what I say, because Senator Bayh and I worked
on this similar bill last year at great length. It seems like we spent
most of the year on it. We saw each other more than we did our wives,
which I don't prefer either, but nevertheless
Senator BAYH. I am glad to hear that.
Senator GA-RN. We were not. able to get it through due to the late-
ness of the session, and I do think that it is highly important that we do
pass a bill, because in the current situation a lot of people seem to
forget that there is no law covering this area at all; that the President,
whoever he might be, can simply order electronic surveillance if he
declares it is in the national security interest, and I think that is
wrong. I think we have a good chance of passing this bill by talking to
a lot of our colleagues. It is a controversial, bill. I am afraid if we try to
put too many things into it we lessen the chances of passing it. I
understand what Senator Bayh is saying, that on the other hand maybe
it lessens the chance of passing the second part. If I have to choose, I
would rather take S. 1566 and get it passed-take our chances on the
second part-than lose the whole, ball game. That is the point that I am
trying to make.
Attorney General BELL, I agree with that.
Senator BAYII. Thank you, Senator Garn.
Senator Huddleston?
Senator IIUDDLESTON. Thank you, Mr. Chairman.
Mr. Attorney General, one of the great potentials for use from
intelligence gathering once ,you have established the procedure tinder
which electronic surveillance may be conducted is the use of the infor-
mation that might be gathered in such surveillance, much information
that may have no relationship to the original objective or intent for
the surveillance, but which if placed in. certain hands' or used in' a
certain way could be very damaging to an individual.
Are you satisfied that the so-called minimization procedures estab-
lished in this bill, are adequate to protect the citizen from the misuse
of information that may be gathered?
Attorney General BELL. I am. I have had some experience with the
subject since I have been here. Of course, the only minimization that
we have now is whatever I prescribe.
Senator IItDDLESTON. Right.
Attorney General BELL. I think we would have a double safeguard.
We have the Attorney General plus the people in the chain who suggest
minimization as it comes up to the Attorney General; and then we also
have the court. The court is charged under this bill with imposing
minimization standards.
Senator HuDDLESTOx . That is correct.
Attorney General BELL. I think that is a very good feature in this
bill.
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Senator HUDDLESTON. Do you believe that is important?
Attorney General BELL. I think it is very important. We have had
too much dissemination. Not even gossip-level dissemination so much
as dissemination due to carelessness or without thinking. Who needs
this? Who is harmed by it? Those are the two things you need to
think about, need and harm, and constitutional rights, privacy. So, I
think the American people need the imposition of minimization
standards.
Senator HUDDLESTON. Because we uncovered in previous investiga-
tions where one agency would take information gathered by another
and use for its purposes, although the original purpose of the gather-
ing had no relationship to what the second agency was trying to accom-
plish, but found that it might be very effective in carrying out some
of its objectives and this seems to me to be a real serious danger and
a serious problem that we have in the information we gather on our
citizens.
The question of congressional oversight, I thought last year's bill
was much stronger in giving Congress the oversight that it might need,
and in particular this committee. The present bill requires reporting
to Congress only the number of applications made for court orders
and extensions and the number of orders and extensions granted, modi-
fied, or denied, as I understand it. Is there any reason why the bill
should not also contain more specific reporting requirements for this
committee, so that we can fully discharge our responsibilities under
Senate Resolution 400 ?
Attorney General BELL. I think it would be a mistake to freight the
bill with a lot of reporting procedures when we are already reporting.
We are negotiating a reporting system with your committee staff
right now and I am told it is 12 pages long. We will report anything
to you under your Senate resolution to create the committee. It seems
to me you are never going to have enough in the statute to cover it
anyway, so why do that? Why not just leave it to the normal rela-
tionship between us and the committee?
Senator HUDDLESTON. Last year's statute, though, was a little more
direct in saying that nothing shall be deemed to limit the authority
of the Select Committee on Intelligence to obtain such information as
it may need. They left the initiative more or less, I guess, with the
committee in determining what it needed and what it could ask for.
Attorney General BELL. Now, we don't have any objection to some
general requirement. I am objecting to specifics, and I wouldn't think
you would want to inject specifics.
Senator HUDDLESTON. I just don't want any limitations on the com-
mittee to ask for whatever it might deem to be necessary to carry out
its responsibility.
Attorney General BELL. We don't object to that. Now, when. we get
to the House side, this could be a problem. You know, we are under
seven committees there. They are in the process of creating a commit-
tee, but I am not aware of what preemption of jurisdiction is pro-
posed. I hope you will have that in mind.
Senator HUDDLESTON. Well, we certainly will. We understand the
problems on the House side, too, although I think maybe they are
beginning to move in a more desirable direction. In the past, of course,
intelligence agencies have used warrantless physical search techniques,
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including surreptitious entry and mail opening, to gather foreign in-
telligence information in the United States. This bill, of course, does
not mention these particular techniques. If Congress does not clearly
prohibit them or set standards for them, could they still. be used on
the basis of inherent Presidential powers?
Attorney General BELL. It could be, but we are working on legisla-?
tion in that regard also.
Senator IlUDDLESTON. You plan to have separate legislation relating
to surreptitious entry?
Attorney General BELL. We made a considered judgment that we
could not pass all of that in one bill, that we would not get anything.
While it may seem strange for me to be indicating that we want to
give up power that we now have, we do. We have the same objectives,
and we don't think we can pass all that subject matter in one piece of
legislation.
Senator IIUDDLESTON. So we can expect further legislation on that
subject?
Attorney General BELL. Right.
Senator HrmDLESTON. Well, as I pointed out earlier, this is the first
piece of charter legislation for the intelligence community, and I am
somewhat concerned about the impact on the future charter legislation
that, as you know, we have been working on. Would the adoption of a
noncriminal standard for electronic surveillance lead to the adoption
of similiar standards for other activities such as surreptitious entry
or mail opening in future charter legislation?
Attorney General BELL. I have to say that apart from that, under
this 2521(b) (3) (1), that if those same circumstances applied, I would
be in favor of using the power of the President to allow entries or
searches or whatever is needed. That provision seems to be the subject
of a good bit of writing these days, but if you will read that care-
fully, I think you will have to say that whoever fit into those circum-
stances ought to be surveiled, and that is pretty near a criminal stan-
dard in itself. Maybe you are writing one when you are putting it in
this bill, but I have some trouble finding how anybody could argue
against that. Now, you. can argue about something else off an the
periphery somewhere, a general thing, like we ought to always have
a criminal standard, but when you read this, that in itself is tanta-
mount to a criminal standard.
So, what I say is, yes, if we found those circumstances I think it
would be against the national interest for me not to take note of it.
Senator HUDDLESTON. I just have one other item. The question of the
terms of the judges, Senator Morgan used the term leading to the
possibility of judge shopping, which I hadn't heard of before, but I
guess these fellows that practice law are, accustomed to it.
Senator MORGAN. The judge knows what I am talking about.
Senator HuDDLEsToN. I am sure the Attorney General knows what
he is talking about. Do you see anything wrong with setting terms
perhaps for these judges? As the bill is written now, I understand
there are no terms, so that they would be reappointed from time to
time. They would be serving on a staggered-term basis of a given
number of years each?
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Attorney General BILL. No, no, I really hadn't thought about that
until this morning, and I must say that I favor terms. I would favor
that amendment. I think it would be bad to put judges on the panel.
and leave them there forever.
Senator IIuDDLESTONr. There ought to be some procedure to replace'
there or to at least have to consider it.
Attorney General BELL. This idea of somebody having a 7-year'
tern-staggered to replace one every year-wouldn't be a bad approach
to it. I might as well speak to the judge shopping because there are
415 Federal District judges, and we are only putting seven in the bill..
There is a judge shopping in the sense that you could go to any one of
those seven. Whereas if. you had a venue requirement, you might have
to go somewhere where there is only one. Of course there are very few
districts left now where there is only one judge, so I don't think there
is that much of a problem. We had one not long ago where we got a lot.
of title III's, as you know, and sometimes those are in places where
they have 25 judges, sometimes maybe they have one or two judges..
We have to go to the district where the wiretap is going to take place.
I think seven is a reasonable approach to it, but I do, favor some
definite terms. I had not thought about that. I just had it in my mind'
that probably the Chief Justice would rotate them, but it would.
probably be better to specify.
Senator HVDDLESTON. Specify it in the legislation?
Attorney General BELL. I think the more specification we have, the
better off we are.,
Senator HLDLrsTON. Thank you, sir. Thank you, Mr. Chairman.
Senator BAYH. Senator Chafee?
Senator CHAFES. I have no questions, Mr. Chairman.
Senator BAYH. Thank you. Senator Morgan?
Senator MORGAN. Judge, could you tell me, you stated earlier that
you thought it would be in the public interest that we pass this legisla-
tion. Could you tell me what you consider to be the difference between
the law as it is now and what it will be under this legislation, with
regard to electronic surveillance of Americans?
Attorney General BELL. The difference will be the use of a judge,
who will be superimposed on the chain of command above me, above
the Attorney General. I perceive that to be in the public interest, be-
cause the American people trust courts. Even if they didn't trust courts
as much as they do, they would feel better if there were someone else
in the chain of command.- Even if we added the chairman of this com-
mittee to the chain of command, that would bolster the confidence of
the people in the system. I think the system, based on what I know
about it-during this administration-the system works well as it is,.
and there are no abuses taking place. It is important nonetheless for the'
American people to have confidence in the system of government, and
this is nowhere more true than in an area where there is some secrecy
involved.
So, that is why I say it is in the public interest. That is why
I tiem pushing this. I am not worried about anybody losing their rights
now.
Senator MORGAN. Judge, what do you consider to be your authority ?
What do you consider to be your authority now to engage in electronic-
surveillance of an American under the present law?
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Attorney General BELL. Of an .American citizen?
Senator MORGAN. Yes, as Attorney General.
Attorney General BELL. I have none whatsoever. I have not surveiled
an American citizen.
Senator MORGAN. Do you consider that anyone, including the Presi
dent, has the inherent right to engage in electronic surveillance of an
American citizen in this country?
Attorney General BELL. I do. I think he has a constitutional right
to do that, and he, has a concomitant constitutional duty to do it under
certain circumstances. I have said in the confirmation hearings that I
would not do it, on my own. I believe those were the words I used, "on
my awn."
Senator MORGAN. I assume you base that on the national security
aspect.
Attorney General BELL. Foreign intelligence. What is it? What is
the exact language in the Constitution? Foreign policy powers.
Senator MORGAN. Judge, do you have a brief on what you consider
to be the inherent powers of the President with regard to electronic
surveillance that might be available to this committee?
Attorney General BELL. We don't know of one offhand but we would
be glad to prepare one for you.
Senator MORGAN. I think it would be interesting, because I have
some difference with regard to what I- conceive to be the President's
right in this connection.
Attorney General BELL. We would be glad to try to support that by
brief if you would like to have us do so.
Senator MORGAN. All right, sir. Now, in this bill I understand that,
of course,,to get a warrant to engage in surveillance you have to have
a certification. Is that from the President or the Attorney General?
[The, material referred to follows:]
SEiTnbimR 2, 1977.
lion. RoBRWr MORGAN,
U.S. Senate;..
'Washington, D.C.
DEAR SENATOR MORGAN : During my testimony concerning S. 15611, you. asked
if the Department of Justice could provide you with a statement outlining the
basis for the Department's conclusion that the President may approve warrant-
less electronic surveillance in'the United States under certain circumstances.
In every case in which'the issue has been directly raised, the decision has been
that the President may lawfully approve warrantless electronic surveillances
of foreign powers and their agents. See United States v. Buck, 548 F.2d 871 (9th
Cir. 1977) ; United States v. Butenko, 494 F.2d 593 (3d Cit. 1974) (en bane) ;
United States v. Brown, 484 F.2d 418 (5th Cir. 1973) ; United States v. Clap,
430 F.2d-165 (5th Cir. 1970), rev'd on other grounds, 403 U.S. 698 (1971) ;-
United States v. Enten, 388 F. Supp. 97 (D.D.C. 1971), aff'd in past and vacated,
in part sub nom., United States v. Lemonaki., 485,1' 2.d 941 (D.C. Cir. 1973)
United States v. Hoffman, 334 F. Supp. 504 (D.D.C. 1971). In' Buck, the most
recent case, the Ninth Circuit referred to.such warrantless surveillances as a
"recognized exception to the general warrant requirement." The Supreme Court
has not addressed the question, but has taken pains to make clear that its de-
cisions requiring warrants in. other circumstances do not apply to surveillances
involving foreign powers or their agents. See Katz v. United States, 389U.S.
347, 3E8 n.23 (1967) ; United States v. United States District Court, 407 U.S.
297, 3081 322 & n.20 (1972).
In Butenko, the. opinion which undertook the most substantial analysis of the
issues involved, the Third Circuit initially determined that the President had
as incident to his Article II powers the power to gather foreign intelligence
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information. 494 F.2d at 601., 603. The court then determined that this power
could be exercised only in accordance with the Fourth Amendment. 494 F.2d at
603. The court recognized that the Fourth Amendment bars only unreasonable
searches but acknowledged that a prior warrant is the normal test of whether
a search is reasonable. Referring to other exceptions to the warrant?require-
ment, however, the court weighed the costs of requiring a warrant against its
benefits and determined that because of the need for secrecy and speed in foreign
intelligence surveillances and the opportunity for occasional post-surveillance
review, a warrant was not required. 494 F.2d at 605. The court made clear that
this exception only applies where the primary purpose of a surveillance is to
gather foreign intelligence. 494 F.2d at 606.
The holding of the District of Columbia Circuit in Zweibon v. Mitchell, 516
F.2d 594 (1975) (en bane), is not inconsistent with Brown and Butenko. In
Zweibon the court held that a prior judicial warrant was required for electronic
surveillance of persons who were neither agents of nor collaborators with a
foreign power. While in dictum a plurality of the court suggested that a warrant
should be required even where the subject of the surveillance was an agent
of a foreign power, the court made clear that its actual decision was not so
broad.
In light of this case law and in the absence of statute, the Department of
Justice has consistently maintained that reasonable surveillances conducted
against foreign powers and their agents, personally authorized by the Attorney
General pursuant to an express Presidential delegation of power, are lawful
absent a warrant.
Yours sincerely,
GRIFFIN B. BELL,
Attorney General.
Attorney General BELL. Attorney General.
Senator MORGAN. And it is proposed
Attorney General BELL: The Assistant to the President in charge of
the National Security Council would certify to me.
Senator MORGAN. And then certify to you?
Attorney General BELL. I certify to the court.
Senator MORGAN. Now, you can delegate that authority to an As-
sistant Attorney General?
Attorney General BELL. Well, I put that in the bill thinking it
would be a good thing, but in the Judiciary Committee there seemed
to be some objection to it. I don't know if that is going to survive or
not. I was hoping it would. I spend a lot of time on these matters, and
the question is one of judgment. Does the Congress want the Attorney
General personally to do it or would it be satisfied to have an Assistant
do it with the Attorney General? I do that in title III, wiretap. I del-
egated that to Mr. Civiletti, head of the Criminal Division, but he
gives me a weekly report on what he has done, and I see that every
week. That is the way I handle this, and I also told the Judiciary Com-
mittee that I would agree to do it for a certain length of time to get
it running right, to get the safeguards in it and the kinks out of it
before I delegate it.
Senator MORGAN. Well, Judge, I might say I think it is a two-edged
sword. I fear that delegation of the power to an Assistant Attorney
General, if it is done routinely or laxidasical, and yet on the other
hand, knowing the demands upon the office of Attorney General, I
am afraid that the Attorney General might be put in a position where
he had to routinely approve someone else's recommendations, and so it
might be better to give it to an Assistant, provided this Assistant has
had powers specifically confirmed or considered in his confirmation
hearings.
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Attorney General BELL. That is a good point. I ought not to be
allowed to select any Assistant. I think the Assistant, if he is going
to be delegated, ought to be known. You ought to know that when you
confirm him.
Senator Mor.GAN. Quite frankly, I think I would be better satisfied
with one who was confirmed knowing that that was going to be a part
of his responsibility than I would be saying that the Attorney General
himself had to do it, knowing of all the responsibilities that you have,
because you would have to do it routinely upon what somebody put
before you.
Attorney General BELL. I think that is a. very good point. Nobody
made that point before.
Senator MORGAN. Let me go a little further. Now, if this certification
had come from the President's adviser, as I understood the bill, last
year the judge couldn't look back of a certification. Now, it is not quite
clear to me how far the judge can look back of it this time. Can he go
back into the facts on which the President's adviser made the certifica-
tion, or is he limited solely to the facts certified?
Attorney. General BELL. He can examine the facts and he uses a
clearly erroneous standard in making his decision, and he can ask for
additional facts. In other words, we go down to Judge X, and he says,
I don't know about this, give me some facts.
This is my present practice. I tell the Bureau to bring me some more
facts on this if I am not satisfied with it. Sometimes I turn them clown
without asking for additional facts, but that is what the judge could
do, and that is new in the bill. I don't think you ought to ask a judge
to rubber stamp things, and I don't think you ought to restrict him
so that he has to say yes or no.
Senator MORGAN. I don't think any real judge would even want to
carry out responsibilities of issuing a warrant if he could not look at
the facts, but it is not quite clear to me from the bill that he can go
behind those facts. I notice that Frederick-I wonder if Frederick
has the section there.
Attorney General BELL. Yes ; here it is right here. "C: The judge
may require the applicant to furnish such other information as may
be necessary to make a determination required by section 2525 of this
chapter."
Senator MORGAN. What page is that?
Mr. BARON. Page 15 of the Judiciary Committee print for July 18,
section 2524.
Attorney General BELL. And then the standard is on page 16. On
15, lie can get some more information, and then lie is tested over on 16
by the clearly erroneous standard.
Senator MORGAN. The thing I am still not quite clear on, I think
from what you say the juci e may be able to go back to the facts on
which the President's advisor based his certification, but are we sure
of that fact?
Attorney General BELL. Well, this is broad language. That is the
way I would construe it, and I would get the facts for a judge, if any
one of these seven judges wanted some more facts. Now, if, we will say,
the chairman, or the assistant for national security were to say, well,
we can't give those facts out, I would say, that is the end of the deal,
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then, and we can't get the order, so forget the whole thing. I can see
how you would run into something like that. The judge doesn't have
to grant the order. He has the upper hand. Ile has the final say.
Senator MORGAN. Mr. Attorney General, I am satisfied, knowing
you, that you would do exactly that, and I am also satisfied, knowing
this administration, that they would do exactly that, but it kind of
worries me, looking down the road, as to who might be occupying your
position or who might be occupying the White House.
Attorney General BELL. Well, you might want to doctor that lan-
guage some and make it a little more explicit. There would be nothing
wrong with that, because that is our intention, that this judge have
the authority to get information on which to make a judgment.
Senator MORGAN. Well, my time is a little close. I will make a note
of that and get with some of your staff and maybe we will talk some
on that. With regard to the term of judges, you have no objection to
some rotation system?
Attorney General BELL. Not at all.
Senator MORGAN. Now, is it your idea or your understanding, Judge,
that these seven judges would be located in the District of Columbia,
or would they be around the country?
Attorney General BELL. Well, they ought, to be in the environs of
Washington, but I don't think they all ought to be in the District of
Columbia. I think the American people think that there it too much
power already vested in Washington. At least that is what the ones
tell me that I have talked to, and I think they might feel better if Ave
had some judges in Maryland and Virginia that it wouldn't take a
day's travel. to get to.
Senator MORGAN. I certainly would agree with that. With regard
to my thought on judge shopping-and f started to say I didn't mean
this to reflect one way or the other, it is just that I will make the state-
ment. It is a fact that
Attorney General BELL. Well, you and I both practice law. We
know it is a lawyer's practice.
Senator MoRGAN. And what bothers me is, if these seven-to give
you an illustration, there is a judge in my home capital that absolutely
will restrain the State of North Carolina-a State judge from doing
anything, and the lawyers knew this, and they knew that any time
they wanted to restrain an act of any kind of regulatory board or the
commissioner of revenue, that this judge would restrain them, and
also in my State we had a judge that would restrain law enforcement
officers from doing anything just on any preliminary showing.
As a result, lawyers seeking injunctions shopped for these judges.
Now, how are we going to prevent this from happening with these
seven judges?
Attorney General BELL. I will tell you exactly how to do it. Put in
one of your staff reporting requirements a requirement that we report
on the names of judges and the number of petitions presented to partic-
ular judges. Then you will be able to see that we are using one judge
more than all the others. You can see that in some types of cases in
the Justice Department in years gone by, where they shopped. You
will pick that up and you will ma e us do something about it.
Senator'MORGAN. What can we do about it? That is an interesting
thought.
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Attorney General BELL. You can simply call the Attorney General
over here and tell him, I believe you are abusing your authority.
Senator MORGAN. Would someone then have a right to designate
another judge? Do you think maybe we ought to preserve that right
for the Chief Justice or the Attorney General to change? It may be
you have a judge that just won't ever grant any, and it might be the
other way.
Attorney General BELL. That is right, it could be the other way.
Senator MORGAN. It seems to me we might want to put some kind
of a saving clause in there, too.
Attorney General BELL. Would you think that we could agree that
the judge would serve at the pleasure of the Chief Justice and for no
longer than 7 years?
Senator MORGAN. It would suit me better, because I think the At-
torney General and this committee and the Congress
Attorney General BELL. Also, you could have a judge that might
become senile or become an invalid, have a, stroke or something, so you
need some way that you could change the judges.
Senator MORGAN. Without having to wait for the 7.
Attorney General BELL. For the 7 years to run. I think at the pleasure
of the Chief Justice would be a good proposal for it.
Senator MORGAN. Judge, one other question. I fear I am encroaching
on someone else's time. Sup pose, as I understand the standards, and I
don't have them before me, but, as I understand it, if the advisor to the
President has reason to believe that I as an American citizen may be
passing information to a foreign government, can they go in and get
an order for electronic surveillance without specifying the kind of
information they think I might be passing, and how far beyond mere
suspicion do they have to go
Attorney General BELL. Well, there has to be probable cause. We use
a probable cause standard and we now have something along that line
going, and have had in the past, where we used title III, which de-
pends on what sort of a crime was involved. So it is not unheard of to
do this now in title III. This facilitates it. Sometimes you have some-
thing that is in foreign intelligence, and it fits into a criminal statute
also and you can function under title III, but not very often.
In the warrant application, we have to put in the facts as to the type
of information sought to be acquired, and when the target is a foreign
power, the designation of the type of foreign intelligence and nature
sought to be acquired. What the judge wants to know are the facts on
which you could ascertain probable cause. Now, we have got a certifi-
cate that is like an affidavit, when you get a warrant. The certificate
would contain the facts. When I certify now, they give me-the FBI
sends me over something, sometimes three pages, sometimes maybe
seven or eight pages, and it gives all the facts, as tantamount to what
you do when you go before a magistrate to get a warrant, a search
warrant.
Senator MORGAN. Judge, would you certify now, and maybe this is too
direct, but I will ask it : Would you make a certification which would
entitle an agency to surveillance for the person who is accused of pass-
ing information which in your opinion would not constitute a crime,
such as espionage? I understand the law does not require that, but what
I am talking about is, as a matter of practice, would you now permit
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surveillance on an American citizen just on the information that I
might be passing information to a foreign power, even if you knew
that I was doing it, and if that information-if I was passing it, it still
would not constitute a crime?
Attorney General BELL. Well, that is a hard question. You have got
to know what the information is, and under the espionage law, as I
understand it,, they restrict it to defense material, and some of this is
not defense material. Some are documents that have something to do
with the State Department, with diplomatic matters, or they might just
be technological information that could be either way, and that would
get down to what, you asked me, what would I do about it. ,
You would have to give me a case. I could give you a case or two in
executive session.
Senator MORGAN. Suppose we are talking about, I am passing com-
puter technology to one of the Soviet nations, which could be helpful
and might be helpful to them in many ways. Would not national
defense, couldn't that have a broad-wouldn't it have a broad enough
interpretation to lot us use the criminal threshold, and if it does not,
couldn't we broaden it easily enough to satisfy some of the questions
that some of us have or the fears we have?
Attorney General BELL. Well, Judge Hand gave an expanded inter-
pretation of national defense in Germ v. United States, 1941. Judge
Hand who, as you know, was a judge of some note, said he construed
it narrowly. Now, we who are worried about the security of the Na-
tion, we haven't got time to worry about every judge in the country
deciding whether it is going to be narrow or broad.
Senator MORGA N. Well, couldn't we in this Congress, in this bill,
broaden it? Of course, I think we would have to all acknowledge that
since Learned Hand wrote that opinion the courts have been more
inclined to construe things liberally, but what I am trying to say, and
I am not trying f o argue, but I am trying to say, can't we make the
criminal threshold
Attorney General BELL. Here is what I would like for the commit-
tee to do. You have been an Attorney General, and you understand
statutory construction. I would like for you to look at this provision
we have, this so-called noncriminal standard everybody wants to
attack. Four, under (3) (i), page. 4. It seems to me that is as near to a
criminal standard as it can be. It is like a crime, where all the specifics
are set out.
Senator BAYir. If the Senator will yield, I came very close. We put
most of that definition together last year, as you know, and it was to
try to get at the deep concern that many of us had about departing
from the criminal. standard. We are talking about somebody acting
under the direction of a foreign intelligence mechanism, agency, on
the payroll of some foreign intelligence gathering. They are directing
or acting in a manner that is clandestine, where information that is
being passed could damage the country. I share the Senator from
North Carolina's concern, but I guess-and I apologize for inter-
rupting here, because I know you are just about through, but the one
legitimate area where it seemed to me that perhaps intelligence people,
had a leg to stand on that normally I wouldn't think they would is
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in that area where you just don't know exactly what kind of informa-
tion is being passed, but you have every reason to believe, and you
know this person is acting under the direction of a foreign intelligence
gathering or foreign intelligence agency. Then maybe that exception
could be-
Attorney General BELL. If you put a parenthesis here and said,
"This section constitutes a crime," parenthesis closed, this would end
all this argmnent. That is all it is.
Senator MORGAN. Well, you know, that may be what I am trying
to say, because it worries me that we are going to open a door.
Attorney General BELL. If I see many more editorial columns, I
may put that parenthesis in there. [Laughter.]
Senator MORGAN. Thank you, Mr. Attorney General. Thank you,
Mr. Chairman. I apologize for exceeding my time, but I will talk
with Mr. Harmon and Mr. Baron.
Attorney General BELL. By the way, we will be glad to answer any
questions in writing if any member has a question they want to sub-
mit to us.
Senator BAYii. I just want to read this. You know it and all of
us know it, but some of us may not have had the latest version of the
noncriminal "crime" standard. "Pursuant to the direction of an intel-
ligence service or intelligence network of a foreign power"-that is
the way this American citizen is being prompted or acted-"knowingly
collects or transmits information or material to an intelligence service
or intelligence network of a foreign power"-so there you have that
nexus-"in a manner intended to conceal the nature of such informa-
tion"--that is where you have the problem; if you knew what kind of
information it was, you could nail them dead center, but you don't
quite know, but you have every reason to believe, because of the
nature--"such information and material, the manner in which it is
concealed, or the fact of such transmission or collection under cir-
cumstances which indicate the transmission of such information or
material would be harmful to the security of the United States, or that
lack of knowledge by the United States of such collection or trans-
mission would be harmful to the security of the United States," and
that comes as close as you can come, I think, but I guess we would all
rest easier if it came there.
Senator MORGAN. Well, how close does it come?
Attorney General BELL. I think it is a crime myself.
Senator MORGAN. I would agree with you.
Attorney General BELL. But we haven't called it that. It is like
giving a dog another name.
Senator MORGAN. )ITr. Chairman, could I pursue one other question?
And I am way over my time. Judge, the next provision that bothers
me is the conspiracy thing. Having tried a few liquor cases in the
Federal Court, where my clients got hooked right easily when one
act had been caught, does that encompass all of the broad rules of
conspiracy that you and I
Attorney General BELL. It is as broad as the Federal law of
conspiracy.
Senator MORGAN. Then it is pretty broad.
Attorney General BELL. It is pretty broad, but we never have felt
sorry for any of our bootleggers before.
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Senator MoRGAN. Well, I have been on the other side.
Attorney General. BELL. I wouldn't worry too much about the spies
if we are not going to worry about the bootleggers. Many lawyers and
lay people, as you know, object to the breadth of the Federal con-
spiracy law.
Senator MoRGAN. In all seriousness, it is a broad law, and when we
look at this new criminal code bill I hope we will look at the con-
spiracy, because I do feel like there have been times when injustices
have been done to individuals because of the broadness. Once you
establish an act, then you can bring anybody under the sun, but we
will talk about that later.
Attorney General BnLL. All right.
Senator. BATH. Well, just for the record, Mr. Attorney General, one
of the concerns I have, and I think the Senator from North Carolina
and others have, is the interpretation of this standard not being nailed
down the way I think most of us feel it ought to be, and I -think we
have reason to believe it is with this language. If we are talking about
a citizen here, a citizen of the United States who is on a first name
basis with the ambassador of another power in this country, the am-
bassador or somebody in the agency or in the embassy who might in-
deed be on one of the foreign government's intelligence agencies, and
let's say it is a traditional kind of ethnic problem or ethnic concern
that many of our citizens have, if that embassy person or if the am-
bassador asks the American national that particular country's Ameri-
can nationality, I mean, Greek American, you can name it, there could
bo half a dozen where there would be important issues, and that
citizen then talks to somebody in Congress or to the President, urges
them to pursue a given policy, would you feel that that would apply?
Tn other words, the normal kind of citizen lobbying that we all
recognize as an important right of the citizen. If it has a relationship
that might exist as far as some people are concerned, and involving
an official of another government, would that then fall in this
category?
Attorney General BELL. You mean, on conspiracy?
Senator BAYIr. Yes, sir. Under the definition right here of subsec-
tion ITT, the noncriminal standard, would that he. enough for you to
tap that person?
Attorney General Brr.L. No, I don't think so. I can't believe that it
would be.
Senator BAYH. I can't either, but you are the Attorney General, and
this is important, sir.
Attorney General BELL. If you go to some embassy and get under
their direction, and they tell you, now we are engaged in intelligence
work, and we want, you to do this and we want you to conceal it while
you are doing it, and what you are doing is something that might be
harmful to the security of the United States, then you would be guilty.
But you are not going to do all those things. You are not going to first
act under the direction of a foreign government. If you acted under
the direction, to write a letter, to engage in public relations, we'll say,
or something like that, you wouldn't conceal the nature of what you
were doing, and then second, you wouldn't do anything if it was
harmful to the security of the Nation.
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Now, if some American citizen wants to do those things; then I would
say we would have to go do something to him. It would not be a crime.
Apparently we are not going to make that a crime, except in the sense
we are going to allow him to be surveiled.
Senator BAYII. Well, now, do we not have one important factor?
I mean, I think the fact that the normal kinds of petitions that you
get from citizens of the United States to help us in Cyprus, help the
Greeks, help the Turks, help the Israelis, help the Arabs. I mean, you
know, you can go right down the pecking list of deep concerns that
Americans with roots in other countries have.
Attorney General BELL. Let me give you an answer that I believe is
better than anything I have thought of. Under the Foreign Agents
Registration Act, we would not be able to surveil under that act unless
there was also clandestine intelligence gathering. So what you are
describing is not clandestine, and we have plenty of Americans
registered as foreign agents. We handle that in the Justice Department,
and we don't consider that to be a clandestine intelligence activity.
Senator BAYhI. Even if it were clandestine, could it be--I mean,
certainly the relationship between the goverment in question and the
American citizen could be clandestine, but we have the collection and
transmission. I mean, the statute says right here, you have to collect and
transmit. Just writing to Congress or talking to your favorite Senator
and saying, listen, we need more money for X and Y, that does not
conform to the definition as I see it, but I want us to make sure that our
legislative record is absolutely clear here.
Attorney General BELL. It is clear. There is no idea of anything like
that, and it is not an idea, it is what the statute says. It ties it down.
Senator BAYrr. All right. Now, may I ask you to-I would like for
you to clarify a couple of other points that might perhaps be made a
little bit better here. The way I understand it, the current procedures
now where you have surveillance requires high level Executive branch
review, including the Attorney General, in, what, every 90 days?
Attorney General BELL. Ninety clays.
Senator BAYII. And this one goes on a year in this bill now.. Why
is it that shouldn't sort of shorten that length of time for review?
Attorney General BELL. Well, we think it is a fair trade-off when
you are using a judge, and the 1 year only applies to a foreign estab-
lishment. A year is a reasonable time. You don't want to go back to
the judge every 90 days on that sort of a surveillance.
Senator B:vru. Would it be too much to go back to the Attorney
General every 90 days?
Attorney General BELL. No; I spend a lot of my time now reviewing
matters I reviewed 3 months ago. According to what the activity is;
we put the 1-year activity in the category that did not seem. to us to
need,reviewing every 90 days, but that is the sort of thing I wouldn't
want to say too much about here now, outside an executive session.
Senator BAY13. If we are talking about a narrowly defined foreign
power, I would not be as concerned as I frankly am about the fact. I
think the bill broadly interprets foreign power. We are talking about
directed and controlled by a foreign government. There is no require-
ment here that the group be engaged in clandestine intelligence activi-
ties, sabotage or terrorism, and I am concerned that we not have, a
back door means to surveil American citizens.
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For example, suppose you have an airline that is run by a foreign
power.
Attorney General BELL. An airline?
Senator BAYri.An airline, and some of the business activities in
which you have at least a few, maybe several agents of the foreign
power's intelligence machinery. You also have a number of Americans,
particularly if it is a commercial enterprise, and we know the Rus-
sians have this one operation out here that is just a front, but there
are a number of substantial commercial enterprises, legitimate com-
mercial enterprises that are part of a foreign government, yet you
have a lot of American citizens working in that government, in that
government-owned enterprise. Nov, I am concerned that we not pro-
vide a back door means of lowering the standards as far as the protec-
tion that these American citizens get. Do you have any thoughts on
that?
Attorney General BELL. Well, I frankly hadn't thought of a foreign
airline. I think in terms of embassies and trading offices and that sort
of thing, where everybody there is from the foreign country, and I
hadn't thought of an airline. I don't object to protecting something
like an airline that is flying between some other country and this coun-
try. That just shows what the human mind can do and why it is good
to have hearings.
Senator B:~Yii. Well, let's give some thought to that in the bill. 1
would like for you and your staff to give some specific attention there.
I am not particularly happy with what we have done there, but as I
recall, we have in the language of the bill specified that the surveillance
has to be directed at the corporate officials involved, and as near as
we can to confine that to those who are involved in the intelligence
activity, but still I think we need to look carefully at how we can
minimize the potential of sweeping in an American who might be
using that phone, and in the event we do, make sure that we crank
out any information and minimize that out of the process.
Attorney General BELL. We could in the minimization procedure
put in restrictions. That might not be the whole answer, but that might
be part of it. I think that since you have raised the point that might
be something our staffs ought to look at.
Senator BAYF3. Well, let's look at that. To move on here, we have
done a lot of discussing about the criminal standard, and we are all
a little nervous about that. One of the things that makes me nervous
is the fact that we use the phrase there, in the criminal standard, not
the non-criminal standard, but if we look at the criminal standard,
we use the phrase, "will involve"-in quotes-"will involve a criminal
violation." There is no requirement that the violation is about to
occur or that it will -soon occur, and I wonder, would there be any
problem as far as the Government is concerned and those who must
perform this mission, if we either limited the standard or set about
requiring that the crime will soon be committed or is about to be com-
mitted, or tighten it up.
Attorney General BELL. I hope you won't take it out, because that
is the very point that is going to come up in the FBI charter on
domestic matters. Are we limited to a crime that has already been
committed, or can we take note of something that is about to happen?
That is a very close question. In the FBI, we are subject to whatever
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Congress tells us to do, and if the American people want to restrict
the FBI to crimes that have already happened, we would accept that.
Senator BAY TI. Well, that's not what I m saying, sir. Let me try to
be more specific here. It seems to me if we say will involve," that
is sort of some nebulous time length there that could reasonably be
interpreted to be will involve crime maybe 10 years from now.
Attorney General BELL. Yes.
Senator BAYII. But if we use some of the words of art that are used
in other criminal statutes, reason to believe a crime is about to be
committed, or will soon occur, to just narrow down the time frame
so you're not going on afishing expedition, but you have reason to
believe in the near future.
Attorney General BELL. We'll look at that. I see what you mean.
You want to restrict it time-wise. Or, you think it is too open, ended.
ords, it doesn't
Senator BAYII. Yes, I think if you look at those words,*
really say in.10 days or 30 days, but you're really forcing all of us
to focus on the fact that well, all right, this isn't something that just
may happen out here in 30 days or 30 years, maybe, because it hap-
pened once before, but that all the evidence we have indicates that
there's something about to happen out there, will soon happen, that it
really is close to the kind of crimes, because we're talking here in, this
area. about a crime.
Attorney General BELL. All right, we'll look at that.
Senator BAYii. Let. me yield to my. colleague from Maine who I
see is here now. We appreciate your being here.
Senator IIA7hIAWAY. Thank you, very much, Mr. Chairman.
Before I ask my ,questions, I want to commend the subcommittee
chairman. and the Attorney General for their hard work and their
dedication which has given us the very complicated bill that, we have
before us that we may. need to take a post graduate course at, MIT to
thoroughly understand.
I am working on a simplification, General. I hope to run it by you
when I'm finished if I ever finish it, just to make it easier for myself.
There are two areas I'd like to question you on. One is in regard to
a situation I thought the chairman was going to allude to where you
have say, a. Canadian or someone from some obviously friendly country
visiting here, representing some "foreign power." Are we going to
? allow surveillance in cases like that, or should we think about narrow-
ing the scope of foreign powers to those countries that we now consider
to be adversaries, and therefore not run the risk of wiretapping our
friends and creating a great deal of alienation between our country and
countries that are friendly to us?
Attorney General BELL. Well, I think perhaps the State Depart-
ment might answer that better than I, but the point is we are not
just going around tapping our friends willy-nilly. They are engaged
in clandestine intelligence activities to begin with.
Senator IIAriIAwAY. I don't think it is a foreign power that has to
be olandcstine, does it?
Attorney General BELT.. Agent of a foreign power.
Senator IIATIIAwAY. But .can't we just tap them for foreign intelli-
gence information or purposes. I forget where that is-what section.
Attorney General BELL. My staff tells me that I am getting in deep
water, that I ought to leave this to the State Department and, other
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intelligence agencies, without speaking for them. So I think I had
better take the advice of my staff.
Senator HATHAWAY. Because if you take, first of all, on page 2,
"foreign power" means a foreign government, which would include
Canada. And then "Foreign intelligence information" on page 5 means
information to conduct the successful conduct of foreign affairs. So it
could mean that we could tap some
Attorney General BELL. Yes.
Senator HATHAWAY [continuing]. Emissary or visitor from Canada
if we had reason to believe they were connected with some company or
connected with the government and could give us some information to
Help us conduct, say, our fishing boundaries negotiations that we are
now engaged in, or minerals or whatnot.
[Pause.]
Attorney General BELL. I had always thought that the foreign
friend that you were speaking of, to be surveill'ed on page 3, would
have to be an "officer or employee of a foreign power." Now you may
object to that-or he "knowingly engages in clandestine intelligence
activities for or on behalf of a foreign power."
Senator HATHAWAY. Yes, but those are in the alternatives, right?
Attorney General BELL. Yes, "or".
Senator HATHAWAY. So if he is an officer or employee of a foreign
power, he could be an officer of a Canadian bank or an airline.
Attorney General BELL. That's the way I understand it.
On that part of it I think you ought to ask the State Depart-
ment or the CIA witnesses.
Senator HATHAWAY. We ought to have them testify.
Attorney General BELL. They are going to testify and they can tell
you the reason for that.
Senator HATHAWAY. You wouldn't care if we eliminated that, or if
we just restricted this to adversaries. Eliminated friendly countries.
Attorney General BELL. Well, I couldn't agree to that right now
without thinking about it. I see a lot of countries, and there are shades
of countries. You're on a relative basis when you talk about "friends."
Senator HATHAWAY. Well, we could have some kind of a mecha-
nism. We wouldn't have to specify in the law which ones are friendly
and which ones are not. We wouldn't want to offend anybody or
make any mistakes.
Attorney General BELL. I don't want to get into an argument
with you.
Senator HATHAWAY. If we had some kind of a mechanism where
we could agree which ones should be on the list and which ones
shouldn't be. I recognize that that could change from day to day, or,
maybe hour to hour.
Attorney General BELL. Maybe we could get up a morning list of
friendly countries.
Senator HATHAWAY. Well, anyway, it's an area where there is some
controversy.
The other area is that although this bill limits itself to wiretapping,
it does not apply to hidden cameras or break-ins or anything like that.
Attorney General BELL. Right.
Senator HATHAWAY. Why shouldn't we cover ever kind of mecha-
nism that's going to invade the privacy of individuals
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Attorney General BELL. We are preparing legislation on those other
areas.
Senator HATHAWAY. Will that be part of this bill, or will it be a
supplemental bill?
Attorney General BELL. No, other bills.
Senator HATHAWAY. When will that be ready?
Attorney General BELL. We're working on it now. The next item of
priority is electronic surveillance of Americans overseas. We've agreed
to do that next. But we're also working right now on the physical
searches, too. We plan to cover the whole area.
[Pause.]
But I'm looking at page 7 now where we define electronic surveil-
lance. We've got "electronic, mechanical, or other surveillance de-
vice." This would include a camera.
Would it include a camera?
[Consultation with aides.]
It would. These young people with me helped write this bill, and
they know more about it than I do. They say that is intended to in-
clude a camera.
Senator HATHAWAY. Oh, good.
[Pause.]
Senator HATHAWAY. Or any kind of bug
Attorney General BELL. But not a search.
Senator IATHAWAY. Not a break-in.
Attorney General BELL. Right,
Senator BAYH. If the Senator would permit me, I was just going to
point.out that in the bill that we had last year, this language, that we
wanted the definition to be broadly inclusive, and I. am more com-
fortable with your second response than I was the first, because it
would seem to me that those motion picture camera, still camera, pri-
vate home, all the kinds of things, we're talking about devices that
ought to fit into this definition. We're not talking about the surrep-
titious entry, this kind of thing.
Attorney General BELL. Yes.
Senator HATHAWAY. I understand now that that is included. Talking
about photography
Attorney General BELL. Television surveillance.
Senator HATHAWAY. Right. Hidden camera, what have 'you.
And just one last question. I wondered, in the procedure that is es-
tablished for getting the judge to issue an order-I realize that it's not
much different than it is from any other procedure where you get a
search warrant-but it seems to me it's extremely important that we
protect the rights of people, particularly of our own citizens, from
being tapped. I considered last year offering an amendment where we
could have, someone designated to protect the rights of the individual
who is going to be tapped, so it wouldn't be strictly an ex paste pro-
ceedings, so you would have some adversarial aspect to it
Attorney General BELL. Yes.
Senator HATHAWAY [continuing]. Like a public defender, only
Attorney General BELL. I'm not willing to do that.
Senator HATHAWAY [continuing]. Who would be able to appear
and be able to contest the allegations made by the Attorney General
or his designee.
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Was that considered in your draft?
Attorney General BELL. Yes. I've considered it. I'm not willing to
do that.
Senator HATHAWAY. Could you tell me why?
Attorney General BELL. Well, as you know, I was a judge myself
one time. I passed on some of these matters.
Senator HATHAWAY. I understand.
Attorney General BEr,L. Ex parte always. I looked at the papers, I
looked at the Attorney General's certificate, and decided the rele-
vancy. But now we even have more than a judge-and we're going to
have a judge under this bill-we've got all these elaborate procedures
in the executive department. It's finally up to me as the Attorney
General, I pass on it, and some of this information is very sensitive,
and as long as we have a safe system, I don't see any need to expand
the number of people who are in the information conduit or circle.
And I don't see any need for having an adversary proceeding. While
somebody is about to get the secrets of the State, we're off having an
argument between the public defender and the Justice Department
about whether or not we ought to surveil., Some of these things are
serious and we just don't have time to have an adversary proceeding.
If we're to have to do that, we'd better leave it like it is, and just let
the President handle it.
But, as I said earlier, and you may not have been' in here at the time,
we're willing to give up this power. We want to ggive it up in the inter-
ests of the American people and their rights. But at the same time,
though, the President has his constitutional duty, and I just don't see
how we can have an adversary proceeding. I just couldn't agree to that.
Senator HATHAWAY. Well, what if it's properly circumscribed so
that it's not unduly lengthy?
Attorney General BELL. I've never seen an adversary proceeding
that was circumscribed. It's about to break the courts down now.
Senator HATHAWAY. We could draft it that way.
Attorney General BELL. I don't mean to just
Senator HATHAWAY. No, I un(lerStand.
Attorney General BELL [continuing]. 'Flatly refuse, but that's the
way I think now.
Senator HATHAWAY. Thank you. Thank you, very much.
Thank. you, Mr. Chairman.
Senator BAY] I. Senator Garn.
Senator GARN. Let me go back and make comments on. a couple of
things that Senator Morgan said.
I think one thing that was left out when he was talking about judge
shopping, and I would agree with what you suggested, that it would
be a good thing to rotate the judges; I think that would be a good
addition to the bill. But we addressed the judge-shopping e-shopping situation
last year in S. 1 07 by suggesting that a person could not go from one
judge to another if they were turned down. I just wanted to make that
point. Senator Morgan has left, but this would further strengthen it.
But certainly that was our intent last year. They can go to one judge
and that's it.
Attorney General BELL. That's it.
Senator EARN. I f they don't like him, they can't say, well, he turned
me down, we've got to go to another. That was already in the law.
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Attorney General BELL. And it is a real safeguard.
Senator GARN. But I do think it is a good suggestion to go ahead
and rotate the judges. We have done that with ourselves. There will
be rotation of committee members on the Intelligence Committee, so
that we can't stay here for 30 or 40 years even if our constituents decide
to keel) us in the Senate for that long.
Getting back to all the dialog on the criminal standard on page 4, it
seemed to me that when we were writing that last year, that in many
cases this almost seems tougher than a probable cause criminal
standard. I wonder if you would agree that we can always come pup
with hypothetical situations-we sat for hours and hours with At-
torney General Levi doing the same thing to him that we're doing to
you-what about this situation, the case of an airline or whatever,
and it seemed to me that all of the hypothetical situations would meet
one or two of the tests, but never all. Isn't that the key here, the way
it's been defined, that you've got to meet all of the standards. There's
one after another, under the direction of a foreign power for example,
and there may be some situations, somebody casually going to an
embassy that does not meet the standards. I go to an ,embassy for
example and talk to ambassadors. I may be talking to a KG13 agent.
I don't know. But the point of it is that when you start applying all
of those, don't you feel it's rather a strict definition and that it's diffi-
cult for an American citizen to meet, all of those unless he is deliber-
ately engaged to espionage? Almost be impossible by accident to meet
each one of them, wouldn't it?
Attorney General BELL. I think it is an extremely strict standard,
and could well be a crime to do those things. If somebody fits all these
elements, meets all these various elements, then it seems to me it would
be very reasonable for Congress to say that is a crime, and Congress
has not gone that far. Nobody is making this a crime.
Senator GARN. Well, of course, I agree with you, but that's the
point I wanted to make
Attorney General BELL. This is a strict standard.
Senator GARN [continuing]. If there was any doubt among the peo-
ple listening that we have a strict standard in this bill that consists of
many different elements, and it would be eery difficult for an American
citizen. to meet accidently all of those tests. In fact, I don't think it
would be possible personally to meet all of those tests accidentally.
You would have to be deliberately conspiring against the.United.
States to deliver information and all of those things. You' just,
couldn't fit into that category. I suppose all of us at one time or an-
other, particularly those of us in government, might meet one or two
of theyn, accidentally, unknowingly, and we wouldn't Want to ,be
surveilled for that. But I just wanted to see if you agreed that it was
a very strict definition.
Attorney General BELL. I do agree.
Senator GARN. Getting back to this 1-year category, and I know you
recognize what I am going to say, that it's something that we really
cannot give sufficient answers here in open session as to why that is
needed, but would you agree that it is a very limited area that we
carved out, that the vast majority of cases would be involved in the
90-day situation'? This is only a very limited area involving extremely
sensitive national security situations and to discuss it further would
have to be in closed session.
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Attorney General BELL. Right, I agree with that. That is my under-
standing of it, and based on my own experience, I think that's true.
Senator GARN. Indirectly in that 1-year situation, do you feel that
the minimization procedures are sufficient to handle that, if indirectly
someone else is picked up in that. year-long situation?
Attorney General BELL. They already now employ minimization
standards in those circumstances. We're very careful to minimize
the use of information from any incidental overhear of an American
citizen.
Senator GARN,. Regarding Senator Hathaway's discussion of an
adversary situation, one other point we talked about a great deal last
year, there may be one other reason for not having an adversary situ-
ation. It may be even more important than the problem of delaying
while national secrets were being given away. That is that there
would lead to be much less activity or willingness in an adversary
position for the Justice Department or law enforcement agencies, to
give up information that would prejudice criminal cases. You see, an
adversarial relationship may require the disclosure of information
which should spoil an investigation and make prosecution impossible.
Attorney General BELL. Yes, that could happen and would happen.
Senator GARN. That's the point I wanted to make, I wanted to see
if you agreed that beyond the time delay, that you could prejudice
some criminal case prosecutions if you had to go through that
procedure.
Attorney General BELL. That's how I happened to hear those in
court. They had gotten into the public domain and then the defendant
said, well, they prejudiced my case. Listen to my lawyer, listen to me,
and then we'd have to have a hearing in camera, no adversary pro-
ceeding, to determine relevancy. This is where somebody would be
on trial- not as we are discussing here now just to be surveilled, but
on trial for their liberty, where they are going to be put in the pen-
itentiary. We didn't have an adversary proceeding. The law doesn't
require that.
Senator GARN. Senator Hathaway, if I might just respond to your
question of a camera, I think section D is very clear on the camera
situation. It says, "the installation or use of an electronic, mechanical,
or other surveillance device in the United States for monitoring to
acquire information, other than from wire or radio communication."
So, it specifically singles itself out from the wiretap, the radio, that
kind of thing. It's very clear that "other surveillance device" in that
paragraph (D) would have to include cameras. I just wanted to
reassure you, if you weren't, that I think that's very, very clear.
I have no ether questions at this time, Mr. Chairman.
Senator BAYrn. Mr. Attorney General, I don't want to burden you
a great deal further here, but I would like to ask you and your staff,
if you might, to look at the language in the minimization procedures,
where it talks about information relative to a U.S. person being dis-
seminated if it, and the magic words are, "relates to" such subjects as
national security,or the conduct of foreign affairs.
Now, in order to be able to disseminate that information, the in-
formation has to be important or significant. I'm sorry, that's not in
the current bill.
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We. were wondering if we don't need some-I think the word in the
present bill is "relevant," and that is such a broad, all encompassing
kind. of thing, it's almost impossible for me to imagine anything that
you pick up that couldn't be construed as relevant, and I wonder if
we don't need to give some serious consideration to tying that down
to make it "important" or "significant" or something else that's a
little bit more than relevant.
You might just look at that and get back to us if you don't have
any--
Attorney General BELL. Could we answer that in writing?
Senator BAYU. Yes, that's fine. I mean, I just think that's an area
where I think we can tighten up, get away from
Attorney General BELL. You know, I was just thinking how, if the
thing was in my office, how I would know it was important. How
would I know that? I would have to get a certificate from the .Secre-
tary of State or somebody that knew enough about foreign affairs to
know. I could see that it would be relevant, but not assess the im-
portance. We'll answer that.
Senator BAYai. I mean, if it's just relevant, there are all sorts of
things where you-you could have a member of this committee talk-
ing to an ambassador of a foreign country about something totally
unrelated, and this Senator gives his position on that and describes
what sort of action he's going to do legislatively which may. be con-
trary to what the administration, whatever that administration might
be at the time, would be contrary to the administration's position, so
that ambassador then relates that back to the home country and it's
picked up and then disseminated because it's relevant because it gives
the government more information about what the foreign govern-
ment has in the way of knowledge about what's going to happen in
our Government.
Well, just give that some thought, if you would, please.
Attorney General BELL. We will.
Senator BAYH. I have no further questions at this time. Senator
Hathaway, do you have other questions?
Senator HATHAWAY. Just one more.
On page 12, in regards to the application for an order, I under-
stand that if you're asking for a warrant to search somebody's house
because there's a certain piece of paper, that you've got to say that
you're likely to find it. But there's no assertion in this application of
that nature. In other words, what if you tap this parson, you're likely
to get the information that you say you're seeking, and I wonder why
that's omitted? And would you consider putting it in ?
Attorney General BELL. We don't want to. We could say that it's
likely to produce, you know, we could say that. But I see cases now
where nothing is produced, say, in 90 days, and in the next 90 days
something is produced, because people may change their habits.
I don't see anything wrong with saying. that, because otherwise we
woul 'n't be doing it if we didn't think it was likely to produce. So
we'll work on that with the staff.
Sent-r HATHAWAY. Good.
Nc, '1-re is just one other question that I want to ask you. It
relat ' --hat I asked you before about this provision where you can
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wiretap in a foreign power for the purpose of "the successful conduct
of the foreign affairs of the United States." Now, I suppose you can
say, "well, the State Department asked to have that in here," but you
are going to have to pass on all of these, and it seems to me that that's
an awfully broad category and allows considerable surveillance.
Attorney General BELL. It is
Senator, HATHAWAY. Almost anything can be tied to "the successful
conduct of the foreign affairs of the United States."
Attorney General BELL. Well, we'd have to get a certificate from
the
Senator HATHAWAY. What we're really interested in is whether
the, United States is in jeopardy, whether our national security. is at
risk.
Attorney General. BELL. Well, you know, when you're negotiating
a treaty
Senator HA'rnAw_\.Y. Although we're interested in it, I don't think
we should be conducting wiretaps to get information that would
help us "in the successful conduct of the foreign affairs of the United
States." It could pertain to just about anything that's going on in
that foreign country. I can't think of anything that wouldn't be
related in some way to the successful conduct of foreign affairs.
Attorney General BELL. That is broad language. I agree with that.
I know that
Senator HATHAWAY. I realize that State Department witnesses are
going to be up and they're going to testify, but I thought I'd ask you,
since you're cooing to have to pass on all these applications
Attorney (general BELL. I believe. they can answer it better than I,
but I've seen some information that, where you're dealing with one
nation which is not, friendly with the next nation, and somebody ob-
tains some papers and may give them to the other nation, papers
which might cause us great embarrassment and really impede any
hope of dealing with the. two nations separately. That is the kind of
thing that would fit. But this language is broad.
Senator HATHAWAY. Very broad.
Attorney General BELL. Yes. But we would not want to get it to
the point where we could. not cover the case.
Senator HATZIAwAY. I hope that you and your staff will Consider.
some modifications to narrow it down somewhat.
Attorney General. BELL. Restrict it.
Senator IIATIIAW:AY. Thank you. 'Thank you, Mr. Chairman.
Senator BAYIr. Senator Garn., do you have anything further?
Senator GARN. No, I have no further questions.
Senator BAYTI. Mr. Attorney General, gentlemen, we appreciate
your being here and we look forward to working with you until we
get this matter in the statute books.
Attorney General BELL. Thank you, very much.
[Whereupon, at 12:04 p.m., the subcommittee was recessed to recon-
vene at 10 a.m., Thursday, July 21, 1977.]
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THURSDAY, JULY 21, 1977
U.S. SENATE,
SUBCOMMITTEE ON INTELLIGENCE
AND TILE RIGHTS Or AMERICANS
OF TTIE SELECT COMMITTEE ON INTELLIGENCE,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:07 a..m., in room
6226, Dirksen Senate Office Building, Senator Birch Bayll (chairman
of the subcommittee) presiding.
Present: Senators Bayh (presiding), Stevenson, Hathaway, Mor-
gan,Wart, Moynihan, Garn, and Case.
Also present,: William G. Miller, staff director.
Senator BAYII. We will convene our hearings, if you please.
The Rights of Americans Subcommittee of the Senate Intelligence
Committee is continuing its hearings this morning on S. 1566, the
Foreign Intelligence Surveillance Act. Our witnesses are Admiral
Stansfield Turner, the Director of Central Intelligence; ills. Deanne
Siemer, General Counsel of the Department of Defense; Admiral
Inman, who is Director of the National Security Agency; Mr. Harold
Saunders, Director of the Bureau of Intelligence and Research, State
Department; and Mr. Herbert J. Mansell, State Department Legal
Adviser. Now, who did I leave out here?
Admiral TURNER. Anthony Lapham, General Counsel of the Cen-
tral Intelligence Agency, sir.
Senator BAYII. I think that covers everybody. Forgive me for the
temporary omission.
We have invited all. of you to testify because your agencies have.
been involved in the development of this legislation, and all of you
will have an important role to one extent or another in its success-
ful implementation, I assume, if it is enacted.
However, we also realize that there are aspects of your testimony
which touch on classified information. Thus we plan an executive ses-
sion to handle those matters which you feel we cannot handle com-
fortably here today.
The State Department has already indicated to us that they would
prefer to deal with any questions about the Vienna Convention in
executive session. I think this is an approriate request at this time.
The witnesses have been invited to appear as a panel so we can dis-
cuss matters relating to several agencies at the same time. We have
copies of your prepared statements. You may handle your testimony
in any way you see fit, as far as I am concerned.
This of course, is a matter of long term discussion, in which all of
you and your predecessors, I assume, have been involved. This com-
mittee, Senator Garn and l and others, studied this issue last year.
(45)
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46
We are starting again. As you know, there is joint jurisdiction be-
tween the Judiciary Committee and this committee, and there has been
general agreement with the administration on the content of this
legislation.
Some of us are still concerned about particular aspects. Some feel
we may have gone too far. Some feel we may not have gone far enough
in several areas. The best place to start is your reaction to the legis-
lation as it now is, pointing out any concerns you may have, and
then hope ully we can address ourselves to some problem areas where
we would like perhaps to do a little bit more or perhaps Senator Garn
would like for us to do a little less, to see what the impact is going
to be.
We want to have, after we are through, legislation that will make
it possible for those of you who are charged with the rather burden-
some responsibility of conducting the most sophisticated and far-
ranging intelligence mechanism in the world to do that in a way that
can protect our country, and at the same time do it under guidelines
and in a charter and with restrictions that protect the rights of Amer-
ican citizens.
That is not an easy mixture. It is one that tests us, but one I think
we must meet and pass. I assume we can.
Admiral Turner, we will let you initiate our dialog here this
morning.
TESTIMONY OF ADM. STANSFIELD TURNER, DIRECTOR OF CENTRAL
INTELLIGENCE; ACCOMPANIED BY ANTHONY LAPHAM, GENERAL
COUNSEL; ADM. DONALD M. SHOWERS, SPECIAL ASSISTANT,
INTELLIGENCE COMMUNITY STAFF; AND GEORGE L. CARY,
LEGISLATIVE COUNSEL
Admiral TurmmZ. Thank you, Mr. Chairman, Senators.
I previously indicated my support for this bill in my prepared state-
ment and testimony before the Senate Judiciary Committee in June.
I would like to resubmit that statement here, and respond to your re-
quest just now, Mr. Chairman, to comment on specific provisions of this
bill or items that are not included in this bill.
[The prepared statements of Admiral Turner follow:]
PREPARED STATEMENT OF ADMIRAL STANFIELD TURNER, DIRECTOR OF CENTRAL IN-
TELLIGENCE ON S. 1566 Mr. Chairman and members of this Subcommittee : I welcome this opportu-
nity to testify concerning S. 1566, the Foreign Intelligence Surveillance Act of
1978. 1 have previously indicated my support for this important legislation in
a prepa; ed statement I presented in June to a subcommittee of the Senate Judi-
ciary (o mnittee. At this time I would like to resubmit that statement, with
one chwige noted on page 2, and add a few remarks concerning issues that you
identified. Mr. Chairman, in your letter of 1 July invitin?r me to appear at this
hearing, as being of special interest and concern to the Subcommittee. One of
those i ne?+ has to do with the provisions in the bill covering the certifications
that mn ' e made by executive branch officials in support of warrant appli-
cations. ' he other has to do with the appropriateness of amending the bill so
as to '"ing within its coverage electronic surveillance directed at U.S. persons
abroad.
First. to the certification process, I would expect to he amon,r those offi-
cials sp.,ninted by the President to make the determinations called for by the
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bill, regarding the purpose and other aspects of a requested surveillance.. As-
suming my designation as a certifying authority, I would expect to carry.out
my responsibilities in much the same way that I do today in the absence of
legislation.
As matters now stand, I chair an Interagency panel that reviews. certain re-
quests to undertake electronic surveillance against foreign intelligence targets.
Representatives of the Secretaries of State and Defense serve as the other mem-
bers of that panel. Surveillance requests are considered at panel meetings at-
tended by the members and other intelligence community officials. In each case
the requests are supported by memoranda that justify the operations in terms of
standards tthatclosely resemble the targeting standards set forth in S. 1566. In no
case is any request approved except after consideration at a meeting of the panel
? and except after review of the justification memorandum. During my term of
office there has been no occasion in which approval was given to all requests con-
sidered at any one time, a point I make to indicate that the process is careful and
selective. Approved requests are forwarded to the National Security Adviser to
the President, and those that receive his endorsement are in turn forwarded by
him to the Attorney General for review and final approval. Each final approval
is valid for only 90 days, and consequently the entire review process is repeated
at 90?-day intervals with respect to each surveillance activity requested for
renewal.
Should S. 1566 become law I can assure the Committee that I woul continue
to devote my personal attention to matters within my authority as a certifying
official, and I envision that I would base my certifications on review and approval
procedures akin to those that are already in use.
Second, as to the idea of broadening the provisions of the bill so as to make
them applicable to electronic surveillance activities conducted abroad, I believe
that such a step would be inappropriate and unwise. In my view the circum-
stances that are relevant to the gathering of foreign intelligence and counterintel-
ligence information abroad, including the acquisition of such information by
means of electronic surveillance, are materially different from the circumstances
surrounding such activities when conducted in the United States. A critical differ-
ence is that activities conducted abroad are heavily dependent on the cooperation
of foreign governments and foreign intelligence services, and any enlarge-
ment of the scope of the bill to cover such activities could have far-reaching con-
sequences in our relationships with those foreign governments and intelligence
services.
In Its present form the bill deals comprehensively with a large and complex
subject, namely all types of electronic surveillance carried on In the United
States that are not already regulated by other legislation. Electronic surveillance
abroad is another large and complex subject In Itself, and I believe it should be
left to separate legislation, which as you know this Administration Is now engaged
in drafting.
STATEMENT OF ADMIRAL STANFIELD TURNER, DIRECTOR OF CENTRAL INTELLIGENCE,
AT HEARINGS BEFORE THE SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES
OF TIIE JUDICIARY COMMITTEE OF THE SENATE ON TIIE FOREIGN INTELLIGENCE
SURVEILLANCE ACT OF 1977
Mr. Chairman: Thank you, Mr. Chairman and members of this subcommittee,
for your invitation to appear and express my views on S. 1566, the proposed legis-
lation which deals with electronic surveillance undertaken in the United States to
obtain foreign intelligence. I have a brief statement that I would like to present
and I will then be happy to expand on any particular aspect of m- stn+rment or to
respond to any other question which may be of Interest to the subcommittee.
I support the proposed legislation. I support it because I believe it strikes a
fair bnIan-e between intelligence needs and privacy 1ntPrnefq hn+h of which
are critically important. I support it as well because I believe it will place the
activities with which it deals on a solid and reliable legal footing, and thus hope-
fully bring an end to the uncertainty about the limits of lemitimate authority
with respect to these activities, and about how, by whom, an,' under what cir-
cumstances that authority can rightfully be exercised. I favor the proposed legis-
lation for additional reasons, not the least of which Is my view that its enactment
will help to rebuild public confidence in the national intelligence Polieetion effort
and In the agencies of Government principally engaged in that efPnrt.
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Electronic surveillance is of course .an intrusive technique, involving as it does
the interception of non-public communications. At the same time it is a necessary
technique, and in my opinion a proper one, so far as concerns the gathering of
foreign intelligence and counterintelligence within the United States. The funda-
mental issue therefore, as I see it, is how to regulate the use of electronic sur-
veibiance so as to safeguard against abuse and overreaching without crippling
the ability to acquire information that is vital to the formulation and conduct
of foreign policy and to the national defense and the protection of the national
security. In part that is a legal issue. In larger part, however, the question is one
of policy.
As matters now stand, electronic surveillance in the field of foreign intelligence
is carried out without judicial warrant, under a written delegation of authority
from the President and pursuant to procedures issued by the Attorney General.
Under the delegation and the procedures, all surveillance requests must be sub-
nutted to the Attorney General. No surveillance may be undertaken without the
prior approval of the Attorney General, or the Acting Attorney General, based on
his determination that the request satisfies specific criteria relating to the quality
of the information sought to be obtained, the means of acquisition, and the char-
acter of the target as a foreign power or agent of a foreign power. These criteria
closely resemble the standards that would apply, by force of statute, were the
proposed legislation to be enacted. Indeed, to the extent I have knowledge of these
matters, I am not aware of any electronic surveillance now being conducted for
foreign intelligence purposes under circumstances that would not justify the is-
surance of a judicial warrant were S. 156 to become law, barring any significant
amendments.
I am advised that the present practices conform to all applicable legal require-
ments, including the requirements of the Fourth Amendment. However, assuming
as I do that the President has the constitutional power to authorize warrantless
electronic surveillance to gather foreign intelligence, it must still be answered
whether the present arrangements, under which the approval authority is re-
served to the executive branch, represent the wisest public policy given the pri-
vacy values that are at stake and given the potential for the subversion of those
values.
The proposed legislation reflects a conclusion that the existing arrangements
do not represent the wisest policy and that the power to approve national security
electronic surveillance within the United States should be shared with the courts.
I accept that conclusion, as does the President, and I accept as well the warrant
requirement that is the central feature of the bill. As the Director of Central In-
tellieence, of course, I am necessarily concerned about the capacity of the U.S.
intelligence establishment to collect and provide a flow of accurate and timely
foreign intelligence information, and I have a responsibility to prevent the un-
authorized disclosure of the sources. of that information and the methods by
which it is obtained. I have therefore tried to assess what the enactment of
S. 1566 might cost in terms of lost intelligence or reduced security. Based on my
careful review of the bill, I cannot say to you flatly that there will not he such
costs. It is possible, for example, that the bill's definitions of foreign intelligence
information will prove to be too narrow, or will be too narrowly construed, to
permit the acquisition of genuinely significant communications.
It is likewise possible that justified warrant applications will be denied, nr
that the application papers will be mishandled and compromised. These pos-
sibilities are difficult to measure, but they are risks. In the end, however. I
think they are risks worth taking. The fact of the matter is that we are already
paving a price, equall.v difficult to measure but nonetheless real, in terms of
public suspicions and perceptions that surround the present arrangements. A
relepse from these burdens of mistrust is itself a consideration that argues in
favor of the bill. In addition, as I read the bill, specifically sections 223(c)
and 2525(b), the Director of Central Intelligence will have a role in determining
the security procedures that will apply to the warrant application papers and
the records of any resulting surveillance, and that is a responsibility to which I
intend to devote serious attention.
As the subcommittee knows, much of the information that is likely to be
obtained from electronic surveillance covered by this bill will not relate, even
incidentally, to U.S. persons, with whose privacy rights the bill is specially
concerned. Even so. as assurance that all such activity within the United States
is cmmdncted lawfully, tinder rigid controls, and with full acconnt9bility for the
action taken, whether or not it impinges in any way on the communications of
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persons, would be a major step forward, and in my estimation this bill
U.S.
will provide that assurance.
In sum, I regard the proposed legislation as desirable and urge its early
consideration and adoption.
In your letter to me of the 1st of July, asking for an appearance here,
you mentioned two points that I think merit a small comment before we
proceed. The first is the question of the certification process which is
prescribed in the bill, and the second is the question of whether the
bill should be extended to cover electronic surveillance against Ameri-
cans abroad.
On the first part,, the certification procedures, I would expect to be one
of the officials designated under the provisions of the bill to make deter-
minations regarding the purpose of the requested surveillance.
Assuming that I am so designated, I will expect to carry out my
responsibilities in the future in a manlier very similar to that which is
performed today.
Today I chair an interagency panel. on which both the State De-
partment, the Defense Department, and other appropriate agencies
as necessary are represented. That panel reviews all surveillance re-
quests at panel meetings. Those requests must be supported by~ m.emo-
randum that justify the operations in terms of standards that closely
resemble the targeting standards which are set forth in the bill before
us today.
In no case is any request approved except after an actual meeting
of the: panel and after a review of these memorandum of justification.
During the relatively short time I have been here, I would. point out
there has been no meeting of the panel at which all of the requests
before it were approved, I mention that only to say that this is not a
rubber stamp process. Once appproved, these requests are sent to the
National Security Adviser to the President. If lie further approves
them, they are forwarded to the Attorney General for final !approval..
Each approval lasts for 90 days, and thus we must renew these and go
through this procedure again every 90 days.
Should this bill become law, Mr. Chairman, I would anticipate de-
voting my personal attention to these matters in much the same way
as I do now, and I believe these procedures are very solid. .
On the, second subject of extending this bill to cover Americans
abroad, I believe that would not be appropriate at this. time. The
circumstances that are relevant to the gathering of. foreign intelli-
gence and counterintelligence information abroad, including the ac-
quisition of such information by means of electronic surveillance, are
materially different from the circumstances surrounding such activities
when conducted in the United States. A critical difference is that the
activities conducted abroad are heavily dependent upon the coopera-
tion of foreign governments and foreign intelligence services.
Any enlargement in the scope of this bill to cover such activities
could have adverse consequences in our relationships with these gov-
ernments and intelligence services. In its present form, this bill deals
comprehensively with a very large and complex subject, namely, all
types of electronic surveillance carried out in the United States not
already regulated by other legislation.
Electronic surveillance abroad is another large and complex sub-
ject in itself, and I believe that it would be better to handle this in
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separate legislation. I believe the Attorney General has mentioned to
you that the administration is pledged to prepare this legislation in
an appropriate time frame.
Thank you, Mr. Chairman.
Senator BAYH. Do the other members of the. panel mind if we
address ourselves to the Admiral here right now? He has another
legislative responsibility shortly, as indeed does the Chairman of this
subcommittee. I am hopeful my colleague, Senator Garn can help keep
a hand in the dike here. Do you mind, gentlemen and Ms. Siemer, if
we address a couple of questions to the Admiral here first?
Have you been consulted or is your staff now preparing to make a
contribution to this legislation that the Attorney General referred to?
Admiral TURNER. Yes, sir, we are actively participating in that deci-
sion process.
Senator BAYH. What concerns me is, I am convinced you are sin-
cere, and the Attorney General and the President are sincere that we
will have other legislation to deal with this, but frankly, I don't know
how much gas we have in our gas tank as far as legislative resolve to
deal with this problem. It is a very difficult one across the board, and
I think there are abuses that could exist, and as my distinguished
colleague, Senator Garn, has mentioned, there is no law now covering
it.
Once we have legislation covering the bulk of the problem, then I
wonder how much effort we are going to have, how much support we
will have' for additional legislation to cover what is a relatively small
part of the problem. How far along are you in your deliberations on
this?
Admiral TURNER. It is very difficult in any bureaucratic process to
predict how close you are to the finish, because you can have almost
all the work done and the last 10 percent may take 50 percent of the
time. I think we are quite well along, but there could be some critical
decisions ahead that will be difficult to iron out between the various
interests involved. I assure you that there is no dilatoriness involved.
We are proceeding as rapidly as we possibly can with due account for
the various interests concerned.
Senator BAYH. I certainly don't mean to imply any dilatory tactics.
This is a difficult roblem, and it affects the ability of you and your
people to do your business. What I would think might be helpful, and
I am sure part of it is not at all appropriate here, but I would like
for us to be more definitive than the response you have given. I would
like to know specific case histories. You can strike the name and serial
number out of them, but I would like to know just why it is not pos-
sible for us to be able to at least move forward in a couple of areas
that I will address myself to. Could you give some specific examples
that show that applying the same kind of protection to American
citizens abroad would be too onerous?
We do not leave our citizenship at the coastline. I am sure you realize
that. When you talk about the panel, Admiral, would you rather do
this in executive session, or can you tell us, when you say not all of
the requests granted-or all requested have been granted, how many
are we talking about? I would like to know, targeting Americans
when they are abroad, what are we talking about, or can we talk about
that?
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Ms. Siemer, are you shaking your head, don't answer, or none?
Admiral I uRNER. At the present time the panel does not concern
itself with surveillance of Americans abroad. That is a different
procedure. We are talking about electronic surveillance in the United
States as covered by this %ill, as covered in the analogy I drew in my
opening comments with this panel, sir.
Might I add one point? I am, of course, not in a position to judge
how much the legislative traffic will, bear here as to whether there
will be adequate interest if the bill comes up separately, but my par-.
titular interest from an intelligence point of view with overseas sur--
veillance is protecting our relationship with these foreign agencies,
because it is almost out of the question to perform this kind of activity
without their cooperation.
In my view, separating the bills will help us, because any bill we
' pass regarding foreign surveillance of Americans aboard will to some
degree inhibit these relationships. These agencies, particularly after
all the disclosures we have had in public in this country in recent
years regarding our intelligence activities, will be wary of continuing
a relationship with us, but it would be an easier explanation for us if
there was a discrete bill that handled just the foreign aspects of
things, so there was no confusion with the procedures in the United
States:
Senator BAYII. I would think, Admiral, insofar as the discreteness
and .the separate nature, I think we could make it very clear as a part
of this package that we are talking about a different problem, really
a different mission. I guess we are going to have to resolve in our own
minds how much traffic the legislative mule will bear. Maybe that
question about the size of the burden had best be left to executive ses-
sion, where we are going to meet next week TuRRNER. All right, sir.
Senator BAYJI [continuing]. And if we can, have a discussion of
some of the specifics so we will know just exactly in more detail what
we are talking about here. Let me deal with two types of areas that I
addressed to the Attorney General. What about minimization? Would
it not be possible by requiring appropriate minimization to allevi-
ate or greatly lessen the danger of this information being abused as it
is collected? In other words, if we are talking about an American
citizen that is targeted or picked up even coincidentally by a foreign
agency, there is not much we can do about that, particularly unless we
initiate it or are advised about it in advance. The concern we have is,
what happens to that information, or what is likely to happen if
it is stored improperly in one of these big computer systems? Now, if we could say that we would use the same standard. of mini-
mization, if it involved an American citizen, if that information is
picked up abroad, it seems to me we would have gone a long way to
eliminating or alleviating possible abuse.
Admiral TURNER. We are in agreement with you, Senator, on the
desirability of minimization procedures, and minimization procedures
are in effect today under the direction of the Attorney General of the
United States with regard to all Central Intelligence Agency elec-
tronic surveillance abroad. So, as to your suggestion that we might put
it into this legislation, I would not have a fundamental objection. I
would say I do not think it is an urgent issue, since we are following
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minimization procedures already, and that it would be better to in-
corporate it in the bill that contains all other matters regarding elec-
tronic surveillance abroad, rather than to mix apples and oranges.
Senator BAYII. I hope you will excuse me. I have an Appropriations
Committee meeting.
Admiral TunNER. Thank you, sir.
Senator GAIIN [presiding]. Admiral Turner, I wonder if I might
ask about this discussion which we might pursue further in executive
session about the legislative load. We are really dealing with two ques-
tions here : On the one hand, what interest will there be in a spearate
bill if we do not address the foreign aspects at this time; but the other
question is really, if you load it up, do you get any bill at all'? Now,
I fall on that side of it, strictly from a political standpoint, which
we can't ask you to judge. That is in our realm. I think we are in
such a critical balance on this bill and votes on the floor, at least it is
my opinion, purely from a political standpoint, forgetting the merits,
which we will talk more about, that we load it up too much and it may
be the straw that keeps the bill from passing on the Senate floor.
That brings me to another point about the balance of this whole
bill. Senator Bayh and I. have been involved in it for over a year now,
and getting to that balance of where you adequately. protect the rights
of American citizens but still not inhibit too much the legitimate in-
telligence-gathering activities that are necessary for national security,
so we are on a very teeter-tottery situation there as far as votes, too.
In this committee, the division is very close, Senator Bayh and I
are both cosponsors of this bill. He would like to tip it a little more to-
wards more protect ion of the individual, and I would like to tip it
a little more back the other way for legitimate intelligence-gathering
activity. So what we are really dealing with for all of you as we look
at this is, right now, I think it is about where it needs to be, and if we
tip it one way or another, you start` losing votes on the liberal or so-
called conservative side so you don't get any bill at all. That is after
months of discussion last year. I think. we have reached sort of a coin-
promise or a balanced position some place in the middle, that if we
tinker with it too much one way or another we are justnot going to
have any.
I do think we need something. I think, as I said yesterday that we
have no law at all controlling these activities. That is why 1 ,puzzle
a little bit with some of the groups who want tough criminal stand-
ards for using this, because apparently they would rather have the
present situation than no bill at all, which I don't understand; where
we have almost no protection for the individual American citizen at
this time.
Let me ask you a couple of questions. In your statement before the
.Judiciary Committee, on page 4, you stated that it is possible, for
example, that the bill's definition of foreign intelligence information
will prove too narrow or will be too narrowly construed to permit
the acquisition of genuinely significant communications. Can you tell
are what part of the definition you are referring to, and does the
definition require that certain information be essential to national
security or the conduct of foreign policy? I share your concern.
Admiral TIIa`Rlt. Well, it is the word "essential" on page 5, para-
graph 5-B, and how that is construed, Senator, that is going to be a
critical point when this bill is interpreted.
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Senator G.%RN. Well, your fear is that it could be too narrow and
restrict you too much ?
Admiral TURNER. That is a possibility. I think a lot depends on
the legislative history and how that is written regarding what the
committee really interprets as the meaning of "essential," because
yen can stretch "essential" to be very, very narrow.
Senator GARN. Do you have any specific suggestions then how we
could clarify the legislative intent so that we make certain that that
particular word or foreign intelligence information is not interpreted
too narrowly?
Admiral TURNER. It is my understanding that there has been a
general agreement on the wording; of the report on this point. That
will help a good deal.
Senator GARN. Well, if you do not have specific answers now, cer-
tainly in writing. It is an area that I agree with you could be too
narrowly interpreted or too broadly, and if you can help us in being
specific here, so that again we reach that proper balance, we would
be grateful for that.
Admiral TURNER. All right.
Senator GARN. You have already described your current situation
on Executive branch review procedures providing for review by this
interagency panel, including you, the Secretaries of State and Defense,
every 90 days. Would you expect that this Procedure for 90-day re-
view will be changed if the bill is enacted to provide court orders
lasting for as long as a year? Now, we did do the dual situation with
90 days, and also the year in specific situations.
Admiral TURNER. My personal inclination, and this is not entirely
under my authority, so I cannot promise or guarantee this, would
be that we would continue with the same procedures we have now,
reviewing at 90-day intervals, even though we would only be re-
quired to go back to the courts on a yearly interval for the one
type of surveillance.
Senator GARN. I)o you find in this interagency group the 90-day
periods would be burdensome to you?
Admiral TURNER. Not unduly. It is obviously a, burden, but the
load is not that heavy. When I say that, I want to say with great
sincerity that it has got to be a burden, because you have got to take
it seriously. If it becomes too little a burden, that means you are pass-
ing over things lightly, and we cannot afford to do that, but I think
we are willing to accept that degree of burden, sir.
Senator GARN. Not nearly the burden that we apply on the execu-
tive branch of Government to constantly appear before congressional
committees, I suppose.
Admiral TURNER,. I will take the Fifth Amendment on that, sir.
Senator GARN. We give you little time. to work.
I have no further questions at this time. Senator Morgan?
Senator MORGAN. Admiral, we will try again. As I understand your
statement, you say that surveillance of foreign intelligence is now
being carried out by your agency without a judicial warrant in the
United States.
Admiral TURNER. In the United. States, yes, sir. If you say my
agency, it is not done by the Central Intelligence Agency. In my hat
as the Director of Central Intelligence, yes, it is being done.
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Senator MoRGAN. And you say this is done under a. written dele-
gation of authority from the President, which I assume that you
feel he has the inherent right to do.
Admiral TURNER. Yes, sir.
Senator MORGAN. How far does the inherent right of the President
to direct electronic surveillance of American citizens go in the in-
terest of national security?
Admiral TURNER. In my view he has the right to conduct such
surveillance as he believes is necessary, but what we are all doing
here, and the President supports this general measure, is to lay down
the guidelines, the rules under which he will operate in the future.
Senator MORGAN. I think we all agree that this President is trying
to do what is within reason, but I think we are trying to write a
law that will last for years to come, which might encompass and
would encompass the terms of office of other Presidents.
Admiral TURNER. Yes, sir.
Senator -MORGAN. But it, is your feeling, then, that the President
has an inherent right to do whatever he in his judgment thinks is .
necessary in the area of electronic surveillance, as long as it is done
in the interest of national security?
Admiral Tur:.NER. My answer to that is generally yes, but I would
like legal advice to make sure I haven't left out a nuance here.
Senator MORGAN. I say to you, Admiral, in my own mind I have a
great deal of reservations about that, and I asked the Attorney
General yesterday if he had a brief stating his position, and that is
why I am pursuing it today, and then I was going to ask if you had
any briefs prepared on this.
Admiral TURNER. We don't have a brief of our wn, and ifIonre
asked to produce one, I would almost have to go y
General to get the authoritative one.
Senator MORGAN. Does counsel have an opinion as to how far or
whether or not there are any limitations on the President's : inherent
right to engage in electronic surveillance so long as he is doing it in
the interest of what he believes to be national security?
Admiral TURNER. I am certain, Senator, that there are limits on
any inherent power that may exist, but under the delegation that you
have referenced, the sorts of electronic surveillances that are carried
out are. already limited in much the same way as they would be limited
by the terms of this legislation.
Senator MoRGAN. I understand that, but I am looking down the
road. In the electronic surveillance that you are now carrying out,
would the need for that surveillance or the reason for it meet the
criminal law standards or standards of probable cause?
Admiral TURNFn. I believe it would meet the standards of probable
cause, Senator. In many instances it would not meet a criminal stand-
ard, and indeed in many of the instances in which the surveillance
would be conducted pursuant to the legislation there would be no
requirement that a. criminal standard be met. I am talking now princi-
pally about surveillances conducted against those organizations or
entities defined as foreign powers under the bill.
Senator MoRGAN. Well, I understand that, and that is one of my
concerns about this legislation, whether or not we should require it.
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Can you give me an example in open session-if you cannot, we will
wait until later--of a type. of surveillance that you. are now carrying
out against American citizens in this country which would not meet
the, criminal law standards, and then a type in which you could meet
them?
Mr. LAPIIAM. Senator, I think that question would be better put to
the FBI. The Director is not involved in the approval of any surveil-.
lance directed against a United States person in the United States.
Senator MORGAN. Did I not understand you, Admiral, to say that
you did sit on the board or would sit on the board of certification with
regard to the need for electronic surveillance?
Admiral TURNER. On foreign intelligence, Senator, not on domestic
intercept of United States citizens.
Senator MORGAN. Now, when you say foreign intelligence, are you
talking about surveillance conducted in foreign countries?
Admiral TURNER. No, sir, surveillance conducted against foreign
entities in the United States.
Senator MORGAN. Well, that, is what I am asking you for. Well, that
would necessarily or could involve, American citizens, could it not?
Admiral 'frmNER. If it does, we come under the minimization pro-
cedures here. We do not target American citizens for this purpose.
Senator MORGAN. How about an employee of a foreign entity, such
as Air France, one that is frequently referred to, an American em-
ployee of Air France?,
Admiral TURNER. That we have to leave to the FBI to handle..
Senator MORGAN. Even though you are seeking it for foreign
intelligence?
Admiral TURNER. Yes, sir.
Senator MoRGAN. Now, you said not all requests that have been
made have been approved. Can you give me any idea of the frequency
of the requests that are made? How much electronic surveillance do
we do in this country for foreign intelligence purposes?
Admiral TURNER. I prefer to talk about the quantities in executive
session, sir. I would only say that when we review these every 90 days,
there is always one or more that we have some question about, and do
not approve. That is what I was trying to get at.
Senator MORGAN. Admiral, I know you are in a hurry, and we will
pursue this later, but let inc just give you my thoughts. The more I
study the bill and the more I study and recall the testimony during
the 18 months of the Church Committee, the more I am inclined to
believe that in the Harlan Stone line, that there ought to be a criminal
standard, either reasonably, either the person is committing a crime
or is about to commit a crime, and I am not so sure that almost every
purpose that you surveil. for would not meet those standards.
I know there is some question as to how you interpret national
defense, as narrow as it was interpreted in 1941, or whether you would.
interpret it in light of more recent court decisions, but when we come
back in executive session, those are, some of the questions I would .like
to pursue with counsel and with you.
Admiral TURNER. Thank you, sir..
Senator MORGAN. I have no further questions.
Senator CGARN. Senator Case, do you have any questions?
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Senator CASE. No questions, Mr. Chairman.
Senator GARN. Senator Hart?
Senator HAaT. Onl y a couple of questions, Admiral, regarding con-
gressional oversight, which we. got into a little bit yesterday with the
Attorney General. Of the varying proposals concerning last year's
bill and this year's, and so forth, concerning reporting requirements
to appropriate comnnttees of Congress, including this one, most have,
contained provisions having to do with reporting that is limited to
the number of applications for orders and the number of orders
granted. Do you believe that is adequate for this committee's purposes,
or do you believe this committee should have the authority to get more
specific information about the nature of the orders applied for and
granted, the details of the case, in other words?
Admiral TunNE1,. I certainly think the committee has the authority
and can obtain as much detail as necessary. I have some reluctance,
Senator, to see us engrave into legislation the specific types of infor-
mation that will be provided Congress. In particular I have felt that
the exchange of information and the overall relationship between the
Senate Select Committee and the intelligence community has been
developing so well, and we, have been working out reporting pro-
cedures, that it seems to me it is better to keep it on that basis rather
than get something in legislation here that would be more difficult to
change rf we did mutually want to change it in the future.
Senator HAxT. Therefore, it is your understanding that there pres-
ently, exists under Senate Resolution 400 or other authority, authority
for this committee to request from you and other elements of the In-
telli.gence Community information regarding electronic surveillance,
and that authorization in legislation of this sort would be more by
way of limitation than anything else.
Admiral TURNER. Yes, sir, and my understanding is that the de
tailed reporting procedures that we are talking about are under ne-
gotiation now between the Justice Department and the staff of your
committee. While these would not go into the legislation, they will be
very specific so that there is no ambiguity when this bill is enacted.
Senator HART. We constantly have to make, and I think Senator
Morgan appropriately made the point about the differences between
and among personalities and Administrations and Congresses, and
that the intent of one Administration may be benign and the next not
so benign, and I think the problem here is how to construct a rule
of law and a set of procedures which will govern those who may not
have the same intent and the same understanding of the present law
that you and this present Administration have, and that is a matter, I
think, of concern, that, even though all of us seem to be working all
together now, no one here today is going to be here forever, and we
have to guarantee somehow that future committees, future members
of this committee, future Directors of the Central Intelligence Agency,
and future Presidents have the same relationship, and this commit-
tee has the same access to that kind of information. I think that is the
problem.
Let me just ask one correlated question, and that is whether you
have a system for evaluating the returns on electronic surveillance of
foreign sources at the present time, of going back and determining
whether in retrospect that surveillance was worthwhile and the in-
formation gathered was beneficial compared to the risk taken.
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Admiral TURNER. Yes, sir, we do that every 90 days, specific for
each target.
Senator HART. And has that resulted in any case in your judgment
that for one reason or another the risk taken or the-well, any legal
questions that may have arisen outweighed the results that you
obtained?
Admiral TURNER. Yes, it has.
Senator HART. And that in turn is factored into future decisions?
Admiral TURNER. Yes, sir, that has led to cessation of authorization.
Senator HART. And a decision, in fact, not to even, seek authoriza-
tion in some cases?
Admiral TURNER. When we do that evaluation, Senator, it is be-
cause it is an ongoing activity, and then if the evaluation says. the risk
is too high, we cancel it. We also make a risk evaluation of a proposed
surveillance. We cannot evaluate what we collected, but we can evalu.-
ate what we might collect against what the risk would be, and in both
instances I don't think I have been to a meeting in either one of those
in which something hasn't been turned down. Is that your recollec-
tion, Hal?
Mr. SAUNDERS. That is certainly true.
Admiral TURNER. Yes.
Senator HART. Thank you very much.
Admiral TURNER. In short,. if we have enough meetings there will
be nothing left.
Senator HART. That might be good.
Senator GARN. Admiral, may I ask you, in light of several ques-
tions from different Senators, and we need to handle it in executive
session, but it might be well if you could when you come back for that
session provide us maybe with some written examples or synopses of
your committee meetings, of what you have approved and have not
for the executive session, so they could have, their questions more
specifically answered, if that would be possible.
Admiral TURNER. Yes, sir.
Senator GARN. Senator Case?
Senator CASE. Thank you, Mr. Chairman.
Admiral, I do not want to repeat anything that has been done
before, before I got here, but I was interested in that question of
whether in regard to foreign surveillance and also information picked
up accidentally, whether the minimization provisions of the present
bill might not apply to them before a complete statutory framework
is set up as you propose under new legislation.
Admiral TURNER. Yes, sir, we believe minimization procedures
should be included in the regulation of foreign electronic surveillance.
We do follow such procedures today with respect to CIA
intercepts overseas, and my only hesitation is regarding
whether minimization procedures for foreign electronic surveillance
should be incorporated in this bill, which is basically domestic. When
we come to a. bill for the foreign .intercepts, we would favor a mini-
mization procedure.
Senator CASE. But is there any reason why the minimization proce-
dures should not be made applicable in tins bill to those categories
without waiting for a whole new legislation governing generally the
question of surveillance abroad?
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Admiral TnnNER. No strong objection to it. I think it is mixing
apples and oranges; I would prefer to treat the issues regarding elec-
tronic surveillance abroad in one bill. It is a matter of tidiness.
Senator CASE. What about minimization procedures being made
applicable to information accidentally acquired in the course of other
wiretapping here in this country? Is there any reason why that should
not be made applicable?
Admiral TURNER. No, sir, not in my opinion. I think it is already.
Senator CASE. Thank you. I do have a few more questions, but I
want to read the record before I ask them, so if I could I would like
to have them submitted for the record.
Senator GARN. At this point, Admiral, what I would like to do is
go on with the prepared statements of some of the other witnesses,
recognizing that you have another legislative commitment. If you
would stay with us in case there are other questions as long as you can,
and without further questioning or statements, when you feel you
have to leave, feel free to just get up and depart, and we will under-
stand why you are going.
Admiral TURNER. Thank you, sir.
Senator GARN. At this time, we. would like to ask Ms. Siemer if
she would present her statement.
TESTIMONY OF MS. DEANNE C. SIEMER, GENERAL COUNSEL, DE-
PARTMENT OF DEFENSE; ACCOMPANIED BY ADM. BOB INMAN,
DIRECTOR, NATIONAL SECURITY AGENCY; AND ROWLAND
MORROW, DIRECTOR, COUNTER-INTELLIGENCE, DEPARTMENT
OF DEFENSE
Ms. SIFMER. Thank you, Senator.
I appreciate the opportunity to appear before you today as the
representative of the Secretary of Defense to testify with respect to
S. 1566, the proposed Foreign Intelligence Surveillance Act. With me
is Admiral Bob Inman, the Director of the National Security Agency,
and Rowland Morrow, who is head of DOD Counterintelligence is
also with us, if there are detailed questions on that subject.
When Secretary Brown testified before the Judiciary Committee,
he described in detail the procedures that the Department will use if
S. 1566 is enacted. He also emphasized the importance to the Depart-
ment of Defense of the provisions of the bill that protect the security
of intelligence information once it enters the judicial system. If it is
acceptable to the committee, the Department would like to submit
the Secretary's prepared statement as part of our statement before
this Committee.
Senator GARN. Without objection, we will be happy to include that
in the record.
[The prepared statement of Harold Brown follows:]
PREPARED STATEMENT OF HAROLD BROWN, SECRETARY or DEFENSE
Mr. Chairman and members of the committee, I appear before you today at
your invitation to testify with respect to S. 1566, the proposed Foreign Intel-
ligence Surveillance Act.
Various agencies of the Department of Defense have an important role in the
collection and analysis of foreign intelligence of all kinds. Our intelligence activi-
ties provide information about foreign military capabilities, the intentions of
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foreign powers, and other activities of foreign governments as well. These various
sorts of intelligence often are inextricably intertwined. A single channel of com-
munication under surveillance may yield information on subjects ranging from
troop deployments and morale to grain harvests. A single bit of intelligence-
such as information that a division of an Eastern European army is advancing
to a border area-can be vitally important not only to the United States military
commander on the other side of that border, but also the President, the Secretary
of State, the Director of Central Intelligence, and the Secretary of Defense.
From the point of view of the Department of Defense, adequate and dependable
surveillance for military defense and planning is essential, and therefore the
legislation you are considering today is Important to me.
Agencies of the Department having an important role in the foreign Intelligence
collection effort are :
The Army Assistant Chief of Staff for Intelligence ;
The Director of Naval Intelligence ;
The Air Force Assistant Chief of Staff for Intelligence ;
The Deputy Assistant Secretary of Defense for Administration (who han-
dles military counterintelligence) ;
The Defense Intelligence Agency ; and
The National Security Agency.
All work closely together. Each has both general responsibilities and a special-
ized mission which is coordinated with the activities of other entities in the
Intelligence Community by the Director of Central Intelligence.
Since coming into office I have personally taken action to tighten the controls
on approval of electronic surveillance and to assure that each of the DOD Intel-
ligence entities operates within the requirements for electronic surveillance set
out pursuant to Executive Order 11905. One of my first actions on assuming office
was to establish a. special committee to make recommendations for Improvements
in the way intelligence activities are handled within the Department. On Febru-
ary 8, 1977, I issued a memorandum which states my position clearly. It says:
"I will not condone Defense intelligence activities which violate or infringe
on the constitutional rights of United States Citizens. In this connection I
expect that all intelligence and counter-intelligence functions carried out by your
department or agency are strictly within the law."
A copy has been supplied to the Committee. I also met in February with the
Directors of the National Security Agency and the Defense-Intelligence Agency
and with the Joint Chiefs of Staff to emphasize personally to them my commit-
ment that tighter controls be applied.
The operations of most of the intelligence components of the Defense Depart-
ment are carried out overseas. Since I became Secretary of Defense, the Depart-
ment of Defense requested approval from the Attorney General for new electronic
surveillance within the United States oil only six occasions. This bill does not
apply to surveillance activities conducted outside the United States. The relevant
legal requirements for those activities will be set out in an overseas counter-
part to the Bill you are considering today. The President has given you Ills
assurance that the Administration will support an appropriate bill regulating
overseas electronic surveillance activities and the effort to draft such a bill is
underway. I think it is important that the regulation of domestic and foreign
electronic surveillance for intelligence purposes be kept separate. The operations
are different, the problems are different, and the impact of legal restrictions on
the intelligence-gathering effort are different. Trying to accommodate all of these
differences in one law inevitably makes the law more difiicul't. The intelligence
agencies need clear mandates and guidelines, and a separation of the legal re-
quirements for domestic operations and foreign operations will best accomplish
that end.
In my view, the most important accomplishment of S. 1566, the proposed legis-
lation you have before you, is the creation of a uniform system of accountability
for all of the agencies and components of the Intelligence Community with
respect to electronic surveillance conducted within the United States. The collec-
tion of foreign Intelligence through electronic surveillance, like other aspects of
our foreign intelligence activities, benefits from a diversity of approaches and
the participation of a number of different government entities with different
needs and expert resources. A uniform system of accountability permits us to
continue to reap the benefits of this diversity of approaches and at the same time
accomplish our goal of restoring public confidence that our foreign intelligence
capability will not be diverted to improper purposes.
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I view this bill as requiring the active participation of the chiefs of each of
the intelligence activities within the Department of Defense. I view the certifi-
cation requirements as mandating my personal attention to and decision about
the appropriateness of a request for a warrant to conduct electronic surveillance
within the United States.
If the Bill were enacted in its present form and I were designated by the
President as a certifying authority, I would establish four general procedures
for carrying out my responsibilities.
First, I would limit the authority to make application for a warrant to the
chiefs of the intelligence activities within the Department of Defense. This would
mean that each applicant for a warrant would be backed by the personal oath or
affirmation of one of the six senior officials who has operating responsibility for
foreign intelligence collection activities within the Department. I would probably
have to make some provisions for emergencies and absences, but it would be my
intention to require the personal attention and undertaking of my most senior
intelligence aides in this regard.
Second, I would require the preparation of detailed backup information to be
presented either in written form or orally. This backup material would. address
each of the five items required by the Bill :
(1) The identity of the target and the basis for the necessary determinations
we have to make about the target including whether the target is a United States
person ;
(2) The type of information we can expect to obtain from electronic surveil-
lance of the target and the basis for the necessary determinations we have to
make about that information including whether the information is foreign
intelligence ;
(3) The type of electronic surveillance we will have to use to get the infor-
mation and the basis for the necessary determinations about these means, includ-
ing whether the information can be obtained by normal investigative techniques
not requiring electronic surveillance ;
(4) The period of time for which we would have to use electronic surveillance
to get the information we are seeking ; and
(5) The type of minimization procedures we will have to use to ensure that
information concerning United States persons is not acquired, retained, or dis-
seminated unless it is foreign intelligence.
Not all of this information would be required to be set out in the application,
but I would require it to 'be prepared in each case so that I am assured that each
of the statutory requirements has been met. The Attorney General could, of
course, be provided this backup information if he needed it.
'Third, I would require the application and backup information to be reviewed
by the General Counsel of the Department of Defense so that we would have an
independent legal judgment as to the sufficiency of the basis for the certification
a rid the statements required to be made in the application.
Fourth, I would personally review the application and would personally make
the required certification subject only to contingency arrangements to take care
of in my absence.
That procedure would impose a substantial burden on me and on the Depart-
ment of Defense, 'but I think the end result will be a workable system that will
provide the necessary accountability for all intelligence activities conducted by
the Department.
That procedure would also create substantial needs for protection of foreign
intelligence sources and methods and I want to emphasize how important it is
that the Bill also be adequate in these regards. We will be generating documents
that contain some of our most valuable intelligence secrets :
The identity of the targets of our intelligence gathering activities ;
The type of information we expect to get from those targets ; and
The means we use to get that information.
These documents will pass out of the control of the Intelligence Community
and into the judicial system. They will become the subject of intense discovery
efforts both by clandestine means. through the efforts of intelligence services 'of
other governments, and by normal litigation means, through the efforts of lawyers
representing clients whose communications may have been acquired.
Several of the provisions of the Bill are important in protecting the security
of this information and I hope any changes made to these provisions during the
legislative process expand these protections.
First, Section 2523(c) provides for security measures to protect the applica-
tions for warrants, the orders granting or denying warrants, and the records of
the warrant proceedings. This should remain flexible so that if no satisfactory
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arrangement can be worked out using existing court procedures and facilities,
authority and funds necessary will be available to create alternatives. The most
skilled foreign intelligence agents in the world will be seeking this information
and we should not be hindered in our efforts to keep it from them.
Second, Section 2524(c) and Section 2525(c) provide that a judge may require
an application to be supplemented by such other information (other than the
application and the certification) as is necessary to make the determinations or
findings mandated by the statute. It is Important that the qualifying term "neces-
sary" remain an integral part of this provision and that it be made clear that
the term "necessary" when used in this context means substantially more than
just "useful" or "helpful." The statute is designed so that, if properly imple-
mented, the application and certification provide all the information necessary
to these findings and determinations. Only in an unusual case should a judge need
more.
Third, Section 2526 (a) provides that information obtained from foreign intel-
ligence electronic surveillance may be used for law enforcement purposes only
if its use outweighs the possible harm to the national security. This gives the
Attorney General explicit authority to decline to prosecute where to do so would
entail a risk of exposure of intelligence information. Since these determinations
are, of necessity, made within the Executive Branch and without explanation, it
is Important that there be an acknowledgment that the Congress intended this
balancing process to take place. This provision will also deter judicial interpre-
tations of this bill in the future to create any right to disclosure of national
security information.
Fourth, Section 2526(c) provides for limited disclosure in litigation. If?'a
motion is made to discover or suppress evidence on grounds that it was obtained
from an unlawful electronic surveillance the statute authorizes disclosure to the
judge in that proceeding, for an in camera review, and authorizes disclosure to
the aggrieved person in special circumstances. There are two important limita-
tions that, in my view, are essential. The only information that may be disclosed
to either the judge or the aggrieved person is the application, the order, and
relevant portions of the transcript of the surveillance.
This limitation is necessary to protect against an expansive interpretation of
the Bill in the future that would permit access to .any backup documents that
may exist. Further, the application, order and transcript may be disclosed to the
judge only to the extent necessary to make a determination as to whether the
electronic surveillance was lawful, and may he disclosed to an aggrieved person
only to the extent that this person's participation is necessary to make that deter-
mination. Here again, the qualifier "necessary" is extremely important and must
be intended to mean substantially more than "useful" or "helpful."
In conclusion, Mr. Chairman, I would point out that the Bill before you pro-
tects the rights of Americans not only to the extent that they are required to be
protected by the courts' ;nterpretations of the Fourth Amendment, but 'beyond
that to the extent they are required to be protected to meet the reasonable ex-
pectations of our people. The Bill also protects our valuable foreign intelligence
sources and information from unnecessary disclosure which weakens our national
security. The accommodation of both these important national interests requires
provisions that might appear less than ideal if considered from only one of the
various points of view that are involved. I am satisfied with this Bill which has
been worked out over several months of effort by your staffs and mine. I hope
the members of the Committee will find it satisfactory as well.
Thank you.
Ms. SIEMER. If it is acceptable to the Committee, the Department
would also submit the rest of our prepared statement for the record,
and we will move on to answer questions.
Senator GARN. It is so ordered.
[The prepared statement of Ms. Siemer follows:]
PREPARED STATEMENT OF HON. DEANNE C. SIEMER, GENERAL COUNSEL, DEPART-
MENT OF DEFENSE
Mr. Chairman, I appreciate the opportunity to appear before you today as the
representative of the Secretary of Defense to testify with respect to S. 1566,
the proposed Foreign Intelligene Surveillance Act. With me is Admiral Bob
Inman, the Director of the National Security Agency.
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When Secretary Brown testified before the Judiciary Committee, he described
in detail the procedures that the Department will use if S. 1566 is enacted. He
also emphasized the importance to the Department of Defense of the provisions
of the bill that protect the security of intelligence information once it enters
the judicial system. If it is acceptable to the committee, the Department would
like to submit the Secretary's prepared statement as part of our statement
before this committee.
Most of the complexities of the bill arise out of provisions that are intended
to govern the counterintelligence activities of the FBI because these activities
are more likely to involve surveillance of Americans. While the Defense De-
partment conducts military counterintelligence activities within the United
States, the only non-consensual electronic surveillance conducted in connection
with these activities in the United States is done by the FBI.
The Department of Defense also has substantial functions in collecting posi-
tive intelligence as distinct from counterintelligence. The Secretary of Defense-
is the executive agent for signals intelligence activities on behalf of the Execu-
tive Branch. These activities are carried out by the National Security Agency,,
some within the United States. The military departments do not conduct elec-
tronic surveillance for positive intelligence purposes within the United States..
Signals intelligence operations covered by this bill are directed against the
types of foreign powers defined by subparagraphs A, B and C of Section 2521
(b) (1)-that is foreign governments, factions of foreign nations, and entities
that are openly acknowledged by foreign governments to be directed and con-
trolled by them. These operations do not involve the targeting of individuals:
and are not directed against the communications of Americans.
The intelligence gained from these activities is of critical importance to the
Department of Defense and other users of intelligence. The protections of this
bill that are designed for Americans and resident aliens will not impair these
operations against foreign powers if they are not extended to situations where
there are only remote possibilities that communications by Americans will be
acquired. The bill contains a careful dichotomy which provides more stringent
requirements for targeting the types of foreign groups in which Americans
might be involved, and less stringent requirements for targeting foreign govern-
ments and their entities where, on the basis of past experience, Americans are
never the communicating parties. Different standards are applied to the in-
formation required to be set out in the application, the extent of the certifica-
tion, the substance of the review by the court, the duration of the order, and'
the information to be produced in support of extensions of orders. It is im-
portant to the capability of the Department of Defense to provide effective for-
eign intelligence that this dichotomy be maintained.
The positive intelligence information sought through signals intelligence op--
erations is almost entirely that described by subparagraphs A and B of Section
2521(b) (5)-information relating to the ability of the United States to protect
itself against hostile acts, to the maintenance of national defense or security,
or to the successful conduct of foreign affairs.
The bill contains a difficult differentiation in this regard. The definition of
"foreign intelligence information" includes Information that is necessary to
protection against a hostile attack and information that is essential to the na-
tional defense or the conduct of foreign affairs. It is of great importance to the
signals intelligence effort that the Committee make clear that information can
be necessary or essential in the context of the national defense because of its
relationship to other information-either in determining the value of other-
information or completing a data series necessary to an assessment. In dealing
with signals intelligence from foreign government sources, it seldom occurs that
any one. message or any one source can, standing alone, meet either the "neces-
sary" or "essential" test. But put together, a number of messages or information
from a number of sources can provide extremely valuable intelligence that
plainly meets either test. A fair and clear explanation by the Committee of the,
"necessary" and "essential" requirements will set the standards high enough
so that not every bit of information about any foreign government would qualify
as foreign intelligence information--hut not so high as to cripple the signals
intelligence effort. which by its very nature requires fitting together pieces of-
information to discover the shape of the whole.
The Defense Department conducts electronic surveillance against foreign
po viers both in the United States and overseas. The geographic distinctions now
included in the bill are important to the Department. This hill was designed to,
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deal with the problems of electronic surveillance of Americans within the United
States. An amendment to graft onto S. 1566 provisions dealing with electronic
surveillance overseas would be opposed by the Department of Defense for the
following reasons :
First.-Trying to accommodate all of the differences between foreign and
domestic electronic surveillance in one bill would make the law very complex.
The intelligence agencies need clear mandates and guidelines, and a separation
of the legal requirements for domestic operations and foreign operations will
best accomplish that end.
Second.-Cooperative foreign intelligence arrangements with allies are im?
portent to the intelligence effort. Controls on electronic surveillance overseas
must be drafted carefully so as to take into account circumstances created by
these agreements and to avoid, where possible, adverse effects on these intelligence
sources.
Third.-The laws of foreign jurisdictions create special problems. In some
countries the legal requirements and procedures involved are substantially dif-
ferent than United States law with respect to electronic surveillance, and the
expectation of privacy is often also substantially different.
Fourth.-Many Americans overseas are military personnel, and electronic
surveillance, both on-base and oil-base, of military personnel presents special
problems in both law enforcement and intelligence contexts.
Fifth.-The problems of identifying U.S. citizens and resident aliens, as such,
when they are abroad is very difficult, particularly in signals intelligence work.
Sixth.-The very restrictive definition of "agent of a foreign power" appropri-
ate to limit surveillance in the United States should be expanded to cover other
U.S. persons whose overseas activities may be of legitimate foreign intelligence
interest, such as defectors to Soviet bloc nations and officials of foreign govern-
ments who also hold U.S. citizenship.
The Department of Defense believes that a workable bill to govern electronic
surveillance of Americans abroad can be drafted, and my office is now working
with the Department of Justice on such a bill.
The Department of Defense believes that S. 1566, in its present form, would
successfully create a workable, effective system for protecting the rights of
Americans and, at the same time, preserve the effectiveness of the very valuable
foreign intelligence and counterintelligence capabilities of the Department of
Defense.
Thank you.
Senator GARN. Senator Morgan?,
Senator MORGAN. I have no questions.
Senator GARN. Senator Hart?
Senator HART. No questions.
Senator GARN. Senator Case?
Senator CASE. You rendered me almost speechless as you are by your
brevity. I commend you for it. I want to read this, and then I would
ask any questions I might have.
Ms. SIEMER. Senator Case, I might be able to help with one of the
questions.
Senator CASE. If there is anything you want to emphasize, go ahead
and do it.
Ms. STEMER. One of the questions you asked was why we simply
shouldn't engraft on this bill minimization procedures with respect
to international communications that are not covered by this bill.
One of the problems, as Admiral Turner has emphasized, is, that it
brings into this bill all the complicated definitions that will be needed
in the foreign bill, and there is one good example of that, that I could
point out here. If you look at page, 28, under section 4(f), it applies
to acquisition by the U.S. Government of these kinds of communica-
t ions.
Nov, the problem we would have if we engrafted minimization
procedures formally in this bill, as Admiral Turner has told you, is
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that we already apply minimization procedures to these through the
Attorney General's requirements.
If we do it formally with respect to this bill, we will be required to
define the term, "by the United States Government." Does it involve
only situations when the United States acts alone, or when it acts in
concert with other governments, or when there is some cooperation but
not in concert? There are a great number of shades of difference there
of those kinds of operations which are difficult for us to define. We
think you have sufficient protection in the Attorney General's current
procedures, and that those definitions will be made applicable in a bill
that deals only with foreign communication or international commu-
nications interception abroad. That will provide the kind of clarity
and guidance that our intelligence agencies need to be able to know
precisely what the requirements are.
Senator CASE. Would your concern apply also to the application
of minimization procedures to information accidentally or collaterally
obtained, not in connection with people examined abroad?
Ms. SIEMER. No; it does not.
,Senator CASE. I think that is all. Thank you.
Senator GARN. With the approval of the Committee, I think we
might expedite by asking Mr. Saunders and Mr. Hansell to pro-
ceed with their statements, and then we will be able to ask questions
of any of the witnesses. Mr. Saunders, if you will go ahead with your
statement, and handle it in any way you would like.
TESTIMONY OF HAROLD SAUNDERS, DIRECTOR OF INTELLIGENCE
AND RESEARCH, DEPARTMENT OF STATE
Mr. SAUNDERS. Yes ; with your permission we would like to present
a joint statement with me concentrating on the intelligence aspect of
the legislation, and with Mr. Ilansell the Department's legal adviser,
talking about the legal aspects of the bill.
We welcome the opportunity here to put formally on the record
the State Department's support for this legislation, the Foreign Intel-
ligence Surveillance Act of 1978. We support this bill for two broad
reasons. First of all, we support it because we believe it will create a
clear statutory basis for the conduct of electronic surveillance for
foreign intelligence purposes. As such, we believe the enactment of this
bill can do much to restore the faith of the American public in the
Intelligence Community and in our government as a whole, including
the ability of the Congress and the Executive branches to work
together to protect liberty and security.
Our second reason is that, having the need to form a statutory basis
for this kind of activity, we believe that in this bill there is a correct
balance between the needs of a free society to maintain a strong foreign
intelligence service and capability and the rights of citizens and inhab-
itants in a free society.
We see some risks in the bill, the risks that it might be interpreted
in the courts in such a way as to render us unable to obtain the intel-
ligence information we think necessary, but we feel that those risks are
manageable and that the risks are worth taking in they light of the
objectives which we have in proposing the enactment of this bill.
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The bill also, we believe, has the additional advantage of eliminat-
ing the risk that the authority to conduct electronic surveillance with-
out a warrant world be abused. We note and support the fact that the
bill requires the Executive branch to meet very high standards in,
the certification and application for a warrant. These are procedures
which, as Admiral Turner has indicated, we are following now. The
procedures in the bill are nearly identical to those standards which
are being followed now, and our feeling is that one of the strong points
in the bill is that it codifies these stringent requirements into law, and
we welcome that.
Finally, the committee, I am sure, appreciates the importance of
foreign intelligence activities that will be conducted under the criteria
and procedures of this legislation. These activities form an integral
part of our total foreign intelligence effort, and they contribute in-
formation required to [the] support [of] the process of formulating.
and carrying out the foreign policy of the United States which is the
responsibility of the State Department.
I am confident that the information needed for this purpose can be
acquired within the terms of this bill without violating the rights of
United States persons. I am also confident that the committee ap-
preciates the sensitivity of going into an evaluation of the product of
this activity in open session., but we will be prepared in executive ses-
sion, to the extent the committee wishes, to share with Admiral Turner
in answering the questions that have already been posed, namely, what
is the evaluative process, how does this kind of material contribute
to the conduct of foreign relations, and I think we can examine that
just as fully as you wish next week, and we will be prepared to be quite
concrete in any ways that you wish.
That is the extent of my comment. I would be prepared to answer
questions. Mr. Mansell has a few comments about the legal side of the
bill, if he may proceed.
TESTIMONY OF HERBERT J. HANSELL, LEGAL ADVISER,
DEPARTMENT OF STATE
Mr. IIANSELL. 1MIr. Chairman, Senators, you have copies of my pre-
pared statement, and since it deals mainly with issues that you have
already addressed either this morning or in the session with the At-
torney General, I am inclined to think we would advance the objective
if I simply submit that statement for the record, and go forward with
your questions, which I am certainly happy to do.
Senator GAUN. We will make certain that all of your prepared state-
ments are printed in full in the record.
[The prepared statements of Harold Saunders and Herbert J. Han-
sell follows:]
PREPARED STATEMENT OF HAROLD SAUNDERS, DIRECTOR OF INTELLIGENCE AND
RESEAROIi, DEPARTMENT OF STATE
Mr. Chairman, I welcome the opportunity to appear before this Committee and
testify on behalf of the State Department in favor of S. 1566, the Foreign Intel-
ligence Surveillance Act of 1978. The Department fully supports the enactment
of this important legislation.
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I would like to propose a joint presentation today with Mr. Herbert J. Hansell,
the Department's Legal Adviser, sharing the witness chair. I will address my
remarks to the impact of this legislation on intelligence matters and Mr. Hansell,
will address the legal aspects. Both of us propose to make very short statements
and then will be happy to answer any questions the Committee might have.
We note, Mr. Chairman, that you have scheduled executive session hearings for
next week and it may be that during the course of our testimony issues will
arise which should more properly be discussed in executive session.
Tim Department of State supports this bill because we believe it strikes a
correct balance between needs of a free society to maintain a strong foreign
intelligence capability and the rights of the citizens and inhabitants of a free
society. We also support the bill because it will create a clear statutory basis
for the conduct of electronic surveillance for foreign intelligence purposes. As
such, the enactment of this bill can do much to help restore the faith of the Amer-
ican public in the intelligence community and in the government as a whole-
Including the ability of Congress and Executive to work together to protect
our liberties and security.
We recognize that there are some risks in this bill. There are risks that it may
be interpreted by courts in such a way that we are unable to obtain intelligence
information that we think is necessary, but we believe this risk is slight and we
believe it is worth taking in order to accomplish the objectives I have already
discussed. This bill has the additional advantage of eliminating the risk that the
authority to conduct electronic surveillance without a warrant will be abused.
We also note that the bill requires the Executive Branch to meet very high
and exacting standards in the certification and application for a warrant. I
would like to point out for the record that the executive branch has recently
adopted standards nearly identical with the standards proposed in this bill.
One of the strong points of the bill is, in my judgment, a codification of these
stringent requirements into law.
Finally, I am certain that this Committee appreciates the importance of the
foreign intelligence activities that will be conducted under the criteria and pro-
cedures of this legislation. These activities form an integral part of our total
foreign intelligence effort. They contribute information required to support the
processes of formulating and carrying out U.S. foreign policy. I am confident
that the information needed for this purpose can be acquired within the terms
of this bill without violating the rights of U.S. persons. I am also confident that
the committee appreciates the sensitivity of discussing this in detail in open
session.
Thank you very much. Mr. Hansell will make a very brief statement after
which we will be happy to take your questions.
PREPARED STATEMENT OF HERBERT J. HANSELL, TIIE LEGAL ADVISER,
DEPARTMENT OF STATE
Mr. Chairman and members of the committee, I appreciate this opportunity to
participate in your review of S. 1566, and in particular, various legal issues
presented by that legislation. Since the Attorney General has testified before
You regarding many of those legal issues, I will not attempt to duplicate the
matters you discussed with him. However, there are several legal questions
that have been raised which have been referred to the Department of State.
Mr. Saunders has expressed the Department's support for the bill. We also
want to affirm on behalf of the Department the desire of the Executive branch
to work with your Committee and the Congress to achieve a solution of the
difficult and complicated issues that are addressed by this legislation.
A question has been raised as to whether this bill should be amended to deal
with surveillance activities abroad affecting United States persons. We fully
recognize the importance of enactment of legislation establishing authority
and standards for such surveillance ; but our strong preference would be to deal
with that subject in separate legislation, in view of the complex issues presented
and the circumstances in which we now find ourselves with regard to the bill
that is before you.
We fear that introduction of that subject into this legislation would unduly
delay the consideration and enactment of this bill. We are working with the
Department of Justice and the members of the staff of this Committee to develop
legislation on that subject. I assure you that Secretary Vance and the Depart-
ment of State are eager to complete the drafting and introduction of such
legislation, and will work diligently with you to that end.
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It is my understanding that the Attorney General has discussed with you
the matter of use or dissemination of information acquired with respect to a
United States person who is not a surveillance target. I assume his discussion of
the so-called minimization procedures satisfied the desires of the Committee in
this regard, and will not go further into that subject matter at this time.
We look forward to discussing with you in Executive Session various other
matters and legal issues relative to this legislation.
Air. Chairman, this concludes the formal presentation by the Department of
State. Mr. Saunders and I will be glad to participate with the other witnesses
in.responding to questions that you or other members of the Subcommittee may
have.
Thank you very much.
Any other comments any of you would like to make before we
proceed to general questioning?
If not, let me ask a couple of questions here, primarily of the State
Department situation. Minimization procedure, referred to on page 8,
restricts the distribution and use of information unless that informa-
tion relates to the ability of the United States to provide for the na-
tional defense or security of the Nation, to provide for the conduct of
the foreign affairs of the United States. Both of these are quite broad
areas.. Perhaps the minimization ought to obtain such information as is
essentially related to or significantly related to national security or
the conduct of foreign affairs.
What I am really wondering here is, how do you interpret particu-
larly the second statement; dealing with the State Department, related
to the ability of the United States to provide for the conduct of the
foreign affairs of the United States? Is that overly broad? Does that
give you a blank check to operate? What is your interpretation of
that particular statement?
Mr. SAUNDERS. If I may just provide a general answer, it has been
and remains difficult to interpret limits of that kind, but just to provide
a human analogy for a moment, I think you have to make some basic
decisions to begin with about what kind of environment you need to
operate in, what kinds of knowledge you need to have to conduct
foreign relations. I remember when I was 16 and had to get glasses,
my doctor asked me, or I asked my doctor, how long do I have to wear
these things, and lie said, it depends on how much you want to see,
and it is that kind of question that has to be answered first, before you'
can answer your question.
I think the assumption of the State Department and, I believe, the
assumption of this committee is that the United States should have the
best intelligence possible within stated limits as a basis for the conduct
of foreign relations. In our view, what is essential then to the conduct
of foreign relations is what is essential for us to operate with full vi-
sion? What is essential for us to operate not in the dark? What is
essential for us to operate without denying to ourselves information
that. is available to other people operatinh in a global environment?
Therefore, we have interpreted the word "essential" in the literal sense
of the word, that it is-this knowledge is an essential, an integral part
of operating in this kind of environment.
That has been our interpretation, and perhaps it is a bit broad, but
we are very conscious, when we sign a certification, of the fact that
there are limits in the use of that word, so we do not regard it as a
blank check at all. We are very conscious of limits of propriety, sensi-
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tivity, or potential damage to foreign relations, and. so on, but we do
have to accept certain basic assumptions about how we are going to
operate in the world and once we are agreed on that, then I think your
definition of the word "essential" becomes one that people can agree on.
Perhaps Mr. Han sell would like to add a more precise legal response.
Mr. HANSELL. Well, I think we do need to acknowledge candidly
that it is a broad standard, and one that in the drafting process we
thought and, I believe, still think would be appropriate. I suppose
that in the context of the full bill this is something we might at an
appropriate stage want to take another hard look at, but initially on
our review of this we felt that although broad, we would prefer to
have that flexibility, if it were feasible to do so. Therefore, it was
written in this form, but I think we would be prepared to take a hard
look at it.
Senator DARN. Well, the reason I asked the question, I think both
of you know, not only from this year but last year, I am one who wants
to draw that balance, as I have said, and not be too restricted, where
we so overly protect the rights of the individual that we are endanger-
ing the national security, but even being on that side of the issue, this
seems like rather a broad, open-ended standard.
I am not saying that you would misinterpret this point, but again
what Senator Hart was saying, who is here now and who is here in
the future, and I certainly hope none of us are here forever, Senator
Hart. I don't really want to be around that long, even if the people of
Utah want me to be, so it is something that I would appreciate if you
would take a look. at, because it does seem rather broad. I am not
questioning anybody's integrity of interpreting it too broadly.
Also, from a State Department standpoint, could you explain to us
what sort of obligations are incurred when we as a country license
foreign businesses? I am specifically referring to the many by othet-
ical situations that have been used. We have talked a great deal about
airlines in the last 2 years, as well, employees of a foreign airline.
What kind of obligations do we incur when we license a foreign
business to operate in our country in general terms? I do not want a
long legal discourse.
Mr. HANSELL. Well, a great many businesses, of course, can conduct
their activities without any license, approval, or permission, whatever,
but in the case, for example, of a foreign air carrier, to use the example
that was mentioned earlier, there are landing rights and operating
rights that would be provided through established processes, and in
the case of foreign air carriers, under international agreements. When
you say obligations, there would be, of course, under particular inter-
national agreements which confer rights or benefits on businesses of a
foreign country, obligations that might be imposed by the terms of
those agreements or treaties.
Now, however if you are thinking about obligations in respect of
issues that are addressed by this bill, with a few exceptions I think our
answer would be, there are not significant obligations that are under-
taken that would be impinged upon by this bill or the activities that
are dealt with in this bill.
Senator GARN. Ms. Siemer, did ou have any desire to comment on
the first part of my first question to* them about the phrase, "to provide
for the national defense or security of the Nation?"
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Ms. SIEMTR. With respect to minimization procedures, Senator?
Senator GARN. Yes.
Ms. S11,MER. Well, I would point out that there is an important
tradeoff here. The minimization procedures under 2521(b) (8) cover
all information concerning United States persons. Now, that covers
information and the communications of people or entities that are not
United States persons. That is a very broad coverage for minimization
procedures. So when you trade off the very broad coverage of the mini-
mization procedures against the somewhat more lenient standard that
we would apply, that is, "relate to" the ability of the United States
"to provide for the national defense," you probably have a fair balance
in this bill. We would urge that you give attention to the enormous
coverage that you have here instead of only focusing on the kind of
standard that we will apply to all of these communications that are
covered.
Senator GARN. Well, I appreciate that answer, because I do feel that
even asking the questions I am pulling out of context of the whole
bill in asking it, so I appreciate your answer, because I agree with you.
I think there are other parts of the bill that narrow those definitions
sufficiently, at least, for this particular Senator.
Senator Stevenson, you have had no opportunity to ask questions.
All of them have made their prepared statements, so anyone that you
would like to address your questions to, and I might add that on any
of these questions where you are operating as a panel, if you have some-
thing you would like to say in addition to what the person to whom the
question is addressed, please feel free to let us know so that you can
respond.
Senator STrvmxsox. Thank you, Mr. Chairman. I think there are
two principal causes for public anxiety about electronic surveillance
in this legislation, and that anxiety is not unreasonable, in my judg-
ment. The first cause is owing to the inability of the public to perceive
the need for surveillance. So, I would hope that you could do more to
describe for the public the product as you do for us. We are in a far
better position to understand the need than is the public, and based on
what we know I do not see any good reason for not doing more than
you have done to describe in general terms the product and the na-
tional benefit from electronic surveillance in terms of enhanced na-
tional security,and individual security. That is not a question. That
is a most respectful suggestion.
The question I have goes to the second cause of anxiety; and that
has to do with the adequacy of the safeguards, trying to strike that
balance between the rights to be secure as a nation against our rights
as individuals to be secure, and realizing that in this legislation we
would rely principally on ex parte and judicial procedure, and being
an ex parte procedure, no one can have absolute wholehearted con-
fidence in it.
Now to provide the public with additional assurances and ourselves
as public officials with additional assurances that surveillance will
not be used to abuse the rights of American citizens, this committee
has in the past worked out with the Justice Department procedures
which have assured us as elected representatives of the people access
to information about surveillance. Those procedures have been worked
out informally, embodied in the law, and they are consequently falli-
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ble, and they are subject to change as personalities change. They are,
in my judgment, the most effective means there is of guaranteeing
that there will not be abuses, and of giving the public greater con-
fidence in this process.
It goes beyond the ex parte judicial procedure to actively involve
elected representatives of the people in that process.
Now, that is a long question. In the past there have been some
difficulties with this procedure because, one, it has not involved our
counterpart on the House side. Until now we have had no counterpart
on the House side, and there have been, I think, on the part of the
Intelligence Community and the Justice Department some reasonable
concerns about disclosure and notification on the House side, largely
because there hasn't been such a committee as this in that body.
There is now a House Intelligence Committee, or there soon will be.
I don't know what the status of the proposal is at the moment. There
will be if there isn't already a counterpart for this committee in the
House of Representatives. That being the case, everything else having
been said, how would you all feel about nailing the kind of procedures
that we have all worked out, that we have worked out informally with
this Senate body, with the Justice Department, in the statute, in order
not only to give the public that ex parte judicial procedure, but a
statutory assurance that personalities can come and go and the politi-
cal climate can move around but there is going to be continuing
oversight by agencies of the two bodies of the Congress? Also, that
oversight is going to include statutory obligation on the part of the
appropriate agencies to keep us continuously and fully and currently
informed about surveillance?
Mr. LAPIIAM. Senator, I think the Director, while he was here,
indicated his preference not to see more detailed reporting require-
ments go into the bill, but rather leave such requirements to the worked
out as they have been in the past with this committee and in a counter-
part committee that is created in the House. There is, as you know,
in draft right now a 12- or 13-page, set of procedures which have to do
with reporting to this committee the kind of information relevant to
the activities covered by this bill.
That procedure has not yet resulted in a full meeting of the minds,
I don't think, but such a procedure, I am sure, will be established.
I think it is the Director's preference to work through those kinds of
letter agreements rather than by legislation, and I take his main rea-
son to be that you may well find over time that you are going to want
to change some aspects of these reporting requirements. You are go-
ing to want less or more, as the case may be, so it is desirable to have
the flexibility that those kinds of arrangements would give, rather
than the more inflexible arrangements that legislation would create.
Senator STEVENSON. Well, speaking for one Senator, that is not a
satisfactory response. Does it represent the position of the other
agencies ?
Mr. HANSELL. Senator, may I ask, just to explore a bit some of the
parameters of the suggestion, what kind of reporting are you envision-
ing here? The product of the surveillance would be reported, or
simply descriptions of the activities that are undertaken? It is not
quite clear to me what you have in mind.
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Senator STEVENSON. Well, what I have in mind is a requirement
similar to that which is now in S. Res. 400, that would not have to
entail pre-notification. It would not except upon request-this is my
tentative thinking-have to include the names of specific individuals,
but currently, in a timely fashion would require notification to the
appropriate agencies of the Congress, and its counterpart, that cir-
cumstances have led the agency to seek the order and it has been exe-
cuted. Also, with sufficient detail to enable us to get back to the agency
in such circumstances to seek further information.
In that sort of situation there would be some flexibility. Now, at
that point I would agree with Mr. Lapham that on the basic proposi-
tion that there will be a timely notification in sufficient detail as to
inform us of the circumstances, if not the personalities. I think there
should be flexibility, and the public should accept flexibility.
[Pause.]
Mr. IIANSELL. Well, I am sure I can speak for the Department of
State, and I think for the whole
Senator STEVENSON. Well, I am sorry to interrupt, but to go one
step further, I do not think what I ain suggesting as a matter of
statute is very different from what is already happening as a matter
of informal arrangement and agreement.
Mr. HANSELL. I think we would all share your opening comment,
that the concerns and anxieties of the public in regard to the subject
matter are not unreasonable. That is, of course, why we are all here.
I suppose the question really would be whether a procedure such as
the one you outline would in fact serve the objective of public re-
assurance that the balance is being struck properly. I think it is one
that I would not personally want to try to resolve or reach a judgment
on the spur of the moment. 'I can think of some considerations, frankly,
that would lead me to think that it would not advance that cause.
Therefore, I would want to think about it.
Senator GARN. If the Senator will yield for a moment, I do not
think you are as far apart as you appear to be, as I listen. We discussed
this at great length last year, primarily in terms of additional specific
reporting requirements in detail, besides number of cases, looking at
just this particular area of foreign intelligence electronic surveillance,
and whether that was necessary or not, the discussion about the raw'
figures were rather meaningless unless there were some explanation.
I think what we came to last year, Adlai, was under Senate.Resolu-
tion 400. We have the ability to ask for any further detail that we
wanted. We have that legal authority to do so. If I am not mistaken,
I do not think the Senator from Illinois is asking for that kind of
procedure to be formalized, a lot of detail., and I think he is merely
saying that what we worked out in general, that you report and then
if we desire further information we can get it. Is that correct, Senator?
Senator STEVENSON. Well, that is correct as far as it goes.
Senator GARN. Well, you are asking for notification statutorily.
Senator STEVENSON. I am asking for it in the law, and perhaps one
way of complying with this statutory requirement as opposed to the
procedures that have been worked out in the past would be to simply
supply these two agencies of the public with the applications to the
courts, and you know, the supporting justifications for them. Now, that
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would be a procedure which would give us more detail than I had
suggested originally. It was a mechanistic matter to make compliance
easy.
I had thought that we might be able to give the public their reas-
surance and in fact prevent any abuses by settling for somewhat less
detail than that, but sufficient information to enable us to move if it
was indicated.
[Pause.]
Senator STEVENSON. The Senate has already acted on this proposi-
tion somewhat generally. It did so when it created this committee. It
said :
It is the sense of the Senate that the head of each department and agency of
the United States should keep the Select Committee fully and currently informed
with respect to intelligence activities, including any significant anticipated activ-
ities, which are the responsibility of or are engaged in by such department or
agency, provided that. this does not constitute a condition precedent to the imple-
mentation of any such anticipated intelligence activity.
It goes on to say :
It is the sense of the Senate that the head of any department or the United
States involved in Any intelligence activities should furnish any information or
document in the possession, custody, or control of the department or agency
or person paid by such department or agency, whenever requested by the Select
Committee with respect to any matter within such Committee's jurisdiction.
We would not be. here today if this whole subject were not within our
j urisdiction.
Ms. SlrMrr. Senator, is it your position that that resolution is insuffi-
cient for the purposes of reassuring the public?
Senator STEVENSON. Yes.
Ms. SIEMER. In what respect is it insufficient?
Senator STEVENSON. It does not have the effect or the force of law,
and of course it does not include the House, and it is general.
Ms. SIEME.rr. Is it your view
Senator STEVEN SON. And we are considering a law now, and not to
put it in the law would be a rather conspicuous omission and would
be regarded by some as a retreat.
Ms. SrEMi,r. Is it your view that the bolstering of the public confi-
dence that is needt'd, is needed with respect to surveillances of foreign
powers as well as United States persons, or that that is limited to
(inited States persons?
Senator STEVENSON. I don't think there is any question but what it
goes across the board, but on 90 percent of that board we are already
operating, I think, quite effectively. What we are concerned with here
is a bill, and we all know what it entails, and if you are suggesting
that what I suggested is that the only concern is reassurance to the
American public, you are wrong. It is not just to assure the American
public that everything is hunky-dory, and then forget about it. It is to
assure the American public by making damn certain that there are not
going to be any abuses, and it is for that related but twofold reason
that I want to see that obligation laid by law on the agencies of the
Executive branch, instead of some informal procedure which can be
changed, as Mr. Lapham indicated. It can be forgotten or left to some
resolution of the Senate which only applies to one House and does not
have the force of law.
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Ms. SIEMER. No; I was concerned, Senator, and I will explore
whether there is a possibility we could arrive at some accommodation
of your concern with respect to a notification requirement by including
notification with respect to surveillances that affect United' States per-
sons, and leaving to the current established, and to my understanding,
very effective informal procedures those that are more sensitive, in
which the security concerns are enormously important. These are the
surveillances of foreign governments in whose communications Ameri-
cans are never parties and rarely mentioned. ,
Senator STEVENSON. I personally would, you know, be willing to
consider some such differentiation, partly because once we go beyond
citizens, it is hard for me at the moment to perceive where you do
stop. My principal concern is for the rights of American citizens, and
it is those rights that I am seeking to assure. will be protected. The
other procedures have worked well, and they applied in a variety of
different contexts, and might well be used to cover the other part of
the situation.
Mr. HANSELL. Why don't we take that under consideration?, I think
one.difference between the procedure as it now exists informally, of
course, and what would exist under the statute is the warrant provi-
sion, which as a new element brings the judicial branch into the.
picture, and I think it is worth considering how the three branches
of Government will all be involved in one type activity, but why don't
we give some thought to it?
Senator STEVENSON. Thank you.
Senator GARN. Senator Hart ?
Senator IIART. Mr. Saunders, just one question. Under your. cur-
rent procedures and questions, what role does the Secretary of State
play in making determinations about electronic surveillance of
foreigners?
Mr. SAUNDERS. He is personally very. aware of all of the problems
that are being addressed in this legislation, and we have discussed the
legislation itself extensively with. him. Now, coming. to the procedures,
we do' not normally take to him necessarily every single case that may:
be involved in. our Department. of that kind. We go to the highest level'
where we feel that a reasonable position can be arrived at by some
body speaking for the Secretary.
,In any ease, where there is the slightest question or where there is
sensitivity that may particularly involve things that he or the P'resi-.
dent are concerned about, we err on the side of taking the case to the
Secretary, and the procedures normally, routinely would stop short
of the Secretary; but only for the routine.
Senator HART. One can make an argument that none of these cases,
is routine. What factors differentiate between those that stop some
where short and those that go all the way?
Mr. SAUNDERS. Well, I think what we. are involved in here is, wlien'
you have a new Secretary of State, he has a maximum opportunity
to look at every case and that has. been indeed the process that we
have engaged in. Once you learn what his views are, [you learn] what
he regards as routine and what he regards as the limits within which'
u ma;y speak for him and [1henj also [.you learns what cases are
articutarl sensitive in his` sew and so you taleit to hiun,,and so he s;
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been involved in an extensive review of our entire program. We are
now beyond that, and when I say routine, I am speaking in terms of
my understanding of what in his view would be, acceptable limits.
Senator HART. In other words, over a period of time an informal
personal policy emerges.
Mr. SAUNDERS. That is right. That would be the case with each
new incumbent, I would think.
Senator BART. Is there any element of deniability involved there,
that there may be some cases where you do not want the Secretary to
have known because if it blows up he can say he didn't know?
Mr. SAUNDERS. Quite the reverse. It seems to me that the principle
I have to operate on is that the President and the Secretary cannot be
taken by surprise by anything of this kind, so if there is any doubt
at all about any aspect of a program, I would consult with him.
Senator HART. So you are able to assure us that under present prac-
tices the possibility of a surveillance which has serious foreign policy
implications being undertaken without the Secretary's knowledge is
for all purposes impossible?
Mr. SAUNDERS. That is right. I regard my vote on the panel that
Admiral Turner spoke about as my speaking for the State Department,
and I do not take lightly my speaking for the State Department. When
I do, I am sure I am speaking for whatever elements of the Department
need to be involved in that process, including the Secretary where that
is warranted.
Senator HART. Thank you, Mr. Chairman.
Senator GARN. Senator Stevenson, do you have any other questions?
Senator STE, VENSON. I will pass, Mr. Chairman.
Senator GARN. I just have one more I would like to ask of Ms. Siemer.
On page 2 of your prepared statement, signals intelligence operations
covered by this. bill do not involve the targeting of individuals. I would
like to clarify one point in the bill. The first definition of electronic sur-
veillance reads as follows:
The acquisition by an electronic, mechanical, or other surveillance device of the
contents of any wire or radio communication sent by or intended to be received
by a particular known U.S. person who is in the United States, where the contents
are acquired by intentionally targeting that U.S. person under the circumstances
under which a person has a reasonable expectation of privacy and a warrant
would be required for law enforcement purposes.
As you read this definition, do you believe it would authorize signals
intelligence operations involving the targeting of individual U.S.
citizens ?
Ms. SrEMER. That provision, Senator, is intended to apply in a situa-
tion where you have identified a person and know he is a U.S. person,
and you know he is in the United States, and then to authorize-not
only to authorize surveillance but to include in the definition of elec-
tronic surveillance, that kind of activity. This provision is designed to
make more precise the definition of electronic surveillance, so that we
know what is in it and what is out of it.
Senator GARN. Thank you. Mr. Chairman, I might just state I think
we have covered pretty much what we can cover in open session. There
are several questions left unanswered, and the necessity of going into
executive session exists. All of these witnesses, I am sure, are awaiting
and looking forward to an executive session where they can give us
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more specific details or information, but with that I will turn it back
to you.
Senator BAYII. Well, thank you, Senator Garn. To you and the other
members of the committee who were not here when I left, I apologize
to you as well as to our witnesses that I had to leave for an hour.
Does the Senator from New York have any questions?
Senator MOYNIIIAN. Thank you, Mr. Chairman. I must apologize.
Senator Hathaway and I were in another such meeting and could not
be here.
I wanted to just take this opportunity to ask, and I hope this does
not appear to be an ignorant question, of Ms. Siemer, this is the
Foreign Intelligence Surveillance Act of 1978. Ms. Siemer, recently,
the President in a press conference acknowledged that the Soviet Union
is intercepting the telephone calls of American citizens here in Wash-
ington and New York, and apparently San Francisco. The Soviet
Union is systematically bugging the American citizens and their
conversations.
He said that the Defense Department was secure and the White
House was secure. He left it at that, and he left it that the rest of us
were not, and I wondered, is there any provision regarding this-we
assume this is a crime, somebody is committing crimes on a massive
scale. Probably in the history of such criminal activity there has never
been such a widespread and sustained and sophisticated form of crime.
It is a violation of the fourth amendment rights of American citizens.
Does your bill make any such provision-It says, I gather, the
United States cannot violate the fourth amendment rights of Ameri-
cans, but does it say the Soviet Union can or cannot?
Ms. SrnMnx. Well, Senator, this is not my bill, but there are two
provisions that arc important in that regard. One appears on page 28,
which is section 4(e) (ii),. which permits the Department of Defense
and the other intelligence agencies to determine the, existence and
capability of electronic surveillance equipment being used unlawfully.
That is a provision that is very important to us in this regard, and we
urge that that provision not be amended.
The second part of your question, I think, would be covered by
title III of the Omnibus Crime Act, and should unlawful electronic
surveillance ever be discovered in time and in a situation where there
was a capability with respect to prosecution, there certainly is a stat-
ute that permits the Justice Department to do that. The problem is
finding it and finding it in a circumstance where the parties who are
doing it can be prosecuted.
Senator MOYNIIIAN. That is a very direct answer of the kind we
have learned to expect from you in a very admiring way.
Now, the Russians are over on 16th Street bugging our telephones
right now. That is against the law but we are not doing anything
about it now, but would we do something under the new law?
Ms. SimMr m. Under this law, with respect to the Defense Depart-
ment's responsibilities, we would continue our activities to determine
the existence and capability that the Russians have in that regard,
and that information would be made available both to the ?tate
Department and to the Justice Department, who have the responsi-
bilities of determining whether
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Senator MoTNmmrAN. You would tell us. Now, evidently for the last
couple of years the U.S. Government has known that a foreign gov-
ernmenthas been systematically invading the privacy and violating
the fourth amendment rights of American citizens, and our Govern-
ment has not told us this. We learned about it from the New York
Times. The President' confirmed it. Was the Government committing
a crime when it did not reveal its knowledge of the commission by
others of a crime? I am not a lawyer, but isn't there a form of partici-
pation when you observe a. crime taking place and neither report it
nor intervene to prevent it?
Ms. SM,MER. You are referring to misprision of a felony?
Senator MOYNIFCAN. Misprision, that is the word. Is there mispri-
sion of a felony by the Secretary of Defense?
Ms. SIEMER. No, Senator, I believe there is not.
Senator MOYNIHAN. But would you think that is something the
general counsel should decide or a jury should decide?
Ms. SIEMER. Senator, on those matters we. defer to. the State Depart-
ment and to the Justice Department with respect to whether
Senator MOYxn FAN. How do you feel about misprision of a felony
with respect to the Secretary of State ?
Ms. SIEMER. On that I certainly would defer to Mr. Hansell, since
I do not advise the Secretary of ,State. My job is to keep the Secretary
of Defense aware of these kinds of difficulties, and I do not believe
that he has any legal problem in that regard, but it is important that
the Defense Department defer to the Secretary of State in those in-
stances because it is; their province.
Senator MoYNrILAN. I would like to. make a. point, though. We know
that the Soviet Union is committing a crime on a massive scale, a par-
ticularly heinous crime, in our view, one which we very much find
offensive. A dirty business, we would call. Didn't Holmes call it a
dirty business? A dirty business, and here they are doing it to us. We
certainly: don't want our Government to do it, and our Government
shouldn't do. it to us, but it is OK if the Communist Government
does it? Not being democratic, it is not expected to maintain demo-.
cratic forms. Is that it? I wonder if the State Department representa-
tive would say, the Secretary of State, who knows about this, and his
predecessor, who knew about it, are they guilty of . a misprision of a
felony? Is anybody guilty?
Mr. HANSELL. Senator, I think we will answer
Senator MOYNIHAN. 'One question at a time?
Mr. HANsEr,L [continuing. That, question no.
Senator MOYNIHAN. I'll bet you always say that.
Mr. HANSELL. I can't say that I have been asked the question before.'
Senator BAYJI. You never had Senator Moynihan before.
Mr. HANSELL. I can't speak with any authority as to what has taken,
place, what took place with respect to the subject matter prior to this
year.
Senator MoYNIH.kN. I can tell you. The President told us. Secretary
Kissinger knew about it. Secretary Vance knows about it.
Mr. HANSELL. There has been a great deal of work and effort that'
has been done and is being done with respect to this.
Senator MOYNIHAN. The President said that, too. He said, I have
taken care of myself, and the Defense Department has taken care of
itself. He said, that is enough.
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Mr. IIANSELL. But a good deal more. The dollars involved, of course,
could run into the billions in terms of responsive, protective measures?
There are some limitations. There are some aspects of this that I sus-
pect we could pretty productively discuss in executive session. There
is, as I understand it, at least, and has been, though as I say I wouldn't
choose to speak of the past-I have not been associated with it-a great.
deal. of effort underway to develop appropriate responses to various
facets of the problem.
You are aware, of course, of the diplomatic immunity aspects of.
the problem.
Senator MOYNIHAN. There is nothing in diplomatic immunity that.
enables a representative of a foreign power to commit crimes without
let or hindrance. What diplomatic immunity provides is that we can-
not put them in jail but we can ask them to get the hell out of the
country. That is what diplomatic immunity means.
Mr. IIANSELL. Well, I guess I would repeat all that I have said thus
far.
Senator MoY1Nzr1AN. Yes, sure. I am not trying to press you.
Mr. IIANSELL. It is a complex, difficult problem that is engaging
and has been engaging a great deal of time on the part of a lot of
people, and it is not simple.
Senator MOYNLUAN. Sir, I think I am pressing you beyond the point,
and I don't want to keep the Chairman beyond this point. Let me say
to you one thing. It is a very difficult problem, and at great expense
the U.S. Government is trying to take protective measures for itself
in such a way to avoid having to tell the Russians that you are com-
mitting a crime on our soil, not just randomly and incidentally, but
systematically on a scale never known to technology or history or
criminal behavior.
I will say something else to you, sir, to which you do not have to
respond. Our government has acted in a pusillanimous manner in this
regard. We are sworn, the members of this panel are sworn, the Secre-
taries of the Departments are sworn to protect the Constitution of the
United States against all enemies, foreign and domestic, and we are
not doing so. We are letting constitutional rights be. systematically
trampled on. We are letting the Russians treat us as if. we were Rus-
sians, not freeborn Americans, and we are doing it out of a fear of
offending the principles of detente.
Senator BAYrr. With all respect to the Senator, I do not know that
he is aware of this, but I must say it is a much more complicated situa-
tion. I don't want to interrupt his train of thought here, because I
share his concern, but perhaps I should let you answer the question.
Senator MOYNIHAN. May I say, Mr. Chairman, I did not address
that question to him, because I think it is not fair. I was stating clearly
a judgment to which it would not be fair to ask a representative of
the Department to respond.
Mr. LArriiim. Senator, before you leave the subject, I must cross a
legal sword. As much as we would like to think that the fourth
amendment applies to the Soviet Union, I do not think the Constitu-
tion supports you on that. That amendment, of course, is a restraint
on the U.S. Government.
Senator MOYNIHAN. I recognize that fourth amendment rights .are
onlyAmerican-given.
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78,
Mr. LAPHAM. Yes.
Senator MOYNIHAN. And you are quite correct in saying that the
fourth amendment applies to the American Government, but you
would agree, would you not, that the Bill of Rights establishes a pre-
sumption of what is legal and what is not legal? If you remember the
constitutional history of those who opposed the Bill of Rights on the
grounds that to list what Government could not do would be to sug-
gest that what was not listed the Government could do, and in the
end I think a legally illogical but prudential decision was made to
say, let's list these things anyway. You cannot invade privacy, you
cannot do thus and such. All right.
I do not say that the Soviet Union is violating our fourth amend-
ment rights. I say they are violating the statutes of the State of New
York. I say they are treating Americans, they are treating our citi-
zens the way they treat their citizens, and I say to hell with that. I
think it is time we stood up and told them, stop it, and it is the spec-
tacle of the American Government letting the rights of its people be
trampled on for fear of incurring the displeasure of the most savage
totalitarian government in the history of the 20th century, in the his-
tory of mankind, that ought to strike fear into our hearts.
Are we so frightened of the disapproval of the Soviet Union that
we will not even protect the rights of American citizens on our own
soil? The avoidance of the reality, the fear of revelation, the dismissal
by the Administration, saying, well, we have protected the Pentagon
and the White House, so what is left to be done-I don't want to press
the point, Mr. Chairman. I have already spoken longer than my inten-
tion. I know the Chairman is concerned about this. There is not a
member of this committee whose concern about transgression by our
Government does not extend to transgressions by other governments
as well. I think it is important that this legislation will in fact require
the Department of Defense to be open about things that previously
they may not have been open about or they may not have known about.
I think that is an important provision and yet another reason to
support this legislation, which I do, of course, acknowledge as yours,
and not only the most recent service you have done this Republic,
Mr. Chairman.
Senator BAYJ. If you had just started there, I would have been a
lot happier. [General laughter.]
I want to say to my colleague, and I have talked to him personally,
that we were all concerned and perhaps frightened when we learned
what was happening. This committee was informed some time ago
about this. It has been going on quite some time before we were, and
I think to make certain that we convey perhaps a little greater sensi-
tivity on the part of the administration than could be gathered from
the dialog so far--
Senator MoYNIIIAN. Diatribe so far, Mr. Chairman.
Senator BAYII. No ; dialog, dialog. You are not going to catch me
on that one. [General laughter.] I think it is fair to say, is it not, gentle-
men and Ms. Siemer, that the administration is really geared up, try-
ing to resolve the problem, and that they are trying to use various
techniques to secure a lot more than the White House and the Penta-
gon. We are very close to the old adage of, he who lives in glass
houses theory, as far as how we address ourselves to this problem. I
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may have said too much to have said that, but the rest of it perhaps
should be dealt with in closed session.
Is there anything further, Senator?
Senator MOYNIHAN. I don't want to cut this off, but I think we are
very close-at least I think what I said is very close to as far as I
ought to go. Somebody else may care to go further.
Senator BAYH. Senator Hathaway?
Senator HATHAWAY. Mr. Chairman, thank you very much. I had one
question that I wanted to ask Mr. Saunders in particular, but anybody
else could comment on it. I am concerned about the basis for a tap
where it is deemed essential to the successful conduct of the foreign
affairs of the United States. That seems to me to be fairly broad, and
particularly heinous when you are applying. it to friendly nations, for
example, Canada. I suppose if an airline pilot for Canadian Airlines,
which is owned by and run by the country, by Canada, is in the United
States, he could be subject to such a tap on the grounds that he has
some information that is deemed essential to the successful conduct of
the foreign affairs of the United States.
I am even concerned about it when you are talking about that same
individual being an agent of a foreign power if the foreign power is
the Soviet Union, because it seems to be a very broad basis. I wonder
if you can justify it?
Mr. SAUNDERS. Well, before you came in we had a discussion about
the way the word "essential" can be interpreted or has to be interpreted.
Certainly one of the aspects, going to your first case, one of the aspects
that one first takes into account in dealing with the proposal to surveil
a particular target is the question of the relationship which the United
States has with the nation under consideration at that point.
Certainly we are very aware of the fact that there are some nations
who are close to us and who should not be dealt with in that way.
That just goes without saying. The sensitivity question is uppermost
in our minds.
Senator HATHAWAY. Yes; but you are still not precluded under the
law. Even though you as an individual think you shouldn't tap some
Canadian, your successor or somebody else might think, "Well, we
ought to."
Mr. SAUNDERS. That might be true, but I would suspect that the
canons that govern how you conduct your relationships go well.
beyond the tenure of one particular individual, when the relationship
is so large and so important that it would dictate the same kinds of
considerations in the obvious cases to one person as to another. What
I said
Senator HATHAWAY. What you said is, as a practical matter, you
would not do it. Is that what you are saying?
Mr. SAUNDERS. That is right.
Senator HATHAWAY. Of course, we have the Micronesian situation,
where it was actually done, and I think prior to that you would have
said you would not do it there.
Mr. SAUNDERS. Well, the State Department did take a position
against it.
Senator HATHAWAY. But somebody in the United States Govern-
ment did it.
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Mr. SAUNDERS. I think what you are doing with the passage of this,
law and with the increased consciousness both here in the Congress and
in the Executive branch that is developed by there being such a law
suggests that some cases which should not have happened in the past
would not happen in the future because they will be the subject of
much more intensive review than was the case in the past. The pro
cedures are more airtight now than they were before, I hope.
Senator HATHAWAY. The procedures within the Department, you
mean'?
Mr. SAUNDERS. Within the Executive branch. I was thinking of the
intelligence community at large.
Senator HATHAWAY. Well, would you have any objection if we sim-
ply eliminated all friendly countries', for example, or even listed the
countries that you say you should be able to tap for this purpose?
Mr. SAUNDERS. I think one gets to the old problem here that it is
very difficult to write every case into law, and I think all of us recog-
nize that the President and the Secretary of State need a certain
amount of flexibility in the conduct of a program like this. The ques-
tion is whether or not the Congress is in a, position through the
knowledge it has to exercise on behalf of the people the appropriate
oversight. Writing a list into law, it seems to me, is unduly restric-
tive. It seems to me that the purpose of doing that can be ac-complished in other ways through review procedures in which you
participate.
Senator HATHAWAY. But it seems we have an interest, not only in
protecting, as Senator Moynihan and others have said, the rights of
Americans from being tapped, but certainly the rights of those who
are visiting this Nation, particularly from friendly foreign coun-
tries, to feel free that they can make telephone calls and not be
overheard.
Mr. SAUNDERS. I think the State Department, in general terms, is
the organization in the executive branch that is most deeply aware
of the damage that is done when something improper is done in the
context of a relationship with another country. And we weigh very
carefully every time any intelligence operation comes up, the gains
from that proposed operation and the risks from its disclosure, and
this is the essence of the judgment that we're called on to make.
Ms. SIEMER. Senator, could I add to that, it seems to me that your
airline pilot from a friendly nation.is covered and does have substan-
tial protection under this bill, because this is the type of surveillance
that the Secretary of State could not certify without stating in his
certification the basis for his conclusion that the information sought
is foreign intelligence information. He must not only state his con-
clusion that it is, but state the basis, in detail, for his conclusion, and
it seems to me that with respect to any friendly power, that basis
will be very difficult to state, indeed, if it is not a very special situa-
tion. And the Secretary of State is limited by this bill, and that limi-
tation is effective.
Senator HATHAWAY. Well, would you have any objection if we- sim-
cessful conduct of the foreign affairs of the United States with respect
to Canada, I suppose, would include all the information that we could
get about how they feel about the line that we're trying to draw for
the fishing limit. Wouldn't that be correct? And there could be, you
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know, numerous Canadians that come to this country who might have
some information in that regard.
Ms. SIEMER. Well, I think the purpose, Senator, of including the
word "necessary" or "essential" is, as Mr. Saunders says, to set not
an impossible level or task with respect to that, but indeed-but in
fact, a fairly strict standard.
Mr. LAPSCAM. Senator, if you're talking about a person, a foreign
visitor, somebody who comes to this country and has information of
the type you just described, as I understand the bill, any request
for surveillance would have to meet the standard of showing that
he was involved in clandestine intelligence activities.
Senator HATIIAwAY. No.
Mr. LAPILAM. I believe so, sir, at least, that's my understanding of
this bill.
Senator IIATHAWAY. Not an employee or an officer of a. foreigx:L
power.
1![r. LArrinM. You are. talking more generally about
Senator IIATrrAWAY. No; I am just talking about an officer of a
foreign power, and all you would have to show is that the individual
has information deemed essential to the successful conduct of foreign
affairs. That seems to be a very broad standard.
Mr. LArrrAM. I had not understood your question in the context of
employment or the official relationship of that person with his govern-
ment.
Senator HATHAWAY. Well, now that you understand it, how do you
feel about it?
Mr. LAPITAM. I tend to see the standard "deemed essential" as not a
loose one, but rather a very tight one. Somebody is going to have to
initiate sincere judgment.
Senator HATHAWAY. How do you tell what is essential to the success-
ful conduct of foreign affairs and what is not essential? Can you give
me examples on it, or can any of you?,
All'. LAPrHAM. II IM going to defer to the State Department witnesses
on that one, sir.
Senator HATHAWAY. Go back to the fishing example, where at the
present time they are trying to negotiate some agreement as to what
the fishing rights will be. So I suppose any information that any
Canadian had in that regard would be essential to us.
Mr. IlAxsELL. I don't think you would regard that as essential to
the successful conduct of the foreign affairs of the United States, but
Senator, I would make another-or two other comments "really"
with respect to this. A standard that speaks in terms of identifying
friendly or allied countries and nationals of those countries or agents
of those countries produces or would produce administrative problems
the t you want to think through at great length before you would decide
how you could write an exception.
There are special circumstances. You know, there are Canadian
terrorists, too.
Senator HATiuAwAY. I am not talking about terrorism or about that
part of the bill. That is fine. That is something that jeopardizes the
national security. But here you are talking about something very
broad, the conduct of our foreign affairs which could include just
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about everything conceivable that relates to our relationship with any
country in the world.
Mr. SAUNDERS. I think in the definition of the word "essential" you
would be looking to a kind of material that would add a real margin
to your knowledge, an additional dimension to your knowledge that
would be so important that it would clarify or alter your perception
of the problem, and just to cite your example, which is hypothetical,
you have the Canadian fisheries. I cannot conceive of an open negotia-
tion like that where the positions would not be so well-known that
there is anything that could really be added.
Senator HATHAWAY. Unless you take the Canadian negotiator at
GATT. Ile happens to be in this country, and we are concerned
about the tariff on potatoes. He may have in his mind what he is go-
ing to bargain for and what he is going to settle for. Wouldn't it be
important for us to know just what he is going to put on the table, as
to what the tariff ought to be and what he will really take as the bottom
line? If he is making a telephone call for that purpose, I think it
would be essential for the conduct of our foreign affairs to know that.
Mr. SAUNDERS. I would suspect that given the kind of exchanges
between governments like that, that you would be pretty well able to
guess what that position might be, and therefore you would judge
that the margin that could be added by that kind of operation would
not be worth it.
Senator HATHAWAY. I would doubt very much, knowing what our
own negotiators do, that we would know just what they had in mind
or what they actually would take, without getting information
through 'a wiretap or opening a letter or something like that. They
certainly don't put that out on the table. Otherwise, they wouldn't
be very good negotiators. So, all I am really getting at is that I think
this is way too broad, and I would appreciate it if you would come
up with some narrower definition, because I would be in a position
right now if we were in mark-up just to move to strike it altogether.
Mr. HANSELL. You are talking, Senator, about the last two lines,
lines 24 and 25 on page 25. Is that correct?
Senator HATHAWAY. That is correct.
Mr. HANSELL. Why don't we give some thought to that and see
what we would recommend to you?
Senator HATHAWAY. Good. Thank you, very much.
Senator BAY1r. Let me ask you to explore a related area. The ques-
tions directed by the Senator from Maine in that section of the bill
dealt with targeted individuals, where certification has to be made. I
am concerned about the fact that although I might accept that stand-
ard there, deemed essential, we might differ as to whether that is
restrictive or not. Certainly it is more restrictive than related to. vet
in the minimization procedures on page 8, where we talk about infor-
mation that is picked up accidentially, in this area of foreign policy,
we are talking about American citizens here, of course, and we do not
even use the word "essential." We use the words. "relates to."
Now, shouldn't we use the same standard, or would it cause you prob-
lems if we did? I don't want to nut words in the mouth of my colleague
from Maine. but if he is apprehensive about "essential" he has got to
be. frightened about "relates to."
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Mr. LArzrAM. Senator, I will take a stab at it. There is, as I read the
bill., an additional protection in the minimization procedures section
requiring that where the information about a U.S. person has to do
only with the successful conduct of foreign affairs, that information
cannot be maintained in a way such that it is retrievable by that per-
son's name, so that there is that additional safeguard against any
possible use of the information in the bill.
Additionally, as a reason to distinguish the one situation, the target-
ing situation, from the use and dissemination situation, in the one case
you are talking about protected fourth amendment rights. You are
going to seek to acquire communications of that person. In the other
case you have incidentally acquired some information about such a per-
son in the course of conducting a surveillance directed against some
other target, and for constitutional reasons I think the reasons for
protection in the second case are less than in the first.
Senator BAYfr. That might be a good legal argument. It hardly dif-
ferentiates between damage that can be caused to an individual and the
test we ought to apply before we risk that damage. Now, if we are go-
ing to get into the whole foreign policy area, which is a very nebulous
area, as we know, we have really never done this legally at all, and it
is a big step. It seems to me if we are going to risk exposing American
citizens in this very nebulous area, hard to define, that we ought to
have a high standard. If we are talking about "relates to" protecting
the United States against actual or potential attack or other hostile
acts of a foreign power, maybe "relates to" is good enough. Or if it is
protection against terrorism, maybe "relates to" is good enough there..
Or protection against sabotage by foreign power or an agent, and pro-
tection against clandestine intelligence activity by an intelligence serv-?
ice of a foreign power, maybe "relates to" is all right there, because
you have a pretty good idea of what the definition is. We are talking
about a crime there, really, but if we are talking about foreign policy,
that is a sort of a fishing net out here.
Besides, I think if you will read carefully, you will find out that
what you said is true, but it is true only to information gathered from
a person who is a party to the conversation. Senator Hathaway has
breakfast at Blair House, with the Ambassador or the Prime Minister
of Israel or Saudi Arabia, and afterwards he calls-Go ahead.
Mr. LAPHHAMM. Go ahead, sir. I am sorry.
Senator BAYri. That is all right. Mr. Baron might have the answer,
I don't know. Maybe you both had better listen to the question and
then have your colloquy.
Senator Hathaway talks to some of his constituents. I don't know
how many you have in Maine.
Senator HATITAWAY. Three.
[General laughter.]
Senator BAYH. You talked to the three of them, the Jewish citizens..
On the other hand, you may have more than three. You talk to them,.
and ,you relate the conversations you had, and then you call Simcha
Dinitz down at the Israeli embassy. You could have a conversation
with some Arabs and then call Simcha Dinitz.
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The minimization procedures that you related to on the top of page
9 and the bottom of page 8 would protect Senator Hathaway if he is a
party to that conversation. The way I read that bill., it would not pro-
tect him if Dinitz picks up the wire and calls somebody else, picks up
the phone and calls somebody else. Hathaway is not a party to that
conversation, but Dinitz is relating a conversation that he had. I would
assume if Senator Hathaway or Senator Bayh or somebody else is sold
on a position and is about to circulate it to a colleague, or to go to the
President and urge him to do X, Y, and Z, the President or the Secre-
tary of State might think that that is important but maybe not essen-
tial. They might even think it is essential to the conduct of our foreign
affairs.
Now, why don't we put "essential" in there instead of "relates to" if
we are going to talk about American citizens?
Mr. LAPHAM. I think we have a misunderstanding about what the
bill says on that point, Senator, and I need to consult further to clarify
my own view, but I understood it to mean that in the situation in
which Senator Hathaway might be mentioned in a conversation to
which he was not a party that was overheard pursuant to this bill, his
name would receive that additional protection which is specified at the
top of page 9, namely, his name could not be maintained in a way to
make the information retrievable.
Senator BAYH. It says right here, if I might quote, "A United States
person without his consent who was a party to the communication."
What if he's not a party to the communication, which is the second hy-
pothetical that I raised.
Mr. LAPHAM. Where are you reading, sir?
Senator BAYI. The bottom of page 8, the last three words, the first
four words on the top of page 9, "who was a party to a
communication."
Mr. LAPHAM. I may have to regroup on that and amend my view.
Senator BAYHH. Well, we don't need to have the answer right now,
but I think those of us who have been working with this legislation
are concerned about that, and I think what we have here is a different
standard if someone is a party to the conversation than we have if
someone is not a party to the conversation. The information could be
the same whether it is out of my lips or somebody in a hearsay situ-
ation, it could be just as important to the conduct of foreign affairs,
and just as damazing to the individual if it were disclosed.
So I find it difficult to understand why we require essential as far
as its impact on foreign affairs in one area and not another. You
might run that through channels and study it and get back to us if
you would.
Mr. LAPIIAM. Yes, sir.
Senator BAYZI. Any other questions?
Senator Hathaway t
Thank you very much. We'll look forward to having a chance to
try to consummate this.
Admiral?
Admiral INMAN. Senator Bayh, may I add one brief statement.
This is my first appearance before the committee. I'm delighted to be
here, I look forward to working closely with the committee and it's
staff. I'm somewhat concerned from a couple of questions and from
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some press treatment yesterday. Let there be no doubt from my exam-
ination of my predecessor's stewardship on relieving him on the 5t:li
of July, there are no U.S. citizens now targeted by NSA in the United
States or abroad, none. And the procedures in place from the Attorney
General are as stringent, as strict and as well complied with in pro-
tecting the inadvertent as it conceivably could occur.
And I look forward in executive session in exploring that with as
much detail as the committee might ever want to do.
Senator BAYH. Yes, well, I stayed until close to the end but then
had, to go to another mission, so I don't know what happened after-
wards. I don't recall myself or anybody else inferring that American
citizens were being targeted by NSA, but if that came out in the news,
I am glad you set the record straight.
And Admiral, we will look forward to working with you, sir.
Senator HATHAWAY. Mr. Chairman, may I make a comment before
we leave?
There is a story that many in the audience might have heard about.
When Robert Benchley was in college, he didn't study very hard, and
he came into a Government examination not having studied too hard,
and the first question was to explain the North Atlantic Fisheries
Treaty of some year, and not knowing anything about it he said.,
"Well, I think I'll explain it from the point of view of the fish."
I think that one of the shortcomings of this entire bill is that it
should have been drafted from the point of view of the person who
is being tapped, and if that had been done I think we would have
come up with a much better bill.
And those who are here and those who testified earlier should re-
view it again with that in mind, because what we are really trying to
do is safeguard the individual, particularly the American citizen, and
even agents of foreign powers to a certain extent.
Senator BAYII. Well, I just want to say as somebody who has been
very intimately involved in this, I thought the major thrust of this
legislation was designed to do what the Senator from Maine thinks
we should do, and I share a very common concern about individuals.
We have a rather difficult line to walk here, on one side of which we
have a responsibility to protect the rights of American citizens as in-
dividuals, and also to protect them collectively as a nation. And it is
a test that I think we can pass, but as we are trying to deal with the
nuances and the sophisticated mechanisms in which those of you who
have been kind to be with us this morning are carrying out your
charge, we have an equal if not greater responsibility to see that you
use those tools and discharge your responsibility in such a way that
it doesn't infringe on those who you are protecting collectively.
And I just want to say, as one person who has been involved in this,
we, some of us, have been very sensitive to that.
The Senator from Maine is one who is a leader in this and I appre-
ciate his particular concern. I'm glad he's on the committee, frankly.
Do you have any disavowals or any savings clauses you want to slip
in before we go into executive session the next time?
If not, if you would pursue some of these things we have discussed
and be ready to go at it again, we would appreciate it very much.
[Whereupon, at 12:12 p.m., the subcommittee recessed subject to
the call of the Chair.]
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U.S. SENATE,
SUBCOMMITTEE ON INTELLIGENCE
AND THE RIGHTS OF AMERICANS
OF THE SELECT COMMITTEE ON INTELLIGENCE,
Washington, D.C.
The committee met, pursuant to notice, at 10 :22 a.m., in room 6226,
r Dirksen Senate Office Building, Senator Birch Bayh (chairman of
the committee) presiding.
Present: Senators Bayh (presiding), Iluddleston, Case, and Lugar.
Also present: William G. Miller, staff director; Audrey Ilatry,
clerk of the committee.
The CHAIRMAN. The committee will come to order. Members of
the committee, distinguished witnesses, let me just take a few minutes
to put in perspective where we are, by looking at where we have been,
so we will know we are going.
We resume, today, the hearings on S. 1566, the Foreign Intelligence
Shattuck and Mr. Jerry Berman, of the American Civil Liberties
November 15 last year, and referred to this committee. Our hearings on
this bill began last July with testimony from administration officials.
We postponed testimony from expert witnesses and representatives
of interested groups so they could address the bill as amended by the
Judiciary Committee.
We have two panels this morning. The first includes Mr. John
Shattuck and Mr. Jerry Berman, of the American Civil Liberties
Union, and Dr. Morton Halperin, of the Center for National Security
Studies. The second panel will include Mr. Steven Rosenfeld, of the
Association of the Bar of the City of New York, and Mr. David Wat-
ters, of the American Privacy Foundation, and in absentia, Dr. Chris-
topher Pyle, of Mount Holyoke College, who is at this time some-
where, in a snowdrift in Massachusetts. We will all look forward to
having Dr. Pyle's prepared statement submitted in the record.
[The prepared statement of Dr. Christopher H. Pyle follows:]
PREPARED STATEMENT OF PROF. CHRISTOPHER H. PYLE, MOUNT HOLYOKE COLLEGE
llr. Chairman : I am pleased to have the opportunity to testify today. The
subject of these hearings has long been of interest to me, as a teacher of con-
stitutional law, as a consultant to Senator Ervin's Subcommi?tte on Constitu-
tional Rights, and Senator Church's Intelligence Committee, and as a captain in
Army Intelligence.
I was first confronted with the problem that faces this Committee ten years
ago when, as in officer on the faculty of the Army. Intelligence School. I had
occasion to take a book down from my office shelf. Inside the cover was the faded
imprint of a rubber stamp, which read :
"This publication is included in the counter-intelligence corps school li-
brary for research purposes only. Its presence ,on the library shelf does not
indicate that the views expressed in the publication represent the policies or
opinions of the Counter-Intelligence Corps or the military establishment."
The book was the constitution of the United States.
(87)
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Over the years, I have reflected on the significance, and the symbolism, of that
disclaimer. The men who stamped it there did not intend to disassociate them-
selves from the Constitution they had sworn to uphold; they had no. strong feel-
ings about the Constitution one way or the other. They simply responded-in an
essentially mindless way-to pressures placed upon them by an outspoken Mem-
ber of Congress who, in his zeal to ferret out Communism, sent his staff out to
purge military libraries of "subversive" writings.
Today, of course, the situation is different. Congress is pressing the Executive
branch to erase those disclaimers and I, for one, am glad of it. Yet I fear that
Congress may achieve little more than cosmetic reform-new rubber stamps
proclaiming fealty to the Constitution in place of the old ones disclaiming it-
while the same, essentially mindless behavior continues.
The gist of what I have to say today is that despite all of the effort that has
gone into this bill, it may achieve little more than cosmetic reform. Indeed, it
could be worse. It could turn into a "backdoor charter" authorizing many of`
the surveillance excesses Congress has so recently deplored.
The most disturbing aspect of the bill to me is its disregard for Fourth Amend-
meat principles. The bill purports to extend traditional warrant procedures to,
foreign intelligence taps, bugs, and microwave intercepts, but, in fact, it does no
such thing. Rather, it invents two new "pseudo-warrants," unlike anything the
American judicial system has ever seen.
Probable cause to believe that a crime has been, is being, or is about to be.
committed is the sine qua non of a judicial search warrant. The Supreme Court
has consistently condemned searches and seizures made without a search war-
rant, subject only to a few "jealously and carefully drawn" exceptions. E.g.
Schneckloth v. Bustainonte, 412 U.S. 218, 219 (1973) (dictum) ; Coolidge v. New
Hampshire, 403 U.S. 413, 454-455, 478-482 (1971) ; Vale v. Louisiana, 399 U.S.
30, 34-35 (1970) ; Chimel v. California, 395 U.S. 752, 762 (1969) ; Mancvsi v.
DcForte, 392 U.S. 364 (1968) ; Katz v. United States, 389 U.S. 347, 356-57
(1967).
The only occasion on which a judge may issue a search warrant in the absence
of probable cause is when a person refuses to comply with a reasonable inspection
request by a public health, housing or fire inspector. E.g. Camara v. Municipal
Court, 387 U.S. 523 (1967) .and See v. Seattle, 387 U.S. 541 (1967). In these
instances direct advance notice to the subject of the search mitigates the in-
vasion of privacy.'
Moreover, the Court orders required in Camara are really not search warrants
at all, but "certificates of need" legitimizing inspections and lending the con-
tempt powers of judges to inspectors to hasten their entry. The fact that the
Court has mislabelled these orders is no reason for Congress now to compound
the error. Let there be no mistake about it : the "certificates of need" proposed
in this bill cannot be called warrants without doing irreparable harm to the
200-year-old definition of a search warrants. Entick v. Carrington, 2. Wils. I.B.
291 (1765), Leach v. Three of the King's Messengers, 19 How. St. Tri. 1.001,
1.027 (1765) ; oral argument of James Otis, Jr., in Petition of Lechmere (the
Writs of Assistance Case). 2 Legal Papers of John Adams 139-144 (Wroth &
Zobel ed., 1965), and U.S. Constitution. Amendment IV. If this Committee does
nothing else to revise this bill, it should at least practice truth-in-labelling and
replace the term "warrant" wherever it appears with the more accurate terns
"certificate of need." Then no one can accuse Congress of perpetrating a hoax
on the American people and the departure from Fourth Amendment standards
will be plain for all to see.
One need not imagine how the certificates will be worded if the bill passes.
John Mitchell's affidavit explaining the need for warrantless taps against the
Jewish Defense League provides a perfect example :
1 A generalized form of notice likewise mitigates warrantless searches of persons and
objects entering the United States, of places licensed to sell firearms and liquor. and of
vehicles for license, registration, and safety checks. E.g., Almeida-Senrhez v. United States.
413 U.S. 266 (1973) ; United States v. Biswell, 406 U.S. 311 (1972) ; Harris v. United
States, 390 U.S. 234 (1968), as interpreted by Cady v. Dombroski, 413 U.S. 433, 444-445
(1973). Notice, both general and direct is also present where warrantless welfare Inspec-
tions are allowed. Wyman v. James, 400 U.S. 309 (1971).
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The surveillance of this telephone installation was authorized by the Presi..
dent of the United States acting through the Attorney General, in the exer??
else of his authority relating to the nation's foreign affairs and was deemed.
essential to protect this nation and its citizens against hostile acts of a
foreign power and to obtain intelligence information deemed essential to,
the security of the United States.
,Quoted in Foreign Intelligence Surveillance Act of 1976, S. Rep. No. 94-1035,
94th Cong., 2d Sess. (1976) at 136.
In short, anyone who believes that the certification procedures in this bill
will protect liberty must believe that we will never again have an Attorney Gen-
eral like Prisoner No. 24171-157.
READING TIIE FOURTII AMENDMENT
I know of only one way to bring non-probable cause search warrants under
the Fourth Amendment, and that is to read the two clauses of that Amend-
ment separately, as Professor Telford Taylor once proposed. Taylor, Two Studies
in Constitutional Interpretation at 79--93 (1969). By reading the second clause
prescribing warrants as applying to searches for tangible things only, it is pos-
sible to treat wiretap warrants as if they were not warrants at all, but mere
"surveillance orders" subject only to the reasonableness requirement of the
Amendment's first clause. Thus, like searches incident -to lawful arrests, and
street corner frisks for weapons, wiretapping and bugging could be authorized
on less than probable cause.
Whatever the merits of this idea might have been, say, in the wake of United
States v. Rabinowitz, 339 U.S. 56 (1950), time has passed it by. During the
past; twenty years, the Supreme Court has increasingly read the two clauses
together where planned searches are concerned.' In Silverman v. United States,
365 U.S. 505 (1961), the Court held that the taking of information by an elec-
tronic bug constituted a search and seizure within the meaning of the Fourth
Amendment and its warrant clause. In Katz v. United States, 389 U.S. 347
(1907), the Court declared that the mere existence of probable cause was not
enough to justify the bug; a formal warrant had to be obtained. The Rabinowitz
theory granting independent potency of the reasonableness clause was speci-
fically rejected in Chimel v. California, 395 U.S. 752 (1969), and iri United
Stales v. U.S. District Court, the Court took pains to emphasize that "the
definition of `reasonableness' turns, at least in part, on the more specific com-
nlands of the warrant clause," 407 U.S. 297, 315 (1972).8 Congress committed
itself to the same principle by passing title III of the Omnibus Crime Control
and Safe Streets Act of 1968. See 18 U.S.C. Sec. 2518, and S. Rep. No. 1097, 90th
Cong., 2d Sess. (1968) at 94.
A NATIONAL SECURITY EXCEPTION TO TIIE FOURTH AMENDMENT?
Today Congress is faced with the question, not resolved in Katz, Keith, or
Title III, of whether electronic surveillance to collect foreign intelligence and
national security information is constitutionally distinguishable from electronic
surveillance to gather evidence of a crime.
The Nixon administration claimed that the president's prerogatives as com-
mander-in-chief and as the principal officer in the conduct of foreign affairs gave
him absolute discretion to employ electronic surveillance to collect both domestic
and foreign intelligence. Nixon's Justice Department insisted 'that neither the
Fourth Amendment nor Congress could restrain him in the use of "his" surveil-
lance forces. Gov'ts Answer of Def.'s Motion for Disclosure of Electronic Sur-
veillance, United States v. Dellinger, No. 69 Cr. 180 (N.D. Ill., Feb. 20, 1970).
A chilling recofd of intelligence abuses persuaded the Ford administration to
cease claiming immunity from legislation even as it sought to persuade Con-
gress that it must give statutory recognition to the idea of inherent Presidential
powers. Attorney General Levi insisted that a national security wiretapping law
2 Of course, the Court still reads the clauses separately where searches associated with
arrest and routine inspections are concerned. United States v. Watson, 423 U.S. 411
(1976) ; United States v. #artinez-Fuertcs, 428 U.S. 543 (1976).
5 Rabinowitz retains full vitality only In the area of searches incident to valid arrests.
United States v. Watson, 423 U.S. 411 (1976). Where health, safety, and roving border
inspections are conducted, "area, warrants" may be required. Camara V. Municipal Court,
337 U.S. 523 (1907) ; Almeida-Sanchez v. United States, 413 U.S. 266 (1973).
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could be drafted without reference to the Fourth Amendment because a "na-
tional security exception" to the Fourth Amendment had already been estab-
lished by the lower courts. Hearings Before the Select Committee to Study
Governmental Organization With Respect to Intelligence Activities, 94th Cong.,
1st Sess. (1975), Vol. 5 at 81-82 (hereinafter the Church Committee Hearings).
To its credit, the Carter administration has dropped Levi's demands for
legislation acknowledging inherent surveillance powers. However, the new ad-
ministration does maintain that a national security exception to the Fourth
Amendment exists, and thereby asserts that Congress may write this bill on a.
clean slate. Foreign Intelligence Surveillance Act of 1977. Hearings Before
the Subcommittee on Criminal Laws and Procedures. Committee on the Judi-
ciary, U.S. Senate, 95th Cong., 1st Sess. (1977), p. 26.
In my opinion, Congress cannot write this bill on a clean slate, free from the
limitations of the Fourth Amendment. To do so would be to adopt the dangerous
assumption that where national security and foreign intelligence are concerned,
the fundamental principles of limited government, guaranteed liberties, and
checks and balances do not apply.
Nothing in the text of the Fourth Amendment, the history which gave rise
to its adoption, or the general principles which have evolved since, supports
such a view. The fundamental principle, to which all nine justices agreed in.
Abel v. United States, 362 U.S. 217 (1960), is that the Fourth Amendment's
protection extends to all people within the United States-even alleged spies
who enter the country illegally.
To my knowledge, only one Supreme Court Justice has ever suggested that.
there might be a national security exception to the Fourth Amendment. That
was Justice White who, concurring separately in Katz v. United States, said :
"We should not require the warrant procedure and the magistrate's judgment
if the President . . . or the Attorney General, has considered the requirements
of national security and authorized electronic surveillance as.reasonable." 3S9?
U.S. 347, 364 (1967). In White's view there could be an absolute national secu-
rity exception to the entire Fourth Amendment provided that the President
or the Attorney General personally decides that the surveillance was reasonable.
The Supreme Court refused to adopt White's position in United States v.
U.S. District Court, despite urging from the Justice Department. Gov'ts Brief
at 11. On the contrary, Justice Powell's opinion for the majority held that both
clauses of the Fourth Amendment, with their attendant judicial supervision,
apply to national security taps and bugs. Having said this, Powell went on to
imply that the Court might be willing to accept Congressional legislation that
provided for a "reasonable" system of judicial warrants based on less than
probable cause, 407 U.S. 297 (1972) (popularly known as the Keith case).
In United States V. itutenko, the Third Circuit Court of Appeals ignored the
holding in Keith and judicially decreed a national security exception to the
warrant clause. 494 F. 2d 593 (3rd Cir. 1974), cert. denied, sub non Ivanov v.
U.S., 419 U.S. 881 (1974). However, that court did not hold that judicial review
under the reasonableness clause was not required. Rather, it piously declared :
"The opportunity for post search reviews represents an important safeguard of
Fourth Amendment rights and should deter abuses that might be caused by the
necessary relaxation of the warrant requirement." Id. at 606.
The Supreme Court has been far more concerned about "hindsight coloring
the evaluation of the reasonableness of a search or seizure." United States v.
1Vfamtincz-Fac.ertc. 429 U.S. 543, 565 (1976). As the Court observed in Beek v.
Ohio, 379 U.S. 89, 96 (1964) omission of prior warrants "by-passes the safe-
guards provided by an objective predetermination of probable cause and sub-
stitutes instead the far less reliable procedure of an after-the-event justification
for the . search, too likely to be subtly influenced by the familiar short-
comings of hindsight." The constitutional requirement of prior judicial review
was. reemphasized in united States v. U.S. District Court. 407 U.S. 297, 317-318
(1972). where the Supreme Court declared: "The independent cheek upon exec-
utive discretion is not satisfied, * * * by 'extremely limited post-surveillance
judicial review.' Indeed, post-surveillance review where intelligence surveillance
is involved would never reach the surveillances which failed to result in prosecu-
tion. See also Katz v. United States. 389 U.S. 347, 358 (1967), and United
Statc.4 V. IVctson, 423 ITS. 411., 455-456, n. 22 (1976) (Marshall .T., dissenting).
In light of these clear statements of principle by the Supreme Cmlrt, I fiilll it
difficult to accord any precedential value to the Third Circuit's opinion in
Butenko.
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Moreover, the Justice Department misreads Buten7co when it argues, as it dick
before the Church Committee, that the decision may be interpreted as a broad
statement of law. Church Committee Hearings, Vol. 5 at 81. The Buten7co court
carefully confined its decision to "the circumstances of this case," f in which au
American and a Russian were convicted of espionage. So limited, Butenko is
no precedent for the sweeping power to collect economic and political intelligence
sought in this bill.
In United States v. Brown, the other case cited by Attorney General Levi,
the Fifth Circuit Court of Appeals did not declare a national security exception
to the entire Fourth Amendment, thereby obviating the need for any judicial
scrutiny. It merely reiterated its holding in United States v. Clay, 430 F. 2d 165,
170-172, rev'd on other grounds, 403 U.S. 691 (1971), that the President has a
surveillance power "over and above the Warrant Clause of the Fourth Amend.-
ment.'" That power, it said, is based on "the President's constitutional duty,
in the field of foreign relations, and his inherent power to protect national
security in the context of foreign affairs." 484 F. 2d 418, 426.
In his seminal lecture "Towards Neutral Principles of Constitutional Law,"
Prof. Herbert Wechsler wrote : " (T)he main constituent of the judicial process.
is precisely that it must be genuinely principled, resting with respect to every
step on analysis and reasons quite transcending the immediate result that is
achieved." It must employ "criteria that can be framed and tested as an exercise
for reason and not merely as an act of willfulness or will." Wechsler, Principles,
Politics, and Fundamental Law at 21, 16 (1961). By Wechsler's standard, the,
decisions in Brown and Buten7co are no more than naked exercises of judicial
will. None of the cases cited in them supports the holding they proposed ; nor?
does either opinion examine the scope of the Fourth Amendment or offer any
explanation of why wiretapping for foreign intelligence purposes should nod
require a warrant.
Viewed together, Brown, Buten7co, and Keith indicate a judicial disposition tq
approve ,a narrow exception to the warrant clause only. Butenko and Brown
suggest that all elements of the warrant clause may be ignored where foreiga
intelligence or national security taps and bugs are concerned. Justice Powell's
dicta in Keith is less expansive ; it suggests merely that Congress might con,
stitutionally tinker with some of the elements, such as probable cause, set forth
in Title 111. 407 U.S. at 308 6
Brown, Butenko, and Keith all call for a constitutional double standard. In,
Brown, the court holds that "domestic security" taps and bugs come under the,
warrant clause but those seeking "foreign intelligence" do not. In Buten7co, the.
court ruled that the surveillance clearly would have been "illegal" had the-
subjects of the warrantless taps been "members of a domestic political organiza;
tion," but since they were suspected of the extraordinary crime of espionage,
the warrant clause did not apply. 494 F. 2d at 606. In Keith the proposed double
standard would distinguish between "the surveillance of `ordinary crime,"'-
which would be governed by the Fourth Amendment, and ."(t)he gathering of
security intelligence" and "domestic intelligence," which would not. 407 U.S.
at 322 (1972). Thus all three cases evidence confusion as to the scope of the.
so-called "national security exception."
As a, matter of raw power, I have no doubt that the courts could decree any
exceptions to the Fourth Amendment they wish. What I do not understand is.
the conceptual basis for the distinctions they draw. Nor, frankly, do I under,
4 U.'. V. Clary. like Batenko, held that post-judicial review under the Fourth Amend-
ment's reasonableness clause was still constitutionally required. 430 F. 2d at 171.
5 Much bas been made of the fact that the Court in Keith. reserved judgment in the,
question of foreign intelligence taps and bugs. This reservation, and the denials of cer-
tiorari in Bntenko and Brown, are taken by some as evidence that the Court, if driven to
it, grant a for more sweeping exception to the Fourth Amendment than is advocated in
this bill. Against this political judgment. It is worth contrasting the fears of at least one.
Assistant Attorney General. In an interoffice memorandum to Attorney General Richardson,
Robert G. Dixon wrote :
"Although it is true that the Court specifically reserved the foreign intelligence issue,
at no point did it volunteer any reasons why it might be willing to make this distinction
when presented with a proper ease. To the contrary the reasoning in Keith, seems to antic-
inate and reject the arguments the Department is making at this time in the lower...
courts." Warrantless Wiretappin.,q and L'leetronic ,Sicrveilla.nce. Joint Hearings Before
Subcommittee of the Committee on Judiciary and Foreign Relations, U.S. Senate, 93rd.
Cong., 2d Sess. (1974) at 35.
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stand the basis for the distinction which S.. 1566 draws between national security
and foreign intelligence surveillance on the one hand, and law enforcement
.surveillance on the other.
Why should intelligence surveillance be treated differently from law enforce-
meat surveillance? Both are equally intrusive. Both breach the same values
that the Fourth Amendment was designed to protect. What theory can justify
a finding that the Fourth Amendment bars warrantless searches for evidence
of the most heinous crimes, but does not bar such searches where economic or
foreign policy information is sought? Can it truly be said that each of the many
purposes (disclosed and undisclosed) for which the intelligence agencies seek
surveillance powers under this bill is more compelling, or even as compelling,
as the need to investigate felonies?
The government's main argument in support of a constitutional distinction is
that where intelligence surveillance is concerned, its intentions are benign. Be-
cause its intentions are benign, the probable cause standard may be ignored.
After twenty years of intelligence abuses-FBI dirty tricks, CIA drug tests,
and White House "horrors"-it takes nerve to make such a claim. Or perhaps it
is just naivete : the kind of well-meaning naivete that impels each generation
of official housecleaners to assure Congress that their good intentions alone
will cleanse the bureaucracy of all evil and banish wrongdoing forever.
According to Attorney General Levi, good intentions on the part of his tran-
sient staff were sufficient to transform the Fourth Amendment from a staunch
barrier against official intrusion into a shell of its former self. When the pur-
pose of a surveillance is to obtain evidence of a crime, Levi told the Church
Committee, the Fourth Amendment has its greatest clout, but where the pur-
pose is mainly to gather intelligence (and only "incidentally" to put criminals
behind bars), the Amendment has little vitality and can be easily overridden by
unsubstantiated assertions of a national security need. (Hearings, Vol. 5 to 73.)
We have come a long way from the "inalienable rights" of the common law
when an Attorney General as learned as Mr. Levi can make such a claim.
Clearly ours is an age of moral relativism, in which few rights are absolute and
"compelling" state interests may "override" individual rights. But even if the
"privacies of life" extolled by the Supreme Court in Boyd v. United States, 116
U.S. 616, 630 (1886), are not as "sacred" as they once were, it would be wrong
to value them as lightly as Levi did. As Justice White observed in his opinion
for the Court in Camara v. Municipal Court, "It is surely anomalous to say that
the individual is fully protected by the Fourth Amendment only when the in-
dividual is suspected of criminal behavior. 387 U.S. 523, 530 (1967).
Yet S. 1566 devalues the Fourth Amendment about as far as one can go. At
the legislative level, the bill assigns minimum weight to the right to be let
alone and maximum weight to unsubstantiated claims of official need. At the ju-
dicial level, the weighting of the scales is no different: minimum weight to the
privacy ; maximum weight to unsubstantiated certificates of need.
Before Congress strikes its final balance, I hope that it will accord greater
weight to privacy and discount the government's unsubstantiated claims with a
healthy dose of Ma.disonian skepticism. Moreover, I hope that this Committee
will lead the way by expressing willingness to sacrifice some governmental effi-
ciency, even in the national security and foreign policy arenas, for the sake
of liberty. In this area. at least, it is time to drop our Tory faith in the inherent
goodness of government and return to the Whig view that the worth of any
government is to be measured by the degree to which it accepts additional bur-
dens so that the people may be left alone.
THE BURDEN OF PROOF
On many issues Congress may, like the courts, properly defer to the expertise
of the executive. This deference may even go so far as to shift the burden of per-
suasion to the opponents of certain government-sponsored measures. However.
where individual liberties are at stake, no deference should be indulged. When,
as here, the agencies backing the bill have been guilty of gross violations of
"TTi.iterl States v. Tfirii.chma.n adds still another double standard to the list. Tbere
the District Court held that the so-called national security exception had peen "carefully
limited to the issue of wire-tapping, a relatively non-intrusive search." 376 F. supp? 29,
S3 (D.D.C. 1974). But if the exception is valid. why should it be limited to any one tech-
nique? The distinction smacks of John Fhrlichman's argument before the Watergate
committee-burglaries for the sake of national security are constitutional ; murders are not.
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liberty and law, they should have to overcome a presumption that their bill is
unconstitutional. What Lord Acton wrote to Bishop Creighton should have special
meaning to us today : "I cannot accept your canon that we are to judge Pope and
King unlike other men, with a favourable presumption that they did no wrong.
If there is any presumption it is the other way against the holders of. power,
increasing as the power increases." J. Acton, Essapa on Freedom and Power 364
(II. Finer ed. 1948).
If Congress is reluctant to go that far (out of courtesy to the men with the new
brooms), then it should at least place both the burden of coming forward and
the burden of persuasion squarely on the agencies.
THE PROPOSED NON-CRIMINAL STANDARD FOR ISSUING PSEUDO-WARRANTS
The most extraordinary aspect of the debate over this bill has been the defer-
ence which Congress has given to the FBI's demand for broad powers to wiretap
and bug persons unsuspected of criminal activity. I find this deference extra-
ordinary because both the Secretary of Defense and the director of the Central
Intelligence Agency have admitted that their agencies do not need such powers.
Hearings on S. 1566 Before the Subcommittee on Intelligence and the Rights of
Americans, Select Committee on Intelligence, U.S. Senate, 95th Cong., 1st Sess.,
July 21, 1977 (to be published) at -. No one seems to have asked the Admin-
istration to explain why the FBI needs these powers but the CIA and military
intelligence do not. I would have thought it would be the other way around ;
that the foreign and military intelligence agencies would want the power to
collect positive intelligence and stem leaks, while the FBI, still recovering from
its excessive indulgence in domestic intelligence work, would be content to return
to the traditional criminal standard of the Fourth Amendment.
Second, the arguments advanced on behalf of the non-criminal standard are
so weak as to seem contrived. Of the six hypothetical cases advanced by the
Justice Department, not one is drawn from the realm of positive intelligence.
-Foreign Intelligence Surveillance Act of 1977. Hearings Before the Sub-
committee on Criminal Laws and Procedures, Committee on the Judiciary,
U.S. Senate, 95th Cong., 1st Sess. (1977), pp. 8-10. Yet, as I shall explain later
in this statement, the chief beneficiaries of this bill would not be the spy chasers,
but the collectors of positive intelligence. Certainly that must have been the
Ford Administration's original intent. S. 1566 is not "The Counterintelligence
Act of 1977"; it is the "Foreign Intelligence Act of 1977." If the Justice Depa.rt-
Inent's hypotheticals are truly representative of the government's needs, then the
bill should be relabeled.
The American Civil Liberties Union has analyzed the Justice Department's six
hypotheticals and finds them unpersuasive. Id., Part II, Appendix to the Minority
View of Senator James Abourezk. I agree, but for different reasons.
Hypothetical No. 1.-The first hypothetical attempts to state an instance of
industrial spying that does not technically violate the laws against espionage :
,A. [reliable] informant reports that A has, pursuant to a foreign intel-
ligence service's direction, collected and transmitted sensitive economic
information concerning IBM trade secrets and advanced technological re-
search which ultimately could have a variety of uses including possible use
in a sophisticated weapons systems, but which is not done pursuant to a
government contract. A is placed under physical surveillance and is seen
to fill dead drops which are cleared by a member of a Communist bloc em-
bassy suspected of being an agent of its foreign intelligence service.
The Justice Department argues that "Stealing IBM trade secrets and research
and transmitting this material to a foreign intelligence service is probably not a
violation of espionage laws," citing 18 U.S.C. Sections 793 and 794. The ACLU
argues that it is. Their dispute turns on the scope of the terms "national de-
fense information" and "information relating to national defense," both found
in Section 794. The ACLU argues that electronic surveillance of "A" would be
lawful under a traditional criminal warrant because the Supreme Court in
Grin v. United States, 312 U.S. 19, 28 (1941) defined "national defense" as a
"generic concept of broad connotations, referring to the military and naval es-
tablishments and the related activities of military and naval establishments
and the related activities of national preparedness." The Justice Department
reads that term more narrowly, presumably because its indeterminate language
is vulnerable to being declared unconstitutionally "void for vagueness."
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I agree with the Justice Department. In Gorin, the Court held that the Es-
pionage Acts were designed only to protect "secrets," and in Heine v. United
States. 151 F. 2d 813 (2d CJir. 1945), cert. denied, 328 U.S. 833 (1946), a dis-
tinguished Court of Appeals held that information cannot be "secret" unless the
government takes affirmative steps to designate it as such and prevent its
dissemination.
But I do not agree with the Justice Department's effort to get around the
Heine decision by having a non-criminal standard for pseudo-warrants written
into this bill. Given the importance which the Department assigns to Industrial
spying, it is worth examining the Heine case in some detail. Edmund C. Heine
was a German-born, naturalized citizen who was employed by the Volkswagen
company on the eve of World War II to make confidential reports on the Ameri-
can aircraft industry. Heine collected his information from magazines, books,
newspapers, technical catalogues, handbooks and journals. He also corresponded
with airplane manufacturers, talked with one or two workers in airplane fac-
tories, and questioned attendants at aircraft exhibits at the 1940 New York
World's Fair. In talking with people in the aircraft industry, he used a "cover
story" to misrepresent his purposes and when his reports were completed he sent
them, not to Volkswagen directly, but to "cut-outs" in New York City and Lima,
Peru. But since he never stole classified information the charge of espionage
was dismissed. If a criminal standard for the issuance of pseudo-warrants is
adopted. the Justice Department argues pursuasively, future spies like Heine also
will go free.
I agree with the courts ; future Heroes ought to be free of electronic surveil-
lance until they conspire to steal classified information. The ACLU argues for
an impermissibly indeterminate criminal law; the Justice Department assumes,
as Judge Learned Hand put it so well in the Heine case, "that there are some
kinds of information `relating to the national defense' which must not be given
to a friendly power, not even an ally, no matter how innocent, or even conimenda-
ble the purpose of the sender may be."' Writing for a unanimous panel Judge
Hand added with characteristic understatement, "Obviously, so drastic a re-
pression of the free exchange ,of information it is wise carefully to scrutinize,
lest extravagant and absurd consequences result." 151 F. 2d at 815.8
I find the Justice Department's first hypothetical disingenuous because the
Department's solution-the non-criminal standard-goes far beyond the prob-
lem. Under the sweeping language of S. 1566, any American who confidentially
advises a foreign corporation on a variety of non-military matters could be tapped
or bugged not because he is engaged in a nefarious scheme, but because the cor-
poration which he advises is, unknown to him, a "proprietary" front for a foreign
intelligence service.
Two provisions of section 2521's definition of an "agent of a foreign power"
made this possible. First under Section 2521 (b) (2) (B) (i), the confidential
reports can be viewed as "clandestine intelligence activities for or on behalf of
a foreign power, which . . will involve a violation of the criminal statutes of
the United States." This is possible because the term "clandestine intelligence
activities" is not defined and the "will involve" clause permits highly speculative
judgments. The predicted violation of the criminal laws that the government
suspects "will" occur may be no more than a technical violation of the extremely
vague Foreign Agents Registration Acts, 18 U.S.C. Sec. 9'51 and 22 U.S.C. Sees.
612, 613, 614(a), 615, 617, and 618 (a), or of the equally vague criminal provisions
of the Export Administration Act. 50 U.S.C. App. Sec. 2401-2413.
Second, a pseudo-warrant for a Heine-type investigation could issue under Sec.
2521(b) (2) (B) (Iii). That provision, if read as disingenuously as Attorney Gen-
eral Jackson read section 605 of the Federal Communications Act, would permit
easy surveillance of it person who collects or transmits information not knowing
that the request for il: came "pursuant to the direction of an intelligence service
or intelligence network of a foreign power." More unwitting compliance could
7 The Justice Department's hypothetical imagines that the spy It wants to wiretap works
for a Soviet block intelligence service, but the statutory language it advances would cover
spies of all nations.
8 One "extravagant and absurd consequence" of this kind of reasoning took place last
fall when officials of the National Security Agency cast about for some way to suppress
publication at international conferences and in academic journals of new developments
in theoretical mathematics which could give all governments secure cryptographical sys-
tems. For better or worse, loss of our scientific expertise to foreign governments is one of
the prices we pay for the freedom of research and publication guaranteed by the First
Amendment.
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expose the individual to a surveillance that would invade his most sensitive com-
munications. Given the eagerness of some administrations to know what is
going on in law firms, commodity lobbies, and other political and business groups
with foreign connections and clients, I do not think this power should be given
to the Executive branch, even if the minimization procedures were more strin-
gent than they were in this bill. Indeed, I am surprised that multi-national cor-
porations are not up in arms over this bill. Section 2,521 (b) (B) (i) is a "sleeper
provision" which, if read in conjunction with the Export Administration Act's
prohibitions on the export of certain materials, information, and technology
to "Communist-dominated" countries could give the CIA and the White House
a substantial economic and political weapon against companies and industries
they wish to manipulate or punish.
Nor need Congress permit easy surveillance of law firms, advertising agencies,
multi-national corporations, and other U.S. representatives of foreign firms in
order to punish deliberate spies like Heine. An amendment to the espionage laws
could make probable cause warrants possible by declaring it a crime to transmit
certain kinds of defense-related information to a foreign power without special
clearance where the individual knows that the information has been requested by,
or on behalf of, a foreign intelligence agency or network, or a foreign defense
establishment.
Drafting such a provision would take time, but I cannot imagine that the
temporary lack of authority to wiretap researchers in the New York Public
Library would cripple our counterintelligence efforts. One way to Iliad out would be
to ask the FBI how many electronic surveillances of the Heine variety it is
conducting now. My guess is that there are none.
Hypothetical No. 2.-The second hypothetical advanced in support of the
non-criminal standard for pseudo-warrants is the case of a person who slinks
about like a spy :
Pursuant to the physical surveillance of a known foreign intelligence officer,
B. is seen to clear dead drops filled by that officer. On the second Tuesday of
every month B drives by the officer's residence, after engaging in driving
maneuvers intended to shake any surveillance. Within one block of the
officer's residence, B always sends a coded citizen's band radio transmission.
B is discovered to have cultivated a close relationship with a State Depart-
ment employee of the opposite sex specializing in matters dealing with the
country of the intelligence agent.
The Justice Department assumes, and the ACLU agrees, that the government
would have probable cause under the Espionage Acts to wiretap B and the intel-
ligence office.' But the Justice Department wants to tap the phone and bug the
bedroom of the State Department lover and for that, it knows, it lacks probable
cause.
Again, my answer is "tough." The Fourth Amendment exists to protect the
privacy of innocent lovers, even at some cost to the efficiency of counterintel-
ligence investigations. Cases will vary, but wiretapping and bugging are not the
only ways to determine whether presumptively innocent lovers are really spies.1?
Hypothetical No. 3.-The Justice Department's third hypothetical postulates
that
C, using highly sophisticated equipment developed in a hostile foreign
country, taps the data transmission lines of several electronics corporations.
These lines do not carry communications which can be aurally acquired,
nor do they carry classified information, but the information carried, which is
not available to the public, when put together, can give valuable information
concerning components which are used in United States weapons
systems.
Super-broad spy powers are not needed to capture these spies; Congress can
simply amend the Omnibus Crime Control and Safe Streets Act of 1968 to
' This, I take it, is a retreat from the Department's earlier position (not published, to
my knowledge) that probable cause would not exist unless the FBI could prove that classi-
fled information was being transmitted through the dead drop.
to In this case one way would be to arrange a temporary reassignment for the lover to
see if the loading of the dead drop stops. Another would be to inspect the dead drop, if
possible, to see whether documents from the lover's office are being transmitted. A third
would be to plant a "test document" with the lover and see if it comes out at the other
end of the pipeline, assuming that there is a way of finding that out. A fourth would be
temporarily to cut off the lover's access to classified information (in a way that does not
harm his or her career) and see if the love affair is terminated.
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make it is a crime to intercept digital communications transmitted within
interstate communications grids. This should have been done years ago, when
Professor Arthur R. Miller first proposed it, simply to protect the confidentiality
and privacy of those communications. Miller, Assault on Privacy 162-163 (1971).
Hypothetical No. 1.-Hypothetical No. 4 is the Perennial Pimp Problem :
D, a headwaiter in a fashionable Washington, D. C. resturant, acts as a
bookmaker and procurer for several well-known and highly placed customers.
A [reliable] informant reports that D has been instructed by a foreign
intelligence service to relay all embarrassing and personally damaging infor-
mation about these customers to a resident agent of the foreign intelligence
service in Washington. The informant reports that at least one customer
has been blackmailed in his job as a Government executive into taking posi-
tions favorable to the nation for which the resident agent works.
As I read the hypothetical, it attempts to postulate a situation in which the
information sought is simply "embarrassing and personally damaging" and there-
fore does not trigger application of the federal extortion statute, which requires
information that the person to be blackmailed has violated the law. Furthermore,
the extortion law might not conic into play because there is no link to inter-
state commerce.
The problem posed by this hypothetical goes far beyond mere intelligence col-
lection; blackmail and bribery threaten the very integrity of the democratic
process. But again, the most sensible solution would be to amend the criminal
law to make it a crime to blackmail public officials, just as it is now a crime to
bribe then (18 U.S.C. Section 201) and to add blackmail of public officials to the
list of crimes (including bribery of public official-) for which wiretapping is a
permissible investigatory technique. 18 U.S.C. Section 2516. Section 1357 of the
proposed revision of the Federal Criminal Code would seem to lay the criminal
predicate by making it a crime to "tamper with a public servant."
Hypothetical No. 5.-The Justice Department's fifth case postulates a burglar
seeking stray scraps of classified information. lying around the homes or apart-
ments of government officials holding sensitive positions :
A [reliable] informant reports that E has, pursuant to the direction of a
foreign intelligence service, engaged in various burglaries In the New York
area of homes of United States employees of the United Nations to obtain
information concerning United States positions at the U.N.
Here I agree with the ACLU ; the hypothetical is frivolous. Physical surveillance
rather than wiretapping is the more likely way in which a burglar will be caught
in the act. But where, as here, there is probable cause to believe that the burglar
is engaged in a conspiracy to commit espionage, a criminal warrant already is
available. 18 U.S.C. Section 2516(1) (a).
Hypothetical No. 6.-The final hypothetical argues for electronic surveillance
in the very earliest stages of a possible espionage operation.
A telephone bap of a foreign intelligence officer in the United States reveals
that F, acting pursuant to the officer's direction, has infiltrated several
refugee organizations in the United States. His instructions are to recruit
members of these organizations under the guise that he is an agent of a
refugee terrorist leader and then to target these recruited persons against
the FBI, the Dade County Police, and the CIA, the ultimate goal being to
infiltrate these agenices. F is to keep the intelligence officer informed as to
his progress in this regard but his reports are to be made by mail, because the
U.S- Government cannot open the mail unless a crime is being committed.
The point of this hypothetical is far from clear. If the FBI wants to tap the
phones or bug the rooms of refugee organizations, it should be denied the power
for obvious First and Fourth Amendment reasons. If it wants to tap F, it may
already have authority under the 1908 Act: to do so, on the theory that a con-
spiracy to infiltrate the CIA and the FBI is presumptively a conspiracy either to
commit espionage or to obstruct justice. 18 U.S.C. Section 2516(1) (a) and (c)
respectively.
Third country spying.-There Is one other hypothetical not on the official
list of six that has been advanced from time to time to illustrate a need for non-
criminal warrants. It involved "third country spying"-spying in the United
States not against the United States, but against a third country. Such spying,
Justice Department officials have argued, is not espionage against the United
States.
Actually, that is not entirely true. Under 18 U.S.C. 'See. 781, it is an offense for
anyone to "knowingly and willfully make any sketch, photograph . . . map,
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model ... or'any other representation of any vessel, aircraft, equipment or other
property relating to the national defense ... awaiting delivery to ... the govern-
ment of any country whose defense the President deems vital to the defense of
the United States. ." It would be interesting to know why the Justice Depart-
ment regards this law as inadequate to the FBI's investigative needs. Perhaps
it is because laws against shying are no help in establishing federal jurisdiction
to investigate foreign agents from rival countries who, while on American soil,
violate state law in their attempts to do each other in.
Whatever the reason, criminal jurisdiction could be established by adding
failure to register as a foreign agent to the list of crimes for which probable
cause warrants now may issue under title III of the Omnibus Crime Control Act.
This solution is advocated in the House version of this bill, H.R. 5632, sponsored
by Representative Ii astenmeier. IIowever, if the registration acts are used as a
predicate for probable cause warrants, the Congress should make it clear that it
adopts the narrow reading of them employed by Judge Hand in the Heine de-
cision. In that ease, Heine's other conviction-for failure to register as a Nazi
agent-was upheld because the court could find, within the legislative history,
an intention to use the act mainly against spies. 151 F. 2d at 816-817. Appropri-
ate language in the Committee's report on S. 1566 could make it clear that the
surveillance authority granted by reference to the registration acts does not en-
compass all persons who might be nominal "foreign agents," but only the officers,
employees and paid informants of any foreign intelligence or network.'
If this were done, the government would not need the broad powers it seeks
in order to deal with the hypotheticals it has raised. In each instance, warrants
would be available on a showing of probable cause.
Of course, the Justice Department would have this Committee believe that the
probable cause standard is too high and that the federal judiciary might prove
unsympathetic to national security warrant applications. Given the extraordinary
deference which federal judges have paid to vague claims of national security
over the years, the assertion seems preposi:erous.
Moreover, it is common knowledge that warrants for electronic surveillance
are given out like candy. Between January 1969 and December 1975 the federal
government sought 1,066 warrants under title III and was turned down only once.
"Annual Reports on Applications for Orders Authorizing or Approving the In-
terception of Wire or Oral Communications," Administrative Office of the United
States Courts, Washington, D.C. When the Justice Department is getting 99.9
percent of all the warrants it requests, it takes chutzpa to claim that the nation's
security will be threatened unless the probable cause standard is not watered
down further 12
CASE OR CONTROVERSY
Quite apart from the Fourth Amendment, there is reason to doubt whether
federal courts would have jurisdiction to issue the non-criminal warrants author-
ized by this bill. Article III, Section 2, of the Constitution provides that the
judicial power of the United States shall extend only to Teases" and "con-
troversies." Traditional search warrants, as an integral element in a developing
"case," would seem to fall within the judicial power of the United States, and
so the courts have always assumed. But the information sought pursuant to this
bill's warrants would have nothing to do with criminal "cases." Accordingly, by
what authority may a court issue them? 1?
n Similar registration requirements could create federal criminal jurisdiction to investi-
gate foreign terrorists or sabotage activity against private persons and property, or against
officials and property of state or local governments.
'2 This is the same Justice Department which, in 1975, sought and obtained two war-
rants from a federal district judge under title III even though, as it told the court, it
lacked probable cause to believe that any of the crimes listed in that net had been, or
were about to be committed. Justice Department memorandum cited in the Final Report
of the Select Committee to Study Governmental Operations with Respect to Intelligence
A"For ediscssions Senate, th9th is issue see 2d ess. (1 Robert H Book 111 9-93, n. Supreme Court in the Amer-
lean System of Government at 12 (1955) Telford Taylor, Two Studies in Constitutional
Interpretation at 85-88 (1969) ; and the testimony of John P. Walsh in Wiretapping,
IIearings Before Subcommittee No. 57, Committee on th
r Judiciary, U.S. House of Repre-39 Charles A.
ca 8 95
2 4-
R ichtin Wiretapping and Laeesdropping L gislation Hear age Before the Subcommittee
on Constitutional Rights, Committee on the Judiciary, U.S. Senate, 87th Cong., 1st Sess.
(1951), at 183-84; and IIerman Schwartz, at 411.
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THE SEVEN HANDPICKED JUDGES
Not satisfied with a 99.9 percent acceptance rate on. probable cause warrants,
the Justice Department has insisted on limiting the number of judges who can
issue psuedo-warrants to seven, and demands that each be chosen by the Chief
Justice.
As Professor Louis Henkin of Columbia Law School noted in his testimony
last year before a House Judiciary subcommittee, "the bill contemplates .
handpicked judges." It loads "the dice very heavily in favor of the search and
against the individual right." Foreign Intelligence Surveillance Act. Hearings
Before the Subcommittee on Courts, Civil Liberties, and the Administration of
Justice, U.S. House of Representatives, 94th Cong., 2d Sess. (1976) at 74.
All of the incentives run in favor of granting applications. A judge who refuses
must pay the penalty of writing an opinion and must run the risk of being
overruled. On the other hand, granting applications requires no work and in-
volves no risk. Section 2523.
The bill goes further and permits judge-shopping in two directions. First, if
one of the handpicked judges develops a reputation for skepticism, the govern-
ment can avoid him forever. Indeed, there is nothing in the bill to prevent the
government from taking all of its applications to the most gullible or pro-govern-
ruent judge on the bench.
Second, if for some reason the government choses the "wrong" district court
judge, it is entitled to two new hearings euphemistically called "appeals." Of
course these are not appeals in the traditional sense, since the government will
rarely be questioning a ruling of law. Rather, they will be de novo hearings on
the factual questions: is the target a "foreign power" or "agent of a foreign
Hower?" Accordingly, the higher court will not employ the usual presumption
that the trial judge's assessment of the facts was correct.
In an ordinary case of treason, espionage, or sabotage, the government has
no right to appeal the denial of a warrant; the decision of the trial judge is final.
Why would the government get two appeals on matters of lesser importance?
Moreover, the government gets to argue both "appeals" unopposed. The bill
does not even permit the district court judge to defend his ruling at these secret
proceedings.
In my opinion, the appeals procedure should be scrapped. There is no reason
why the government should have three de novo hearings on the same intelligence
warrant, when in all criminal eases it is entitled only to one. Given the few
appeals that are likely (about one every eight years), the review structure is
totally unnecessary." In light of all the advantages this bill now gives the intel-
ligence agencies, for them also to insist on appeals smacks of greed.
Furthermore, there is no reason why the FBI should not take its chances
with any judge now sitting on the federal bench. To imply that judges as a class
are more prone to leak than, say Justice Department employees, is an insult to
the judiciary and an affront to common sense." Certainly the storage of docu-
ments poses no problem that can't be solved with a little ingenuity, as the Court
pointed out in Keith. 407 U.S. at 321.
Nor is there any reason to believe that every district court would have to be
equipped with the latest GSA-approved security containers. If the government's
figures from past years are accurate, there should be about a hundred and sixty
warrant applications each year. If I had to make a guess, 80 or 90 will be sought
annually in Washington, 30 or 40 in New York, and the rest in three or four
other major cities. Thus, as a practical matter, this means the installation of
security containers in perhaps a half-dozen courthouses for the very occasional
use of no more than fifteen judges.
11 Tinder the more stringent probable cause standards, denials would occur in approxi-
mately .0009 cases annually. Assuming that there are about 159 applications each cea.r
(the average number of taps and bugs used annually for national security purposes from
1965 to 1976), an appeal might occur once every ten years. Yearly averages from Church
Committee hearings, Vol. 5 at 69-70.
15 It is instructive, I think, that the Justice Department has not cited a single breach
of judicial security in seven years experience under title III. Attorney General Bell put
it best in testimony last June before the McClellan subcommittee : "The most leakproof
branch of the Government Is the Judiciary." Foreign Intelligence Act of 1977. Hearings
Before the Subcommittee on Criminal Laws and Procedures. Committee on the Judiciary,
U.S. Senate, 95th Cong., 1st Sess. (1977), p. 27. Moreover, if the government is so afraid
of judges leaking information from warrant applications, why is it willing to give any
federal judge in America the records of an entire sensitive surveillance, possibly involv-
ing discussions of the nation's most closely held secrets, for in camera inspection at time
of trial?
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99
However, if the Committee believes that federal judges are so untrustworthy
a class that a select few must be chosen, then the number should be raised to
twenty-two-one principal judge and one alternate for each judicial circuit-
and the selection should be placed where it normally resides, with the chief
judge of each circuit who has the power to designate judges within his circuit
for special review. Provision could be made for the appointment of additional
judges in the rare event that the principal judge is in danger of being drowned
by a flood of applications. Giving the assignment task to a busy Chief Justice,
who cannot possibly know all of the judges from whom the selection should take
place, seems an unnecessary burden, as well as a possible affront to the integrity
of the lower courts. To some, it my even suggest an unworthy scheme to assure
that only pro-government jurists will be chosen in the first round.
Assigning judges by circuit also would make it possible to eliminate horizontal
judge-shopping by limiting each judge's mandate to his circuit only. In turn,
that would assure that no one judge is "burdened" with too many applications.
A fixed term, say of five years, ought to be set so that the appointing authority
cannot assert a power of removal.
In addition, there is no reason why the government should be free to plead
for its warrant unopposed. The target of the surveillance may not be represented,
but that should not bar Congress from authorizing the judges to seek assistance
from a properly cleared anaici curiae. Given the few applications that are likely
to be handled each year, and Congress' obvious interest in the matter, it might
make sense to allow the judges to call upon the staff counsel of the intelligence
committees 10 So long as the counsel function as friends of the court, no separa-
tion of powers problem should arise.
IIOW COMPELLING IS THE NEED?
The Justice Department and its clients continue to insist that the need for
counterintelligence taps and bugs is compelling. The need is so great, they argue,
that the traditional Fourth Amendment requirement of probable cause should
be swept aside.
While the need for taps and bugs may be compelling in the context of a given
espionage, sabotage, or treason case, the overall significance of the technique is
questionable. Former Attorney General Ramsey Clark has testified that if all
national security intelligence taps were turned off, the adverse impact on na-
tional security would be "absolutely zero." Warrantless Surveillance. Hearings
Before the Administrative Practice and Procedure Subcommittee, Committee
on the Judiciary, U.S. Senate, 92d Cong., 2d Sess. (1972), p. 53. Attorney General
Levi testified that he had found no reason to use the power against Americans
(Church Committee Hearings, Vol. 5, p. 90), and FBI Director Kelley testified
last June that no Americans were then targets of national security electronic
surveillance. Foreign Intelligence Surveillance Act of 197't. Hearings Before the
Subcommittee on Criminal Laws and Procedures, Committee on the Judiciary,
U.S. Senate, 95th Cong.,1st Sess. (1977), p. 24.
Another skeptic is William C. Sullivan, former assistant to the Director of
the FBI and head of its intelligence section. In a paper prepared in 1974, Sullivan
urged that "Consideration be given to (ordering) that no telephone surveillance or
microphones be used by any federal agency during the next three years. At the
same time a vehicle should be set up to study ... the effects of this ban to deter-
mine if the criminal and security-intelligence investigations suffered . . . or not."
Privacy and a Free Society at 90 (1974).
William Sullivan was not one to play fast and loose with the national security.
If he thought so little of electronic surveillance as to propose banning it entirely
for three years, then the proponents of this bill clearly have a heavy burden of
persuasion to carry.
Just to be sure, this Committee might ask the FBI to review all of its espio-
nage prosecutions and spy deportations since World War II and report any in-
stances in which electronic surveillance provided significant evidence or crucial
leads. If my suspicions are correct, that report will be very short.
18 Deem Louis Pollak of the University of Pennsylvania Law School has proposed that
opposition counsel be drawn from the bepartment of Justice. Foreign Intelligence Sur-
veillance Act of 1976, Hearings Before the Subcommittee on Criminal Laws and Proce-
dures, Committee on the Judiciary, U.S. Senate, 94th Cong., 2d Sess. (1976) at V.
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100
POSITIVE INTELLIGENCE
The primary purpose of this bill is not to enhance counterintelligence opera-
tions, but to legitimize the much broader, less focused, and less controllable
positive intelligence operations of the FBI, the CIA, and the National Security
Agency. The hypotheticals about non-criminal spying are red herrings ; the main
objective of this bill is to obtain Congressional blessing for taps and bugs
directed at foreign embassies and consulates, the homes of diplomats, military
attaches, and embassy legal officers, the hotel rooms and offices of foreign trade
delegations, the boardrooms of selected corporations dealing in strategic com-
modities like wheat and oil, and the telephones of Washington law firms with
foreign governments and corporations as their clients.
It there is a counterintelligence purpose to this bill that cannot be accom-
plished through the in vestigation of crimes, it is to gather information to black-
mail foreigners into spying for the United States or to facilitate "preventive
action" operations against the so-called "legal spies" attached to foreign
embassies.
There has been virtually no public inquiry into these purposes of the bill. In
part, that silence is due to concerns for secrecy and fear of international embar-
rassment ; no one wants to force our government to admit officially what every
foreign government knows unofficially. For the most part, however, I suspect
that the intelligence agencies deliberately discourage inquiries into their diplo-
matic surveillance operations for fear of dispelling a number of myths which aid
the annual search for appropriations. They want Congress to go on believing
that such monitoring is cost efficient. They do not want to admit that the in-
stallation of embassy bugs often requires the commission of burglaries with the
"flap potential" of the 1J-2 incident, and, most of all, they do not want Wash-
ington politicians to realize that it is their conversations with foreigners that are
of greatest interest to the embassy tappers.
EMBASSY SURVEILLANCE
The primary function of wiretaps on the domestic telephone lines into foreign
embassies is not to uncover spies. The military attaches, legal officers, and
political officers who conduct that function know better than to communicate
with their sources over these lines, and they would shun those telephones even if
Congress banned embassy tapping altogether. The chief function of embassy
tapping is to know who is talking to foreigners about what.
For example, in the early 1960's, Attorney General Kennedy authorized the
FBI to use electronic surveillance against certain foreign targets in Washington,
D.C., in order to learn more about the attempts of a foreign government to in-
fluence Congressional action on sugar imports. From this surveillance, the At-
torney General received significant information not only about possible foreign
influence on the Congress, but about the views of key members of the House
Agriculture Committee on the Administration's proposed sugar. quota.
In 1966, President Johnson directed the FBI to report to him on all contacts
between Senators, Congressmen, and prominent citizens and the representatives
of certain foreign countries. From May 1966 until January 1969, Johnson re-
ceived biweekly reports on members of Congress and their staffs.
Johnson also ordered the FBI to put the South Vietnamese embassy under
electronic surveillance because he suspected the Mrs. Anna. Chennault, a promi-
nent Republican, would attempt to persuade South Vietnamese officials to boy-
cott the Paris peace talks.
In addition to these political uses of embassy wiretaps, reported by the Church
Committee (Final Report, Book III at 313-315, 340), the FBI also kept separate
files on the embassy calls of American journalists. Morton H. Halperin, "The
Administration's Wiretap Reform Bill-S. 1566," First Principles, June 1977, p. 6.
MINIMIZATION
S. 1566 would not effectively end these abuses. Where the so-called "foreign
power" warrants are concerned, the judge's role is very limited. He can decide
whether there is probable cause to believe that the target is a foreign power and
that the facilities or place to be monitored are being used by a foreign power,
but beyond that all he can do is decide whether the government's promise to
minimize the invasion of privacy sounds plausible. Section 2525(a) (3) and (4).
Like the infamous writs of assistance that so angered colonial Boston, these so-
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called warrants are not returnable. Unless the government returns to the original.
judge for a renewal of the authorization, there is no way in which a judge can
scrutinize the "take," check FBI files, or otherwise determine that the minimiza-?
tion promises were kept.
Failure to make these warrants returnable raises jurisdictional problems.
The Supreme Court's decisions on what constitutes a "case" or "controversy"
are far from lucid, but a procedure that makes subsequent adversary challenge
impossible would seem to violate Article III, Section 2, of the Constitution.
The minimization procedures do nothing to prevent the continued storage of
tapes and logs of conversations involving legislators and journalists or other
Americans, provided that those conversations somehow "relate to ... the security
of the nation (or) the conduct of foreign affairs." Section 2521(b) (8). "Margin-
ally related to" would seem to suffice, for the bill does not insist that the informa-
tion be "necessary" or "essential" to either purpose. This loophole alone trans-
forms the minimization procedures of the bill into an elaborate hoax.
Nothing in the bill would guarantee that appropriate committees of Congress
would audit the files, logs, and tapes on a systematic basis. Section 2527 provides
for statistical reports only. Given the excellent record of this committee and its
predecessor in safeguarding the privacy of individuals, there is no reason why
auditing procedures should not be arranged. Should Congress return to its old
ways, there will be time enough for the executive branch to deny access again.
The controls on dissemination and use are likewise weak. Nothing in the
bill requires the judge to see to it that the government is complying with the rules
governing dissemination and use. Because the government is free to use and
disclose information for the undefined purpose of providing for the "security of
the nation," It is free to engage in "preventive action" abuses of the sort the
Church Committee so recently disclosed.
Notice of the search has traditionally been regarded as an integral element of
the judicial warrant procedure. However, S. 1566 would deny defendants the
right to examine the logs and tapes that may be used against them, unless
invited to do so by a puzzled judge. Section 2526(c). Whenever the government
fears for its security (and when doesn't it?), the judge must examine the docu-
ments in camera and make a secret determination as to whether the defendant's
rights were violated. If the judge decides that the surveillance was lawful,
information based on it can be introduced without the defendant knowing whence
it came. Unlike the government, which can pick its judge and appeal the denial
of a warrant, the defendant has no choice of judge and no knowledge on which to
challenge the judge's decision on appeal. Justice may be blind, but whoever
drafted section 2526 was not.
In short, the "foreign power" warrant provisions are a sham. They do nothing
to restrain the Executive branch and they make a mockery of the courts.
THE LEGAL BASIS OF "FORMGN POWER" SURVEILLANCE
The legal basis of the "foreign power" warrant provisions is far from clear.
Under international law, the United States has a duty to "protect the residence
of an ambassador or minister against invasion as well as zany other act tending
to disturb the peace or dignity of the mission or the member of the mission."
Frend v. United States, 100 F. 2d 691 (D.C. Cir. 1938, cert. denied, 306 U.S. 640
(1939). Article 11 of the Vicuna Convention on Diplomatic Relations, 23 U.S.
3237-38, provides :
1. The, premises of the mission shall be inviolable. The agents of the receiving
States may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all steps to protect the
premises of the mission against any intrusion ...
3. The premises of the mission, their furnishings and other property thereon
and the means of transport of the mission, shall be immune from search, . .
In addition, Article 30 extends the same protection to the "private" residence
of a diplomatic agent." 23 U.S. at 3240.
In 1976, Attorney General Levi assured a House Judiciary Subcommittee that
this bill (in its earlier incarnation) was not inconsistent with our obligations
under international law. Cond. Rec., June 3, 1977 at I15423.. To support, his argu-
ment, Levi referred to a legal memorandum prepared by his Office of Legal
Counsel, which he permitted members of the subcommittee to read, but which
he refused to make public. One can only guess that the Department has chosen
to interpret both the Geneva Convention and customary international law to bar
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physical "invasions," unauthorized entries, and physical searches for tangible
items, but to permit the use of telephone company wiretaps and eavesdropping by
parabolic microphones beamed from outside. It is also possible that the Depart-
ment would not regard a bug carried by, or planted by, an inside informant or
"unofficial" person as a violation of international law. And, given the general
practice of nations, it would probably be inappropriate to read the Geneva
Convention more broadly.
However, as I read S. 1566, it contemplates microphone surveillance of em-
bassies which would require surreptitious entries in this country. If not, then the
Nixon administration against Chilean diplomats in this country. If not, then the
bill should say so in no uncertain terns. If so, then perhaps Congress may wish
to reconsider the wisdom and propriety of directing our courts to rubber stamp
executive decisions abrogating international law.
If Congress rejects the "clean slate" theory of this bill and agrees that the
Fourth Amendment protects all persons on American soil, then it also should
reconsider the constitutional basis of "foreign power" taps and bugs. Attorney
General Levi's solution was to make all non-resident aliens Fourth Amendment
outlaws. My own preference is for something less drastic.
The most sensible solution may be to treat electronic surveillance of embassies
and consulates (and perhaps the private residences of persons bearing diplomatic
passports or credentials) as a new category of "routine" searches, like customs
inspections, for which no warrant is necessary. If S. 1566 made it clear that
certain facilities and telephones of foreign powers located in the United States
are not immune from national security or foreign intelligence electronic sur-
veillance at the direction of the President, it would effectively put people on
constructive notice not to harbor any "expectations of privacy" when telephoning
or visiting those facilities.
The bill could identify the "places to be searched" as belonging to, or principally
occupied by, persons enjoying diplomatic immunity. This would help obviate the
Fourth Amendment's concern with warrantless searches for incriminating evi-
dence, and would permit use of the concept of "assumption of the risk" to rebut
diplomatic claims to Fourth Amendment warrant protection.
Elimination of the "foreign -power" warrants would hardly be regressive; they
are only rubber stamps now. Elimination would save the courts from embarrass-
ment and the public from a deception. At the same time, the elimination of
"warrants" for this kind of surveillance would not prevent Congress from im-
posing substantial use restrictions and providing for auditing and minimization.
Whether these restrictions could be administered by the courts is doubtful; juris-
diction of the federal courts requires the existence of a case or controversy and
an application for an ex parte order that does not fit the traditional definition of a
warrant might not fulfill that requirement. Administrative supervision with legis-
lative auditing, however, could suffice. Precedent for legislation regulating war-
rantless searches under the Amendment's first clause can be found in 19 U.S.C.
Sec. 482, as recently interpreted by the Supreme Court in United States v.
Ramsey, 45 U.S.L.W. 4577 (June 6. 1977).
If this approach makes embassy taps and bugs constitutional, it does nothing
to legitimize the surveillance of visiting trade delegations, journalists, or others
whom the government would like to tap and bug, mainly for economic and
political intelligence. For reasons which I shall now develop, I do not believe
electronic surveillance of non-resident aliens is permissible under the Fourth
Amendment without full warrant clause protection.
NONRESIDENT ALIENS AND THE FOURTH AMENDMENT
When this bill was first conceived, the Justice Department took the position that
nonresident aliens are not "people" within the meaning of the Fourth Amend-
ment. Reviving a theory used by A. Mitchell Palmer to justify his infamous
"Red Raids," Attorney General Levi told the Church Committee that the only
"people" protected by the Constitution against unreasonable searches and seizures
are "We, the people" who "ordain and establish this Constitution." Church
Committee Hearings, vol. 5 at 74.
It was a shameful theory, internally illogical and at variance with fifty years
of judicial doctrine. Quite predictably, the Carter administration has abandoned
it for the seemingly more reasonable assertion that "the Fourth Amendment
protects aliens in the United States as well as United States citizens." but that
the standards for issuing warrants can differ. Foreign Intelligence Surveillance
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Act. Hearings Before the Subcommittee on Criminal Laws and Procedures, Com-
mittee on the Judiciary, U.S. Senate, 95th Cong., 1st Sess. (1977), pp. 16, 32. In
other words, all persons are equal under the Fourth Amendment, only some are
more equal than others. S. 1566 embodies this Orwellian spirit :
Where the privacy of "U.S. persons" Is at stake, the judge can lift the veil and
look behind the government's certificate of need to make certain that it is not
"clearly erroneous." But if the privacy of a nonresident alien hangs in the
balance, the judge may not look. Section 2525 (a) (5).
The minimization procedures are designed to protect U.S. persons only. The
government can acquire, retain, and disseminate all the information it pleases on
nonresident aliens, free from any judicial restraint whatever. Sections 2521
(b) (8) and 2526. Among other things, this lack of protection would open nonresi-
dent aliens to a variety of "dirty tricks," including blackmail to persuade them to
spy for the United States and disclosure of their whereabouts to a foreign intelli-
gence agency seeking to kill them.
Notice of a wrongful emergency use of electronic surveillance may be served
on a U.S. person, but not on a nonresident alien. Section 2527(d).
A statutory cause of action against violators of this act is granted to U.S.
persons, but not to nonresident aliens who, like many people who live in socialist
countries, are only nominal "officer(s) or employee(s) of a foreign power."
Section 4 (j) on p. 29.
It is common knowledge that Congress has broad authority to regulate the
conditions under which aliens can enter this country, remain here, apply for
citizenship, and enjoy health, education, and welfare benefits. But this bill has
nothing to do with the exercise of those powers. What it asserts is that there are
two Fourth Amendments: one for citizens (and, by legislative suffrance, for
resident aliens), the other for nonresident aliens. However, the Fourth Amend-
ment draws no distinctions among "people." It does not condition the right to be
free from unreasonable searches and seizures on acceptance of U.S. nationality;
it extends the right indiscriminately and comprehensively to all "people." The
same policy is evident in all the guarantees of the Bill of Rights.
The logic of this constitutional policy should be obvious. Creation of a class
of First, Fourth, Fifth, or Sixth Amendment "outlaws" would affect us all, just
as it affected those loyal Americans who, because of foreign-sounding names or
alien relatives, were swept up in the anti-German persecutions of World War I,
the Red Rails of 1919 and 1:}20, and the Japanese internment of World War H.
Of course, both federal and statte law has long discriminated against aliens in
matters of employment, property holding, licenses to practice professions, and
entitlement to welfare benefits. Cushman, Cases on Constitutional Law, 4th ed.
at 6.5)2--54 (197:3). In recent years, the Supreme Court has moved vigorously
against state discrimination, subjecting it to the strictest scrutiny under a.
"suspect classification" test. 17.g. Graham v. Richardson, 403 U.S. 365 (1971) and
Sugarman v. Dougall, 413 U.S. 634 (1973). Deference to federal classifications
continues, but at a somewhat higher level of scrutiny than before. Hampton v.
Haw Sun TVong. 426 U.S. 88 (1.976), but see Mathews v. Diaz, 426 U.S. 67 (1976).
Where Fourth Amendment rights are concerned, the courts have rejected a
double standard for aliens. As early as 1.920, the Second Circuit Court of Appeals,
in an opinion by Judge Hand, ruled that the Fourth Amendment's full protection
extends to foreign nationals. In re Weinstein. 271 F. 673 aff'g 271 F. 5. Three
years later, the Supreme Court held that an alien could invoke the exclusionary
evidence rule in a deportation proceeding. United States ex rel. Bilokumsky v.
Tod. 263 U.S. 149 (1923). And, in 1960, all nine justices of the Court agreed that
even a Soviet espionage agent Who entered the United States illegally was en-
titled to full Fourth Amendment protection. Abel v. United States, 362 U.S. 217
(11360) .
It may be argued that the majority in Abel actually made an exception to the
principle of Fourth Amendment equality by upholding the admissibility of
evidence obtained in a planned search by Immigration officials acting without a
judicial warrant. but with an administrative warrant which Congress au-
thorized in deportation cases. The Court split 5-4 on this issue. However. with
the demise of the Rabinowitz theory of an independent reasonableness clause,
and the passing of arrest warrants. United States v. Watson, 423 U.S. 411 (1976),
that dispute is moot. What remains of Abel today is the unanimous principle
that the Fourth Amendment applies to all "people" equally. As the Seventh
Circuit Court of Appeals ruled last year, even the plenary power of Congress
to deport aliens "cannot be interpreted so broadly as to limit the Fourth Amend-
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ment rights of those present in the United States." Illinois Migrant Council v.
Pilliod, 540 F. 2d 1062 (7th Cir. 1976).
Such, at least is the state of Supreme Court doctrine. Given the deference
which the Court still shows for both Congressional regulation of aliens and
claims of national security, it is possible that the current court might depart
from precedent and uphold the anti-alien provisions of S. 1566. Much probably
would depend on the context in which the first case arose. If the defendant is
convicted of espionage, the Court can be expected to lean over backwards to
keep 'him in jail. If he is a visiting foreign student, caught up in a dragnet
surveillance, the anti-alien provisions might be struck down.
However, what the Supreme Court may or may not do with this bill is es-
sentially beside the point. Congress must decide the constitutionality of the
bill's anti-alien provisions in the first instance. In so doing, it should be aware
that neither case law nor the concept of equal protection evident in the wording
of the entire Bill of Rights supports the government's theory of two Fourth
Amendments. To enact the anti-alien provisions is to set a statutory precedent
for still further discrimination against aliens at a time when both Congress and
the courts have been moving to end that discrimination.
Were the pseudo-warrants authorized by this bill limited to the surveillance
of embassies and consulates, it would be difficult to raise a Fourth Amendment,
equal protection objection. Or, if the surveillance were limited to nonresident
aliens serving as officers, employees, or paid informants of a foreign intelligence
agency, military establishment, or diplomatic corps, an exemption from all or
part of the Fourth Amendment might be reasonable. However, this bill sweeps
far beyond, raising serious questions of constitutional overbreadth. Section
2521's definition of "officer (s) or employee (s) of a foreign power" would permit
easy tapping and bugging of subway conductors from Paris, doctors from Great
Britain, and professors from West Germany. Such persons could well be your
relatives or mine, here on a holiday. I see no reason why they should be treated
differently from uzs. But if this bill passes in its current form, they most cer-
tainly will be, and visiting the United States could become as unpleasant for
foreigners as going to the Soviet Union or South Korea now is for Americans.
To the extent that Congressional supporters of this bill have persuaded the
President to admit that his power to tap and bug for intelligence purposes is
limitable by legislation, they have achieved an historic advance. Unfortunately,
the Dill seems to substitute legislative power for executive power without
acknowledging that both Congress and the President are bound to legislate
within the limits of the Fourth Amendment.
Nowhere is this "clean slate" theory more evident than in the provision de-
fining the kinds of "electronic surveillance" regulated by this bill. As I read
Section 2521(b) (6), it assures that the bill will do nothing whatever to curb:
Wiretapping of U.S.persons overseas by the CIA and the military ;
Bugging of U.S. persons abroad by the CIA and the military ;
Interception of the long distance telephone calls and cables of U.S. persons
abroad to other persons abroad by the National Security Agency through com-
puterized searches of microwave transmissions :
Monitoring, by microwave interception and cable-tapping, of communications
from U.S. persons located abroad to nonresident aliens in the United States:
Monitoring, by the same means, of telephone calls and cables from foreigners
abroad to U.S. persons in the United States, provided that the contents of the
message are not acquired by "intentionally targeting that U.S.:person."
By failing to plug these holes, Congress gives the impression that it believes
that Americans lose their constitutional right against unreasonable searches
and seizures the moment they leave our shores. Moreover, it invites future
Presidents to assume that they have an "inherent power" to violate the privacy
of hundreds of thousands of Americans who live and work abroad.
Most Americans are not aware of the extent to which their government has
spied on its citizens abroad. A typical example occurred in West Berlin in 1972
and 1973, where Army intelligence infiltrated an affiliate of the American
Democratic Party, infiltrated a German church mission in order to spy on
American ministers, persuaded German authorities to wiretap American attor-
neys and journalists, and persuaded private employers to deny several Americans
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their jobs. The monitoring was carried out, the Army later claimed, to protect
national security and foreign relations, although it admitted that it did not
have any reason to believe that the Americans were agents of a foreign power.
Information collected included the names of persons signing a petition calling
for the impeachment of President Nixon and confidential lawyer-client com-
munications. Asked to explain where it got the power to spy on American
political activity overseas, the Army cited its Status of Forces Agreement with
West Germany. Berlin Democratic Chub v. Rumsfeld, 410 F. Supp. 144 (1976)
and Ailitary Surveillance, Hearings Before the Subcommittee on Constitutional
Rights, Committee on the Judiciary, U.S. Senate, 93rd Cong., 2d Sess. (1974) at
106. See also Pyle, "Spies Without Masters : The Army Still Watches Civilian
Politics," 1 Civ. Lib. Rev. 38 (1974).
This was not the first instance in which the military claimed that the Bill of
Rights could be suspended by a mere exercise of inherent executive power. In
1950, the First Circuit Court of Appeals rejected a claim that the Fourth Amend-
ment did not protect the premises of an American citizen in Vienna from a U.S.
military search. Best v. United States, 184 F. 2d 131 (1st Cir. 1950), cert. denied,
340 U.S. 939 (1951). The Court of Claims later ruled that the Fifth Amendment's
just compensation clause applies to the seizure of the overseas property belonging
to Americans and cannot be nullified by executive agreements with foreign gov-
ernments. Turney v. United States, 115 F. Supp. 457, 464 (1953) ; Seery v. United
States., 127 F. Supp. 601 (1955). See also Sutherland, "The Flag, The Constitu-
tion, and International Agreements," Comment, 68 IIarv. L. 11ev. 1374 (1955).
In 1957, the Supreme Court declared that not even the combined foreign affairs
powers of the President and Congress were sufficient to abrogate the Constitu-
tional :rights of Americans overseas. 354 U.S. 1, 16 (1957).
In light of these cases, it seems to me that Congress is under a constitutional
obligation to bring all forms of electronic surveillance by the United States
against U.S. persons located abroad under a Fourth Amendment warrant
system 14
NSA MICROWAVE INTERCEPTS AND TILE FOURTH AMENDMENT
The :fact that the Fourth Amendment rules out deliberate warrantless electronic
surveillance of U.S. persons by their government anywhere poses special problems
for the National Security Agency which routinely searches microwave radio
transmissions and International cable traffic for sensitive information. Testimony
of Gen. Allen, Church Committee Hearings. Vol. 5, 5-55.
S. 1566 would require the government to obtain pseudo-warrants before inter-
cepting any domestic microwave transmissions. Pseudo-warrants also would have
to be obtained before targeting U.S. persons located in the United States who
receive communications from abroad. However, the bill would leave NSA com-
pletely free to eavesdrop on U.S. persons located abroad communicating with
others located abroad, or with nonresident aliens in the United States. And it
would permit the use of communications of U.S. persons "Incidentally" inter-
cepted by watchlisting their foreign associates. Section 2521 (b) (6). These
loopholes imply the existence of "inherent" executive powers inconsistent with
Fourth Amendment principles.
It Is not difficult to understand why the Justice Department is reluctant to
acknowledge the constitutional rights of Americans vis-a-vis NSA overseas. To
do so would be to admit that the Agency may not collect economic and political
intelligence from the communications of overseas Americans. Monitoring the
communications of drug traffickers, terrorists, and spies would still be possible,
but listening to Mobil Oil executives In Africa. midwestern grain dealers in India,
and Pepsi-Cola representatives in the Soviet Union would be impermissible.
I wonder if the general counsels of major U.S. corporations engaged in inter-
national trade realize the extent to which this bill would legitimize federal
surveillance of their most confidential business transactions.
"The absence of a magistrate or judge located abroad has been held to be an insuffi-
cient reason for not doing so. Berlin Democratic Club v. Rumsfeirl 410 F. Supp. at 160.
See also United States v. Robinson, 533 F. 2d 578 (D.C. Cir. 1976; ; approving the com-
munication of warrant requests by telephone, provided that they are "based on sworn
oral testimony . . . with procedures for recording, transcribing and certifying the
statement."
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COMPULSORY SPY SERVICE
Finally, it seems to me that this bill's priorities and values come through
most clearly in Section 2525 (b) (2) (B) and (C) which would enable the
Justice Department to get orders directing landlords, custodians, and other
persons to help install and maintain listening devices-even to snoop on their
own relatives.
I find it extraordinary that, at a time when our government can no longer
draft men into the armed forces, Congress would allow it to conscript them into
its spy corps. Even General Gage, who quartered his troops in private homes,
would not have been so bold as to compel colonists to spy for him. On the theory
that any liberty has its price, the bill thoughtfully provides that the conscripted
spies must be compensated "at the prevailing rate," but it says nothing about
death benefits to Miami landlords who are hauled into court and ordered to
betray their CIA-trained Cuban tenants.
* * *
There is much more that I could say about the bill and its lack of a firm con-
stitutional foundation. In closing, however, I would simply like to remind the
Committee of some words written by Justice Frankfurter, dissenting in United
States v. Rabinowitz, :139 U.S. 56, 69 (1950)
"It is true also of journeys in the law that the place you reach depends on
the direction you are taking. And so where one comes out . . . depends on
where one goes in. It makes all the difference in the world whether ap-
proaches the Fourth Amendment as the Court approached
States, . or one approaches it as . . . a formality. It makes all the difference
in the world whether one recognizes the central fact about the Fourth Amend-
ment, namely, that it was a safeguard against recurrence of abuses so deeply felt
by the colonies as to be one of the potent causes of the Revolution, or one thinks
of it as merely a requirement for a piece of paper."
The CHAIRMAN-. Before we begin, let's take a minute to bring the
committee and the witnesses up to date on the committee's discussions
with the Justice Department and the FBI regarding some of the prin-
cipal issues raised by S.1566.
As our witnesses know very well, and as this committee, I am sure
will recall, though this bill was introduced this year, its predecessor
was introduced in the previous session of Congress and was a product
of consideration in. the Judiciary Committee, and I think it is fair to
say, a significant refinement as a result of this committee's activities.
And the witnesses that are now seated before us played an important
role in this analysis.
We owe to Attorney General Levi a vote of thanks for the efforts
that he made in this regard.
The first issue involves the standard for electronic surveillance of
Americans. The bill provides that a court must find probable cause
that an American citizen or resident alien is an "agent of a foreign
power" before he is targeted for surveillance. However, as we recall,
problems arose with the definition of. "agent of a foreign power." In
1976 this committee reached an agreement with Attorney General
Edward Levi on a three-part definition, trying to increase the protec-
tion of American citizens and narrow the target as far as electronic
surveillance was concerned.
None of us were completely happy with the standards, frankly. They
were clearly a compromise. The third part did not require any indica-
tion of Federal crime. It was written very strictly so it would not allow
surveillance based on a person's political activities. The first part of the
standard also posed some problems because the term "clandestine in-
telligence activities" was so nebulous. "Clandestine intelligence ac-
tivities" could include not only espionage and other forms of spying,
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but also political activities on behalf of any foreign power. The way
the standard was written, we could not rule out the possibility of sur-
veillance of Americans whose political efforts on behalf of a foreign
government might be labeled clandestine and who might be considered
likely sometime in the indefinite future to violate the broad Foreign
Agents Registration Act.
We are not talking about, the obvious spy and saboteur, espionage
activity in a relationship with a foreign government. We are talking
about; an American citizen who shares a. similar concern for the inter-
ests of another country and engages in legitimate expression in the
political process to get, this country to follow certain procedures. We
are all familiar with the strong ethnic ties many Americans have that
increase their sensitivity as far as world problems, and particularly
regional and other nation problems.
We recognized these problems in 1976, and we were willing to accept
them for the sake of reaching agreement on the bill. However, we were
concerned about any noncriminal standard for wiretaps or bugs, no
matter how tightly written. Last July Attorney General Bell told us
that it was almost equivalent to it criminal standard, and although I
was concerned about the lack of a criminal standard, I think by any
assessment, the bill after it came out of this committee, was in much
better shape in this regard than the one that came out of the Judiciary
Committee in 1976.
But in the interim, this last year, we have been working to try to
deal with this problem, working with the Justice Department, the
FBI, as well as interested citizens such as those present here today,
and others, to reconsider the definition of agent of a foreign power.
With this in mind, I intend to join with others who may be, similarly
concerned about this problem in offering an amendment. The definition
of "agent of a foreign power" which would read as follows : "(B) any
person who`(i) knowingly engages in clandestine intelligence gather-
ing activities for or on behalf of a foreign power, which activities in-
volve or may involve a violation of the criminal statutes of the United
States." I want Ito emphasize,. "may involve a violation of the criminal
statutes of the United States."
Also, "(ii) pursuant to the direction of an intelligence service or
network of a foreign power, knowingly engages in any other clandes-
tine intelligence activities for or on behalf of such foreign power,
which activities involve or are about to involve a violation of the
criminal statutes of the United States;" or in addition "(iii) is or may
be knowingly engaged in sabotage or terrorism or activities in fur-
therance thereof, for or on behalf of a foreign power."
The conspiracy standard would be retained, but we will make clear
that the conspirator must meet all the "knowingly" requirements of
the other standards. Another provision may be added to say that no
American should be surveilled solely on the basis of activities pro-
tected by the first amendment.
This definition eliminates the noncriminal standard, and provides
new safeguards against unjustified surveillance of political activities.
The standard for clandestine political activities requires proof of di-
rection by an intelligence service or network and an imminent criminal
violation. On the other hand, the Government has somewhat more lee-
way to protect against clandestine intelligence gathering activities, that
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is, spying, which may involve a Federal crime, as well as persons who
may be engaged in sabotage or terrorism, which is a matter of great
concern to us.
I will say to you just briefly before yielding, as a civil libertarian I
am still not totally satisfied with two or three words in that compro-
mise or that amended language. As one who feels that we have a dual
responsibility not only to protect the civil liberties of American citi-
zens but also to protect our country and to give our governmental
agencies the tools they need to legitimately, legally, let me emphasize
legitimately and legally, protect the rights of all of us from those
who would take away our freedoms, I think in the exercise of both
of those responsibilities, this is about as close as we are going to come.
I want to salute all of those and thank all of those who have worked
on this language. I hope they will share my feeling that we are not
wed to every dot and every title. We are anxious to have an exami-
nation by those who may not be as familiar with it as we are and
also who may possess a broader experience of the impact of the word-
ing, of the intention in the language.
On a separate issue, the surveillance of Americans abroad, we will
introduce legislation tomorrow. My distinguished colleague from Ken-
tucky, Senator Huddleston, has been laboring mightily in this regard.
We are going to introduce those charters tomorrow, and in this legis-
lation will be requirements of a court order for all electronic or signals
intelligence activities targeted against Americans abroad. This bill
will be part of the committee's intelligence charter legislation covering
the CIA, the National Security Agency, and any other intelligence
agency that may conduct surveillance abroad.
We have decided that overseas surveillance should be dealt with in
charter legislation, along with similar techniques like physical
searches and mail opening. We will be taking up S. 1566 separately,
and we hope to report it to the Senate floor in the near future. Elec-
tronic surveillance abroad, dealing with the subject of the hearing
process, give and take where everyone who will be affected will have a
chance to be heard so we can decide to see whether those provisions
actually do what we need to do to fulfill the dual responsibility that
we have.
In closing, I think it is fair to say we have made significant grog
ress in our consideration of S. 1566, and we are interested in other
issues besides the criminal standard. WWre hope we can resolve these is-
sues promptly so the bill can be enacted into law this year, because
I think it will be the most significant step we can take in a relatively
short period of time to begin the rebuilding of confidence in our
agencies and in our political system.
I yield to the distinguished Senator from Kentucky.
Senator Hunnr,ESTrox. Thank you, Mr. Chairman.
In the interest of time, and since our witnesses have already been
waiting fora period, I would ask unanimous consent to submit into
the record an opening statement and just say that I am pleased that
we are back on the track in the development of this legislation, the
creed for which I think has been amply demonstrated. I think that en-
actment with the proper refinements, of the bill that is before us and,
hopefully, of the charter legislation that will be introduced by the
committee tommorrow, will have brought us a long, long way toward
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the protection of our rights and liberties in this country and toward
the more constitutional operation of all of our intelligence agencies.
At the same time we will have established a framework within which
those agencies can operate efficiently and effectively and provide us
with the intelligence that our country needs.
I am hopeful that we can proceed without delay on all of these
activities, giving ample time, of course, for the necessary refinements
and modifications that may have to be made.
Thank you very much, Mr. Chairman.
[The prepared statement of Senator IIuddleston follows:]
PREPARED STATEMENT OP HON. WALTER D. IIUDULESTON, U.S. SENATOR FROM
THE STATE OF KENTUCKY
I am certain that everyone is pleased that we will soon reach the end of
our quest for legislation to curtail and control the use of electronic surveillance
techniques for intelligence purposes by federal agencies. The misuse of the
surveillance techniques was well documented by the original Select Committee
on Intelligence, and there is no doubt in my mind that this legislation is urgently
needed. IIowever, in case some of our memories on the subject have dimmed
with the passage of time, I will quote one paragraph from the findings of the
Committee which states very succinctly ",by this legislation is needed.
"These intrusive techniques by their very nature invaded the private com-
munications and activities both of the individuals they were directed against
and of the persons with whom the target communicated or associated. Con-
sequently, they provided the means by which all types of information-includ-
ing personal and political information totally unrelated to any legitimate
governmental objective-were collected and in some cases disseminated to the
highest levels of the government."
I believe that we need a strong bill which will assure that an individual's
privacy will not be unnecessarily invaded through the use of these techniques
or that his or her rights will not be ignored by federal agents doing what they
arbitrarily consider to be in the best interest of national security. The Con-
stitution guarantees individuals in this country certain rights, and it is the duty
of Congress to protect these rights from intrusion either from within or without.
S. 1566 has been the subject of a long and protracted debate and is a much
better bill than S. 3197 because of this debate. However, there is still room
for improvement, and I will support all appropriate efforts to tighten further
some of the provisions of the bill to assure that the abuses of the past do not
return to haunt us in the future.
I commend all the parties who have been involved in refining and shaping
this bill. The members and staff of both the Intelligence and Judiciary Com-
mittees have devoted many long hours to this bill and deserve a great deal of
credit for their efforts.
The spirit of compromise, which is absolutely necessary to produce a con-
troversial piece of legislation such as this, has been exemplary. As the dis-
tinguished Chairman indicated, there is tentative agreement on eliminating the
non-criminal standard in the bill, which has been a major stumbling block. I
support this effort to improve the bill, although I still am concerned about the
vagueness of some of the proposed language.
I am certain that the witnesses we have before us today will have important
recommendations to make, and I can assure them that I will be listening with
an open mind.
The CITATRMAN. Senator Case?
Senator CASE. Thank you, Mr. Chairman.
I shan't take any time at all. I concur with your remarks, Mr.
Chairman, and those that the Senator from Kentucky has made. A lot
of hard work has been put in on this by a great many people, including
many of my colleagues. I appreciate this and I am anxious to get the
hearing under way so that we can hear from concerned people about
this very difficult and I would almost say tricky subject.
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Thank you, Mr. Chairman.
The CHAIRMAN. The Senator from Indiana.
Senator LUGAR. NMr. Chairman, I would join you and our colleagues
on this committee in welcoming this hearing for additional refinement
on this legislation. I think it is an important bill and I appreciate the
two factors, Mr. Chairman, that you brought forward in your state-
ment. We have a tremendous obligation to protect civil liberties in this
country and a tremendous obligation in terms of obtaining intel-
ligence, and these two are not necessarily incompatible, and I think it
is important in this hearing to refine this bill, and I look forward to
its early reporting and passing.
The CHAIRMAN.Thank you very much.
Gentlemen, you are familiar with why we are here. The ball is in
your court.
TESTIMONY OF JOHN SHATTUCK, DIRECTOR, WASHINGTON OFFICE,
AMERICAN CIVIL LIBERTIES UNION; JERRY J. BERMAN, LEGIS-
LATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION; AND
MORTON HALPERIN, CENTER FOR NATIONAL SECURITY STUDIES
Mr. SHA=CK. Thank you, Mr. Chairman. I would like to start by
recognizing that I have the privilege, I believe, of being the first
witness before you, Mr. Chairman, in your new position as chairman
of this distinguished committee, and to congratulate you on your
elevation to that position and say that we are delighted to be working
with you and hope to work closely with you on this and other matters
in the months ahead.
The CHAIRMAN. We look forward to that kind of working
arrangement.
Mr. SHATrHCK. Thank you.
I have a statement, Mr. Chairman, that Mr. Berman and I sub-
mitted to the House Intelligence Committee approximately 3 weeks
ago, and we have made it available to this committee, and I would like
to ask consent that it be admitted in the record.
[The prepared statement of Mr. Shattuck and Mr. Berman follows:]
PREPARED STATEMENT OF JOHN H. F. SHATTUCK, DIRECTOR, WASHINGTON OFFICE
AND JERRY J. BERMAN, LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION
Mr. Chairman : We welcome this opportunity to testify before this Committee
on legislative proposals to control electronic surveillance for foreign intelligence
purposes. It is a matter of obvious importance to the nation and one of vital
concern to the members of the American Civil Liberties Union, a nationwide,
nonpartisan organization devoted to protecting individual rights and liberties
guaranteed by the Constitution.
This legislation has been proposed for the same reasons that this new Intel-
ligence Committee was constituted : the recognition, in the wake of Watergate
and revelations of massive illegal programs conducted by the FBI, CIA, NSA and
other U.S. intelligence agencies, that the Congress must exercise meaningful
oversight and control of the intelligence community and enact legislation and
charters for the agencies which insure that intelligence activities- will no longer
violate the civil and constitutional rights of Americans.
The enactment of legislation to prohibit warrantless and overbroad electronic
surveillance would be a major step toward reform and would signify a resolve
on the part of Congress to bring our intelligence agencies under the rule of law.
Legislation setting forth a strict and narrow standard for the use of this most
intrusive investigative technique would afford protection for the First and
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Fourth Amendment rights of citizens and would set a positive precedent for
legislation defining the general investigative authority of U.S. intelligence
agencies and the circumstances under which they may use other covert investiga-
Live techniques such as the search of private records and the use of informants.
We stress the interrelationship between wiretapping legislation and the pro-
posed charters to emphasize at the outset that the Committee cannot view these
bills in isolation. Whatever investigative standard is approved in the wiretap
area will be a significant precedent with far-reaching ramifications. If Congress
enacts wiretapping legislation with an overbroad or indefinite standard for
employing this most intrusive of all investigative techniques, intelligence agen-
cies will inevitably continue to violate the First and Fourth Amendment rights
of citizens in a wide range of investigative areas. It is only logical that future
charter legislation, governing the use of less intrusive covert techniques, will
build on this precedent. This could result in broad investigative authority to
conduct surveillance of political activity. If the wiretap standard is too low,
Congress could end up authorizing rather than curtailing intelligence agency
abuses.
THE CENTRAL ISSUE: TIIE CRIMINAL STANDARD
While four bills are under consideration by this Committee-H.R. 5632, H.R.
5794, H.R. 7308 and H.R. 9745-we will focus on H.R. 7308, the Administration
proposal introduced on May 18, 1977 in both the House and Senate (S. 1566).
Before we discuss our central objection to H.R. 7308 as presently drafted-its
failure to set forth a criminal standard as the basis for all national security
electronic surveillance and to restrict the application of this standard to serious
crimes affecting national security-we want to commend certain features of the
bill, particularly
Its specificity as to the showing the Government must make to obtain a war-
rantless national security wiretap;
Its requirement that all such wiretaps be conducted pursuant to a judicial
warrant, making it clearly preferable to H.R. 9745 which permits warrantless
electronic surveillance ; and
Its specificity as to the showing the Government must make to obtain a war-
rant to conduct electronic surveillance for foreign intelligence purposes.
Despite the positive aspects of the bill, which we strongly encourage the
Committee to retain, H.R. 7308 is seriously flawed because it permits the Gov-
ernment to target persons for electronic surveillance without probable cause-.
or even a reasonable suspicion-to believe they are engaged in crime. Accord.
ingly, we oppose the bill in its current form because we believe its low investi-
gative standard would invite abuse and would be a dangerous precedent for
future intelligence legislation.
TIIE NON-CRIMINAL STANDARD IN H.R. 7308
Before discussing the investigative standard for wiretapping which we be-
lieve is minimally necessary to satisfy the Constitution and curtail abuse, let;
us look at who could be routinely wiretapped under H.R. 7308. The bill author-.
izes continuous surveillance for three months or more of at least four classes
of people who are not even reasonably suspected of engaging in criminal.
activity.
First, the bill permits surveillance of officers or employees of a foreign power
without any showing that they are engaged in either criminal or intelligence
activities. In effect, the bill declares open season on foreign employees of
government corporations like Air France, who are subject to wiretap at any
time simply because of their status. The second category of persons who can
be tapped without any suspicion that they are committing crimes is foreigners
engaged in undefined "clandestine intelligence activities" which might be harm-
ful to the security of the United States. In the absence of any definition of
"clandestine intelligence activities," there are no safeguards to protect innocent
foreign businessmen, visiting foreign relatives, tourists, or any other foreign
visitors to the United States from becoming the targets of "intelligence" wire-
tapping.
The third category of persons covered by the non-criminal standard is Amer-
icans who secretly collect or transmit information pursuant to the direction of
a foreign intelligence service "under circumstances which indicate the trans-
mission or collection of such information or material would be harmful to the
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security of the United States, or that lack of knowledge by the United States
of such collection or transmission would be harmful to the security of the
United States." This complicated formula amounts to a new, all-inclusive and
overbroad definition of espionage, with the result that the President is given
the authority to wiretap Americans whose conduct has not been made criminal
by Congress.
Finally, the most disturbing category of persons whose lawful conduct can
trigger surveillance is Americans or foreigners who knowingly aid or abet per-
sons engaged in undefined clandestine intelligence activities or the secret trans-
mission or collection of harmful information. These people are twice removed
from the criminal standard : they can be tapped for aiding or abetting others
whose conduct is lawful, and they need not even know the nature of that
conduct so long as they are "knowingly" aiding the persons engaged in it.
Under this standard Martin Luther King could arguably have been tapped, as
lie was, for "knowingly" associating with a person suspected of secret Com-
munist activities, even though King knew nothing of those activities.
The non-criminal standard in 11.11. 7308 would permit an Attorney General
insensitive to civil liberties to define "clandestine intelligence activities," or
the secret collection or transmittal of national security information, to warrant
electronic surveillance similar to the so-called "Kissinger seventeen taps" on
journalists and government employees. Surveillance similar to the "sugar lobby"
taps of a Congressman and his aides in the early 1960's (based upon an allega-
tion that a foreign country was attempting to influence congressional delibera-
tions about sugar quota legislation) would arguably be permissible. Political
activity protected by the First Amendment could be reached in a variety of
circumstances, such as the fund-raising activities of American religious and
civic groups on behalf of Israel, or the receipt of an honorarium to speak to a
foreign lobbying group. In short, the wiretap net could be cast very widely over
non-criminal conduct under H.R. 7308.
A CRIMINAL STANDARD : THE MINIMUM CONSTITUTIONAL REQUIREMENT FOR WIRETAPS
Why is it so important to limit the wiretapping authorized by H.R. 7308 to a
"criminal standard"? A wiretap is probably the most intrusive and inherently
unreasonable form of search and seizure. Even when a tap is placed on a person
suspected of engaging in criminal activity, it offends the Fourth Amendment
because it necessarily results in a "general search" of all private conversations,
incriminating or not, which occur over the period of the surveillance. The sur-
veillance technology itself severely impedes any kind of effective control, such
as a conventional search warrant which (1) authorizes the seizure of tangible
evidence, (2) "particularly describes" the things to be seized, and (3) gives notice
to the subject of the search except under narrowly defined "exigent circum-
stances." Cf. Osborn v. united States, 385 U.S. 323, 329-30 (1966).
The technology of electronic surveillance makes the search and seizure of
telephone conversations infinitely more intrusive than the physical search of a
home or a person, even when a tap Is conducted pursuant to a. court order. Statis-
tics released recently by the Administrative Office of the U.S. Courts, for example,
show that the average court-ordered federal wiretap in 1976 involved the inter-
ception of 1,038 separate conversations between 58 persons over a period of three
weeks. These statistics demonstrate dramatically that even in the case of a
criminal investigation--far more limited than the open-ended 90 day or one
year "intelligence" investigations authorized by H.R. 7308-a wiretap search
inevitably has a dragnet effect which strains the Fourth Amendment to the
breaking point. As Justice Brandeis warned in Olmstead v. United States, 277
U.S. 438, 473 (1928), "discovery and invention have made it possible for the
government, by means far more effective than stretching upon the rack, to
obtain disclosure in court of what is whispered in the closet." Even where cir-
cumscribed within the confines of a criminal investigation, wiretapping rep-
resents an invasion of private speech and thought with almost no parallel.
Since wiretaps are inherently so intrusive, the ACLU has long maintained
that they cannot be conducted at all without violating the Fourth Amendment.
If this violation is to be minimized, no surveillance should be permitted unless
a judicial warrant has been issued based upon probable cause to believe that the
person to be tapped is engaged in crime. See Katz v. United States, 389 U.S. 347
(1067).
Those who seek to justify a departure from the criminal standard for "intel-
ligence wiretaps" quote the following passage from Justice Powell's opinion in
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United States v. United States District Court, 407 U.S. 297, 322-323 (1972) ::
"Different standards may be compatible with the Fourth Amendment if
they are reasonable both in relation to the legitimate need of Government
for intelligence information and the protected rights of our citizens. For
the warrant application may vary according to the governmental interest
to be enforced and the nature of citizen rights deserving protection."
Justice Powell's dicta are based on two leading administrative search cases..
Camara v. Municipal Court, 387 U.S. 523 (1967) and See v. Seattle, 387 U.S..
541 (1967). In these cases the Court sanctioned the use of area warrants for
municipal authorities to conduct inspections for housing code violations, not
upon probable cause of a particular housing code violation, but upon general
experience that dwellings in a particular area are likely to be in violation Of
the code.
The administrative search cases are a weak reed upon which to rest such a
dangerous relaxation of Fourth Amendment standards. These cases did not
involve a deliberate search for specific information, as does H.R. 7308. The
searches were part of a general regulatory scheme to protect public health and
safety. Second, none of these cases deal with potentially sensitive political
activities. The Court has recognized the convergence of the Fourth and First
Amendments : "Historically the struggle for freedom of speech and press in
England was bound up with the issue of the scope of the search and seizure
power." Marcus v. Search Warrant, 367 U.S. 717, 724 (1961). See also United
States v. United States District Court, 407 U.S. at 313. Third, the administrative
search cases deal with a much less intrusive invasion of privacy. A walk through
of a dwelling seeking compliance with a housing code is hardly comparable to
90 days of electronic surveillance, gathering every communication--whether or
not relevant-made from a particular facility.
The degree of intrusiveness is the decisive factor in determining the quality
and degree of justification that must be provided for a search. A wiretap, of
,course, is the most intrusive of all searches and therefore requires strict adher-
ence to the criminal standard.
It is argued that foreign visitors and employees of a foreign power in the
United States are less protected by the Bill of Rights than American citizens
and resident aliens. This is one of the premises of II.R. 7308. There is little basis
for it in constitutional law.
The Fourth Amendment, of course, refers not to the rights of citizens or
residents, but to the "right of the people" to be free from unreasonable searches
and seizures. Just as the term "person" in the Fifth Amendment has long been
held to be "broad enough to include any and every human being within the
jurisdiction of the republic," Wong v. United States, 163 U.S. 228, 242 (1896)
(Field, J., concurring), the "people" who are protected by the Fourth Amend-
ment have been held to include all persons within the territorial jurisdiction
of the United States. More than fifty years ago, for example, the Supreme Court
established that an alien could invoke the exclusionary rule in a deportation
proceeding. United States co rel. Bilokummsky v. Tod, 263 U.S. 149 (1923). The
extension of full Fourth Amendment protection to foreign nationals has been
long recognized by lower courts, e.g. In re Weinstein, 271 F.5 (S.D.N.Y. 1920),
aff'd, 271 F.073 (2nd Cir. 1920) (Learned Band, J.) and was noted by the
Supreme Court in Abel v. United States, 362 U.S. 217 (1960). Abel involved a
joint investigation by the FBI and Immigration officials of a suspected Rus-
sian spy. A search was made of the suspect's hotel room at the time of his
administrative arrest preliminary to deportation, with FBI conducting a sub-
sequent search on its own. These searches turned up not only proof of Abel's
alienage and illegal entry into the United States, but of espionage (coded
messages, microfilms), and the government brought an esiponage prosecution
and obtained a conviction. Abel appealed on the ground that the evidence on
which he was convicted was the fruit of an illegal search, and therefore should
have been excluded.
The Supreme Court affirmed the conviction by finding that the search had
been incidental to a valid deportation arrest and was therefore legal itself.
But the important point is that it was assumed by the majority (and stressed
by the dissenters) that aliens, even those who had entered this country illegally
and who were engaged In espionage, were entitled to full Fourth Amendment
protection.
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Although a deportation arrest like the One conducted in Abel may be based
on less than probable cause, an alien who is investigated for purposes other
than deportation is fully protected by the Fourth Amendment. As the Seventh
Circuit Court of Appeals recently stated, plenary Congressional powers to
deport aliens "cannot be interpreted so broadly as to limit the Fourth Amend-
ment rights of those present in the United States." Illinois Migrant Council v.
Pilloid, 540 F.2d 1062 (7th Cir. 1976). By the same token, the border searches
of automobiles for illegal aliens on less than probable cause, see, e.g. United
States v. Martinez Fuerte, 96 S.Ct. 3074 (1976), cannot be taken to permit
sweeping and intrusive non-criminal surveillance of foreign visitors anywhere in
the United States. See Alameida-Sanchez v. United States, 413 U.S. 266 (1973).
Even the argument that foreign power embassies and employees-as dis-
tinguished from a larger class of foreign visitors-can be subjected to broad
surveillance is lacking in constitutional support and contrary to international
law. There is little basis in Supreme Court case law for a distinction between
types of foreigners lawfully in the United States. Moreover, the federal courts
have long recognized the duty imposed by international law to "protect the
residence of an ambassador or minister against invasion as well as any other
act tending to disturb the peace or dignity of the mission or the member of
the mission." Fremd v. United States, 100 F.2d 691 (D.C. Cir. 1938), cert. denied,
306 U.S. 640 (1939). This obligation is more than a general principle of inter-
national law. The Vienna Convention on Diplomatic Relations, signed by the
President and ratified by the Senate in 1974 expressly provides in Article 22
that :
1. The premises of the mission shall be inviolable. The agents of the receiving
State may not enter them, except with the consent of the head of the mission....
3. The premises of the mission, their furnishings and other property thereon
and the means of transport of the mission shall be immune front, search, requisi-
tion, attachment or execution. [emphasis added.]
The Constitution expressly directs the President to carry out the laws and
treaty obligations of the United States. Neither the Constitution nor the Vienna
Conference Treaty will support the broad surveillance of foreigners which II.R.
7308 would permit. In considering the distinctions which the bill attempts to
make between classes of foreigners lawfully in the United States, it is worth
bearing in mind the Supreme Court's words of caution more than a century ago.
"The Constitution of the United States is a law for rulers and people, equally
in war and peace, and covers with the shield of its protection all classes of men,
at all times and under all circumstances." Ex Parte Milligan, 4 Wall. 120, 121
(1866).
SHOULD CONGRESS CREATE A NATIONAL SECURITY EXCEPTION TO THE CRIMINAL
STANDARD FOR WIRETAPPING
Even if the Constitution were to permit a "foreign intelligence" exception to
the criminal standard for wiretapping, the question would remain : Should Con-
gress create such an exception? This question has been answered unequivocably
in the negative by the Senate Select Committee on Intelligence Activities (the
"Church Committee") and by Vice-President Mondale both at the time he was a
member of the Church Committee and as recently as last August in an address
before the American Bar Association. Furthermore, no evidence has been offered
in the Senate hearings on S. 1566, the counterpart to H.R. 7308, to justify any
departure from the criminal standard, and Senator Kennedy, a principal sponsor
of S. 1566, has repeatedly expressed reservations about the bill's proposed excep-
tion to the criminal standard.
The Church Committee carefully reviewed the problem of national security
wiretapping and reached the conclusion that "no American be targetted for
electronic surveillance except upon a judicial finding of probable criminal
activity." Intelligence Activities and the Rights of Americans, Final Report of
the Select Committee to Study Governmental Operations with Respect to Intelli-
gence Activities, Book II, U.S. Senate, 94th Cong., 2d Sess. (1976), at 325
[emphasis added]. The extraordinary degree to which national security wiretaps
have been misused for political purposes was well documented by the Committee
and has been further demonstrated through successful litigation. See, e.g., Zwei-
bon v. Mitchell. 170 U.S. App. D.C. 1, 516 F. 2d 594 (D.C. Cir. 1975) ; Halperin v.
Kissinger, 424 F. Supp. 838 (D.D.C. 1976) ; Berlin Democratic Club v. Rumsfeld,
410 F. Supp. 144 (D.D.C. 1976). In light of this history of wiretap abuses, the
Church Committee concluded that if the existing criminal standard for wiretaps
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should prove to be too restrictive "to cover modern forms of industrial, tech-
nological or economic espionage not now prohibited," then the criminal laws
should be amended rather than create 'a new dangerous basis for intrusive sur-
veillance." Bk. II, at 32G.
The rationale for the Church Committee's conclusion was incisively expressed
by then-Senator Walter Mondale when he testified in July 1976 in opposition to
the non-criminal standard in S. 3197, the predecessor to H.R. 7308:
"[T]he fact is that if you get the right of Government to investigate Americans
for things that are not crimes, there are ways of destroying persons without
ever appearing in a courtroom . . . [I]f you cloak an administration with an ill-
defined power to investigate Americans outside the law, and in total disregard
of their constitutional rights, it is inevitable that the police will be used to
achieve political purposes, which is the most abhorrent objective and feat that
we sought to avoid in the creation of the Constitution and the adoption of the
Bill of Rights. So I [see] the enormity of the dangers here, particularly where
we pass legislation to permit it-up until now it has been their fault, but now
we know, and if we authorize it from hereon out, it is our fault."
Electronic Surveillance Within the United States for Foreign Intelligence Pur-
poses, Hearings before the Subcommittee on Intelligence and the Rights of
Americans, Select Committee on Intelligence U.S. Senate, 94th Congress, 2d
Sess. on S. 3197 (June 29, 1976), at 56-57.
As Vice President, Mr. Mondale reaffirmed his position an the importance of
the criminal standard in a spedch before the American Bar Association on Au-
gust 5, 1977. The Vice President's statement on the criminal standard issue came
after the Senate Judiciary Committee hearings on S. 1566 had been completed,
and in this respect it appeared to reflect an awareness within the Administra-
tion that a non-criminal exception in the bill is not necessary. In any event, the
case for the exception has not been made.
The Administration has now had two opportunities to explain to Congress
why a non-criminal standard is necessary. Neither occasion has produced any
persuasive reasons why legitimate foreign intelligence investigations would be
hampered by compliance with a criminal standard. As Senator Kennedy pointed
out at the conclusion of the Senate Judiciary Committee hearings on S. 1566, the
Administration witnesses did not meet their burden of proof. Hearings on S. 1566
before the Committee on the Judiciary, U.S. Senate, 95th Cong., 1st Sess., June 14,
1977 [hereafter "Judiciary Hearings"]. No additional evidence to support the
exception was offered at hearings conducted subsequently by the Subcommittee
on Intelligence and the Rights of Americans of the Senate Select Committee on
Intelligence.
Both Defense Secretary Harold Brown and CIA Director Stansfield Turner
conceded before the Judiciary Committee that their agencies do not require
authority to wiretap American citizens or foreign visitors not engaged in crime.
As Secretary Brown put it, "the non-criminal standard is principally an FBI
requirement rather than 'a DOD requirement." This position was repeated at
the Intelligence Committee hearings. Admiral Turner noted that any non-
criminal surveillance the CIA would conduct would principally be directed
against foreign powers and not against individuals. Hearings on S. 1566 before
the Subcommittee on Intelligence and Rights of Americans, Select Committee
on Intelligence, U.S. Senate, 95th Cong., 1st Sess., July 21, 1977 (unpublished)
[hereinafter "Intelligence Hearings"].
The arguments for the inclusion of a non-criminal standard in S. 1566 and
H.R. 7308 have come from the Department of Justice. Attorney General Griffin
Bell at first suggested to the Judiciary Committee that a less stringent stand-
ard was needed for the investigation of foreign visitors (although the Ford
Administration had decided it was not needed the year before) because of an
increase in the number of "communist-bloc officials" travelling to the United
States. But when asked by Senator Kennedy what specifically had changed in
one year "in terms of the nature of the threat," the Attorney General could
only suggest that "maybe you're dealing with a different set of people." Judiciary
Hearings. This assertion was not repeated in the subsequent hearings, al-
though Senator Kennedy had invited the Department to attempt to show
whether there was "an additional threat . . . to our security interests" that
would warrant broader investigatory authority.
Turning to the question of why it is necessary to authorize wiretaps on Ameri-
can citizens and ,resident aliens not engaged in crime, the Justice Department
witnesses took the position that "the current espionage laws are not yet com-
plete enough and clear enough to ... reach all forms of espionage that need to
be covered". They asserted that the "national defense" interests protected by
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the espionage laws are narrower than the "national security" interests protected
by H.R. 7308. As several other witneses pointed out, however, the Supreme Court
in the leading espionage case of Gorin v. United Statcs, 312 U.S. 19, 28 (1941)
has construed the terms "national defense" and "national security" to have
similar meanings for a judge considering whether to issue a warrant. This point
was brought out by the Attorney General himself, who stated in response to a
request for an explanation of the supposed distinction between "national de-
fense" and "national security" : I don't know if I can give you any more, other
than to say : "National Security to me is broader than national defense".Judi-
ciary Hearings.
This is the extent of the Administration's testimony to date relating to the
need for a non-criminal standard in II.R. 7308. Following the Senate Judiciary
Committee hearings on S. 1566, Attorney General Bell sent a letter to the Com-
mittee responding to certain written questions. In this letter the Attorney Gen-
eral amplified his testimony by describing six hypothetical cases in which he as-
serted the government would be authorized to conduct a wiretap under S. 1566,
but not under the espionage laws. It is evident, however, that the espionage laws
would be sufficient to authorize a wiretap in each case where it would also be
authorized under the non-criminal standard in S. 1566 and H.R. 7308.
THE APPROPRIATE STANDARD FOR H.R. 7308
ILR. 7308 should reflect the fundamental principle that no persons protected by
the Constitution should be subjected to intrusive surveillance unless there is evi-
dence that they are engaged in serious criminal conduct. Otherwise they should
be left alone. In the context of national security, no persons should be targetted
for electronic surveillance unless the Government has evidence they are engag-
ing in criminal conduct which directly threatens national security. To bring H.R.
7308 in line with this principle, we recommend the following alternatives :
1. Amend or Omit the Non-Criminal Standard for Americans
The non-criminal definition of "agent of a foreign power," Section 2521(2) (B)
(iii), should either be amended to reflect a criminal standard or omitted from the
bill. To accomplish this, we call the Committee's attention to a proposed amend-
ment to the companion bill, S. 1566, which would add "likely to violate the
criminal statutes Of the United States" to this subsection. Alternatively, we refer
to the recommendation of the Church Committee which calls for the omission of
any non-criminal standard with the understanding that if certain conduct is
considered dangerous to national security but not violative of the laws of the
United States, amendment of the espionage laws should be considered. In any
event, Congress should not set a dangerous precedent by authorizing the wire-
tapping of persons engaged in lawful conduct.
As we have pointed out, the Government has not met its burden of proof that
this subsection is warranted. On the other hand, the government 'has interpreted
this section far too broadly in arguing that all of the hypothetical cases can be
reached under this standard. In either case this argues for deletion or amendment.
2. Amend the Criminal Definition of Agent of a Foreign Power Applicable to
Americans
The criminal definition of "agent of a foreign power," 2421(B) (1) should be
tightened considerably. First, to insure that the Government does not wiretap
any Americans based on the speculation that they may one day in the indefinite
future violate the law, the words "will involve" should be modified by the word
"soon." More important, the section should be amended to insure that it will
be invoked only when there is evidence of a crime directly affecting national
security.
In the bill as introduced, the term "clandestine intelligence activities" is not
defined and evidence of any criminal law violation can trigger a wiretap. Without
specific definition, clandestine intelligence activity could be interpreted to mean
any form of private political activity, including attending meetings or lobbying.
It could apply to planning a demonstration against our involvement in a foreign
conflict (like the Vietnam War) or lobbying for arms to Israel. Arguably, if
picketing without a permit or civil disobedience were planned, persons engaging
in these activities could be wiretapped. While this may seem far-fetched, we
must remember that OPERATION CHAOS, COIN'Th+ LPRO, and the NSA cable
intercept programs were all based on such interpretations of "counterintelligence."
To avoid abuse, we believe that Congress should narrowly define "clandestine
intelligence activity" in the bill and see that it reflects activity which amounts
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to evidence of possible espionage. In addition, Congress should specify in the sub-
section those national security crimes or related offenses which are proper con-
cerns for counterintelligence investigative agencies-for example, those crimes
listed in Section 2516(l) (a) of the Omnibus Crime Control and Safe Streets Act
having to do with national security.' In other words, the principle followed by
Congress in Title III of the Safe Streets Act that all crimes do not warrant
wiretapping should be followed in this legislation as well, since it would deter
the government from engaging in overbroad surveillance. For example, to in-
elude the vague Foreign Agents Registration Act as a possible basis for wire-
tapping can result in extensive surveillance of lawful political activity and asso-
ciation. Enumeration of crimes would avoid this problem.
We emphasize that in the long history of executive authorization of national
security wiretapping dating back to the 1940 order of President Roosevelt, the
Executive branch has always specified that wiretapping could only be conducted
when there was evidence of espionage, treason, sabotage, or violations of the
neutrality laws. See Warrantless FBI Electronic Surveillance, in Book III,
If inal Report of the Select Committee to Study Governmental Operations with
respect to Intelligence Activities, 94th Congress, 2d Sess. Report No. 94-755.
If Congress intends to reform intelligence activities, it would be unconscionable
to authorize even broader surveillance than was permitted by executive order
in the past.
3. Amend the Conspiracy Sections Applicable to Americans
As we pointed out earlier, the conspiracy section of 2521(2) is far too broad.
If the non-criminal standard remains in the bill, the conspiracy section should
not apply to this subsection. A conspiracy to aid and abet others in what is by
definition lawful conduct is two steps removed from criminal activity. As applied
to criminal conduct, subsection 2521(B) (2) (iv) must be changed to cover only
those who knowingly aid or abet any person whom they know to be engaged in
activities described in the section. As presently drafted, a person could aid or
abet a person in lawful activities and be wiretapped because the person is en-
gaged in some other possible illegal or non-criminal "clandestine intelligence"
activity.
1. Amend Definitions of Agent of a Foreign Power Applicable to Foreigners and
Visitors
Employees of a foreign government iii the United States should not be sub-
jected to wiretapping simply because of their status, and there should be no sep-
arate standard for foreign visitors and students. We believe that with adequate
definition of "clandestine intelligence activities" and a clear relationship be-
tween. such activities and national security crimes, the government will have
sufficient authority to protect vital national security interests. The Constitu-
tion requires no less. Moreover, if we are to get at the problem of massive sur-
veillance by foreign governments of the communications of United States citi-
zens, we must not ourselves engage in similar sweeping surveillance.
In our testimony today, we have focused on the critical issue presented by
this legislation. However, in an attached appendix we suggest other important
amendments that must be made in II.R. 7308, having to do with the procedure
for approving wiretap authorizations, obtaining judicial certification for elec-
tronic surveillance, permitting a judge to go behind a certification, and insuring
that intercepted conversations are minimized. We here call your attention ro
these important amendments and again reiterate our concern about the over-
broad investigative standard in the current draft.
Under our constitutional system the wiretapping of persons who are engaged
in lawful activity has no place. Moreover, in legislating controls over wiretap-
ping, Congress must not set a precedent for legislated charters that would au-
thorize continued intrusive surveillance of political activity by U.S. Intelligence
agencies.
ADDITIONAL AMENDMENTS
1. ? 2521 (b) (6) (C) should be amended to declare the word "intentional"
Comment.-The word "intentional" is an unnecessary qualification of "acquisi-
tion." It is not contained in subsections (A), (B) or (D) and should be deleted
here.
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2. ? 2521(b) (8) should be amended to add the following provision at the end of
the section:
"Information obtained under the procedures of this chapter from a United
States person who is not the target of surveillance shall not be maintained in
such a manner as to permit its retrieval by the name of that person unless it is:
(a) evidence of a crime; or (b) in a file maintained solely to respond to court
orders related to electronic surveillance."
Comment.-One way in which national security wiretaps have been abused is
by the storing of information in the files of Americans who are overheard on the
suveillance of foreign powers. The minimization procedures in ? 2521(b) (8) do
not require minimization of surveillances directed at non-U.S. persons. Informa-
tion acquired about a V. S. person can be stored so that it is routinely retrievable
under the person's name. The amendment is intended to protect U.S. persons
against such routine storage and retrieval practices.
8. ? 2524 (a) should be amended to provide as follows:
"Each application for an order approving electronic surveillance under this
chapter shall be made by the Attorney General in writing upon oath or affirma-
tion to a judge having jurisdiction under section 2523 of this chapter. It shall
include the following information-"
Comment.-The requirement that all applications be made by the Attorney
General should be an essential element in the legislative scheme of H.R. 7308,
and must be restored to S. 1566. Since the bill is a radical departure from the
Fourth Amendment, no further erosion of constitutional safeguards should be
permitted by allowing wiretap applications to be made by any "federal officer."
4. ? 2521(a) (6) (7) (D), (7) (F), (8) and (10) should be amended to delete the
clause, "When the target of the surveillance is not a foreign power as de-
fined in section 25.21(b) (1) (A), (B) or (C)...."
Comment.-S. 3197 required a factual description of the nature of the infor-
mation sought and the method of surveillance to be provided to the judge with
respect to all wiretap warrant applications. If the warrant procedure is to have
meaning at all, the judge should be told what information is sought in all
circumstances.
5. ? 2525(a) (5) should be amended as follows:
"(5) The application which has been filed contains the description and
certification or certifications specified in section 2524(a) (7), the certification
or certifications are not arbitrary or capricious, and a judicial finding has been
made that the certification or certifications are correct on the basis of the state-
ment made under section 2524(a) (7) (E)."
Comments.-One of the principal new features of H.R. 7308 is supposed to
be that it "provides for judicial review of the certification by Executive
branch officials that foreign intelligence information is sought" (Justice, De-
partment Memorandum accompanying 4/27/77 Draft, p. 1]. This claim is in-
flated. The "arbitrary and capricious" standard of review is an inadequate
standard for Fourth Amendment purposes. Unlike an administrative proceed-
ing in which such a standard Is applied, the warrant application is made in an
ex parte, non-adversarial setting. If the warrant procedure is to have any
meaning at all, the judge must be permitted to probe the certification to deter-
mine whether there 3s probable cause to believe that it is accurate.
6. ? 2525(b) (1) (D) should be amended to delete the clause, "when the target
of the surveillance is not a foreign power, as defined in section 2521 (b)
(1) (A), (B), or (C) . . ."
Comment.-The court should be required in all oases to specify in the order
the means by which the electronic surveillance will be effected.
7. ? 2525(b) (2) (B) should be amended to insert the word "may" between
"person" and "furnish."
Oon rent.-Private persons should not be required to cooperate in placing
wiretaps. This provision should permit them to cooperate, thereby protecting
them against liability. No penalty should attach to private persons who decline
to assist in placing surveillances.
8. ? 2525(c) should be amended to eliminate the one year authorization period
for foreign power surveillance and limit all authorizations to- ninety days.
Comments.-The extraordinary Intrusions permitted by this bill are dramati-
cally demonstrated in the provision authorizing surveillance of foreign power
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without review for one year periods. The ninety day periods permitted for
United States persons are already far beyond the limits of Fourth Amendment.
reasonableness.
9. ? 2526(c) should be amended by deleting the last nine lines of the section,
beginning with, "provided that, in making this determination .. ." and
substituting in its place the following:
"In making such a determination, the court, after reviewing a copy of the
court order and accompanying application in camera, shall order disclosed to
the person against whom the evidence is to be introduced the order and appli-
cation, or portions thereof, if it finds that there is a reasonable question as
to the legality of the surveillance and that such disclosure would promote a
more accurate determination of such legality, or that such disclosure would
not harm the national security. If the court determines that the electronic
surveillance of the person aggrieved. was conducted unlawfully, it shall turn
over the information obtained or derived from the surveillance to such per-
son. If the court determines that the electronic surveillance of the person
aggrieved was conducted lawfully, it shall turn over a copy of the court order
and accompanying application to such person only if the Government enters into
evidence information obtained or derived from the surveillance."
Comment.-The procedure in the bill as it relates to the government using
the fruits of an electronic surveillance in a trial raises serious Alderman and.
constitutional issues. Where the government seeks to use such evidence it should.
be required to disclose the warrant. Moreover, it is not sufficient for the court:
to suppress the evidence if illegally obtained ; it must turn the evidence over
to the defendant for a taint hearing.
10. ? 2527 should be amended to add the following at the end:
"(c) the periods of time for which applications granted authorized electronic
surveillances and the actual duration of such electronic surveillances; and (4)
the number of such surveillance terminated during the preceding year."
Comment.-These important reporting provisions were contained in S. 3197
and should be reinstated in II.1. 7308 and S. 1566.
11. ? 4(a) (1) of the conforming amendments should be amended to delete
the clause, "as otherwise authorized by a search warrant or order of a
court of competent jurisdiction."
Comment.-This clause would render meaningless the requirement that the
procedures of this bill or Title III be followed for all electronic surveillance.
Common law warrants which do not follow the procedures of this legislation
should not be permitted to authorize any surveillance.
12. S. .1566 should be amended to prohibit surveillance of U.S. persons overseas
except pursuant to the procedures of the bill.
Comment.-The record of the Church Committee and the Senate Intelligence
Committee indicates that there is a substantial amount of warrantless wire-
tapping of U.S. persons overseas by federal intelligence agencies. The Constitu-
tion protects the rights of Americans overseas against actions by the U.S.
Government, Reid Y. Covert, 354 U.S. 1 (1957), and at least one court has held
that warrantless wiretapping of Americans overseas is illegal under the Fourth
Amendment. Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C.
1976).
APPENDIX
The Justice Department Hypotheticals
In response to questions posed by Senator James Abourezk, Attorney General
Griffin Bell sent a letter to the Senate Judiciary Committee wherein he outlined
six hypothetical cases which Justice Department officials contend warrant a
departure from a criminal standard in the Foreign Intelligence Surveillance
Act of 1977. According to the Justice Department, these cases could not be
reached under current espionage laws. After studying the cases, it is our con-
tention that in three of the cases outlined, a judge would issue a warrant under
current espionage laws and that in the remaining three cases, a judge would
not issue a warrant even under S. 1566 as currently drafted. In sum, the Ad-
ministration has not made a case for departing from the criminal standard in
this Act.
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Case No. 1
"A Spinelli-qualified' informant reports that A has, pursuant to a foreign
intelligence service's direction, collected and transmitted sensitive economic in-
formation concerning IBM trade secrets and advanced technological research
which ultimately would have a. variety of uses including possible use in a
sophisticated weapons system, but which is not done pursuant to a government
contract. A is placed under physical surveillance and is seen to fill dead drops
which are cleared by a member of a Communist bloc embassy suspected of
being an agent of its foreign intelligence service."
Comment.-This case turns on whether commercial information such as an
IBM trade secret which might be used in a sophisticated weapons system con-
stitutes "national defense" information or information "relating" to the national
defense tinder 18 U.S.C. 794. The Justice Department contends that it may not.
However, the Supreme Court, in Gorin v. U.S. 312 U.S. 18 (1941), stated:
"National defense . . . is a `generic concept of broad connotations, referring to
the military and naval establishments and the related activities of military
and naval establishments and the related activities of national preparedness.' We
agree that the words `national defense' in the espionage act carry that meaning."
14. at 28. Thus, if a court found that a person fit all of the other criteria of
2421(b) (2) (B) and that the information being gathered was from an industrial
source, it still would have no difficulty finding that there was probable cause
to believe that 18 U.S. 794 was being violated.
Case No. 2
"Pursuant to the physical surveillance of a known foreign intelligence officer.
B is seen to clear dead drops filled by that officer. On the second Tuesday of
every month B drives by the officer's residence, after engaging in driving maneu-
vers intended to shake any surveillance. Within one block of the officer's resi-
dence B always sends a coded citizen's band radio transmission. B is discovered
to have cultivated a close relationship with a State Department employee of the
opposite sex specializing on matters dealing with the country of the intelligence
agent."
Comment.-First it is not clear who the government wants to place tinder
electronic surveillance. Unless the vague "conspiracy" section, 2521(b) (2) (iii)
remains in the bill, the State Department employee could not be wiretapped. Of
course, the conspiracy section should be stricken from the bill. The Justice
Department does believe it has probable cause to tap B tinder S. 1566. However,
it would also have the authority to seek a warrant if 18 U.S.C. 794 were the
standard.
The Justice Department seems to assume that it is necessary to know pre-
cisely what the content of the information is to establish what law is being vio-
lated, if any, in order to secure a warrant. However, the fact that the informa-
tion is being passed to a "known foreign intelligence officer" should be sufficient
to establish probable cause under 794. Moreover, 2521(b) (2) (B) (i) does not
appear to require that the court find that a particular statute will be violated
but only that the activities "involve or will involve a violation of the criminal
statutes of the United States." And given the very broad interpretation of the
phrase "national defense" by the Supreme Court, it is doubtful that any court
would pause to inquire into the contents of the material before issuing a war-
rant. Certainly since all other elements required by S. 1566 have been met,
a court would have probable cause to believe that a conspiracy to violate 1S
U.S.C. 794 was underway.
Case No.3
"C, using highly sophisticated equipment developed in a hostile foreign coun-
try, taps the data transmissions lines of several electronics corporations. These
lines do not carry communications which can be aurally acquired, nor do they
carry classified information, but the information carried, which is not available
to the public, when put together, can give valuable information concerning
components which are used in United States weapons systems."
Comment.-This case, like Case Number One, turns on the meaning of "na-
tional defense" and "related" information in current espionage law. Nothing in
Section 793 of Title 1.8 limits such information to data that is classified or
developed pursuant to contract. Again, given the Court's broad reading in Gorin,
the "valuable information concerning components which are used in United
~ Spinelli v. United States, 395 U.S. 410 (1969), states the requirements by which the
reliability of an informant and his information must be tested for purposes of obtaining
a search warrant.
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States weapons systems" would be covered under 18 U.S.C. 794. Since all the
other elements under 2521(b) (2) (B) have been met, there would be probable
cause to find that a conspiracy to violate Section 794 of Title 18 existed.
Case No. 4
"D, a headwaiter in a fashionable Washington, D.C. restaurant, acts as a
bookmaker and procurer for several well known and highly placed customers.
A Spinelli-qualified informant reports that D has been instructed by a foreign
intelligence service to relay all embarrassing and personally damaging infor-
mation about these customers to a resident agent of the foreign intelligence serv-
ice in Washington. The informant reports that at least one customer has been
blackmailed in his job as a government executive into taking positions favorable
to the nation for which the resident agent works."
Co?rnment.-No warrant could be issued either under section 794 of Title 18
or under S. 1566. D is not collecting or transmitting information of the kind
referred to by S. 1566 or section 794 of Title 18. If the Justice Department's
argument is that by getting one kind of information, D could trade it for another,
then the Justice Department is interpreting S. 1566 in a way which eliminates
the safeguards built into it. Moreover, one should also ask if it is necessary to
tap this person. For example, his contact at the embassy could be tapped under
the "foreign power" provision of S. 1566 and D could be surveilled by less
intrusive means. Those who come into contact with D could be warned.
Case .No. 5
"A Spinelli-qualified informant reports that E has, pursuant to the direction
of a foreign intelligence service, engaged in various burglaries in the New York
area of homes of United States employees of the United Nations to obtain infor-
mation on some of the United States positions in the U.N."
Comment.-First of all, U.S. employees at the U.N. do not have advance in-
formation on U.S. positions at the United Nations. In any case, this situation is
trivial. Such information should not be in an em'ployee's home and E could be ar-
rested for burglary. Or is the Justice Department assuming that E discusses his
burglary targets on the phone?
Case No. 6
"A telephone tap of a foreign intelligence officer in the United States reveals
that F, acting pursuant to the officer's direction, has infiltrated several refugee
organizations in the United States. His instructions are to recruit members of
these organizations under the guise that he is an agent of a refugee terrorist
leader and then to target these recruited persons against the FBI, the Dade
County Police, and the CIA, the ultimate goal being to infiltrate these agencies. F
is to keep the intelligence officer informed as to his progress in this regard but his
reports areto be made by mail, because the U.S. Government cannot open the mail
unless a crime is being committed.
Co?nanment.-As in Case Number Four, no tap would be permitted under S. 1566.
This is not the kind of information contemplated under the Act. A tap would not
be permitted under section 794 of 'Title 18 as well. If F is to report in "by mail"
is F going to do this recruitment by telephone? Does the government plan to read
S. 1566 to 'permit the refugee organizations to be wiretapped to find out if they
are infiltrated? These are dangerous readings of S. 1566. The proper action is to
allow the FBI, having this much information, to foil F's scheme.
In sum, the Justice Department is "reaching" for the exceptional case to es-
tablish the need for a deviation from the criminal standard. C'ontrary to all
experience with judicial warrants in the wiretapping areas, the Department
presumes "strict construction" by judges will hamper legitimate intelligence. The
Justice Department should be reminded that only seven judges, picked by the
Chief Justice of the U.S. Supreme Court, will review these warrant requests. Of
course, this does not give the Justice Department any certainty that all applica-
tions will be approved. But the criminal standard does not appreciably make the
process more risky for the government. On the other hand, the non-criminal
standard is a dangerous precedent for abuse.
Mr. SIIATTUCK. I will summarize a number of points in that state-
ment, and try to give some overall perspective to the importance of the
legislation before this committee which is extremely important to civil
libertarians in the Senate and to the country. The wiretap legislation
before you has been proposed, we believe, for the same reason that this
committee was constituted, and that is the Congress must exercise
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meaningful oversight over the intelligence community to insure that
intelligence 'activities will no longer violate the civil and constitutional
rights of citizens. We have 'a long and somewhat tortuous history in
recent years of disclosures of these intelligence violations, and we are
pleased that this committee is now seeking to put those abuses behind
us.
The enactment of a bill to prohibit warrantless and overbroad elec-
tronic surveillance would be a major step toward intelligence reform
and would signify a resolve on the part of Congress to bring our intel-
ligence agencies under the rule of law.
We believe that legislation setting forth a strict and narrow stand-
ard for this most intrusive of all investigative techniques would pro-
tect the first and fourth amendment rights of citizens, and would set a
positive precedent-and for charters defining the general investigative
authority of the intelligence agencies. It is important for us all to
understand, Mr. Chairman, as you yourself so well understand, that
the wiretapping legislation and the proposed charters are very closely
related, inevitably so. Whatever investigative standard is approved
in the wiretap area will be a significant precedent, with far-reaching
ramifications as the committee moves ahead in the charter field.
If Congress enacts a wiretap bill with an overbroad or indefinite
standard, or a standard that does not link investigative activity to the
investigation of crime, the intelligence agencies, we fear, will con-
tinue to violate the first and fourth amendment rights of citizens in a
wide range of other investigative areas. In other words, if the wiretap
standard is too low, Congress could end up authorizing rather than
curtailing many of the abuses that have come to light in recent years.
The American Civil Liberties Union position on wiretapping is
well known, and that is that the very conduct of wiretapping neces-
sarily strains the fourth amendment which protects us against unrea-
sonable searches and seizures, to the breaking point. Wiretaps are so
intrusive that all conversations are picked up over a period of time,
which means that a wiretap is very difficult to minimize in terms of
the scope of the search and seizure that is conducted.
This is why-in addition to the precedent that this legislation will
set for the future of legislation to control the intelligence agencies-
this is why the criminal standard is so important to this bill.
Now, the criminal standard, as your opening remarks, Mr. Chair-
man, suggested, is a very complicated issue. There are many elements
in the issue; for example, four classes of persons now in the legisla-
tion, prior to any introduction of amendments, can be wiretapped
without any reasonable suspicion or probable cause that they are en-
gaged in criminal activities. These include foreign powers, foreign
visitors, businessmen, students, other people coming and visiting this
country, U.S. persons, and conspirators or persons who aid or abet per-
sons in those other three categories.
Now, we are deeply concerned about all of those categories, Mr.
Chairman. I think that what we have heard this morning indicates
that the committee is equally concerned about many of those areas. We
are concerned about the interception of first amendment informa-
tion-information about the political activities of a person-and I
think that the chairman has indicated an equal concern with that by
supporting the inclusion in this bill of a provision that would make it
clear that even if we go to a criminal standard, there will be no author-
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ization of interceptions of information protected by the first
amendment.
The tightness of the definitions is also very important to us. The
clandestine intelligence activity definition which has yet to emerge in
the course of these hearings is one example. There are many concerns,
in other words, and I think instead of going into each of them in detail,
we would prefer to open ourselves to questions by members of the
committee.
We are, of course, also interested in improving the bill, as the chair-
man has indicated, in other areas, apart from the standard to be used
with respect to the investigations that would be permitted.
So without further comment on the opening statement you made,
Mr. Chairman, we are prepared to proceed to answer any questions
that you might have.
The CHAIRMAN. Are you familiar with the language of the proposed
amendment, and if so, would you give us your critique of its strengths
and weaknesses, please?
Mr. SIIATTUCr-. I think I will turn the microphone over to Dr.
Halperin.
The CHAIRMAN. Who has had some significant personal experience
in this field.
Mr. HALPERIN. First of all, I try not to let that get in the way of
my position. I think the elimination of the old paragraph (3) which
involved the so-called noncriminal standard is clearly a substantial
step forward. The section 1, which in effect is a substitute for the old
section 3, clearly links now any surveillance of persons believed to be
engaged in clandestine intelligence collection to a criminal :standard.
I think that is a step forward.
The additional provisions in the new paragraph (2) do provide ad-
ditional requirements in relation to other clandestine intelligence ac-
tivities. I think we would prefer to limit the bill simply to clandestine
intelligence gathering, but these additional provisions to tighten and
provide additional protection, particularly if there is provision which
your statement ;suggests, which may be added to the bill, which we
think is absolutely essential; that is, a provision saying that no person
can be the subject of surveillance solely on the basis of first amend-
ment protected activities.
So whatever the definition of other clandestine intelligence activity,
it cannot include n person who is simply engaging in activities which
are protected by the first amendment of the Constitution. I think that
provision is essential in connection with 1 and 2 to make it clear that
political activity protected by the first amendment cannot be the sole
basis for wiretapping somebody.
Now, paragraph ,3 raises some additional problems because what it
does is'to move terrorism and sabotage to a reasonable suspicion stand-
ard rather than a probable cause standard, and I think clearly we would
prefer, would still prefer to have that provision left the way it was in
terms of requiring probable cause.
If---
The CHAIRMAN. Excuse me for interrupting, but I am sure you are
aware that I much prefer the probable cause standard, but what we are
trying to do is see if there is room fora tradeoff which could deal with
terrorism before the deedis performed.
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Mr. IIALPERTN. The argument as I understand it is that this provision
should be parallel with 1, relating to conventional intelligence activi-
ties. I think that the problem is that the way it was drafted-and I
think this is. probably just it drafting problem-it is not parallel be-
cause section 1 requires that you be engaged in the present in what is