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First, there are the efforts on the part of what I shall refer to generically as the “government” to compel the production of evidence, either testimonial or documentary. This may occur as a result of an administrative subpoena, it may occur in a grand jury proceeding, or it may occur at the actual trial of the case. Traditionally this area has been thought to involve the traditional criminal law type safeguards—the privilege against self-incrimination, the right to counsel, the requirement of materiality, and the like. While it may have re mote privacy implications, they have not figured prominently in the current privacy debate in the United States.
Second, there is the authority of the government to search persons, dwellings, automobiles, and other nonpublic areas for evidence which may lead to the solution of a crime. In the United States, such authority is limited by the Fourth Amendment to our Constitution, prohibiting unreasonable searches and seizures.
One area of this branch of governmental authority-wiretapping—has been a subject of considerable debate in our country, and I shall address it in more detail in a moment.
Third, there is the question of the extent to which the government may properly observe persons and activities conducted in public places—meeting halls, amphitheaters, streets, and parks. Some of those concerned with privacy have insisted that limitations, either legislative or constitutional, be placed on governmental activity in this area, while on the other hand those charged with responsibility for law enforcement have felt that many of the proposed limitations would seriously hamper the law enforcement function without producing a correspondent social benefit in the increased privacy that would be available to citizens. To this subject, also, I shall return in more detail in a moment. Wiretapping
“Wiretapping” in its more limited sense refers to the interception of a telephonic communication of which the parties to the conversation are unaware. Loosely used, it can include "bugging"—the placing in a room, unbeknownst to its occupants, or on a party to a conversation, anbeknownst to the other parties, a transmitting device which will either record the conversation itself or transmit it to some other place where it will then be recorded. These latter mani. festations are frequently associated with the use of undercover informants, who, though they are in the confidence of a suspected group of criminals, are nonetheless in the employ of the government.
There is something a little bit on the seamy side about all of these procedures, and in an ideal society their lack of social usefulness would doubtless cause them to be prohibited. Since the society in which we live-I speak for the United States, but I suspect the same is true here—is not ideal, the question is whether the admitted infringements on expected privacy which these methods of investigation give rise to are justifiable in terms of the aid they provide in the solution of serious and extensive crime.
In the United States, the Supreme Court about 45 years ago held that wiretapping was not a violation of the Constitution. Congress shortly afterward by statute prohibited the divulgence or use as evidence in the federal courts of information obtained through wiretapping. Less than five years ago, the Supreme Court overturned the earlier decision, and held that wiretapping was a form of “search and seizure” within the language of the Fourth Amendment to our Constitution. The Court indicated in that decision, and in other decisions rendered about that time, that a statutory authorization for wiretapping, providing for the rough equivalent of a warrant prior to the commencement of the tap, would be constitutional. Congress followed the Court's suggestion, and in the Omnibus Crime Act of 1968 authorized wiretapping under this sort of supervision.
There is no question that the vastly expanded use of electronic means of communication, and the vastly increased efficiency of the technology of interception and overhearing, have made wiretapping in its more general sense a more potent weapon for law enforcement personnel than it was forty or fifty years ago. But during this same forty or fifty years we in the United States have witnessed the burgeoning of what is loosely called “organized crime”, which has attached its tentacles to more than one legitimate business or industry in our country. It, too, has increased apace with and through the use of modern technology.
The present Administration of the Department of Justice in the United States is committed to the use of wiretapping under the safeguards prescribed by Congress, and under the administrative safeguard requiring each application for a warrant to be personally authorized by the Attorney General. The commitment is based in large part on the fact that an effective attack on organized crime cannot be mounted without wiretapping.
When we deal with the activities of organized crime, we deal with the most sordid sort of trafficking in drugs, prostitution, and gambling, as well as in illegitimate aberrations of legitimate business. Persistent efforts, not always unsuccessful, to corrupt local law enforcement officials; murder, committed by anonymous hired guns, are its trademarks. Normal detection techniques in the tradition of Sherlock Holmes, Hercule Poirot, and the long succession of Scotland Yard inspectors who have been immortalized in print, are of far less use here. The faceless killer never knew the victim, and may never have seen him before; the bagman is an easily replaceable hood at the lowest level of the organization. The heads of these syndicates perform no criminal act themselves ; they simply instruct others to perform them for him. Painstaking and imaginative sifting of readily available evidence, which may solve the murders envisioned by Arthur Conan Doyle and Agatha Christie will scarcely dent the upper echelons of organized crime.
Thus, the structure of crime in this area has changed just as dramatically as technology. If law enforcement methods do not somehow keep pace with these changes we must virtually write off the hope for making substantial inroads into this widespread and sinister form of criminal activity.
Is the invasion of privacy entailed by wiretapping too high a price to pay for a successful method of attacking this and similar types of crime? I think not, given the safeguards which attend its use in the United States. The Attorney General must report to Congress the total number of federal applications for wiretapping made each year, and the report he furnished indicated that last year the federal government sought 183 wiretap warrants. This is not a "pervasive" use of wiretapping, using that adjective in its narrowest possible sense. It is instead a restrained and careful use of that technique which has led to series of genuinely significant arrests and convictions in the field of organized crime in the past three years.
In the limited area of what are described for want of a better word as "national security” investigations-the executive branch in the United States for more than thirty years has asserted the right to wiretap without securing any Fourth Amendment type of warrant. This position has been taken through the Administrations of six successive Presidents of the United States, dating from Franklin D. Roosevelt, and it is the government's position that the practice is both consistent with the Fourth Amendment and necessary to the effective protection of the national security. The practice has recently been the subject of sharp and quite widespread criticism. The issue has been submitted to several federal district courts and one court of appeals, which have reached differing results. The Supreme Court has agreed to decide the issue in its next term, at which time the issue of the legality of the practice will be settled. Whatever may be the ultimate decision by our highest Court on the merits of the question, I believe that a refusal of the Justice Department, in its role as advocate before the courts for the executive branch of the government, to vigorously argue in favor of its legality would be a wholly unwarranted abdication of the Department's responsibility. Surveillance
To what extent may law enforcement officials properly observe members of the citizenry in public places? It has been suggested by at least one prominent figure in the privacy debate in our country that no suspect ought to be subject to such surveillance unless there is "probable cause” to believe that he is guilty of committing a crime. The imposition of such a standard, in my view, would be a virtually fatal blow to law enforcement.
At the outset of an investigation, law enforcement officers are confronted with the fact that a crime has been committed, and with varying numbers of "leads” which may or may not offer some hope for its ultimate solution. Every such lead must be run down if a solution is to be effected, even though the great majority of leads turn out to be dead ends. Frequently, in the process of running down dead-end leads, investigative attention turns to people who later prove to be entirely innocent of any offense. But their inno cence can be known only in retrospect; the ultimately productive lead may look no better than the unproductive ones at the time an investigation has begun. And it has been the position of this Department in that proceeding out there, which we will maintain so long as the Courts support us, that this is a power vested in the President of the United States to protect the foreign and internal security of this country, and we will try and sustain, and expect to sustain, the power of the President and this Government to act accordingly.
In view of the very nature of the investigative process, it would be highly unrealistic to require that there be "probable cause" to suspect an individual of having committed a crime in order that his activities may be inquired into in connection with the investigation of the crime. Quite the contrary, probable cause—for an arrest or specific search—is hopefully to be found at the conclusion of an investigation and ought not to be required as a justification for its commencement.
The basic limitation which may properly be placed on investigative authority is that it must be directed either to the solution or to the prevention of a crime, and that it pursue leads reasonably believed to aid in that activity.
In the United States we have recently had experience with the collection of what may be loosely called “civil-disturbance” information by Army intelligence sources, rather than by regular law enforcement officials. This program, begun about five years ago because of the same generally agreed need for a great deal more information about potential trouble spots in urban centers, tended to become broader and broader in scope as it filtered down the echelons of the Army command. Examples have recently been adduced of Army intelligence files kept on prominent public figures, and consisting largely of newspaper accounts of the statements made by these figures on current political issues. Whatever may have been the merits of the program in its inception, it rather clearly got out of hand. That program has been discontinued by the present Administration. The cataloging of the opinions of citizens, public or private, on the issues of the day is not a proper function of government in a free society. The collection of genuine civil disturbance information, to the limited extent necessary under federal law, has now been returned to the regular law enforcement branches of the government. Who Shall Regulate the Regulators ?
Many of those deeply concerned with privacy in our country feel that either by court decree or legislation the extent of law enforcement activities in the fields which I have discussed should be sharply curtailed. Implicit in their suggestion is that somehow the Executive Branch of the United States Government is not in any sense responsible to the public will and that controls must be imposed by any other branches on the Executive Branch. While our Executive is separate from the Legislative Branch, rather than directly responsible to it, it is surely ultimately responsible to the electorate of the Nation. The President stands for reelection every four years, and must at that timemas well as at frequent intervals in between-defend his stewardship of Executive power.
As to the merits of proposed legislative or judicial curtailment of the investigative authority of law enforcement agencies, I simply do not believe that a limitation on the investigative activities of law enforcement officials engaged in seeking the solution to crime would be either desirable or workable. If such a restriction were to have teeth in it, it would necessarily involve judicial review of an investigation, not at its end, but at its commencement. The opportunity for skillful defense lawyers to obtain information of great value to their clients, and to seriously delay a legitimate investigation, would be greatly enhanced by the availability of such a proceeding.
On the other hand restriction of the dissemination of information gathered in the process of criminal investigation is quite appropriate and desirable. Certainly the casual release of such information by law enforcement officials to persons outside the Government who have no legitimate need to have it is reprehensible. It is presently prohibited by regulation in the Department of Justice, and in many other law enforcement agencies. The embodiment of this sort of prohibition in a statute which was the result of a careful balancing of the competing interests would doubtless be entirely acceptable to those engaged in law enforcement.
I hope in my presentation this morning I have given you some idea about how the United States Department of Justice approaches the questions of surveillance and personal privacy, and the balance that must be struck between the two. It is quite possible to select from among countless government activities instances of clear abuse of the individual right of privacy, and to
draw from these relatively isolated examples the conclusion that we are reaching an age of social control similar to that depicted by George Orwell in his novel, 1984. Neither in the United States nor, I suspect, in this country, is 1984 nor anything like it upon us. The legitimate concern over privacy is not advanced by those who mount an unselective attack on the government in terms of a highly fictitious "dossier dictatorship”, or by those who speak in terms of the government's “pervasive” wiretapping. The statistics I cited earlier should put to rest such exaggerations. Intelligent discussion of this subject cannot but lead to the conclusion that neither government surveillance nor individual privacy can be treated as an absolute or paramount value at the expense of the other. We cannot allow our zeal for effective law enforcement to erode the rights essential to a free citizenry, but we must be equally certain that in our concern to preserve the right of privacy to the law abiding, we do not unwittingly assure anonymity for the criminal. One of the great virtues of the Anglo-Saxon legal tradition shared by Great Britain and the United States has been its ability by rational accommodation to preserve surprisingly large elements of each of two competing values. I do not doubt that it will prove capable of resolving the conflict of the seventies between law enforcement and privacy.
EXCERPTS FROM PRESS CONFERENCE OF JOHN N. MITCHELL, ATTORNEY GENERAL
Question. Mr. Attorney General, it's getting to the point where I wonder if the Justice Department can do something about the individual who thinks his line is tapped and doesn't known how to check this.
If the individual checks with the telephone company, he gets nowhere, and Senator Yarborough said the other day he felt sure his line was tapped and probably the lines of all the Senators.
Is there any place where an individual can go now in Government to have his rights protected and checked out?
Mr. MITCHELL. Certainly. He can go to the Justice Department. As far as Senator Yarborough's statement that you repeat, I am not aware cf it. I can tell you flatly, from the Justice Department's standpoint, and all the other agencies in the Government that are obligated to comply with Justice Department regulations, that it would be inconceivable for even a consideration of placing a telephone tap on any Members of Congress or anybody else in Government.
With respect to the individual citizen, unless they are involved in organized crime or in the process, or have committed a crime, they have no concerns whatsoever. We have used the powers that we have with respect to wire tapping very, very sparingly, and we expect to continue to do so. So that any citizen in this United States who is not involved in some illegal activity has no concern whatsoever.
Question. How many taps are now in, Mr. Attorney General? And bugging?
Mr. MITCHELL. There are fewer taps and bugging presently on than when I came into office.
Question. Can you give us a number?
Mr. MITCHELL. After reexamination of the situation that existed, it was determined by various agencies involved in the Department of Justice that they were not productive.
Question. What about the latest edict that the Department has the right to tap the phone to go into the telephones of anybody whom the Department considers dangerous to the security of the United States?
Mr. MITCHELL. Let me put it in this context: I presume you are referring to the papers that were filed in the Chicago case.
As you can well imagine, those electronic surveillances were placed on long before my coming into office. The purpose of those electronic surveillances was to protect the National security, both internal and foreign.
Question. Mr. Attorney General, your predecessor Ramsey Clark said that wire tapping was not productive. The Nixon Administration promised to make greater use of wire tapping. You say now you have reduced the number of wire taps.
Have you come around to Mr. Clark's way of thinking?
Mr. MITCHELL. Quite to the contrary. You see, this Administration has taken advantage of the provisions of the Safe Streets Act with respect to the use of wire tapping in the area of organized and other types of crime.
We have used it in that field and we find it very productive. In fact, the first wire tap that I used in connection with organized crime broke one of the largest narcotics cases we have had in this country in some time.
So it's a distinction between reducing its use in the foreign field, national security, and its implementation under the Safe Streets Act with respect to the crime area.
Question. When you say that you have reduced the number of taps, you are referring specifically to taps authorized by the Department of Justice regarding the foreign intelligence? That doesn't mean that overall wire tapping has been reduced ?
Mr. MITCHELL. No, I said that the total number of taps had been reduced, including both areas.
Question. Are there currently any wire taps or bugging devices being used against any civil rights leaders in the country at this time?
Mr. MITCHELL. I don't know what you describe as civil rights leaders, but I would say in the normal connotation of the term, the answer would be no.
Question. Do you have any requests from the Director of the FBI to do so at this time?
Mr. MITCHELL. Do I have a request from him to bug the lines of civil rights leaders? No.
Question. There is an important distinction between tapping and bugging, and you made it once in your preliminary remarks, but not in some other references.
When you said there was no wire tapping of Congressmen and Government officials, did you also mean bagging and related electronic surveillance devices? And when you spoke of a reduction in the number of taps, does that also apply to other electronic surveillance devices?
Mr. MITCHELL. I used electron surveillance throughout, or intended to. Obviously there is—there is no electronic surveillance of any Congressman or people in Government, and of course there is no investigation of them, or anything else.
This would be completely foreign to the activities of this Department.
REMARKS BY PRESIDENT NIXON AT THE ANNUAL CONVENTION OF THE
AMERICAN SOCIETY OF NEWSPAPER EDITORS, APRIL 16, 1971
SURVEILLANCE BY GOVERNMENT AGENCIES
Mr. RISHER. Mr. President, I would like to get back to Mr. Hoover and the FBI. Is there any credence to the complaints by some Congressmen, as far as you know, that they are under surveillance by the FBI?
The PRESIDENT. Well, Mr. Risher, let me answer that question in terms of what I know, because I checked this personally. I was in the House, I was in the Senate, and I am very jealous of the right of Senators and Congressmen, and every citizen actually, not to have surveillance when he is engaged in public activities. Particularly, I can assure you, that there is no question in