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I have not challenged it. I was perfectly willing to recognize the power of the President in this area. If he felt there was an organization-whether black, white or mixed, whatever the name and under whatever auspices—that was plotting to overthrow the government, I would think we would want him to have the right.” McClellan further maintained that it was not necessary to define the President's powers and, moreover, that the language coincided with the “spirit of permitting the President to take such action as he deems necessary when the government is threatened.” (Emphasis added.)
As defined by McClellan, the bill permitted surveillance of groups or indi. viduals planning overt revolutionary acts; it presumably did not include radical politics as such. However, the distinction was not made explicit in the bill or in the majority report, being left the discretion of the President. Accordingly, Hart pursued this matter further, seeking to determine what McClellan understood the President's constitutional powers to be and what limits he recognized to Presidential action in the national security area. Hart asserted, “If, in fact, we are here saying that so long as the President thinks it is an activity that constitutes a clear and present danger to the structure and existence of the government, he can put a bug on without restraint, then clearly I think we are going too far.” Responding to this statement, Senator Holland deemed Hart "unduly concerned about this matter.” The section to which Hart referred did not "affirmatively” give any power to the President, but simply stated that Presidential power was not restricted. “There is nothing affirmative in the statement." McClellan concurred.
Conceding that the Congress could not extend Presidential powers, Hart nonetheless maintained that the language of the section as drafted did not define the limits of the President's national security power under present law. “As a result of this exchange,” he added, “I, am now sure no President, thinking that just because some political movement in this country is giving him fits, he could read this as an agreement from us that, by his own motion, he could put a tap on." There was not “a single indication that anything affirmative is being done,” Holland reiterated; but the Congress was not foolishly seeking to “negate” the constitutional powers of the President.
This exchange, combined with the unsuccessful efforts by Senators Hart and Long to secure Senatorial approval of amendments to clarify the language of the bill and to limit the national security exceptions of Title III to "foreign" threats, comprised the entire Senate discussion.
The Senate's failure to define the nature of the legislative grant was duplicated during House debate. S. 917, drafted by the Senate Judiciary Committee and approved by the Senate, differed appreciably from the earlier Houseapproved bill, H.R. 5037. Accordingly, Rep. Emanuel Celler, the liberal chairman of the House Judiciary Committee, sought to refer the bill to conference. His attempt was stymied by House conservatives who exploited "law and order” and the effect on the public of the recent assassination of Robert Kennedy. The House then proceeded to vote on a resolution approving the Senate bill, debate on which was stringently limited by the Rules Committee. The hastiness of House consideration of the Senate bill and the time limits established for debate prevented opponents from rallying opposition or from raising probing questions to define the meaning of the bill's provisions.
At best, then, House analysis was perfunctory and superficial. Critics of Title III expressed their opposition in general terms, objecting as much to the constitutionality and repressive character of the authority to wire tap in criminal cases as to section 2511 (3)'s broad grant of Presidential authority in national security cases and its possible use for political surveillance.
House debate, as reported in the Congressional Record, did, however, reveal Congressional ignorance and misunderstanding of what exactly had been approved. This came out sharply in explanatory comments by Reps. William Randall (D., Mo.) and Howard Pollock (R., Alaska). (Their errors are the more striking since neither Representative exercised the option provided by the House rule permitting a member to revise within forty-eight hours any comments he has made during floor debate.) Thus, Randall affirmed that Title III limited abuses by requiring court approval before wire tapping. “Only in the case of national security," Randall continued, “can wire taps be made without a court order. And even these are invalid if application for such order is not made within forty-eight hours after such surveillance is undertaken." Pollock made a similar error. Law-enforcement officers, he said, had to secure court approval except in certain "limited" cases where wire tapping was permitted for forty-eight hours “if it concerns national security or organized crime” which are of an "emergency” nature.
The lackadaisical nature of Congressional debate urgently raises important political and constitutional questions about Title III. Apart from the issue of whether wire tapping is an "unreasonable" search and seizure or a violation of First Amendments liberties is the question whether by this act the Congress unconstitutionally and irresponsibly delegated unwarranted authority to the executive. And, although the Supreme Court has for more than thirty years seen fit not to apply the Schechter decision, accepting instead broad delegations of power to the executive, the principle enunciated by Chief Justice Hughes in that case has bearing on the wire-tapping grant of the Omnibus Crime Control Act. Declaring the majority position of the Court, Hughes then affirmed:
Extraordinary conditions may call for extraordinary remedies. Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be in war and peace, but these powers of the national government are limited by constitutional grants. ...
The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is vested. We have repeatedly recognized the necessity of adapting legislation to complex situations involving a host of details with which the national legislature cannot deal directly. But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authoriy to delegae, if our constitutional system is to be maintained. ...
Section 3 [of the National Recovery Act of 1933) set up no standards, aside from the statement of the general aims. In view of the scope of that broad declaration, and of the nature of the few restrictions
that are imposed, the discretion of the President. is virtually unfettered. This constitutional argument of legislative responsibility, it can thus be argued, equally and pointedly applies to executive authority in "national security" areas where, with the resort to wire tapping, an additional constitutional question is involved. The cold war has had a profound effect on American politics, especially as it has contributed to extending Presidential authority. As a result, traditional Congressional restrictions on executive powers in the military-foreign policy areas have been reduced, and the Court has avoided confronting executive authority in the "national security" area. At the least, this development has as one basis the President's prerogatives as Commander in Chief and his right to appoint ambassadors, formulate treaties, and shape foreign policy. But the same constitutional justification does not equally prevail in the internal security area, where executive authority is less clear and constitutional est ctions specifically limit administration investigative and prosecutive activities.
These considerations do raise two issues. First, whether Title III of the Omnibus Crime Control Act of 1968 is an exercise of legislative responsibility and, second, whether the title provides an unwarranted and unwise grant of authority, particularly in view of the process by which its provisions were reviewed and Congressional intent established. The other issue concerns the relationship between the President and the Department of Justice—which, if viewed historically, would require that the Congress be more judicious when ceding almost unlimited wire-tapping authority to the executive.
[From the Providence Sunday Journal, December 19, 1971) KENNEDY, JUSTICE DEPARTMENT CLASH OVER WIRETAPS, “BUGS” EXTENT WASHINGTON.—The Justice Department and Sen. Edward M. Kennedy, D., Mass., clashed yesterday over the number of wiretaps and "bugs” the government uses on grounds of national security.
Kennedy released a Justice Department letter which he said shows that the extent of such wiretapping and bugging is "substantially greater” than the government had led the public to believe.
The Justice Department responded, hitting at Kennedy's "erroneous and misleading allegations.” The department statement said that there have never been more than 50 wiretaps in operation at any one time in the last three years, except for a few days in 1969 and in 1970.
The letter released by Kennedy was from assistant atty. gen. Robert C. Mardian and was the first government breakdown of wiretaps and bugs in the national security field.
The senator said the numbers are about two to three times higher than those cited in recent statement by President Nixon and Solicitor General Erwin N. Griswold and that the duration of the surveillances is three to nine times greater than those authorized by court order in criminal cases.
As chairman of the Senate subcommittee on administrative practice and procedure, Kennedy requested the electronic surveillance breakdown last February. Mardian's response came last March 1. Aides to Kennedy attributed the delay iu releasing the letter to indecision on what to do with it.
SUBJECT OF CONTROVERSY National security eavesdropping is a constant subject of controversy. The 1968 Omnibus Crime Act gave the government the authority to bug and tap in major criminal cases with court approval. The government has claimed the right to bug and tap without court order in national security matters. Whether such surveillance can be conducted legally on domestic groups as well as foreign nationals is a question currently being reviewed by the Supreme Court.
Wiretapping refers to interception of telephone conversations, while bugging is electronic eavesdropping on room conversations, usually with a microphone.
According to Mardian's letter the Justice Department operated 97 national security telephone surveillances and 16 national security microphone surveillances in 1970, or a total of 113 listening devices. This compares with 180 court-approved devices for the same year.
Mardian also disclosed that the maximum number of telephone taps in use at any given time during 1970 was 56; the maximum number of microphone bugs was six.
HOOVER NOT CONTRADICTED The disclosures do not contradict the wiretap statistics annually cited by the Federal Bureau of Investigation director, J. Edgar Hoover. Hoover carefully couches his language to apply only to the number of surveillances on a given day, a reporting method that an American Civil Liberties Union study released a week ago characterizes as "highly misleading."
But Kennedy said the Mardian figures flatly contradict statements on the subject by Nixon and Griswold.
Last April, Kennedy said, President Nixon told the annual convention of the American Society of Newspaper Editors : "Now, in the two years that we have been in office—now get this number—the total number of taps for national security purposes by the FBI, and I know because I look, not at the information, but at the decisions that are made—the total number of taps is less, has been less, than 50 a year.”
BRIEF IS CITED
Nixon compared this number with "only 300 taps” by the FBI through court orders over a two-year period, a transcript provided by Kennedy's office shows.
Justice department officials have said that only the FBI installs national security listening devices for the Justice Department.
Kennedy also cited a brief submitted by Griswold to the Supreme Court last September. It listed the number of national security telephone taps as 36 for 1970.
"The above figures are flatly contradicted by Mardian's March 1 letter to me, in which he reveals that a total of 97 warrantless national security telephone taps were operated in 1970-almost double the President's figure and almost triple the solicitor general's figure," Kennedy noted.
Neither Nixon nor Griswold referred to the number of microphone installations.
KENNEDY SAYS WIRETAP GAP EXISTS IN UNITED STATES
(By John Chadwick) WASHINGTON.-Sen. Edward M. Kennedy, D., Mass., said Saturday that government wiretapping and bugging in national security cases is substantially greater than President Nixon and other administration officials have led the public to believe.
This type of electronic surveillance is conducted without court-issued warrants, as contrasted with a requirement that court authorization be obtained for government eavesdropping to combat domestic crime.
Kennely said figures obtained from the Justice Department bear out his recent contention that "there has been three to nine times as much federal listening going on as a result of warrantless electronic surveillance as there has been on devices operated under judicial authorization."
He made public an exchange of correspondence with Assistant Atty. Gen. Robert C. Mardian, in charge of the department's Internal Security Division.
The Justice Department said Kennedy's allegations are "erroneous and misleading.”
In a statement, the department said: “Any assertion that the total amount of federal electronic eavesdropping without court permission far exceeds the eavesdropping with judicial approval is false. The number of court-authorized devices in 1970 was 180, compared to 113 national security devices installed.
"Court-authorized taps, which are used solely for gathering evidence for use in criminal prosecutions, are limited to 30 days duration. There is no such limit for national security taps, which are solely for the purpose of intelligence gathering. To compare the two for the purpose of drawing inappropriate and preconceived conclusions doesn't serve the public interest.”
The department said FBI records show there were never more than 50 wiretaps in operation at any one time in 1969, 1970 and 1971, except in two instances where authorizations overlapped for a matter of days. The microphone surveillance has never exceeded six at any one time in these years, it said.
Kennedy said figures supplied by Mardian contradict a statement by Nixon last April to the American Society of Newspaper Editors that the total number of taps for national-security purposes by the FBI has been fewer than 50 a year during his administration.
He said they contradict also a brief filed by the U.S. solicitor general in the Supreme Court saying that only 36 warrantless telephone survelilances were operated in 1970.
A letter he received from Mardian last March 1, Kennedy said, showed “that a total of 97 warrantless telephone taps were operated in 1970—almost double the President's figure, and almost triple the solicitor general's figure."
Kennedy said that in addition to the telephone taps, Mardian's letter showed there were 16 microphone installations used for bugging in 1970.
“Further," Kennedy said, “the repeated references by government officials to the limited number of warrantless devices ignore the far more significant question of the duration and total usage of these surveillances."
Mardian's March 1 letter listed 97 telephone surveillances without court order in 1970 and broke these down into four categories—those in operation less than a week, from a week to a month, from one to six months and more than six months.
Mardian requested that the number in each category be treated as confidential "since an examination of the breakdown might indicate a fixed number of permanent surveillances.”
In compliance with Mardian's request, Kennedy didn't disclose the number in each category. But from the figures his staff prepared a table showing a range from a minimum of 8,100 to a maximum of 22,600 days in which listening devices were in operation by executive order in 1970.
Kennedy said that for the two-year period of 1969-1970, the staff calculations showed that "warrantless devices accounted for an average of 78 to 209 days of listening per device, as compared with a 13-day per device average for those devices installed under court order."
Thus, he said, the information obtained from Mardian "poses the frightening possibility that the conversations of untold thousands of citizens of this country are being monitored on secret devices which no judge has authorized and which may remain in operation for months and perhaps for years at a time.”.
(From the New York Times, December 19, 1971)
WASHINGTON.-Senator Edward M. Kennedy said today that the Justice Department ordered 207 electronic surveillances in 1969 and 1970 under executive authority, nearly equal to the 210 approved by the Federal courts.
In a letter to his colleagues on the Judiciary Committee, the Massachusetts Democrat provided the most comprehensive public disclosure yet of the socalled "warrantless” surveillances and charged that the figures contradicted official statements.
“Further,” Mr. Kennedy said in his letter, “the repeated references by Gov : ernment officials to the limited number of warrantiess devices ignore the far more significant question of the duration and total usage of these surveillances.”
Using figures provided by the Justice Department, the Senator declared that “there were from 3.4 to 9.6 times as many days of Federal listening on warrantless devices as there were on devices installed under judicial authorization.”
Mr. Kennedy's assertion was based on Justice Department figures that showed that court-ordered devices in 1970 were in use a total of 2,363 days and executive-ordered devices a total og 6,100 to 22,600 days.
The specific duration of executive-ordered devices is not disclosed by the Justice Department. It supplies only a range of time—from one week to one, month, for example.
The disclosures will probably intensify the controversy over the legality and extent of executive surveillances, but they may also serve to demonstrate the limits of the Administration's wiretapping practices, which some have called widespread.
Thus, if the figures are complete, it could be argued that they reflect a low level of wiretapping over the two-year period—one of every million citizens.
As for the duration of the surveillances used without court authority, Government officials have said that relatively longer periods reflect the routine use of devices over extended periods of time on such places as foreign embassies.
The distinction between the two kinds of electronic survillances derives from a Supreme Court decision in 1967 that declared that the use of wiretaps was unconstitutional in certain instances.
Subsequently, Federal legislation was approved to enable the Government to employ electronic surveillance under court authority in criminal investigations, but left it to the courts to decide to what extent the Government could use wiretaps and other such devices without court approval in cases involving internal security.
This question is pending before the Supreme Court.
CHART ILLUSTRATES USE
The wiretapping statistics were provided by Mr. Kennedy in his role as chairman of the Subcommittee on Administrative Practice and Procedure. He obtained them from Robert C. Mardian, Assistant Attorney General for Internal Security, in a letter dated last March 1.
A chart compiled by the subcommittee staff shows that there were 30 courtordered devices used in 1969 and 180 in 1970. This compares with 94 executiveordered devices in 1969 and 113 in 1970.
Mr. Mardian pointed out in his letter to Senator Kennedy that the maximum number of devices in operation at any one time was 64 for the year 1969 and 62 for 1970.
Mr. Kennedy said that the duration figures "pose the frightening possibility that the conversations of untold thousands of citizens of this country are being monitored on secret devices which no judge has authorized and which may remain in operation for months and perhaps years at a time.”
He further charged that the figures "flatly contradict” public statements by the Administration.