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Although the implication of the language of the report and of Title III was that this broad grant of authority was based on the President's constitutional prerogatives and was intended simply to meet a foreign threat, particularly foreign intelligence, the qualifying references to "internal security" and "other danger to the structure or existence of the Government" could be used to authorize surveillance of radical anti-war, Black Power, or socialistic groups. Seeking to quell fears of domestic surveillance, the bill's proponents contended that the authorization was tightly defined, that use of it would be restrained and consistent with constitutional and libertarian principles.

Indeed, the majority report of the Judiciary Committee abounds with reassuring phrases. With the exception of "duly authorized" law-enforcement officials inevstigating "specified type of crimes" pursuant to prior court order, wire tapping was prohibited. Indeed, one reason for the proposed legislation was the threat posed by scientific and technological developments in electronic surveillance. Authority for wire tapping was "carefully circumscribed." "[T]he Berger and Katz decisions [were used] as a guide in drafting Title III... [which] has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized."

The language of the Act contained the same assurances. This legislation was intended to prevent wire tapping "without legal sanction" and "to define on a uniform basis" the circumstances and conditions where it would be authorized. Electronic surveillance would be permitted only "when authorized by a court of competent jurisdiction" and would be limited to "certain major types of offenses and specific categories of crime with assurances that the interception is justified and that the information obtained thereby will not be misused." A thirty-day limit was imposed on each tap, although this authority was renewable. Exceptions to the obtainment of a court order were permitted for reasons of "national security" or where an "emergency situation" required immediate action. In the latter case, law-enforcement officials were allowed to tap for a forty-eight-hour period before being required to secure court appproval. Finally, a National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Eavesdropping was to be established and given responsibility to review the use and operation of the law. The commission was specifically directed to report its findings to the President and Congress.

During the Senate debate on the proposed bill, Sen. John McClellan (D., Ark.), the floor manager of the bill, also emphasized that the "first major purpose of the Title III is to protect privacy of communication." The bill, McClellan added, "has been carefully drafted to meet both the letter and spirit of the constitutional tests set out in Berger and Katz. Electronic surveillance is authorized but only under strict controls. Broadly, Title III creates a court order system of electronic surveillance. Approval may be given only under certain carefully detailed conditions. It clearly and narrowly assures that electronic surveillance is intended to be the exception, rather than the rule. It is envisaged that these techniques will be employed in only limited numbers and kinds of criminal investigations. On the federal level, the two chief areas are national security matters and organized crime. The specific offenses are designated in the statute. Finally, Title III sets out a series of detailed reporting requirements."

This rhetorical disparagement of unwarranted fears of "Big Brother" was continued after 1969 in public statements by the Nixon Administration and Senator McClellan. The use of wire tapping, both maintained, was restrained; the number of taps was numerically insignificant. In a June 19, 1969 press conference, moreover, President Nixon described his Administration's wire-tapping policy as being "that it should be used very sparingly, very carefully-having in mind the rights of those who might be involved-but very effectively to protect the internal and external security of the United States." A House Republican Task Force on Crime, Atty. Gen. John Mitchell, and Deputy Atty. Gen. Richard Kleindienst similarly emphasized the care to be exercised.

And, in a series of press releases, the Justice Department reported the number of court-approved wire taps in use as being 54, 31, 70, 33. These varying figures, however, referred only to court-approved wire taps which had been terminated and did not include "national security" taps. The release, and news

stories based on it, did not emphasize the distinction, and the low figures cited seemed to bespeak great caution and minimal use.

Senator McClellan and others in the Senate iterated this contention, while at the same time extolling the successes of Administration use of wire tapping. Disclosing that the Justice Department had reported using wire taps or electronic surveillance in 133 cases in the eighteen-month period since the Nixon Administration had assumed office, McClellan praised the effective use of this technique. He cited the number of indictments, arrests and convictions made possible by taps, and observed that Attorney General Mitchell had personally studied each request before authorizing application for court approval. The Justice Department, McClellan emphasized, had made a total of 137 court requests, only one of which had been denied, and had used the court authorization in every case but three. However, McClellan's analysis, like the Justice Department's press releases, failed to mention the extent of departmental usage in "national security" cases; nor did it discuss how the President and his Attorney General defined either the executive's "constitutional" powers or threats to the "structure or existence" of the government.

Accordingly, both the constitutionality and the extent of departmental use of wire tapping, outlined in the June 13, 1969 brief, require a determination of the nature of and legitimacy for the authority granted under the Omnibus Crime Control Act. The Act itself-in contrast with McClellan's assurances during Senate debate and the majority report's emphasis-does not define the limits to executive authority. The Act and the report virtually cede to the President unchecked latitude on "national security" grounds, clearly approving an extensive use, though qualifying this grant by references to "constitutional" powers or "reasonable" purposes. The opportunity of Congressional debate, since specific amendments were offered to Title III of the Senate bill (S. 917) and formal opposition was led by Sens. Philip Hart (D., Mich.) and Edward Long (D., Mo.), should have delineated what powers and latitude, what limits to executive authority, the Congress intended to convey by this legislative grant. Presumably, this debate would have made evident whether the June 13, 1969 brief was consistent with the 1968 Act and with the limitations the Congress recognized to the constitutional powers of the President.

In their minority report, Senators Long and Hart contended that Title III was "unconstitutional, as it provides for unreasonable searches and seizures." Hart maintained in addition that section 2511 (3)-"against any clear and present danger to the structure or existence of the Government"-left too much discretion to a President:

Under 2511 (3) a President on his own motion could declare a militant right wing group (i.e., the Minutemen) or left wing group (i.e., Black Nationalists), a national labor dispute, a concerted tax avoidance campaign, draft protesters, the Mafia, civil rights demonstrators, a "clear and present danger to the structure of the Government." Such a declaration would allow unlimited unsupervised bugging and tapping. As drafted

Section 2511 (3) gives the President a blank check to tap or bug without judicial supervision, when he finds, on his own motion, that an activity poses a "clear and present danger to the Government."

During Senate debate on Title III, Hart again raised the point. The language of the bill as drafted, he argued, failed to provide limits to executive authority or to delineate the basis for the national security exception. Hart's speech drew a response from Senators McClellan and Spessard Holland (D., Fla.) over the meaning of the bill's language. The issues raised in this extended debate, and the specific responses of McClellan and Holland to Hart's queries, because important for an understanding of Congressional intent, warrant extensive quotation.

Introducing the discussion on the meaning of section 2511 (3), Hart maintained that, as he read the language, the President would be authorized to declare that the Black, Muslims, Ku Klux Klan, draft dodgers, or civil rights advocates constituted a clear and present danger. Hart continued, "If that is the case, section 2511 (3) grants unlimited tapping and bugging authority to the President. And that means there will be bugging in areas that do not come within our traditional notion of national security." Hart then pressed McClellan as to whether this reading of section 2511 (3) was a fair one.

In reply, McClellan evasively stated, "This language is language that was approved and, in fact, drafted by the Administration, the Justice Department.

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 individuals 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 to 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.

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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 restrictions 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 in 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.

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