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He declared that a brief filed this year with the Supreme Court by Solicitor General Erwin N. Griswold said that only 36 warrantless telephone surveillances were operated in 1970. He also pointed to a statement on April 16, 1971, by President Nixon that “the total number of taps is less, has been less, than 50 a year.”
A member of Mr. Kennedy's subcommittee staff said that Mr. Griswold's figure was apparently drawn from Congressional testimony by J. Edgar Hoover, director of the Federal Bureau of Investigation, in February 1970. The figure apparently refers to the number of devices in operation at the time.
Mr. Nixon's figure is also believed to refer to the number of devices in use at the time of his statement.
Mr. Kennedy said the letter from Mr. Mardian suggested "an absence of well-defined procedures" to promote compliance with the statutes under which executive-ordered surveillance is conducted.
Thus, he said, he found it “shocking” that the department did not maintain a breakdown of executive-ordered surveillances under the five categories authorized by law.
[From the Baltimore Sun, December 19, 1971) KENNEDY CASTS DOUBTS ON NIXON'S WIRETAP FIGURES WASHINGTON–Senator Edward M. Kennedy (D., Mass.) said yesterday 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.
Mr. Kennedy 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 Robert C. Mardian, an assistant attorney general, in charge of the department's Internal Security Division.
The Justice Department said Mr. Kennedy's allegations were "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 duratoin. 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 does not serye the public interest."
The department said FBI records show that 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.
Mr. Kennedy said figures supplied by Mr. Mardian contradict a statement by Mr. 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 the figures contradict also a brief filed by the U.S. solicitor general in the Supreme Court saying that only 36 warrantless telephone surveillances were operated in 1970.
A letter he received from Mr. Mardian last March 1, Mr. Kennedy said, showed "that a total of 97 warrantless telephones taps were operated in 1970 --almost double the President's figure, and almost triple the solicitor general's figure.”
Mr. Kennedy said that, in addition to the telephone taps, Mr. Mardian's letter showed there were 16 microphone installations used for bugging in 1970.
"Further," Mr. 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."
Mr. 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.
Mr. 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 Mr. Mardian's request, Mr. Kennedy did not disclose the number in each category. But from the figures his staff prepared a table showa 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.
Mr. Kennedy said that over the two-year period of 1969 through 1970, the staff calculations showed that “warrantless devices accounted for an average of 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 Mr. 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.”
Staff aides of Mr. Kennedy, chairman of a Senate Judiciary Committee's subcommittee on administrative practices and procedures, said, in response to newsmen's questions, that some of the national security taps, as in the case possibly of foreign embassies, might be virtually permanent installations.
The said also, as did Mr. Kennedy, that they did not know how many of them involved foreign-intelligence operations as distinguished from domestic disidents.
Mr. Kennedy, in a letter to his colleagues on the subcommittee, said that if 95 per cent of installations were solely for obtaining foreign-intelligence information from aliens and only 5 per cent for surveillance of domestic dissidents regarded by the attorney general as a threat to the national security, the meaning would be quite different than if the figures were reversed.
[From the Boston Globe, December 19, 1971)
WIRETAP FIGURES DISPUTED
(By S. J. Micciche)
WASHINGTON.-President Nixon was only half right in telling the nation that the number of internal security wiretaps installed by his Administration without a court order is less than 50 a year, US Sen. Edward M. Kennedy reported.
That figure, said Kennedy, is "flatly contradicted" by none other than Asst. Atty. Gen. Robert C. Mardian, in charge of the Justice Department's Internal Security Division.
Moreover, the Massachusetts senator said that his correspondence with Mardian over several months is at even greater odds with the figure of 36 wiretaps in operation in 1970 cited by US Solicitor General Erwin N. Griswold in the government's brief with the US Supreme Court on a pending constitutional test of electronic surveillance.
Mardian informed Kennedy that during 1970 Atty. Gen. John N. Mitchell, acting for the President, had installed 97 telephone taps and 16 microphonic taps without court approval in internal security areas.
Kennedy, as chairman of the Senate Subcommittee on Administrative Practices and Procedures, had demanded from the Justice Department a breakdown in the number of taps, their days in use, and their category in terms of foreign intelligence information or the surveillance of domestic dissidence.
In more than just arithmetic discrepancy, Kennedy said the response by Mardian indicated a seeming inconsistence with State Departmental policy.
In refusing Kennedy a breakdown in the number of wiretaps for foreign or domestic security reasons, Mardian first reported that "no such categorization exists."
When later pressed by Kennedy, Mardian responded that the Justice Department “has never attempted such a categorization."
Mardian's replies in this regard, said Kennedy, are "absolutely shocking.”
In his report to other members of the Senate subcommittee, Kennedy noted that in government briefs with the Supreme Court the Justice Department has maintained that the discretionary wiretaps by Mitchell were installed within the "statutory categories” permitted under the Safe Streets Act of 1968.
From Mardian's reply, Kennedy said, the "fairly explicit admission is that there really are no procedures to assure adherence in advance to the statutory standards."
Instead, Kennedy said it is the “lone judgment of the Attorney General based on each separate submission to him by the (FBI) investigators who wish to do the surveilling” that determines the wire-tap and it is done “without specific focus on the statutory criteria."
Kennedy indicated to his subcommittee, colleagues that he might launch hearings into the Justice Department's use of wiretaps to determine the extent of its compliance with the congressional mandate.
Under the Federal statute, court orders are not required in the area of internal security.
Of the five categories “of danger to the nation” listed by Congress as the standard to permit wiretaps without court authorization, three concern foreign intelligence and two are directed toward domestic subversion.
From his correspondence with Mardian, Kennedy has concluded that the extent of Federal "bugging” without court authority "is substantially greater than the Executive Branch has led the public to believe."
[From the Evening Star, December 19, 1971)
How Much EAVESDROPPING?
(By Lyle Denniston) The Nixon administration last year used twice as many secret eavesdropping devices without court approval as the number previously disclosed, Sen. Edward M. Kennedy, D-Mass., charged yesterday.
In reply, the Justice Department accused Kennedy of making "erroneous and misleading” conclusions, and insisted that the use of wirtaps and hidden microphones has declined sharply.
The dispute broke out as Kennedy made public a letter he had written to members of a Senate Judiciary subcommittee which he heads, saying national security eavesdropping is “apparently far more pervasive than any of us had ever realized."
The department, commenting on the letter, said the senator was "drawing inappropriate and preconceived conclusions" which it said “do not serve the public interest."
Citing data he had received from the Justice Department, Kennedy said 97 telephones wiretaps and 16 hidden microphones were installed without court approval in national security cases in 1970.
This “flatly contradicted” a public statement by President Nixon last April that the number was “less than 50 a year,” the senator said.
He also said the data was far different than that Solicitor General Erwin M. Griswold had given the Supreme Court in September. Griswold said there were only 36 wiretaps used in 1970, and he made no mention of hidden microphones.
The Justice Department, in its reply to Kennedy, said its policy had been to reduce both the number of listening devices in place at any one time and the total number in use throughout a full year.
The official statement emphasized the number of devices in use at any given time, rather than the year total.
In 1969, 1970, and 1971, the statement said, no more than 50 wiretaps were operating at any time except twice, once in 1969 and once in 1970, where there were more than 50 over a period of days.