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In the same three-year period, the department added, the number of hidden microphones in use was never more than six at a time.
Turning to the annual figures, the department conceded the total of 113 devices—the 97 telephone wiretaps and 16 hidden microphones—about which it had told Kennedy.
It added that the total used between January and Oct. 15 of this year was 85-79 wiretapes and six microphones.
During that period, it said, there were never more than 43 wiretaps being used at a time.
As of Friday, the statement said, there were 32 wiretaps and four microphones in operation in national security cases.
The dispute between Kennedy and the department and the figures which each discussed are confined to national security eavesdropping because that is the only kind which the Nixon administration says it has power to conduct without court orders.
The Supreme Court is expected to rule next year on the administration's claim that the only approval needed is that of the attorney general acting on behalf of the president.
This authority, Atty. Gen. John N. Mitchell has said, applies to secret monitoring of “domestic subversives” who threaten the government as well as to foreign agents who threaten espionage.
Kennedy's letter was based primarily from the Justice Department March 1 in reply to inquiries about the scope of eavesdropping without court approval.
The senator's staff said he was releasing the data now rather than earlier because he had hoped to get a fuller explanation from the department about the details of national security surveillance.
Complaining in his letter about repeated comments by government officials about the limited number of national security surveillances, Kennedy said that the data given to him “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 years at a time.”
The data released by Kennedy showed there were 94 national security listening devices used in 1969, with 81 of them wiretaps and 13 hidden microphones.
Kennedy's staff analyzed additional data which the department had supplied but which was not released last night, and drew the conclusion that this showed the actual volume of eavesdropping done without court order “far exceeds” that done with court approval in nonsecurity cases.
This conclusion was based on still secret data about the duration which national security devices are left in operation.
For 1970, the staff data showed, national security devices were used between 3.4 and 9.6 times as long as nonsecurity devices were used.
Kennedy's letter cited this data and said it, too, contradicts the impression that national security surveillance is a strictly controlled activity of the government.
The Justice Department reply to Kennedy described as false the suggestion that there was more surveillance without court approval than there was with
It said that court-approved devices are limited to 30-day periods, while there are no limits on national security devices. The national security devices, the department said, are not used to gather criminal evidence as the court-approved devices are, but instead are used only to gather intelligence data.
The department noted that there were 180 court-authorized devices used in 1970, compared with 113 national security devices.
[From the Washington Post, December 19, 1971]
WIRETAP EXTENT DISPUTED
(By Ronald Kessler) Sen. Edward M. Kennedy has released a Justice Department letter which he says shows that the extent of government wiretapping and bugging in national security cases is "substantially greater” than the government has led the public to believe.
The letter, from Assistant Attorney General Robert C. Mardian, is the first government breakdown of taps and bugs in the national security field.
Calling Kennedy's statement "erroneous and misleading," the Justice Department late yesterday cited figures to show that the amount of government eavesdropping has decreased in the past 10 years.
Kennedy, however, had made no claim that the amount of tapping and bugging had gone up or down.
The Massachusetts Democrat charged that the number of bugs and taps listed in Mardian's letter conflicted with statements of administration officials.
Specifically, he said that the Mardian figures are about two to three times higher than the number of taps cited in recent statements by President Nixon and Solicitor General Erwin N. Griswold. Kennedy also said that the duration of the surveillances is three to nine times greater than the duration of those authorized by court order in criminal cases.
As chairman of the Senate Subcommiittee on Administrative Practice and Procedure, Kennedy requested the electronic surveillance breakdown last February. Mardian's response came March 1. Aides to Kennedy attributed the delay in releasing the letter to indecision on what to do with it.
National security eavesdropping is a constant object 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 courtapproved devices for the same year.
Mardian also revealed 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.
The disclosures do not contradict the wiretap statistics annually cited by 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.
But Kennedy said the Mardian figures "flatly" contradict statements on the subject by President Nixon and Solicitor General Griswold.
Last April, Kennedy wrote, 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 numberthe 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.”
Mr. 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 Justice Department countered yesterday that Kennedy's 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, the department noted, was 180 in 1970, compared with 113 national security devices.
Justice also pointed out that court-authorized eavesdropping is limited to 30 days' duration, while there is no limit on national security installations.
“To compare the two for the purpose of drawing inappropriate and preconceived conclusions does not serve the public interest,” Justice said.
[From the New York Times, December 19, 1971]
A GROSS INVASION
(By Tom Wicker) Prof. Herman Schwartz of the law faculty at the State University of New York in Buffalo is a busy man. He has been working nonstop this fall to protect the legal rights and in some cases the physical well-being of prisoners who were in revolt at Attica last September. He is also managing several suits by reporters for better access to prisons and prisoners, and now he has compiled the most complete figures available on the extent, cost and results of electronic surveillance in America. They are shocking.
These figures tend to support what opponents of tapping and bugging have long maintained—that eavesdropping costs too much money and represents too great an invasion of individual rights to be justified by the meager results obtained. And Mr. Schwartz is at pains to point out that even those results had virtually nothing to do with the kind of violence usually associated with "law and order."
Now Senator Edward M. Kennedy has release figures he obtained from the Justice Department showing that so-called “national security" eavesdropping without court orders is engaged in far more broadly than the Justice Department or the FBI had previously admitted.
The net effect of the Schwartz and Kennedy figures is to expose the shell game the Nixon Administration and other hard-nose types have been playing with the issue of wiretapping and bugging. By citing these procedures loudly in their law-and-order rhetoric, they leave the impression that eavesdropping helps in cracking down on those who mug and rape and murder; by careful selection of their own figures, they make eavesdropping seem less excessive and more effective than it is; and by citing only court-ordered eavesdrops, they canceal the extent to which they are tapping, without court orders, those they regard as subversives.
For instance, Mr. Schwartz points out that both J. Edgar Hoover and Attorney General John Mitchell said last spring that there were fewer than forty national security eavesdropping installations, a figure that compares well with the number of court-ordered surveillances in 1970, which was 180.
But the fewer-than-forty figures was for installations at any one time—not for a whole year. Mr. Schwartz checked and found out that on several days chosen at random there also were far fewer than forty court-ordered surveillances in nonsecurity cases, Senator Kennedy's figures showed 94 nationalsecurity surveillances in 1969 and 113 in 1970; but the Attorney General previously had published figures claiming, on the misleading at-any-one-time basis, that there had been a maximum of 49 national-security surveillances in 1969 and only 36 in 1970, so that such operations were in fact declining.
Again, when the public is told that there were only 302 court-ordered electronic surveillances in 1969, that does not sound like so many—particularly since only 271 operations actually were installed (these figures are for state and Federal eavesdropping). But it becomes quite a different picture when that means, as Mr. Schwartz shows that 31,436 people were overheard in 173,711 conversations. And when the smaller totals for 1968 and the greater totals for 1970 are added, it can be seen that in those three years alone, 61,400 people and 622,292 conversations were overhead not counting all those eavesdropped upon without a court order and for so-called "national security" purposes. And the trend is up.
What did all this have to do with crimes of violence? In 1970, Federal officers eavesdropped in not a single murder or kidnapping case, but rather on 119 gambling cases, 40 narcotics cases, 16 credit extortion cases, and a few miscellaneous cases. Most state eavesdropping also is aimed at gambling.
Besides, all that listening-in produced in 1970 only 613 arrests and 48 convictions from among the 10,260 people and 147,780 conversations overheard. The state snoops did a little better; they got 103 convictions, but then they listened in on half again as many conversations. Federal eavesdropping produced wo convictions for anything other than gambling.
None of this comes cheap, not at those conviction rates. In 1970, Federal and state surveillance was reported to have cost $3 million and the 1971 cost is projected at closer to $5-million, but these are gross under-estimates. Most importantly, they do not include the cost of “national security" tapping without court orders.
Nor do the official cost reports take any account at all of the vast amount of time lawyers, judges and investigators take to prepare applications, keep records and handle court challenges. Mr. Schwartz believes the actual cost of favesdropping may be "many times the 1970 figure of $3-million.” The lion's share of all that money is being spent to try to control gambling—which is not the kind of crime most of us thought Mr. Nixon had in mind during his 1968 campaign.
It all adds up to what Herman Schwartz calls "gross and widespread invasions of privacy" in order to get "a handful of convictions of gamblers, pushers and the like.” Surely, he suggests, "we have less pernicious ways to spend our scarce dollars.”
WIRETAPS AND NATIONAL SECURITY
(Alan M. Dershowitz) (Alan M. Dershowitz, professor of law at Harvard, is currently at the Center for
Advanced Study in the Behavioral Sciences at Stanford)
During its current term, the Supreme Court will be hearing argument on whether warrantless “national-security” wiretaps are constitutional. The phrase “national security” conjures up the image of spies, sabotage, and invasion, but a considerable number of such taps are conducted against domestic organizations or individuals who are suspected of activities deemed contrary to the national interest. It was recently lear for example, that such persons as Martin Luther King and Elijah Muhammad and such organizations as the Jewish Defense League and the Black Panther party have been the subject of extended national-security taps. These taps are authorized exclusively by the prosecutorial arm of the government–by the attorney general-without the need for a judicial warrant based on probable cause. How many nationalsecurity taps and “bugs” 1 are currently in operation, and against what sorts of persons, is a well-guarded secret, but bits of information that are slowly emerging raise some disturbing questions.
The case presenting the issue of the constitutionality of warrantless nationalsecurity taps involves “Pun” Plamondon, an alleged "White Panther standing trial for conspiracy to blow up a CIA office in Ann Arbor, Michigan. Plamondon's lawyer, William Kunstler, filed a pre-trial motion asking the government to disclose whether any of the defendant's conversations had been monitored. Motions of this kind are made rather routinely these days in socalled political cases, and—not infrequently—they strike paydirt, as Kunstler's motion did. It elicited an affidavit from the attorney general himself, acknowledging that “Plamondon has participated in conversations which were overheard by government agents,” and that no warrant had been obtained. But Mitchell vigorously asserted that the tap—which was on some unnamed person's phone, not on Plamondon's—was legal, since it was "employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the government.”
1 A "bug” is a monitoring device concealed anywhere and capable of picking up conversations as well as other sounds; a wiretap picks up only phone conversations. Some confusion has resulted from the fact that "bugs” are sometimes installed in the mechanism of a telephone. The government is fond of citing statistics purporting to demonstrate that the number of “national-security surveillances”-a phrase that includes both bugs and taps—has "significantly declined" over the past few years. These statistics are fallacious for two obvious reasons: 1) they include figures only on the number of warrantless taps, not bugs; and 2) they show a decline around the time the Supreme Court implicitly authorized the use of taps with a warrant. (Prior to that decision, all taps involving national security were warrantless, and were therefore included in the government statistics ; now warrants are secured for some of these taps, and only the warrantless ones are listed by the government.)
The lower court disagreed. It described the "sweep of the assertion of the Presidential power” to tap without a warrant as “both eloquent and breathtaking,” but it declined to "suspend an important principle of the Constitution." It held that “in dealing with the threat of domestic subversion,” the warrant requirement of the Fourth Amendment could not be dispensed with. (The lower court did not decide whether a warrantless tap could be authorized to protect the country from "attack, espionage or sabotage by foes or agents of a foreign power,” since the government had conceded that the Plamondon tap was not installed for any such “foreign intelligence" purpose.)? The court ordered the government to disclose to Plamondon the transcripts of each of his monitored conversations. If this ruling is upheld, Plamondon could be tried and convicted only if the government can prove that neither the indictment nor any of the trial evidence emanated from the tainted tap.
The issue thus presented for the Supreme Court to resolve is a fundamental one, going to the heart of the "separation of powers” on which our government is based. For the executive branch is asserting the power to dispense with an important judicial "check” on its action, namely the requirement that a judicial officer determine whether there is probable cause on which to issue a warrant. It is somewhat surprising that the Supreme Court has never decided-or even intimated how it would decide—whether national-security wiretaps constitute an exception to the warrant requirement, especially since the practice of warrant-less national-security taps is now more than thirty years old.
It was on May 21, 1940 that President Franklin Roosevelt sent to his attorney general the confidential memorandum that is regarded as the baptismal certificate of the national-security wiretap (though, significantly, the term “national security” was not used). Roosevelt began by expressing his agreement with an early Supreme Court decision that "under ordinary and normal circumstances wiretapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.” But these were not ordinary and normal times : America was preparing to enter the war; German and Japanese spy rings were operating on both coasts; and “certain other nations" had been engaged "in preparation or sabotage.” Concluding that the Supreme Court had never intended its prohibition on wiretapping to extend "to gave matters involving the defense of the nation," Roosevelt informed the FBI that they were “at liberty to secure information by listening devices direct[ed] to the conversations ... of persons suspected of subversive activities against the government ..., including suspected spies." * The President cautioned, however, that these investigations must be limited “to a minimum” and “insofar as possible to aliens."
But governments grow comfortable with special war powers, even when peace returns. And so, after the cessation of hostilities, Attorney General Tom Clark convinced President Truman that “the present troubled period in international affairs, accompanied as it is by an increase in subversive activity here at home,” requ a continuation of the "investigative measures” authorized by : Roosevelt. Nor was Clark content merely with retaining the status quo. Warn- . ing that "the country is threatened by a very substantial increase in crime"an exaggeration typically made by attorneys general requesting additional powers or appropriations—he “reluctantly” requested the President to approve the power to tap "in cases vitally affecting the domestic security" (for that high
2 The American Bar Association Project on Minimum Standards for Criminal Justice "considered and rejected (a proposal) which would have recognized a ...
power in the President not subject to prior judicial review to deal with purely domestic subver. sive groups.” Instead, it recognized a power limited to "foreign intelligence activities." Thus, it is precisely the power rejected by the ABA committeecertainly no radical organization—that the government is asserting in the Plamondon case. In its brief before the Supreme Court, the government argues that no real distinction can be drawn between foreign and domestic subversion (though in prior cases it had argued in favor of such a distinction). Moreover, if no distinction can be drawn between foreign and domestic subversion, it would seem to follow that warrants should be required in both cases. Finally, a real distinction can be drawn between foreign-intelligence gathering and domestic subversion.
3 The baptismal rather than the birth certificate, because it is acknowledged that J. Edgar Hoover was widely engaged in such wiretaps well before obtaining the President's formal authority to do so.
- Since the McCarthy era the word “subversive" has taken on an extremely broad meaning. At the time Roosevelt used it in his 1940 memorandum, it still retained it's somewhat narrower (though stili imprecise) dictionary meaning "intended to bring about the overthrow of the government by unlawful means.'