"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 that there really are no procedures to assure adherence in advance to the statutory standards."

is

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."

DATA CITED

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.

50 WIRETAPS

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.

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[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 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."

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.