During committee hearings in 1953, no effort was made to define the term "national security" with any precision. The language of one of the proposed bills, that of Congressman Celler, delineated national security as encompassing "treason, sabotage, espionage, sedition, sedition conspiracy, violation of the neutrality laws, violation of the Act of requiring the registration of agents of foreign principals . violation of the Act requiring the registration of organizations carrying on certain activities within the United States. . . [and] violation of the Atomic Energy Act of 1946. . 1978 Neither these bills nor the terms under reference clearly defined or delineated what constituted subversive or "certain" activities. Nor did the committee in its hearings or report secure a clear, defined limit. A broad standard was implicitly accepted-tacitly the Department of Justice would be accorded considerable leeway in surveillance of actions or activities that affected the "national security." The language used in 1954 to define "national security"-"treason, sabotage, espionage, sedition, conspiracy, violation of Chapter 115 of Title 18 of the United States Code, violation of the Internal Security Act of 1950 .. violations of the Atomic Energy Act of 1948. and conspiracies involving any of the foregoing," 79 repeated this process. With the exception of Congressman Keating's 1958 bill,80 the same language was used throughout the latter 1950's when similar bills were introduced.81 Despite the changed rationale and focus these various legislative efforts failed. Congress did not enact specific wiretapping legislation although the momentum for passage had increased and a reluctance to prohibit the use of wiretapping on alleged "national security" grounds had emerged. With the advent of the 1960's a change in emphasis, although not in rationale, took place. As an omen of this change Congressman Celler's 1959 bill included a clause which would have authorized wiretapping in kidnapping cases.82 As a result of the investigative disclosures of the Kefauver 83 and McClellan 84 Committees, the primary concern shifted from "national security" to organized crime. Bills introduced in 1961 and 1962 retained the definition of "national security" as "any offense punishable by death or imprisonment for more than one year under chapter 37, 105, or 115 of title 18 of United States Code, Sections 224-227 inclusive of the Atomic Energy Act of 1954 . . amended, or conspiracy to commit any such offense." 85 But to this was added authorization to wiretap for any offense involving murder, kidnapping or extortion under title 18 of the United States Code any offense under sections 201, 202, 1084, or 1952 of title 18 of the United States Code any offense under any law of the United States involving the manufacturing of, importation, receiving, concealment, buying, selling or otherwise dealing in narcotic drugs, marihuana or any conspiracy to commit any of the foregoing offenses. 86 as During the period of the late 1950's and early 1960's use of illegal electronic eavesdropping by the executive branch continued. In 1959 Attorney General William P. Robers told the Senate committee investigating the use of wiretapping that the FBI had 74 telephone taps all of which were for "national secu 78 Hearings on Wiretapping for National Security Before Subcomm. No. 3 of the House Comm. on the Judiciary, 83d Cong., 1st Sess. 1 (1953). Similar definitions were established in other bills considered by the Committee. Id. at 2-4. The most general of these bills simply refered to but never defined. "national security." Id. at 4. 79 Hearings pursuant to S. Res. 62 on Wiretapping, Eavesdropping, and the Bill of Rights Before the Subcomm. on Contstitutional Rights of the Senate Comm. on the Judiciary, 86th Cong., 1st Sess., pt. 3, at 1014 (1959). 80 Id. at 1021. 81 Congressman Celler's 1959 bill defined "national security" as: one or more of the crimes punishable under Chapter 7 (dealing with espionage), Chapter 105 (dealing with sabotage), or Chapter 115 (dealing with treason, sedition, and subversive activities) of this title, or section 10 of the Atomic Energy Act of 1946. ... as amended, or a conspiracy to commit any such crimes. Id. at 1027. 82 Id. 83 See S. Rep. No. 307, 82d Cong., 1st Sess. (1951). 84 See Hearings Before the Senate Select Comm. on Improper Activities in the Labor or Management Field, 85th Cong., 1st & 2d Sess. (1957-58); id., 86th Cong., 1st Sess. (1959). 85 Hearings on S. 2813 & S. 1495 Before the Senate Comm. on the Judiciary, 87th Cong.. 2d Sess. 2 (1962). 86 Id. at 3. rity" cases. 87 At the 1961 Senate committee hearings Assistant Attorney General Miller testified that the FBI had 85 wiretaps at that time, all authorized on "national security" grounds.88 Hearings in 1965 disclosed widespread use of wiretapping and electronic eavesdropping by many federal agencies especially by the Internal Revenue Service.89 As a result the Justice Department was forced to admit in more than thirty cases that some of the evidence was possibly tainted resulting from illegal wiretapping or electronic eavesdropping.90 Among these were Schipani v. United States 91 and Black v. United States 92 In a 1966 memorandum to the Supreme Court in the Black case, then Solicitor General Thurgood Marshall wrote: [U]nder departmental practice in effect for a period of years prior to 1963 and continuing into 1965 the director of the Federal Bureau of Investigation was given authority to approve the installation of devices such as that in question for intelligence (and not evidentiary) purposes when required in the interest of internal security or national safety including organized crime, kidnapping and matters wherein human life be at stake. Acting on the basis of the aforementioned departmental authorizations the director approved installation of the device involved in the instant case.93 Thus, the "national security" exception was expanded to include organized crime cases in practice if not in theory. In 1967 another bill 94 was introduced in the Congress and further hearings were held.95 This bill prohibited the interception or the divulgence of any wire communication or th use of electronic eavesdropping devices sold in interstate commerce. The "national security" exception was continued, but in different language: [Nlothing contained in this chapter or in section 605 of the CommunicationsAct of 1934 . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power or any other serious threat to the security to the United States or to protect national security information against foreign intelligence activity.96 During the hearings Attorney General Ramsey Clark admitted that the Department of Justice presently had approximately 38 wiretaps "in cases directly affecting the national security." 97 He said: "[t]here is no other wiretapping or other electronic surveillance engaged in by the Department of Justice." 98 He also specifically refused to interpret the language "any other serious threat to the security of the United States" as including organized crime cases.99 This legislation also made no progress in Congress. 87 Hearings pursuant to S. Res. 62 on Wiretapping, Eavesdropping, and the Bill of Rights Before The Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 86th Cong., 1st Sess., pt. 5, at 1481-82 (1959). 88 Hearings on S. 1086 on Wiretapping and Eavesdropping Legislation Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 87th Cong., 1st Sess. 363 (1961). Se Hearings pursuant to S. Res. 39 on Invasions of Privacy (Government Agencies) Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 89th Cong., 1st Sess. (1965). 90 N.Y. Times, Jan. 30, 1968, at 24, col. 1. The indications from Justice Department Sources were that as a result of the Supreme Court's action in Kolod v. United States. 390 U.S. 136 (1968) (per curiam), about twice as many more such instances would be revealed. The Court in that decision rejected the Justice Department's position: that the department would first decide whether the eavesdropping was arguably relevant to any of the evidence for the prosecution. The Court held that this determination must be made by the district court after full disclosure by the government. 91 385 U.S. 372 (1966). 92 385 U.S. 26 (1966). 93 Supplemental Memorandum for the United States to the U.S. Supreme Court in Hearings on S. 928 on Right of Privacy Act of 1967 Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess., pt. 1, at 34 (1967). 4 S. 928, 90th Cong., 1st Sess. (1967). 95 Hearings on S. 928 Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess. (1967). 96 Id., pt. 1, at 3. 97 Id. at 56. 08 Id. 99 In answer to a question by Senator Long as to whether, under the Attorney General's interpretation, the language "any other serious threat to the security of the United States' could be extended to organized crime cases and other similar criminal cases, the Attorney General answered: "We are speaking only of matters that directly effect the national security and are a threat to the Nation. This bill would, therefore. prohibit use of wiretapping for investigation of gambling, numbers, prostitution and such things as that." Id. at 51. From this historical review, a somewhat circular pattern in the development of the legislative proposals becomes apparent. The first, and only successful, proposal was the blanket prohibition of section 605 of the Federal Communications Act of 1934. The next attempts were in terms of an undefined "national security" exception. Then followed statutes which were more specific being written in terms of violation of federal statutes-first "national security" statutes and later certain criminal statutes and conspiracy to commit violations of these statutes. Finally, there is the present proposal again involving a more or less undefinable "national security" exception. III A PROPOSAL This historical review demonstrates the ease of administrative extensions in the face of the present blanket prohibition. Our conclusion is that there is a need for specific legislation which incorporates into its definitions specified violations and conspiracies to commit those violations. In spite of the Attorney General's reassurance, the authors remain concerned that subsequent administrations could extend the language, "any other serious threat to the security of the United States," to situations involving internal rather than external threats such internal threats as organized crime, the black power movement 100 and the peace movement. We believe that wiretapping and other electronic eavesdropping are extreme police techniques and should be permitted only within strictly limited situations. Since there seems to be universal acceptance of the "national security" exception, we believe that it should be limited to threats mounted from a foreign source. Thus, in our proposed authorization for national security investigations we have included only those specific sections dealing directly with crimes involving foreign governments and have excluded any sections that in any conceivable way might be used to justify eavesdropping against internal political organizations. Because of the great national concern with organized crime we propose an optional exception of an experimental nature authorizing wiretapping and electronic eavesdropping in certain cases of organized crime. An attempt has been made to limit the authorization to crimes committed primarily by organized syndicates, with the full knowledge that organized crime is involved in many other kinds of activities, 101 because we believe that the need of the police for extraordinary methods to combat unorganized crime has not been demonstrated to sufficiently outweigh the constitutional objections to electronic eavesdropping. Finally, in order to comport with the constitutional procedural requirements for eavesdropping warrants, 102 and in line with the Katz case for the organized crime section, and in spite of its ambiguity on national security, 103 we require a procedural protection of approval by the Attorney General and the issuance of a wiretap or eavesdropping warrant by an impartial federal magistrate. We therefore submit the following amendment to the 1967 bill. Substitute Section 2514A, National Security. Subject to the provisions of Section 2514C, authorization may be issued for the use of wire interception and eavesdripping devices in cases involving violations of United States Code, title 18, chapter 37 (espionage), sec 100 Militant black power leaders are certain that their phones are tapped by the F.B.I. See, e.g., Malcolm X, Autobiography 257 (1965); Wills, The Second Civil War, Esquire. March 1968, at 144. These beliefs are supported by the Justice Department's recent implicit disclosure that it had extensively bugged and tapped the W.E. DuBois Clubs. N.Y. Times, March 20, 1968, at 18, col. 4. 101 The 1965 Presidential Commission described the activities of organized crime: The core of organized crime activity is the supplying of illegal goods and services— gambling, loan sharking, narcotics, and other forms of vice-to countless numbers of citizen customers. But organized crime is also extensively and deeply involved in legitimate business and in labor unions. Here it employs illegitimate methods-monopolization, terrorism. extortion, tax evasion to drive out or control lawful ownership and leadership and to exact illegal profits from the public. And to carry on its many activities secure from governmental interference, organized crime corrupts public oficials. President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 187 (1967). See also Hundley. The Nature of Interstate Organized Crime and Problems in Law Enforcement, 39 Notre Dame Law. 627 (1963). 102 See p. 750 supra. 103 Katz v. United States, 389 IJ.S. 347, 358, n.23 (1967). tions 792, 793, 794, 795, 796, or 797; or chapter 105 (sabotage), sections 2153, 2154, 2155, or 2156; or chapter 115 (treason and sedition), sections 2381, 2382, 2383, 2384, 2388, 2389, or 2390; or conspiracy to commit any of the above except section 2384. Section 2514B, Organized Crime. (a) Subject to the provisions of section 2514C, authorization may be issued for the use of wire interception and eavesdropping devices in cases involving violation of United States Code, title 18, sections 201 (bribery), 224 (sports bribery), 1084 (transmission of gambling information), or 1953 (racketeering); or any offense involving bankruptcy fraud or the importation of narcotics, or any conspiracy to commit any of the above. (b) This section shall terminate automatically after five years after the passage of this act. Section 2514C, Judicial Order. (a) Every application for judicial authorization of the use of wire interception and eavesdropping devices shall contain: (1) a statement of approval of the application by the Attorney General of the United States; (2) a full and complete statement of the facts and circumstances relied upon by the applicant; (3) a showing of special need for the authorization; and (4) a complete statement of facts concerning all previous applications made for authorization under this statute involving the same communication facilities or places, or involving any person named in the application for having committed, or committing the same offense. (b) A federal judge may issue an appropriate warrant if: (1) he has probable cause to believe that an offense specified in section 2514A or 2514B has been, is being, or is about to be, committed at the place at which the eavesdropping device is to be used or the conversation is to be intercepted by wire; 104 and (2) he believes that there is a special need to authorize the interception. (c) Every order authorizing the use of wire interception or eavesdropping devices shall specify: (1) the findings of the judge pursuant to subsection (b) of this section; (2) the nature and location of the communications facilities as to which, or the place where, leave to intercept is granted; (3) a specific description of the conversation (s) to be intercepted and the persons under surveillance; (4) the offense about which information is to be sought; (5) the period of time for which such interception is authorized; and (6) the date and place at which the warrant is to be returned and the report of the results is to be made. (d) No extensions of any warrant issued hereunder may be granted without complete review according to subsection (b). ADDENDUM After this article was written Congress passed and the President signed the Omnibus Crime Control and Safe Streets Act of 1968.105 This Act permits judicial authorization of electronic surveillance by federal, state and local authorities in a variety of situations. It contains a two part authorization of electronic eavesdropping in "national security" cases. Under section 2511 (3) the President retains his "constitutional power" to take necessary action to prevent "actual or potential attack or other hostile acts" by a foreign power, and "to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government." Under section 2516(1)(a) specific violations of comprehensive chapters of the United States Code are 104 The usual problem of defining probable cause remains. The authors believe that this problem is best resolved on a case by case basis. A standard definition is that of Mr. Justice Douglas: "probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed." Henry v. United States, 361 U.S. 98, 102 (1959). See also Draper v. United States, 358 U.S. 307 (1959); Carroll v. United States, 267 U.S. 132 (1925). Perhaps under the unusual circumstances of the cases which will be candidates for the use of electronic eavesdropping, it might be necessary to adopt a standard more akin to that of "reasonable suspicion" which has been used in stop and frisk legislation. Cf. 74 Yale L.J. 942. 952 (1965). The stop and frisk type of approach has also been adopted in allowing a warrant to issue for crimes "about to be committed" in order to permit some degree of flexibility in the use of electronic eavesdropping devices. 105 Pub. L. No. 90-351 (June 19, 1968). enumerated as cases in which electronic eavesdropping may be authorized. This subsection, and the other parts of the section which attempt to deal with organized crime on both state and federal levels, is similar to the proposal of the President's Commission on Law Enforcement and Administration of Justice although it is somewhat broader and includes, under the "national security" exception, chapter 102 relating to riots. In addition, under the judicial procedure for the issuance of warrants established by section 2518, unauthorized electronic surveillance may proceed for a forty-eight hour period in "emergency situations." The authors believe that all these sections are overly broad, far exceeding what is both necessary and proper to combat espionage and organized crime. We are deeply concerned that the prime target of the "national security" provisions will be internal political organizations-presently the peace and black power movements. The sections attempting to deal with organized crime include several crimes which, while also committed by the Cosa Nostra, are predominantly committed by unorganized criminal elements. Finally, we have grave doubts about the necessity for and constitutionality of the "emergency situation" authorization of section 2518 (7).106 INVESTIGATING THE FBI-A TOUGH, FAIR LOOK AT THE POWERFUL ELECTRONIC SURVEILLANCE (By Victor Navasky and Nathan Lewin) I: The Omnibus Crime Act It is ironic that Ramsey Clark, the first Attorney General in more than thirty years who did not ask Congress to legalize wiretapping, was presented with the Omnibus Crime Control and Safe Streets Act of 1968, which legalized both wiretaps and bugs. The argument of his predecessor Attorneys General was, in part, that since the FBI already engaged in wiretapping at the margins of the law (especially in the national security area), it would be better if such tapping were brought under explicit statutory control. So Title III of the 1968 act, with few exceptions, authorizes wiretaps and eavesdrops only on judicial warrant and with specified inventory and reporting conditions. Attorney General Clark, who opposed electronic surveillance on principle and also believed it an inefficient law-enforcement instrument, declined to act under the provisions of the new law, but his successor, John Mitchell, enthusiastically moved to implement the new tapping and bugging authority. One year's experience under the act is analyzed below. Here it is sufficient to note that despite the so-called legalization of tapping and bugging, the Nixon administration's actions are as dangerous and disingenuous as those of any preceding administration in this dark corner of law enforcement. In April, 1971, 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." But one month earlier, Assistant Attorney General Mardian wrote the Chairman of the Administrative Practices Subcommittee of the U. S. Senate that a total of ninety-seven warrantless telephone taps were operated in 1970-almost double the President's figure and almost triple the figure the Solicitor General mentioned in a brief filed with the U. S. Supreme Court in September, 1970, when he said only thirty-six warrantless telephone surveillances were operated in 1970. Moreover, as Senator Edward Kennedy has observed, "the repeated references by Government officials to the limited number of warrentless devices ignore the far more significant question of the duration and total usage of these devices. I am extremely concerned by the fact that in 1970 there were from 3.4 to 9.6 times as many days of federal listening on warrantless devices as there were devices installed under judicial authorization." 106 See pp. 754-55 supra. |