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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.
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 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, 10
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
102 See p. 750 supra.
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).
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 helieving 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 eavesdropning, it might be necessary to adopt a standard more akin to that of "reason. able 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 pa vesdropping 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
BUREAU; ITS PRESENT AND ITS FUTURE
(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.
As the Chairman concluded in a letter to the members of the Administrative Practices Subcommittee, contrary to recurring claims, by "informed sources” that federal electronic surveillance is shrinking, a study of correspondence with the U. S. Department of Justice and related public materials suggest that:
1. The number of federal wiretapping and bugging devices installed without court authorization is substantially greater than the executive branch has led the public to believe.
2. The average duration of such devices is many times longer than the average duration of court-approved devices.
3. As a result, the total amount of federal electronic eavesdropping without court permission far exceeds the eavesdropping with judicial approval.
4. There is strong reason to doubt the validity of the repeated public assurances by the Justice Department that it fully complies with the 1968 congressional standards before installing any tap or bug without a court order.
5. Despite the department's assertions to the contrary, there is an absence of well-defined procedures which would promote compliance with the statutory standards and permit meaningful congressional scrutiny of this extraordinary executive activity.
When J. Edgar Hoover appeared before Congressman Rooney's subcommittee in 1970 and 1971, he also testified to the number and type of electronic surveillances then' maintained by the FBI. He had been doing the same thing for many years, but these were the first two years that the activity was supposed to be regulated by a specific federal law. Examination of his testimony also suggests that the safeguards of the new law are not enough.
Hoover's testimony implied that the total number of wiretaps and bugs was small and carefully limited—thirty-six and thirty-three in the national security field at the time of each respective appearance, and four and fourteen in the organized crime field. (Mr. Hoover was accused of turning off taps the day before he testified-and denied the accusation. But it would be consistent with the FBI's fetish for statistics for him to have chosen the date of his testimony with an eye to reduced tap figures.) Beyond that, there are three reasons why it is difficult to take Hoover's testimony (and other official estimates) at face value.
For one thing, the figures do not reflect the FBI's access to non-federal wiretaps and bugs. But as one recently retired Justice Department official told us, not only do agents have access to state and local electronic eavesdropping, but: “When I was there agents routinely inspired bugs and taps by others. They'd go to state and local police agencies and say, look, do us a favor. The local guys would get the information and there'd be nothing in the FBI files to indicate where it came from. It's a loophole, like the tax laws. They's use the loophole.”
In 1970, in addition to the national security surveillance referred to in H00ver's testimony, the federal government got court warrants for 180 electronic surveillances and state and non-federal officials got warrants for 403.
Second, Mr. Hoover's testimony itself is incomplete even for the internal security area he purports to cover.
Since his 1968 testimony before Rooney's subcommittee (in support of the 1968 budget), Mr. Hoover framed his reports in terms of the number of wiretaps "in Bureau cases.” This leaves open the possibility (indeed informed sources within the department indicate it is a fact) that although he has neglected to mention it to Congress, Mr. Hoover is not referring to all of the taps in which the Bureau is involved. (1) He may be omitting the long-term embassy taps which were put on in the first place—some as long ago as during World War II-not at the instigation of the FBI, but of other agencies, such as the State Department, but which the FBI services. (2) He is omitting all of the taps requested by foreign intelligence agencies such as the CIA, which are not permitted to tap domestically yet have domestic intelligence needs. The FBI handles those taps and passes on the information (which it also absorbs). (3) He is omitting the interception of teletype messages.
Third, there is the issue of unauthorized taps and bugs. Former agent William Turner is quite insistent that the "suicide tap"—wherein an agent, knowing that if he is caught he will be dismissed, nevertheless, under the pressure to produce, conducts illegal, unauthorized surveillance on an ad hoc basis. Most authorities on the FBI find stories of hit-and-run taps difficult to credit, since "Mr. Hoover runs a tight ship," and "Why should an agent risk it?" Nevertheless, Turner, who attended the FBI's sound school in Washington, D.C., and monitored Bureau taps for a year and a half in the Bay area, points out, "All I know is that I did it and the term 'suicide tap' is a common term. You hear it whenever agents gather.”
Turner adds, "My impression was that at least in the internal security area they had a pretty cavalier attitude. The idea was that our job was to protect the security of this country; that the Federal Communications Act was really meant for telephone companies anyway. They told you never to take your credentials when you do a black bag job [surreptitious entry). They taught lockpicking at sound school. There was a procedure whereby a fellow agent would go over to the local police and hang around in case a burglary were reported in the house you were breaking into. Then he would tell the police what was happening and they would leave you alone.”
It is, of course, impossible to tell how extensive such unauthorized tapping and bugging is. But once information from them gets into the FBI files, it is attributed to anonymous confidential informants and nobody is any the wiser.
Yet another problem in assessing the real quantity of electronic surveillance to which the FBI has access was pointed up by Ramsey Clark. He told a federal judge in Harrisburg, in connection with the Berrigan case, that false reports by FBI agents on their electronic surveillance activities caused the Justice Department “deep embarrassement” many times while he was Attotney General. “Often we would go into court and say there had been no electronic surveillance and then we would find we had been wrong."
Clark said that the government's response to the Berrigan defense motion for disclosure of all evidence by eavesdropping—that there was no evidence of surveillance except the overhearing of Sister Elizabeth McAlister-"is equivocal and amounts to a refusal to search theire records."
"I served in the Department of Justice for a good many years. Often you could not find out what was going on . . . frequently agents lost the facts," Clark said. One can argue that things have changed since then. Clark himself instituted elaborate reporting forms, and then there are the reporting requirements of the 1968 law. But there is really no way of knowing the effect of either.
A further problem in detecting the amount of electronic surveillance-authorized or otherwise is that the issue never arises until a defendant in a particular case raises it, or until the government moves toward prosecution. One U.S. attorney recalls: “We were going to indict a lawyer in Florida in a fraud case. It was around August, 1967, and the SAC in charge came down to see me and asked could I hold up the indictment. He showed me a wire he got from the Bureau telling him that the lawyer's office had been bugged around 1963 in connection with Las Vegas skimming. Then I asked them to let me know what it showed. It turned out that this lawyer had had conversations with Hoffa, Bobby Baker, you name it. I finally thought they did this to make it as difficult as possible for me to indict because they didn't want the bug discovered. And they did scare me. I didn't bring the case. They had overheard about twenty top figures. We found out from an agent that the bug was installed by illegal trespass. It was totally unrelated to our case but we didn't want to go through all of that publicity and crap. I just didn't want to be in the position of justifying what the Bureau had done, and you always wonder, were they really telling you everything?"
Finally, there is the problem of translating what the public is told into what is really going on. As Professor Herman Schwartz of the law faculty at the State University of New York at Buffalo has shown, when the public is told that there were only 302 court-ordered electronic surveillances in 1969, it is not told this means 31,436 people were overheard in 173,711 conversations, not counting all those overheard without a court order.
The wiretapping provisions of the Omnibus Crime Act of 1968 require judges and prosecutors to file reports with the Administrative Office of the U.S. courts on each court-ordered wiretap or eavesdrop. Section 2519 of Title 18 specifies that the judge's report must cite the suspected offense, the kind of eavesdrop, its duration and the identity of the government official making the application, The prosecutor's report must specify, in addition, “the frequency of incriminating communications intercpted," and the frequency of "other communications intercepted,” the approximate number of persons overheard, the cost of the