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to obtain totals for persons and conversations overheard, and overall costs. For this report, an effort was made to work directly from the individual application reports in Tables A and B (and C where follow-ups were concerned) in the Appendix rather than from the summary figures in the numbered Tables at the beginning of the reports. In a few cases, there were startling and inexplicable differences between the averages and othr figures in the Administrative Office Report (hereafter referred to as "Admin. Off. Rep.”), and the results from analyzing the ind idual installation reports in the Appendix. These discrepancies will be noted and discussed where relevant.
It should be noted that because the reporting authorities often omitted to send in important information as to persons or conversations overheard, or costs, the total figures given here are often estimates, obtained by multiplying the average for those installations that were submitted, by the total number of installations. Since full data were in fact provided for almost all federal and most state installations, the estimate seems reliable.
Certain other methodological caveats may be worth noting at this time, though they will be specifically noted where they come up. The specific offense classifications are geared to the classifications made by the Administrative Office; where there were doubts because more than one offense was indicated for an installation (as was often true for New York City authorizations) the exact classification was obtained from the Administrative Office which used a system whereby a multiple-offense authorization was classified according to the Office's judgment as to the most serious offense among those listed.
Finally, the offenses are divided into five groups : Gambling, Drugs, Homicide, Kidnapping, Other. The first two are chosen because they are the offenses for which eléctronic surveillance is most frequently used; Homicide and Kidnapping are the offenses for the solution of which such surveillance is most frequently said to be necessary; all the other offenses can be conveniently lumped together. "Homicide” includes every type of homicide-related offense, such as solicitation to commit homicide, attempt, conspiracy, threat and manslaughter as well as actual murders, of which there are very few instances in the Reports.
II. NATIONAL SECURITY SURVEILLANCE The Federal Government has been using wiretapping and bugging in socalled national security cases at least since 1940, when President Franklin D. Roosevelt approved it in the interests of national defense. The FBI, which began to develop an intelligence function of major proportions at this time, in addition to its efforts in investigating particular crimes, used wiretapping and bugging quite extensively. How much we do not know, but there are indications that it was quite extensive.2
In the 1960's the Justice Department developed a great concern about organized crime. The FBI had apparently down-played this problem until then, but the new Attorney General, Robert F. Kennedy, went at it with truly religious zeal; the story is told in Victor Navasky's Kennedy Justice. There was still much uncertainty about the number of so-called "national security” taps and bugs, for the only information that was made available about this was in annual statements by Hoover before a friendly House Appropriations Committee in which he reported the number of telephone taps in operation on the day he was testifying. In a brief in the Supreme Court, in United States v. U.S. Dist. Ct., E. D. Mich., 407 U.S. 297 (1972), the Government summarized the number of "warrantless national security telephone surveillances operated by the Federal Bureau of Investigation in the past ten years [as follows]: 1960–78; 1961-90; 1962–84; 1963–95; 1964–64; 1965-44; 1966-32; 1967–38; 1968–33; 1969–49; 1970-36," citing three congressional hearings. And in 1971, President Nixon declared :
"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 fifty a year.”
2 Detailed analysis of the history of national security surveillance appears in Theo. haris & Meyer, The “National Security" Justification for Electric Eavesdropping: An Elusive Exception, 14 Wayne L. Rev. 749 (1968) Navasky & Lewin, Electronic Surveillance in Gillers and Watters (eds.), INVESTIGATING THE FBI (Doubleday 1973)
The figures in the Government's brief and in Nixon's statement have now been revealed to range from the disingenuously incomplete to blatantly false. Analysis of the excerpt from the Government's brief in the domestic security wiretap case, together with information obtained by Senator Edward F. Ken-nedy and made public in December 1971, discloses that:
(1) The figures submitted by the Government to the Supreme Court related solely to the number in operation on the day that Hoover testified-duly noted in the Government's brief in the Court of Appeals but inexplicably omitted from the Supreme Court brief;
(2) The figure given by Nixon is far off the mark, despite his claim that he "look[ed] not at the information but at the decisions”, whatever that means.
(3) The figures given by Nixon and in the Government's brief related solely to telephone taps installed by the FBI.
(a) They do not include microphone surveillances which, at least in the early 1960's, were as numerous as telephone taps. For example, Navasky's book contains a letter from Assistant Attorney General Herbert Miller to Senator Sam J. Ervin that on February 8, 1960, there were 78 telephone taps—the number given for 1960 by Hoover-and in addition 67 “electronic listening devices." See Kennedy Justice 88. Thus the total was really 145 on that date alone, and several times that for the whole year, if the 1969–71 figures for the relationship between the at-one-time and the annual total are an appropriate model.4
(b) They do not include surveillances made by other governmental agencies, federal and state. For example, New York Times reporter Seymour Hersh has obtained Army memoranda indicating that the Army engaged in electronic surveillance for national security purposes. (N.Y. Times, 9/1/71, p. 24, col. 1) Navasky and Lewin quote a former Justice Department official's statement that FBI "agents routinely inspired" bugs and taps by local officials. Op. cit. supra at 299-300. Moreover, they note that Hoover's testimony "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 placesome 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 sery. ices. (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 message.” Op. cit. supra at 300.
The actual totals of, national security surveillances by the FBI in operation between June 1968 and December 1970, reported by the Justice Department to Senator Kennedy were as follows: June December 1968 (50 taps and 6 bugs)
56 1969 (81 taps and 13 bugs)
(97 taps and 16 bugs) These much higher figures are consistent with the fact that every time a war resister or dissident has been prosecuted, national security taps popped up not merely on him, but on many people subpoenaed, or in some way connected with him-see, e.g., Spock, Ellsberg, the Berrigans, Abbie Hoffman, Bradford Lyttle, Leslie Bacon, etc., to say nothing of the earlier FBI taps and bugs on Martin Luther King, Jr. and Elijah Muhammed. The defendant's brief in the domestic security wiretap case contains a list of those known to date.
On the basis of classified data supplied by the Justice Department, Senator Kennedy's staff also calculated that on the average, the 1969–70 devices were in operation from 6 to 16 times as long as the average court-approved surveillancemi.e., from 78.3 to 209.7 days, the average federal court-approved installa
3 Fred Graham and Navasky & Lewin have raised the possibility that these figures were understated because Hoover turned off some of the taps the day before he testified,
so his statement could be superficially accurate.
* These probably included a certain number of organized crime surveillances, though that aspect of the FBI's eavesdropping was still minor at that time, before Robert Kennedy became Attorney General.
tion lasting about 13.5 days.5 Since the average federal tap averaged about 56 people per interception over the period 1969–71 (491 installations and 27,299 people) or about 4 people per day of operation (56 • 13) this means that from 312 to 840 people were overheard each year on each of the approximately 100 annual FBI national security subveillances, or from about 31,000 to 84,000 persons each year. Even if one discounts somewhat for duplication in people (though the 56 person average on court-authorized surveillance is supposed to be without duplication) this figure may still be conservative, since the national security surveillances were often on organizations where the telephone usage is much greater than on the private homes that were the targets of much of the court-ordered variety. For example, there were 9 telephones at the Jewsih Defense League offices that were tapped for 208 days.6
From these figures it is also possible to extrapolate a very rough and conservative estimate of the number of conversations overheard. Again, using the 1969–71 figures, the daily average of conversations overheard on federal 1969–71 surveillances was about 70 per installation. (The 900 average per installation divided by the 13 day average.) Since the national security taps lasted on the average from 78 to 208 days each, the number of conversations overheard annually is between 5,460 and 14,560 per installation or between 546,000 and 1,350,000 per year for the approximately 100 installations.
These figures are staggeringly high. They may actually be understated in many respects since some or many of the 100 installations may cover more than one device, as the JDL tap did, or one location. Furthermore, these figures omit the previously mentioned possibility of surveillance by other agencies, such as the Defense Department, CIA or state agencies tapping on behalf of the federal government's security programs; they omit teletype interceptions as well.
Because the whole business is so secret, we have no way of knowing the concrete results of this massive surveillance; this spying is allegedly only for intelligence purposes and not for criminal prosecution, though it seems to be around wherever there is a criminal prosecution of a noted dissident. But in congressional testimony this past June, former Attorney General Ramsey Clark testified as follows:
"I have tried to estimate-I do not know that it is possible the value of the (national security] taps that we have. I known that not one percent of the information that we have picked up has any possible use." And in response to a question from Senator Kennedy:
What would be the impact on our national security if the Executive Branch were to eliminate all warrantless tapping at the present time? Clark replied: "I think the impact would be absolutely zero." Hearings before Senate Admin. Prac. & Proc. Subcommittee on June 29, 1972, on the impact of U.$. v. U.S. Dist. Ct., E. D. Mich. 407 U.S. 297 (1972), trscpt pp. 62–63.
Last June, the Supreme Court dealt with one facet of this national security surveillance—the domestic variety. United States v. U.S. Dist. Ct., E. D. Mich., 407 U.S. 297 (1972). In a unanimous opinion for eight members of the Court, Justice Powell writing, and Justice Rehnquist abstaining, the Court denied the Government the power to eavesdrop for purposes of domestic security without obtaining prior judicial approval, a power first openly sought in the Chicago Seven conspiracy trial and rejected by most federal lower courts. Unfortunately, the Court left open two possibilities for easy eavesdropping : (1) it virtually invited the Government to seek legislation authorizing judges to apply even looser standards for domestic security wiretapping than the already lessthan-demanding standards of Title III; (2) it explicitly limited its decision to "domestic aspects of national security," and to "domestic organizations,” defined as a group of American citizens "which has no significant connection with a foreign power, its agent or agencies.” (n. 11) The Justice Department's narrow construction of this latter category can be seen from the facts that: (a) Justice felt constrained to turn off very few installations as a result of the decision, and apparently left a couple in operation, N.Y. Times, 6/30/72, p. 17, col. 2; (b) it installed a tap on the Jewish Defense League and kept it in operation for 208 days ?—including a month after indictment-on the asserted justification that this tapping was for national security purposes; and (c) a conversation by one of Daniel Ellsberg's lawyers was overheard on a foreign national security tap even though, as Justice Douglas disclosed with some surprise, the tap was on the phone of a foreign national, and not on a foreign agency or in any other discernible way connected with national security. Russo v. Byrne, 409 U.S. -, 93 S. Ct. 433 (1972).
5 The figure is likely to be closer to the upper part of the range. Not only was the Jewish Defense League tap in for 208 days, but of the six domestic security taps turned off as the result of the Keith decision, (U.S. U.S. Ct.) one was operated for 21 months, two for 18 months, one for 442 months, one for 3 months, and one for 2 weeks. See letter from Deputy Asst. Atty. Gen. K. Maroney to the Kennedy Committee dated 8/2/72.
6 That the figure is none too high is clear if one reflects for a moment on one's own business phone calls : It is more than possible to talk to more than 4 new people per day, especially if one includes both incoming and outgoing calls.
When the Army was caught in its massive surveillance program, it agreed to cleanse its files. The Department of Justice told Senator Kennedy's committee that virtually no effort had been made to cleanse the FBI files of information obtained by this illegal wiretapping and bugging. Furthermore, since at least some of it had been disseminated to state agencies without disclosing to them the source of this information, cleaning of the state files is probably impossible. From all indications, nobody has ever tried.
A great deal of electronic eavesdropping for security purposes has taken place and will probably continue; such surveillance catches a great number of people in an enormous number of conversations. Because this eavesdropping is not usually aimed at criminal prosecution, it will rarely come to light-and that is probably as intended by the Executive. The only hope for some kind of oversight is from Congress. Unfortunately, this particular Administration has. succeeded beyond any other in denying information to Congress. The result, however, is that except for the summary statistics obtained by Senator Kennedy, we are not likely to obtain very much more; as a matter of fact, virtually all of Senator Kennedy's questions that sought information beyond the overall annual totals went unanswered.
TITLE 18.-UNITED STATES CODE
§ 2511. Interception and disclosure of wire or oral communications prohibited
(1) Except as otherwise specifically provided in this chapter any person who
(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication;
(b) willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through thé mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of. Puerto Rico, or any territory or possession of the United States; (c) willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communications, knowing or having reason to know
7 Other long-term surveillance has come to light in national security cases. The Government's brief in the Supreme Court described the tap in a companion case as: lasting 14 months. See also 22n.
that the information was obtained through the interception of a wire or oral communication in violation of this subsection; or
(d) willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection; shall be fined not more than $10,000 or imprisoned not more than five years, or both.
(2) (a)(i) It shall not be unlawful under this chapter for an operator of a switchborad, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of such communication: Provided, That said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
(ii) It shall not be unlawful under this chapter for an officer, employee, or agent of any communication common carrier to provide information, facilities, or technical assistance to an investigative or law enforcement officer who, pursuant to this chapter, is authorized to intercept a wire or oral communication.
(b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a wire communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.
(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.
(3) Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) 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, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary 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. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power. § 2512. Manufacture, distribution, possession, and advertising of wire or oral
communication intercepting devices prohibited (1) Except as otherwise specifically provided in this chapter, any person who willfully
(a) sends through the mail, or sends or carries in interstate or foreign commerce, any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire or oral communications ;
(b) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such