rejected title III as a source of affirmative authority for any warrantless installations and clearly rejected the Department's arguments against judicial involvement in so-called national security cases. Thus the Department is plainly on notice that the key underpinnings of its position, even on purely foreign targets, have been removed and that it continues its practices in this field at its own risk.

4. The Court has clearly placed a heavy presumption in favor of the protection of fourth and first amendment rights as against asserted security needs, and that presumption applies equally to a decision whether to install a warrantless device on a foreign subject, or deciding what procedures apply to a domestic group with foreign contacts, or determining whether to seek to eavesdrop at all on a domestic group. In other words, whatever the dividing lines used to be between spying and not spying on people electronically, that dividing line has been moved significantly in the direction of not spying.

Our witnesses today will provide us with a variety of viewpoints on the implications of the Supreme Court's opinion.

Deputy Assistant Attorney General for Internal Security Kevin Maroney was suggested personally by Attorney General Kleindienst as the Department's representative at today's hearing, and we have been assured that he is in possession of all the facts and fully authorized and prepared to speak in detail on behalf of the Department on the vital matters before us.

Former Attorney General Ramsey Clark has very graciously rearranged his busy schedule to be here today to give us the benefit of his experience with national security wiretapping, the procedures which control it, its utility, and its problems.

Former Assistant Solicitor General Nathan Lewin is here to provide an independent legal view of the meaning of the decision, and to analyze the probable course that the Court may take henceforth and the implications of that projection.

Today's hearing is not designed to deal comprehensively with all of the remaining problems and prevailing practices in the field of security eavesdropping. We hope to meet that need at later hearings. Today's session will, however, meet the immediate need to reassure the American people that the Justice Department knows that the constitution means what the Supreme Court says.

[The complete text of the Supreme Court, opinions in the Keith case appears at page 183. The complete text of the Federal Wiretapping status appears at page 183.]

I would like to welcome our first witness, Kevin Maroney of the Department of Justice.

Mr. Maroney is Deputy Assistant Attorney General of the United States for Internal Security. As I said, Mr. Maroney was recommended to us for these hearings by Mr. Kleindienst.

I want to welcome you here today. I understand you have a prepared statement.

TESTIMONY OF KEVIN MARONEY, DEPUTY ASSISTANT ATTORNEY GENERAL FOR INTERNAL SECURITY, DEPARTMENT OF JUSTICE

Mr. MARONEY. Thank you, Mr. Chairman.

Mr. Chairman. I am happy to appear here today on behalf of the Department of Justice in response to your request for our views on the subject of electronic surveillance and in particular, concerning the impact of the Supreme Court's decision last week in the case of United States v. U.S. District Court for the Eastern District of Michigan, No. 70-153 decided June 19, 1972, and more popularly known as the Keith case.

The immediate impact of the Keith case was set forth clearly by Attorney General Richard G. Kleindienst in his statement of June 19, 1972. Let me quote:

In accordance with the decision of the Supreme Court, I have today directed the termination of all electronic surveillance in cases involving domestic security that conflict with the Court's opinion. Hereafter, surveillance will be undertaken in domestic security cases only under procedures that comply with the Court's opinion.

Senator KENNEDY. Now, just at this point where Mr. Kleindienst said, "In accordance with the decision of the Supreme Court, I have today directed...."

Whom did he direct with respect to the termination of all such electronic surveillance?

Mr. MARONEY. The FBI.

Senator KENNEDY. What procedures were to be followed by the FBI in making decisions whether the taps that they were operating fell within the purview of the Keith decision? Was there an outline of any kind of procedures? How was it left?

Mr. MARONEY. A review was made by the Attorney General of all the electronic surveillances which were then in place in light of the information which had been submitted to him in connection with the request for the initial installation. Based on that factual information and applying the standards of the Keith decision, the Attorney General directed that certain of those installations be removed, since they were covered by the prohibition of the Keith case.

Senator KENNEDY. Who applied the standards of the Keith decision? Who made those decisions? Was that the Attorney General himself?

Mr. MARONEY. Made by the Attorney General in consultation with the Assistant Attorney General of the Internal Security Division. Senator KENNEDY. Well, who looked at the facts regarding each tap?

You see, there now is a Supreme Court decision setting up some standards, and I want to find out how you have been applying those standards to the actual taps that have been on. Is it the Attorney General himself who has been reviewing all the facts? Is he the one who has been deciding which taps fail to meet the standards and that therefore they should be lifted? Or are you telling the head of the FBI to do that? If you are telling the FBI to do that, then we want to know what procedures you have formulated. We want to know who has the authority and what instructions he has received from the Attorney General.

Mr. MARONEY. The legal decision as to the applicability of the Keith decision to installations that were then in place was made by the Attorney General in consultation with the Assistant Attorney General in charge of Internal Security based on the factual information which they had.

Senator KENNEDY. Does that mean that the two of them reviewed the facts in each case, or did the Attorney General just give that authority to the Assistant Attorney General?

As I indicated before, we want to know what procedures are being used within the Justice Department to implement this decision. The fact that someone is being directed is fine. But we want to find out how he was directed, what direction and guidance he received, and who actually makes the decision. Is it the Attorney General himself?

Mr. MARONEY. The Attorney General personally makes the determination based on the facts available to him. In the first instance, when a request is made for authorization to install an electronic surveillance, and in this particular instance, in light of the Court's determination in Keith, that was a legal determination by the Attorney General based on the facts available in the Department.

Senator KENNEDY. Well, did he review each of the factual situations himself?

Mr. MARONEY. He reviewed the installations in light of the facts known to him; yes, sir.

Senator KENNEDY. Well, how would he know the facts unless he reviewed each of the factual situations himself?

Mr. MARONEY. Well, of course, the Attorney General has a factual background in each of these instances. He has to make that review before it is placed on in the first place.

Senator KENNEDY. Okay, but it was he who made the decisions with regard to the terminations.

Mr. MARONEY. Yes.

Senator KENNEDY. He did that himself?

Mr. MARONEY. Yes, in consultation with the Assistant Attorney General.

Senator KENNEDY. He did that himself and he made the judgments himself after consultation?

Mr. MARONEY. Yes, sir. All these determinations are made personally by the Attorney General.

Senator KENNEDY. On each of the taps?

Mr. MARONEY. Yes, sir.

Senator KENNEDY. All right.

Then with respect to the sentence, "I have today directed the termination of all electronic surveillance in cases involving domestic security that conflict with the Court's opinion," it was the Attorney General himself who made the determination which taps conflicted with the Court's opinion?

Mr. MARONEY. Yes, sir.

Senator KENNEDY. The Attorney General's statement then said, "Hereafter, surveillance will be undertaken in domestice security cases only under procedures that comply with the Court's opinion. Does that mean a warrant?

Mr. MARONEY. A warrant procedure, yes, sir.

Senator KENNEDY. All right. We will come back to that.

Mr. MARONEY. Whatever problems, Mr. Chairman, some may have had with respect to the difficult issue of electronic surveillance involving wholly domestic organizations have, in great part

Senator KENNEDY. Excuse me for another interruption here about that quotation from the Attorney General's statement. The next paragraph of the Attorney General's original release stated:

The Court invited Congress to legislate the standards and procedures for court-approved electronic surveillance in such cases-as Congress already has done in criminal cases.

Therefore, I am also directing the appropriate officers of the Department of Justice to work closely with Congress in formulating legislative standards for domestic security surveillance.

Could you tell us where that stands now? The Attorney General said, "I am directing appropriate officers.***" I imagine that includes you.

You see, your statement didn't include the next two paragraphs that were in the Attorney General's statement.

[The complete text of the Attorney General's statement of June 19, 1972 follows:]

DEPARTMENT OF JUSTICE

JUNE 19, 1972.

Attorney General Richard G. Kleindienst issued the following statement today:

In accordance with the decision of the Supreme Court, I have today directed the termination of all electronic surveillance in cases involving domestic security that conflict with the Court's opinion.

Hereafter, surveillance will be undertaken in domestic security cases only under procedures that comply with the Court's opinion.

The Court invited Congress to legislate the standards and procedures for court-approved electronic surveillance in such cases-as Congress already has done in criminal cases.

Therefore, I am also directing the appropriate officers of the Department of Justice to work closely with Congress in formulating legislative standards for domestic security surveillance.

It should be noted that the Court's opinion was confined to the narrow issue of the use of electronic surveillance in domestic security cases, and it does not affect the use of electronic surveillance for the gathering of foreign intelligence in national security matters.

The Internal Security Division is reviewing pending cases to determine the effect of the opinion and will make recommendations to me on whether to disclose information obtained by electronic surveillance to defendants or to dismiss the charges against them.

Mr. MARONEY. Oh, I see, you are reading from the Attorney General's press release?

Senator KENNEDY. That is right. In your prepared statement, you quoted from the Attorney General's June 19 press release, and I was reading the next two paragraphs of that release.

Do you want to take a look at our copy of the release?

Mr. MARONEY. No, I have it.

Senator KENNEDY. Those two paragraphs state:

The Court invited Congress to legislate the standards and procedures for court-approved electronic surveillance in such cases-as Congress already has done in criminal cases.

Therefore, I am also directing the appropriate officers of the Department of Justice to work closely with Congress in formulating legislative standards for domestic security surveillance.

Is that process going on now?

Mr. MARONEY. No, sir. As I indicated in my statement, for the present, we have decided not to seek amendatory legislation and to let the experience of the next months indicate whether or not there appears to be a legal void which we might suggest to the Congress for amendatory legislation. But for the moment, we do not intend to seek amendatory legislation and to let the experience of the next months indicate whether or not there appears to be a legal void which we might suggest to the Congress for amendatory legislation. But for the moment, we do not intend to seek such amendatory legislation from the Congress.

Senator KENNEDY. Why did the Attorney General change his mind? He said in his June 19 press release that the Justice Department was going to work with the Congress in accordance with the Invitation by the Court. Why the change now?

Mr. MARONEY. Well, we initially started on the preparation of, or at least looking at the possibility of draft legislation in light of the language in Justice Powell's decision. However, it was subsequently determined by the Attorney General that we would not at this point seek such legislation, we would let experience dictate the needs in the light of the requirements of the decision.

Senator KENNEDY. I know that you have read Justice Powell's opinion. Did it not appear to you that the Court was inviting Congress to legislate in this area? What is the administration urging the Congress to do? Do you want us to legislate in this area or not? We have been invited by the Court to do so.

Do you want us to legislate at all?

Mr. MARONEY. At this time, Mr. Chairman, we are not requesting any legislation; we are not working on any draft legislation. As time goes on, if it appears necessary or desirable, we would make such a request of the Congress.

Senator KENNEDY. Okay.

Mr. MARONEY. Now, I had indicated that I thought the difficult issue had been laid to rest by the Supreme Court decision, many of the difficult issues. In such cases, under the law as it stands, the Government must seek prior judicial approval before intercepting wire or oral communications.

The Court's opinion in the Keith case would, however, suggest the possibility that Congress might desire to legislate standards and procedures for court-approved electronic surveillance in domestic security cases under standards somewhat different from the standards now applicable in ordinary criminal cases. However, as was stated last week by the President, the executive branch has no present intention of seeking such amendatory legislation with respect to the area governed by the Keith decision. In the event that future experience demonstartes a legal void, it will then be an appropriate time to consider the necessity or desirability of requesting appropriate legislation.

[The full text of the President's remarks on this subject at his June 22, 1972 press conference follows:]

Q. Two questions about recent Supreme Court decisions, if I may ask them as two questions, because I am asking in both cases if you have any plans for meeting the situation.