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I cite at length the trend in Lewis Powell's statements because I think he would be the first to say that they set the pattern for the change that is required right now in the Justice Department's approach to wiretapping and bugging of Americans, especially dissenting Americans. Attorney Lewis Powell's 1971 views closely tracked—and cited—those of John Mitchell and his Department. Mr. Justice Powell's 1972 views on behalf of the Supreme Court, and without dissent, are now the law of the land. They must be followed in letter and in spirit by those who have sought to eavesdrop, without limit or review, on our citizens in their homes and offices and gathering places. The time for playing fast and loose with the Bill of Rights has come to an end.

Our goal here today is to relieve all Americans of that "dread of unchecked surveillance power” and that “fear of unauthorized official eavesdropping”, by having the Justice Department make clear its commitment to change its ways not only in form but in substance. For unless the Department truly adopts as its own the Supreme Court's heavy emphasis on first and fourth amendment rights, the Keith opinion will become a fraud upon the Nation's citizens, a bare judicial promise of constitutional protection, but a promise that can be broken by the performance of the executive branch.

We are here to see that the constitutional promise is kept, that our right to be let alone, our right to privacy, our right to speak freely in public and in private, our right to have different views, and the other rights which keep our lives free from unwarranted government intrusion, are vindicated rather than evaded, preserved and not avoided, enhanced instead of circumvented.

Attorney General Kleindienst was quoted last weekend as saying that he disagreed with the Supreme Court's holding that his Department must obtain judicial warrants to tap and bug in the interest of domestic security. But fortunately, as I am sure he would agree, his sworn duty is to uphold the constitution as interpreted by the Supreme Court, regardless of his personal preferences. I am confident that he shares the views that nothing undermines respect for our legal system more than lawlessness by lawmen, and that, especially when interference with fundamental freedoms is at stakeofficial lawlessness cannot be tolerated or condoned.

Some facets of the Keith opinion are not yet clear, as we shall see this morning. But certain basic facts are clear:

1. Warrantless tapping and bugging of purely domestic organizations and individuals should have ceased on June 19.

2. Although the Court thinks Congress could set forth different warrant procedures and standards for so-called domestic security eavesdropping, the only statutory basis for issuing any warrants at present is title III of the 1968 law, with all of its limitations and requirements fully applicable.

3. The Court specifically did not decide whether warrantless tapping and bugging is permitted with respect to the activities of foreign powers; nor did it define the degree of collaboration between a domestic group and a foreign power which would turn a domestic group's behavior into foreign unlawful activities which might be subject to different surveillance rules. However, the Court clearly 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 Departments 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.Š. 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 tha 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 wan to know what procedures you have formulated. We want to knov who has the authority and what instructions he has received fron 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 in

cludes 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.

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