What about the argument that we ought to tap and bug foreign delegations because they do it to us? Is that not an argument that is made sometimes?

Mr CLARK. Well, I have heard it from time to time and I find it just an unconscionable position. I thought we stood for something in this country. I thought we believed in justice and freedom and even fairness. Are we so weak and afraid that we can't take care of ourselves if we do not do what others do? I just have no sympathy with the notion.

We have had this mystique of secrecy and it is hard to crack. It is responsible for a major part of the peril of international war that we have today, in my judgment. I would like to see some moral leadership that tells us our strength does not arise from such activities.

I have tried to estimate-I do not know that it is possible-the value of the taps that we have. I know that not 1 percent of the information that is picked up has any possible utility. It would only be an act of extreme carelessness or extreme urgency that would cause the use of a channel that is assumed by reasonable people in the foreign missions in this country to be under surveillance. The purpose is to find out when people are coming or leaving, who they are associating with, what they are talking about and what they are interested in so that you can evaluate with your other sources of information and predict what they may do.

Senator KENNEDY. What would be the impact on our national security if the executive branch were to eliminate all warrentless tapping at the present time?

Mr. CLARK. I think the impact would be absolutely zero. It may seem axiomatic that when you expand the number of people who know a secret, the security of the secret is less. But does adding one to what may be hundreds or thousand have any value? Most of what we legally use this for is to prevent embarrassment, to invade privacy. Is it true that there are just 27 national security taps on today? I cannot tell-the terminology, worries me. Sometimes they say 27 in FBI cases. Unless the definition of FBI cases has changed, 27 would mean there has been an increase. Historically, National Security Council cases, National Security Agency and State Department cases were the great majority. True the FBI serviced these tapes, but they didn't know what they were doing and did not evaluate the information received. They were transmitters. They knew 'technically how to install and overhear, but the substantive information had no meaning to them. The National Security Agency, the Department of State-if the 27 excludes those and if it excludes teletype machines and things like that, which have always been fairly numerous, why the number is way up. If it includes all wiretaps without court order, the number is down. If the number is down, then it indicates that we did not need even what we had before-at least somebody today believes we did not need what we had before. Watching the effect of pressure on the agencies of questioning them about wiretap, causing them to justify their requests, showed that you could reduce the number substantially without anybody feeling that he was losing anything that had any value more than an old habit.

Senator KENNEDY. How much time does an Attorney General have to review these cases himself, even with the help of an Assistant Attorney General?

Mr. CLARK. Well, you know, that procedure is largely fiction. It is not real. Part of the reason is time, and part is experience. The Attorney General of the United States is a busy person. I do not think any Attorney General, and I have had at least six agree with me, has spent more than 5 percent of his time on the Federal Bureau of Investigation, Federal Bureau of Prisons, Federal Immigration and Naturalization Service, altogether. I do not think an Attorney General really has a background and experience with rare exceptions that would give him any basis for judgment other than hunch. If you really had all the justification that you need, think of the background that you would have to have and the information you would have to have about the different countries that would be involved. If they are domestic groups, my view was and is, and it has now been confirmed by the U.S. Supreme Court that there is no authority to wiretap. There is no inherent power in the Presidency over domestic crime that has not been fully authorized to the Executive by the Congress. The basic police powers are reserved to the States. In foreign affairs, where there is some inherent power arising from the powers that have been specifically delegated in the Constitution, the Executive has a need to know. I think it is a need that is shared with the Congress. The information should be shared with the Congress, with a committee such as this, to determine its reasonableness and with the Foreign Relations Committee, so that the people can have some input through their representative.

It ought to be shared, too, with the agencies involved. Frequently, what I found was that the taps became a source for feeding interesting tidbits or crumbs, you might say, of information to the White House and other agencies from information that had been picked up by the wiretap. If I know, for instance, that a certain ambassador plans to go home the next week and I tell the State Department, they might think I am a pretty smart fellow if they do not remember that I am listening in on phones.

Senator KENNEDY. Does it make any sense to have one rule or procedure for domestic organizations and a different one for foreigners?

Mr. CLARK. Well, I, think that we should have no procedures, because I think we should have no surveillance. But there are inherent differences. There can be no question, in my judgment, that the full play and force of all the provisions of the Constitution apply to our citizens here, probably to permanent resident aliens here, and to activity that arises and occurs entirely in this country, even if it is wholly financed from without. Because we have police power here. We do not have police power in Asia. We thought we did and we found out, or at least we are finding out we do not-we have not found it out yet.

The need for information about foreign military activities can be very great. Even so I think that there is no way that you can justify wiretap under the Constitution, within the country without prior court approval. And I think the Supreme Court will so hold.

Domestic crimes will not be solved by electronic surveillance. Properly used under the fourth amendment, a warrant can issue only when there is probable cause to believe a specific crime has been or is about to be committed and evidence relating to it spoken in a particular room or a specific phone. That will not happen with rare exceptions where police do not already have adequate evidence to arrest. The trouble is that years of wrongful surveillance will occur before the courts so hold and in the meantime, hundreds of people will have their rights infringed, maybe thousands, who knows? Thousands and thousands will be affected because they will believe that they are tapped, and there will be this pall, or this chilling, of free expression, which is protected by the first amendment and so imperative to the discovery of truth and the communication of ideas.

In the domestic area, there must be the most rigid and manifest adherence to all of those provisions of the Constitution. There is an absolute right in the people affected to know. That is fourth amendment law, it always has been fourth amendment law, and it will come to wiretap usage, too.

In the international field, when you are dealing with aliens, we have power to expel them. They have the power to do things within their country that can affect us directly, like nuclear mounting warheads, that we cannot control. The procedures that we need to develop if we are going to continue use of national security tapping are numerous. First we must require prior judicial approval, second a comprehensive executive justification prior to authorization. We can imperil negotiations for instance because one agency might decide it wanted to tap. If it were discovered before or during negotiations you could imagine the effect. It would be reminiscent of the U-2 incident. You can hurt this country by doing a fooolish thing like that. Therefore, you need a full justification by all the interested agencies-not just the Director of the FBI. He does not have background or responsibility in those areas. The Secretary of State and the foreign affairs adviser in the White House need to know and themselves approve any installation.

If the chairman of a committee like this and the chairman of the Foreign Relations Committee do not know, then you do not have knowledge needed to legislate. You need careful review. There are wiretaps that have been on for decades. That is a long time. When you think of the poor people sitting there listening to all that nonsense and waiting for somebody to say something, you ought to wonder whether we have lost our minds. We ought to look at it again and see what we are doing. We should require full evaluations. Every 3 months I required every tap to be reauthorized. That is often enough.

Finally, even in the national security taps, you need a divulgence in time. I do not think the truth hurts. If it does, I would rather be hurt by the truth than by ignorance. So it ought to be told and it should not be 25 years later when it will not embarrass people. It is just something we ought to do.

There ought to be the clearest recognition that once you engage in any surveillance, you risk the possibility of prosecution. That must be clearly understood and expressed. If you are going to put a na

tional security tap on without a court order, you simply can't consider prosecution and you need to know that you have insulated that information as effectively as human beings can from any possibility that it will leak into prosecution channels. That was the reason that the Assistant Attorney General for Internal Security came to review those things. It did not begin 6 months or a year ago, it began in the later fall of 1966, when I was Acting Attorney General. I wrote Mr. Hoover probably first in October and again in November and finally in December, telling him that I do not know every case in the Internal Security Division, I cannot possibly know every case in the Internal Security Division; I have to rely on somebody else to know every case there. Therefore, I cannot know when he asks me to put a tap on some foreign activity whether it might affect some case we have; therefore, the head of the Internal Security Division needs to know. At that time, J. Walter Yeagley, who was Assistant Attorney General, as he had been with Bob Kennedy, as he had been for Bill Rogers before that and Nick Katzenbach after it, a career man, a man who had been a FBI agent, a man who had spent a professional career in this field, reviewed every one with me.

Senator KENNEDY. What is your feeling about cleansing the gov ernment files of the information which the Keith opinion has now decided was obtained unlawfully?

Mr. CLARK. All the information should be purged from those files but before anything is destroyed, every individual or organization involved should be advised. It is their right and their business. So if you were Martin Luther King and you had been overheard, I think you ought to be told about it-not just told about it; I think you ought to be given all of the circumstances and the facts-the circumstances under which it happened and then what happened--the tapes and transcripts.

Then if the person overheard wants either the fact or the substance overheard published then the executive branch ought to make it public. I do not think it ought to be made public unless the individual involved says so-because it is his right invaded, has dignity being demeaned. Again it is my guess that most of these so-called domestic taps in the national security field are so outrageous and absurd that the people and the organizations involved would be bemused by it, but perfectly willing to have the material disclosed.

To start destroying the tapes in advance, going through that procedure, is dangerous from a number of standpoints. How do you know it is destroyed? How many memos has the information appeared in without identifying the source?

After the Kent State killings and the unbelievably prejudicial grand jury report-of course, it has been printed in the New York Times and every place else the court ordered that the grand jury report be destroyed, be burned. That is book burning, in a way. The grand jury report was itself a fact, the fact of failure of the system and of prejudice. You cannot just purge that by burning it. You need to expose it. And it lives on anyway, as does the information that comes from these taps and bugs. The idea that they are held with just a few people knowing it is wrong. It would have no utility if those were the circumstances. If the information is going to be

used, there have to be a lot of people who know about it. And the people who know about it do not include the Attorney General of the United States. He cannot even remember when he approved it, if he did. All he did was spend 5 minutes at the most reading a memo and perhaps making a phonecall to get somebody to come over and explain something to him or answer a few questions. He did not see what was picked up on taps, he does not know that unless somebody bothers to tell him.

Material from taps can be disseminated very widely. So it endures and it finds its way into places that it should never be.

Senator KENNEDY. Why is there such a reluctance to cleanse that material which was obtained unconstitutionally?

Mr. CLARK. I think there are two basic reasons and both are human failures, in a way. One is embarrassment. My judgment is that essentially all of the material that is picked up on taps is only going to embarrass this Government, make it look petty and foolish. Therefore, you do not want anybody to know what it is that you have done who you tapped and what you have overheard.

The second reason is some sense of royal prerogative-you know, I am the king and the king can do no wrong. You have to have confidence in us and, if you knew what I know, you would do what I do that sort of thing.

Finally, it can be an enormous task. How many documents has the information found its way into?

Senator KENNEDY. How would you characterize the evidence that was presented to you, when you were Attorney General, for warrantless national security devices? Did the authorization requests contain specific evidence of identified threats to national security, or just generalized suspicions that certain types of persons or groups ought to be spied on?

Mr. CLARK. It varied. Generally, if identified the place and person to be overheard and what conversations were expected to be about. As an illustration of the degree of above, there were at least three occasions in which I was requested to put bugs or taps on Martin Luther King, Jr. The last time was April 2, 1968, only several days before he was murdered. Obviously, the request for that authority, which came on a 1- or 2-page memorandum, contained no facts that indicated he was or could have been a menace to this Nation. He was just the opposite. He offered hope for freedom and equality. It contained conclusory language. It said, in part "Communists are joining forces at every turn in treasonous coalition . . . opposing our efforts in Vietnam... working with black power advocates to lay foundations for outright guerilla warfare in the streets of our cities." That was pure scare talk. It was all conclusory, without any fact basis.

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Senator KENNEDY. Listening to your testimony here this morning about some of your experiences as Attorney General, I gather that you feel that on balance, the intrusion on individual privacy that results from this kind of tapping and bugging far outweighs the benefits to our national interest.

Mr. CLARK. That is right. I could not respect anyone who wanted to wiretap me. I think that applies among nations as well. If we are