The most discouraging aspect, I think, is the numbers game. The representations are again made that there are only six that had to be removed as a result of this opinion and that there are 27 that are still in effect. One can't conceive that there are 27 foreign embassies engaged in the kind of conduct that Mr. Clark was referring to or likely to be engaged in the kind of conduct or kind of discussions on the telephone that he was referring to that require wiretaps today. So that means that there are many taps in effect that, even if they are, within the Department of Justice standards, not domestic organizations, are of very dubious legality and morality.

In addition, there are one or two domestic organizations which are still being tapped because of some alleged connection to some foreign power and that infringes very seriously on the very first and fourth amendment rights which Justice Powell eloquently referred to, which I know that you, Mr. Chairman, quoted earlier in the hearings today.

I am also concerned that the Department of Justice does not see the obligation which Mr. Clark referred to and which I think is just terribly important, too, now that their conduct has been declared unlawful, to advise those against whom it has acted as to what it has done. When you asked them about cleansing their records, Mr. Maroney's response was that there may be criminal defendants at some time in the future who may move and, therefore, those records will be produced. It would seem to me that in the light of the Supreme Court decision, it is the obligation of the Attorney General today, not later than today, to turn to every single organization and person who has been subjected to an unconstitutional bug or wiretap and say to him, here is the time, here is the place, here is the basis upon which we did it and Congress has given you a civil right of action against me or against my predecessor, against Mr. Mitchell, which you can test in the courts.

The Government, the Department of Justice, is in fact now the respository, the sole repository, of facts upon which the rights of probably thousands of Americans turn. And they apparently have no intention of ever disencumbering themselves or disgorging those facts or producing them to the people whom they have wronged.

So those, I think, are several areas that trouble me. And certainly, the implicit representation in Mr. Maroney's testimony that they view the Keith case, the reservation of the power regarding the authority of the Department of Justice regarding the foreign organizations, as being a green light to continue what they have done heretofore-that is troublesome. I think they should recognize that even foreign organizations and members of foreign organizations have first amendment rights. I think Mr. Maroney said, well, there are no first amendment rights involved in the foreign area. That is just not true. Certainly, our courts would recognize the rights of aliens who are within this country, who are on these shores, to express themselves, to speak privately and publicly. And in fact, the Department of Justice has denied that to this committee this morning.

Senator KENNEDY. Do you have any views about the future direction of the court's rulings in this area?

Mr. LEWIN. I think the greatest surprise, Mr. Chairman, to both strong opponents and proponents of wiretapping and bugging in national security cases was the fact that the Court decided this case 8 to 0, unanimously, with not a single vote supporting the Government's position. I think it is a demonstration that in the future, when it is confronted with cases of this kind, where the issue is presented, although not squarely the same issue here, but related areas, as to whether the executive branch may act entirely on its own, without any judicial oversight, without any safeguards, without any restrictions, it will strike that down. And it will strike it down because I think the Court recognizes, no matter who is on that Court, no matter what the political tenor or affiliation or even prior views of the members of that Court are, that in the last analysis, rights of citizens and indeed, rights of aliens, can't be made to turn solely on the unbridled discretion of people who are in the business of prosecuting cases. That just can't be done.

The interesting thing, I think, about this case, too, is that the author of the opinion, Justice Powell, as a private citizen had written an article that received substantial publicity and that was at odds with what he wrote as a Justice. I think it demonstrates that the Court as an institution and the members of that Court recognize that they have to protect the rights of American citizens and indeed of aliens, too.

Senator KENNEDY. Do you think that the Justice Department ought to be applying this decision in its most narrow terms, or do you believe they have a responsibility to try to clarify the law in this area?

Mr. LEWIN. I certainly think they have an obligation to pick up the language which is strictly unnecessary, in the Court's opinion, the language regarding the first and fourth amendments, and say that really, that is a message to the Department of Justice-whether it would be to the Solicitor General, to the Attorney General, to the entire Department of Justice-that the Court is saying that when you actually deal with speech, when you deal with conversations, you are not dealing with contraband, with drugs, with guns. When you are intercepting somebody's conversation, you are entrenching on a constitutionally protected area and that what the Supreme Court has told the Government is that you can never do that, whether it is in the domestic area or in the foreign area, entirely on your own. So I think they do have an independent obligation to carry forward.

And indeed, I would think, from the point of view of the Congress, even if the Justice Department is not picking up Justice Powell's invitation, on the other side the Congress may find it desirable to enact a statute specifically prohibiting foreign power wiretaps without judicial oversight. It appears now as if the Department of Justice intends to continue to pursue its practice that is followed heretofore of engaging in foreign power wiretaps without any judicial warrant.

Now, Mr. Clark this morning, I think, has really stated quite a workable standard for judicial warrants, which is that if the evidence shows that there is a direct and significant effect upon the for

eign government's power to commit violence upon the United States, then there might be a basis for issuing a judicial warrant. I do not see why that cannot be put into title III prohibiting all-all-wiretapping or eavesdropping even of foreign organizations unless a judge is satisfied from a warrant that that standard is met. And as he explained the materials that were submitted to him as Attorney General, they are certainly within the understanding, within the grasp, within the timeframe that a district judge can apply to that kind of a case.

Senator KENNEDY. Of course, if the Justice Department is wrong in its interpretation, there may be 2 or 3 more years of unconstiturespoitory, the sole repository, of facts upon which the rights of tional tapping.

Mr. LEWIN. I wish it were only 2 or 3 more years. I think the problem is that the Justice Department intends to continue and that cases in the foreign area, Mr. Chairman-I think what must be borne in mind is that in the foreign policy area, in most of this tapping and bugging, most of it never becomes public and will never become public under the Department of Justice policy announced today, because it does not result in any prosecution. And if it does not result in any prosecution, there may be 3 or 4 years before there is ever a case which even remotely raises the issue of a foreign organization wiretap. That is when the case may first come up in the district court, and by the time it gets up to the Supreme Court, it could be 6 or 7 and there could be thousands upon thousands of people affected.

Senator KENNEDY. A very helpful statement and a very thoughtful commentary. Your testimony will be a very valuable addition to our understanding of this subject.

We want to thank you very much for coming. I hope you get to court on time.

The subcommittee stands in recess, subject to the call of the Chair. [Whereupon, at 1:30 p.m., the subcommittee was adjourned, subject to the call of the Chair.]

Additional Exhibits

TEXT OF LETTER BY SENATOR EDWARD M. KENNEDY, CHAIRMAN, TO MEMBERS OF ADMINISTRATIVE PRACTICE SUBCOMMITTEE REGARDING NON-COURT ORDERED ELECTRONIC SURVEILLANCE

DECEMBER 17, 1971.

DEAR SENATOR: As you may have noticed in two recent speeches and at Judiciary Committee hearings a few weeks ago, I referred to the fact that there has been three to nine times as much federal listening going on as a result of warrentless electronic surveillances as there has been on devices operated under judicial authorization.

Some of the members of the Subcommittee have asked for the factual data underlying my statements on this subject, and I thought I would take this occasion to forward to all of the members copies of the correspondence I have had with the Justice Department which gave rise to these observations. I would also like to share with you some other preliminary conclusions I have reached about issues raised in this correspondence in keeping with the significant oversight this Subcommittee has exercised with respect to the subject of electronic surveillance in the past.

Briefly stated, study of the correspondence 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; and 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.

I am sure you are aware of the fact that numerous public statements have been made by high federal officials during the past year suggesting that there is a comparatively limited amount of federal electronic surveillance operated without court orders.

For example in April President Nixon told the annual convention of the American Society of Newspaper Editors:

Now in the 2 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 50 a year. And, just three months ago the Solicitor General told the Supreme Court in a brief filed in the Keith case (the case still pending on the constitutionality of warrantless electronic surveillance) that only 36 warrantless telephone surveillances were operated in 1970.

The above figures are flatly contradicted by Assistant Attorney General Mardian's March 1 letter to me, in which he reveals that a total of 97 warrantless telephone taps were operated in 1970-almost double the President's figure, and almost triple the Solicitor General's figure. (This ratio excludes the 16 microphone installations in 1970, which neither the President nor the Solicitor General took note of.)

Further, the repeated references by Government officials to the limited number of warrantless devices ignore the far more significant question of the duration and total usage of these surveillances. I am extremely concerned about the fact that in 1970 there were from 3.4 to 9.6 times as many days of (66)

federal listening on warrantless devices as there were on devices installed under judicial authorization. To assist you in your assessment of this problem I am attaching a chart which reflects the figures upon which these ratios are based. You will note that the calculations we have made also reflect that for the two-year period 1969-1970, warrantless devices accounted for an average of 78 to 209 days of listening per device, as compared with a 13-day per device average for those devices installed under court order.*

In short, Mr. Mardian's March 1 reply poses the frightening possibility that the conversations of untold thousands of citizens of this country are being monitored on secret devices which no judge has authorized and which may remain in operation for months and perhaps years at a time. The figures certainly seem to suggest that the Attorney General was being less than accurate last April when he said on the David Frost Show that these Executive-ordered devices "relate to particular subject matters at a particular time", if he meant to imply that such devices were installed only briefly and only to enable the Government to prevent specific acts threatening immediate peril to the security of the nation.

Apart from the indication that these surveillances are apparently far more pervasive than any of us had ever realized, the correspondence raises the recurring problem of whether any standards and guidelines are being followed in the employment of these techniques. As you will recall, in enacting the Safe Streets Act of 1968, Congress described five categories of danger to the Nation for which warrantless devices might be utilized if they were constitutionally permissible at all namely: (1) to protect the Nation against actual or potential attack or other hostile acts of a foreign power; (2) to obtain foreign intelligence information; (3) to protect national security information against foreign intelligence activities; (4) to protect against the overthrow of the government by force or other unlawful means and (5) to protect against other clear and present danger to the structure or existence of Government. Of course, there is a substantial issue, now before the Supreme Court, as to whether any such warrantless electronic surveillances are permissible under the Fourth Amendment, but on the assumption that some are, the Justice Department has repeatedly assured the courts that it is operating under procedures and standards which assure strict control and complete adherence to the statutory categories.

For example, briefs and memoranda filed by the Department in several cases in support of this claim that warrantless electronic surveillances are lawful contain the following unequivocal assertions:

"Another restraint on the exercise of the power is the existence of strict standards, recognized by the Congress which are met before the President or the Attorney General acts. Additionally, there exists a compelling wisdom in the policy of having one official, the Attorney General acting for the President, to authorize such a surveillance in accordance with the standards set forth in the Omnibus Crime Control and Safe Streets Act of 1968, in order that such policy will provide a uniformity in the application of those standards...." [See, e.g. Memorandum in U.S. v. Bieber, 71 CR. 479, E.D.N.Y.]

Indeed, the Solicitor General's most recent brief on the subject, which was filed in the Supreme Court in the Keith case just three months ago, contained the assurance that:

"The standard of the national security that the Attorney General applies in authorizing electronic surveillance without a warrant is the same standard that Congress provided in the Omnibus Crime Control and Safe Streets Act of 1968."

The brief then refers to the five statutory categories described above and says: "three of these categories relate to the hostile acts of a foreign power and to foreign intelligence activities and are not directly involved here." It continues: "The two other categories are 'to protect the United States against the overthrow of the Government by force or violence or by other unlawful means, or against any other clear and present danger to the structure or existence of Government,'" citing the 1968 statute. It concludes: "These were the grounds upon which the Attorney General authorized the surveillance in the present case."

*Duration figures for noncourt ordered devices are given in terms of maximum and minimum levels because the information provided is in terms of duration ranges. See pages 1, 2, 3 of March 1 letter.