Obviously this officially asserted Executive compliance with Congressional standards is vital in an activity which lies in the grayest possible area of Constitutional law. Certainly Congress expected that well-defined procedures would be established to guarantee that each warrantless surveillance would clearly meet one or more of those categories when installed, and the public has the right to assume that these limits on electronic surveillance are being assiduously applied in every instance. Moreover, precise prior categorization of such surveillances is necessarily central to Congressional review of the implementation of the 1968 law, and is essential to a full understanding of the overall figures, discussed above, relating to the amount and duration of bugging and tapping on the sole discretion of the Executive Branch. For example, if it were true that 95% of the total number of installations were initiated for the sole purpose of obtaining foreign intelligence information from aliens, and only 5% for the purpose of surveilling domestic dissidents whom the Attorney General genuinely considered to be a clear and present danger to the existence of the Government, the meaning of the statistics might be quite different from the meaning if the percentages were reversed. Indeed, if the "clear and present danger" category were being used at all regularly, the Congress would certainly want to hear more about the nature of that danger.

It was with these considerations in mind that my original letter asked the Attorney General to provide a breakdown of the Executive-ordered surveillances by statutory category. I was therefore disappointed when Mr. Mardian's first reply failed to provide such a breakdown, allegedly because the "installations cannot be categorized exclusively under a single criterion," although he did assure me that each installation met one or more of the statutory criteria. I thereupon indicated that the breakdown could be made in terms of more than one category. This time I was surprised and dismayed to receive a response which said not only that the subject matter "is such as to preclude categorization under a single criterion, "but also that "no such categorization exists."

I next requested merely that the Department provide the number of installations which fell into either of the categories which the Department itself had spelled out in its court submissions, namely those employed to gather "foreign intelligence information" and those employed to gather "intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government," the latter of which, I should point out, is not one of the statutory categories. Mr. Mardian's response to this request was absolutely shocking, in view of the position of the Department in the Courts. "The Department," he said, "has never attempted such a categorization."

Thus, despite the litigative positions taken by the Department and the assurance by Mr. Mardian, in his March 1 letter to me, that the Attorney General's discretionary wiretaps and bugs all fall within the statutory categories, the Department now admits in essence that it actually does not know-and thus presumably does not care-which installations fall into which categories. It seems clear from the correspondence that when the Attorney General is asked to authorize a warrantless electronic surveillance, he is not told what category or categories justify its use, nor how the statutory elements for the category or categories are met by specific facts; for if he were, the Department would have had no difficulty at all providing the statistical breakdown I requested.

This conclusion is strengthened by the Department's response to my effort to determine the precise nature "of the administrative practices and procedures which culminate in a determination whether [the statutory] criteria have been met." In court, of course the Department has consistently asserted that in applying the statutory categories, "there exist adequate procedures to insure that the standards are met." (See, e.g. Memorandum in U.S. v. Hoffman, CR. No. 973-71, D.C.) But in his answer to my inquiry, Mr. Mardian, on behalf of the Attorney General, was "unable to supply" any information on those procedures, other than to say that applications for electronic surveillances to be ordered by the Attorney General "have come from the Director of the Fedéral Bureau of Investigation personally," and "are handled exclusively by the Attorney General acting for the President."

Apart from the fairly explicit admission, once again, that there really are no procedures to assure adherence in advance to the statutory standards, the response raises new questions of who is doing what and why. For in June, on

the one hand the Attorney General, in a speech in Roanoke, Virginia, was stating flatly that "only the President is in a position to evaluate adequately" the kinds of sensitive information relevant to so-called "national security" surveillances, because only the President is familiar with "the various intelligence data submitted by the independent agencies within the intelligence community." On the other hand, the Deputy Attorney General the same month was arguing (on the Liz Drew Show) that the requisite judgements should be made in the Executive Branch because of the presence there of "professional career people" who "understand" sensitive materials. Yet if Mr. Mardian's response is accurate, it is neither Presidential expertise nor career expertise that is being applied but the lone judgement of the Attorney General based on each separate submission to him by the investigators who wish to do the surveilling, and without specific focus on the statutory criteria.

The answer to this seeming inconsistency, and to other issues raised in the correspondence, such as whether federal dissemination of information from warrantless taps and bugs-not identified as such-to state law enforcement agencies may be tainting many local cases across the nation, will have to await the Subcommittee's further pursuit of these matters next year, but I wanted to bring you up to date in view of the inquiries from some Subcommittee members, as well as from the academic and legal communities and the press.

At the very least, the correspondence demonstrates that any reliance on Congressional scrutiny as a continuing constraint on Executive abuse of "national security" eavesdropping is misplaced. The Deputy Attorney General has specifically suggested (on the Liz Drew Show) that "Congress . . . is informed regularly" with respect to the "categories" of such surveillance. According to the Department's brief in Keith placing sole responsibility in the Attorney General permits greater control over use of this technique by facilitating close Congressional oversight of the Executive's action." The correspondence, however, shows plainly that the Department has no procedures or record-keeping practices which allow, let alone facilitate, any meaningful Congressional review of the purposes for which warrantless taps and bugs are being used, or the way in which the statutory criteria are being met.

The copy of the correspondence I am enclosing is unedited, but the Justice Department has requested that the specific surveillance duration figures not be released, and the copies made publicly available will have those figures excised. I believe that you will find the enclosed chart, which is derived from these figures but does not disclose them, adequate for any public discussion of this material.

I look forward to working with you on these and other subjects of mutual interest during the coming year, and I thank you for your assistance and participation during 1971.

With best holiday wishes.

Sincerely,

EDWARD M. KENNEDY,

Chairman, Subcommittee on Administrative Practice and Procedure.

U.S. SENATE,

COMMITTEE ON THE JUDICIARY, Washington, D.C., February 5, 1971.

Hon. JOHN MITCHELL,

Office of the Attorney General,
Department of Justice,

Washington, D.C.

DEAR MR. ATTORNEY GENERAL: As you know, the Subcommittee on Administrative Practice and Procedure has in recent years been extremely interested in the subject of electronic surveillance, both in connection with its continuing study of practices of federal agencies and others that may constitute invasions of privacy and its role in the development and processing of the legislation which eventually became Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Both of your immediate predecessors and other Department officials appeared before the Subcommittee and their assistance was extremely valuable in our work. I know that your knowledge and interest in this area will also prove helpful to us, and we look forward to working closely with you and your staff.

There has been increasing concern in the Congress and in the Nation in regard to the current practices of the Federal government in the utilization of electronic surveillance. You yourself have announced a six-fold rise in the number of court-ordered wiretaps and microphone eavesdrop installations between calendar 1969 and calendar 1970, and there have been a growing number of court cases involving surveillances initiated by the Federal government without court orders. You have offered detailed and impressive defenses of the increase in installations under court order, and, of course, we will be assisted in reaching our own conclusions as to that type by the annual reports of the Department on its applications to the courts for wiretap and eavesdrop orders.

In the case of electronic surveillance installations made without court orders, the public impression is that such installations are not only being made more frequently, but also that they are being used in a growing spectrum of types of cases. Many citizens fear that installations without court order are being used to avoid the requirements governing court-ordered installations, and especially the necessity for the government to prove probable cause as to commission of specified criminal offenses to obtain a court order. They reason that if there were facts to establish that such criminal offenses were involved in a given case, the government would proceed by court order, and that the increasing avoidance of this procedure reflects increasing surveillance of individuals and groups whose only offense is disagreement with government policies, personal eccentricity, outspokenness, or participation in lawful activities of organized dissent, or a combination of these.

The problem for those of us who must assess these concerns is that in the field of purely executive wiretapping and eavesdropping, as opposed to Executive tapping and bugging under Judicial authority, we have scant information on which to base our judgments. The Director of the Federal Bureau of Investigation has annually testified as to the number of "national security" installations, and other Department officials including the Attorney General have from time to time also referred to such a figure in Congressional testimony or correspondence. I believe that the most recent such report referred to 36 wiretaps and 2 microphones.

In view of your own statements as to the increased number of non-courtordered installations, the growing public concern, the need of the Congress and the public for more information from which to determine whether and how the limitations on such installations in Section 2511 (3) of Title III are being adhered to, Constitutional questions aside, I am confident that you will agree that this would be an opportune time to shed some light on Federal practices in this area.

Would you, therefore, kindly provide the following information as soon as possible, sending us immediately those items of information which are readily available, and the remainder when obtained. I recognize the fact that some of

the statistics requested will be based on documents which are classified, but the requests have been phrased so as to admit of answers which should be able to be unclassified. However, if you see a need to classify any particular answer, please provide it separately, and it will be handled on a classified basis.

A. For the period June 19, 1968 to December 31, 1968, for calendar 1969, and for calendar 1970, please provide:

1. The number of electronic surveillance installations placed in operation or continuing in operation at any time during the period, counting each device, connection, or other unit as a separate installation where more than one installation was utilized to surveil the same subject or group of subjects.

2. Of these, for each period, the number of each type of installation, i.e. wire communication intercepts, oral communication intercepts, combination intercepts, or other.

3. For each period, the number of installations in each of the following time categories: under 1 week, 1 week to 1 month, 1 month to six months, over six months.

4. For each period, the number of installations in each use category itemized in Section 2511 (3) of Title 18, U.S. Code, as added by Title III of P.L. 90-351, i.e.

a. to protect the Nation against actual or potential attack or other hostile acts of a foreign power,

b. to obtain foreign intelligence information,

e. to protect national security information against foreign intelligence activities,

d. to protect against the overthrow of the government by force or other unlawful means,

e. to protect against other clear and present danger to the structure or existence of government (for this category, describe general nature of danger). 5. For each period, the number of installations the dissemination of whose product fell in each of the following categories:

a. disseminated only to 5 or fewer persons within the Federal government,

b. disseminated only to 5 to 50 persons within the Federal government,

c. disseminated to over 50 persons in the Federal government only.

d. dissemination total unknown but available on request to properly cleared Federal employees only,

e. disseminated to state, local, or private agencies.

B. In the light of the recent conflicts among the Federal courts as to the Constitutional and statutory limits of the government's power to initiate electronic surveillance without judicial authority, what interim standards and procedures has the Department adopted pending ultimate determination of these limits on a nation-wide basis?

I appreciate your assistance and look forward to your reply.
Sincerely

EDWARD M. KENNEDY

Chairman, Subcommittee on Administrative Practice and Procedure.

Hon. EDWARD M. KENNEDY,

DEPARTMENT OF JUSTICE,
Washington, March 1, 1971.

Chairman, Subcommittee on Administrative Practice and Procedure,
U.S. Senate.

Washington, D.C.

· DEAR MR. CHAIRMAN: The Attorney General has asked me to respond to your inquiry of February 5, 1971, with respect to administrative practices and procedures relative to electronic surveillance.

In accordance with your suggestion, we would ask that the breakdowns furnished with respect to the duration of surveillance be treated as confidential since an examination of the breakdown might indicate a fixed number of permanent surveillances.