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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 gov. ernment 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 Omnib Crime Control and Safe treets A 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 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 þe 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 áliens, 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.
* 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.
It was with these considerations in mind that my original letter asked the Attorney General to provide a breakdown of the Executive-ordered surveil. lances 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 adéquate 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 Federal Bureaú 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 procédures 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 “pational 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.
FEDERAL WIRETAPPING AND BUGGING, 1969–70
15.4 13. 1
Executive ordered devices
Average days in use per device
Days in use
Ratio of days used: Executive
ordered, court ordered
Court ordered devices
Executive ordered devices
Days in use
1 Ratios for 1969 are less meaningful than those for 1970, since court-ordered surveillance program was in its initial stage in 1969. Source: (1) Letter from Assistant Attorney General Robert Mardian to Senator Edward M. Kennedy, Mar. 1, 1971. Source figures withheld at request of Justice Department. (2) 1969 and 1970 reports of Administrative Office of the U.S. Courts.
Washington, D.C., February 5, 1971.
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