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the statistics requested will be based on documents which are classified, bu 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 particula 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,

c. to protect national security information against foreign intelligence activi. ties,

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.

DEPARTMENT OF JUSTICE,

Washington, March 1, 1971. Hon. EDWARD M. KENNEDY, 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 fürnished 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.

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With respect to your questions A1, A2, and A3, we submit the following:

June 19 to December 31, 1968 Microphone Surveillances :
Telephone surveillances :

In operation less than one week.
In operation less than one week.

In operation 1 week to 1 month.
In operation 1 week to 1 month.

In operation 1 to 6 months.
In operation 1 to 6 months.

In operation more than 6 months.
In op
ation more than 6 months.

Total, 13
Total, 50

Calendar Year 1970
Microphone Surveillances :

Telephone Surveillances :
In operation less than one week.

In operation less than one week.
In operation 1 week to 1 month.

In operation 1 week to 1 month.
In operation 1 to 6 months.

In operation 1 to 6 months.
In operation more than 6 months. In operation more than 6 months.
Total, 6

Total, 97
Calendar Year 1969

Microphone Surveillances :
Telephone Surveillances :

In operation less than one week.
In operation less than one week.

In operation 1 week to 1 month.
In operation 1 week to 1 month.

In operation 1 to 6 months.
In operation 1 to 6 months.

In operation more than 6 months.
In operation more than 6 months. Total, 16

Total, 81

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The annual totals set forth above can be misleading in that they reflect the total installations authorized or in place during the periods deseribed. The total maximum number of surveillances in operation at any one time during the periods described are as follows:

June 19 to December 31, 1968 Microphone surveillances
Telephone surveillances

45

Calendar Year 1970
Microphone surveillances
6 Telephone surveillances

56
Calendar Year 1969
Microphone surveillances

6 Telephone surveillances

59 With respect to your question A4, the installations cannot be categorized exclusively under a single criterion; however, each installation meets one or more of the criteria itemized in Section 2511(3) under Title 18 of the United States Code.

Departmental records do not, as a practical matter, permit us to answer question A5 with the specificity you request. However, Department policy limits dissemination of information of the nature inquired of to persons on an actual “need to know” basis. Appropriate security classifications and control markings are imposed on such information. None of this information is disseminated to state or local governments or agencies except in rare instances in order to prevent the commission of a serious felonious act. In such instances, the source of the information is not divulged.

In response to question B, we would advise that since the Katz decision in 1967, the Department has operated under the more restrictive guidelines dictated by that decision and the standards enunciated in the Omnibus Crime Control and Safe Streets Act of 1968, which codified the parameters of the “national security" exception. No changes in Department practices or procedures have been initiated by reason of the conflict in the recent district court decisions to which you refer. Sincerely yours,

ROBERT C. MARDIAN, Assistant Attorney General.

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U.S. SENATE,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. March 12, 1971.
Mr. ROBERT C. MARDIAN,
Assistant Attorney General,
Department of Justice,
Washington, D.C.

DEAR MR. MARDIAN : Thank you for your letter of March 1 replying to some of my inquiries relating to electronic surveillance.

Although I can appreciate that each of the surveillances operated without court order may not necessarily be susceptible of categorization exclusively under any single criterion enumerated in Section 2511 (3) of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, we would nevertheless like to have a numerical break-down by category or categories of the installations described in your letter. In this regard, we would also appreciate your supplying us with a detailed description of the administrative practices and procedures of your Department which culminate in a determination whether Section 2511 (3) criteria have been met and whether a recommended surveillance should be approved. I appreciate your assistance. Sincerely,

EDWARD M. KENNEDY.

DEPARTMENT OF JUSTICE,

Washington, March 23, 1971, Hon. EDWARD M. KENNEDY Chairman, Subcommittee on Administrative Practice and Procedure, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: As indicated to you in my letter of March 1, 1971, the subject matter of question A4 is such as to preclude categorization under a single criterion and no such categorization exists.

I am unable to supply you with a "detailed description of the administrative practices and procedures" you request, other than to say that all requests for telephonic and microphonic surveillances, at least since January 20, 1969, to the Attorney General have come from the Director of the Federal Bureau of Investigation peronally. Such requests are handled exclusively by the Attorney General acting for the President of the United States.

This Department has heretofore publicly set forth the considerations involved in making such determinations and the reasons for refusing to disclose the bases for the Executive's decision. In the brief of the United States filed recently in the Ninth Circuit Court of Appeals we said :

“In authorizing the use of electronic surveillance, the President through the Attorney General must weigh many factors, not all of a purely factual nature, which he cannot, and should not be required to, produce before a magistrate. Moreover, in making such a decision the President must rely upon the entire spectrum of information available only to him, much of which is derived from sources which, by their nature, are secret. Such information, more often than not, involves both the Nation's foreign and domestic affairs inextricably intertwined. Any attempt to legally distinguish the impact of foreign affairs matters from internal subversive activities or to isolate one particular factor upon which an eventual decision is based, is an exexcise in futility and eloquently demonstrates the wisdom of leaving these decisions to the Chief Executive who alone is in a position to make such a judgment and who is answerable to the people from whom the power is derived.

“Another weighty factor bearing upon this issue is the fact that disclosure of the bases for the Attorney General's decision or the fact that such a surveillance is to be conducted may in itself prejudice the national interest.” We hope the foregoing will be of assistance to you. Very truly yours,

ROBERT C. MARDIAN Assistant Attorney General.

APRIL 1, 1971. Mr. ROBERT C. MARDIAN, Assistant Attorney General, Internal Security Division, Department of Justice, Washington, D.C.

DEAR MR. MARDIAN: I am writing with reference to your letter of March 23 advising that there is no categorization of the surveillance operated without court order under the criteria enumerated in Section 2511(3) of Title III of - the Omnibus Crime Control and Safe Streets Act of 1968.

In view of the position taken by your Department in the courts that certain of such surveillances are employed for the purpose of gathering “foreign intelligence information", and that other of such surveillances are employed for the purpose of gathering "intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government”, would you please provide us with a numerical break-down of the installations described in your March 1 letter under these two classifications. I appreciate your assistance. Sincerely,

EDWARD M. KENNEDY,

Subcommittee on Administrative Practice and Procedure.

DEPARTMENT OF JUSTICE,

Washington, April 23, 1971. Hon. EDWARD M. KENNEDY, Chairman, Subcommittee on Administrative Practice and Procedure, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your most recent letter of April 1, 1971, in which you request a numerical breakdown of those surveillances operated without court order, which are employed for the purpose of gathering “foreign intelligence information” and those which are employed for the purpose of gathering "intelligence information deemed necessary to protect the Nation from attempts of domestic organizations to attack and subvert the existing structure of the government.” You indicate that these two categories are derived from the position recently taken in the courts by the Department of Justice.

The position taken by the Department in the courts has drawn a distinction between two separate but closely related powers of the President, pursuant to which he may constitutionally authorize electronic surveillance to gather intelligence information without securing a prior warrant. In the brief of the United States filed recently in the Ninth Circuit Court of Appeals we said:

In United States v. Belmont, 301 U.S. 324, 328 (1937), the Court recognized the existence and extent of one of these inherent Presidential powers when it held that “the conduct of foreign relations was committed by the Constitution to the political departments of the government, and the propriety of what may be done in the exercise of this power [is] not subject to judicial inquiry or decision.” the President, in his dual role as Commander in Chief of the armed forces and Chief Executive, possesses another serious power and responsibility—that of safeguarding the security of the Nation against those who would subvert the Government by unlawful means.” (Brief, pages 2-3.)

As we have indicated, the inherent powers of the Chief Executive to conduct foreign affairs and to protect the national security, while somewhat related, are separate and distinct. The Congress itself recognized the distinction in the Omnibus Crime Control and Safe Streets Act of 1968.” (Brief, pages 17–18.)

This position was not intended to imply that any single surveillance could be considered as being employed solely pursuant to either one of the aforementioned powers. As I have indicated previously, the decision to employ such şurveillance is based on a consideration of information involving "both the Nation's foreign and domestic affairs inextricably intertwined.” Accordingly, the Department has never attempted such a categorization. We hope the foregoing will be of some assistance. Sincerely,

ROBERT C. MARIDIAN, Assistant Attorney General.

Although I can appreciate that each of the surveillances operated without court order may not necessarily be susceptible of categorization exclusively under any single criterion enumerated in Section 2511 (3) of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, we would nevertheless like to have a numerical break-down by category or categories of the installations described in your letter. In this regard, we would also appreciate your supplying us with a detailed description of the administrative practices and procedures of your Department which culminate in a determination whether Section 2511 (3) criteria have been met and whether a recommended surveillance should be approved. I appreciate your assistance. Sincerely,

EDWARD M. KENNEDY,

DEPARTMENT OF JUSTICE,

Washington, March 23, 1971. Hon. EDWARD M. KENNEDY Chairman, Subcommittee on Administrative Practice and Procedure, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: As indicated to you in my letter of March 1, 1971, the subject matter of question A-4 is such as to preclude categorization under a single criterion and no such categorization exists.

I am unable to supply you with a "detailed description of the administrative practices and procedures" you request, other than to say that all requests for telephonic and microphonic surveillances, at least since January 20, 1969, to the Attorney General have come from the Director of the Federal Bureau of Investigation peronally. Such requests are handled exclusively by the Attorney General acting for the President of the United States.

This Department has heretofore publicly set forth the considerations involved in making such determinations and the reasons for refusing to disclose the bases for the Executive's decision. In the brief of the United States filed recently in the Ninth Circuit Court of Appeals we said:

"In authorizing the use of electronic surveillance, the President through the Attorney General must weigh many factors, not all of a purely factual nature, which he cannot, and should not be required to, produce before a magistrate. Moreover, in making such a decision the President must rely upon the entire spectrum of information available only to him, much of which is derived from sources which, by their nature, are secret. Such information, more often than not, involves both the Nation's foreign and domestic affairs inextricably intertwined. Any attempt to legally distinguish the impact of foreign affairs matters from internal subversive activities or to isolate one particular factor upon which an eventual decision is based, is an exexcise in futility and eloquently demonstrates the wisdom of leaving these decisions to the Chief Executive who alone is in a position to make such a judgment and who is answerable to the people from whom the power is derived.

"Another weighty factor bearing upon this issue is the fact that disclosure of the bases for the Attorney General's decision or the fact that such a surveillance is to be conducted may in itself prejudice the national interest." We hope the foregoing will be of assistance to you. Very truly yours,

ROBERT C. MARDIAN Assistant Attorney General.

APRIL 1, 1971. Mr. ROBERT C. MARDIAN, Assistant Attorney General, Internal Security Division,

Department of Justice, Washington, D.C.

DEAR MR. MARDIAN: I am writing with reference to your letter of March 23 advising that there is no categorization of the surveillance operated without court order under the criteria enumerated in Section 2511(3) of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

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