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DEPARTVIAR *).

Washinaton, 4; By
FOL. EFA. KENNET
Charme. Duboammatte Administrative Practice ana panordu

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e Te Tul Il+ IOS. 34 recent takeri iti the conrn by the Thermen JUSDIE Ta posido take to the Thenartmen: in the court has drawn intran between tw senarai nur eine related porters of the President, mueyyy{v? wme 1 mconsTT? authorize lartronic surveillance te mogen por ligence IDCME 20. Fetika: Sertrins à prior warrani. In the brie's Hi the Inited State- file recer. 11 the Vinil Circuit Court of Appeals the fir

11. Tiniteż stoteT. Brimom. 3112 Is 324, 32 (1987), the rouri po brolio the existenes and enten a one of these inherent Presidential por men N held tha: "Il condur: a foru:11 relations was committer lay the commitment Tu tine pušitica departments on the government, and the propriety of my mind De done 11. Int exercise on this power (is not subject to cirl inanisl vi decision." ... the President, ir, his dual role as commander in ahtri pof flies armed forces and the Ixecutive, possesses another serious power and the plan sibilit--that a safeguardins the security of the Nation sening the line wonic subvert the trovernmen: by unlawful means." (Brief, pan 31

"As we have indicated the inherent powers of the (hier twentie pron duct foreign affairs and to protect the national security, while imtina related, are separate and distinct. The Congress itself meognize the tim tion in the Omnibus Crime Control and Safe Streets Act of 1968" (Trier, puria 17–16.)

This position was not intended to imply that any single kurveillance printr lint considered as being employed solely pursuant to either one of the nthemen tioned powers. As I have indicated previously, the decision to amplos veillance is based on a consideration of information involtings born ihn Nation's foreign and domestic affairs inextricably intertwined." Arrontingit, the Department has never attempted such a categorization. We hope the foregoing will be of some assistance, Sincerely,

Ronra MARIA
A ex*xtant Attorney Print

DEPARTMENT OF JUSTICE,

Washington, D.C., January 20, 1972. Hon. EDWARD M. KENNEDY, U.S. Senate, Washington, D.O.

DEAR SENATOR KENNEDY: This is in response to your letter of January 19, 1972, inviting me appear before your Subcommittee on Administrative Practice and Procedure concerning electronic surveillances initiated by the Federal government without court orders.

The Senate Judiciary Subcommittee on Criminal Laws and Procedures, of which you are a member, has been working closely with the Department of Justice in anticipation of a comprehensive examination of all aspects of electronic surveillance. This study has been the subject of correspondence between Senator McClellan and the Attorney General, copies of which were included in the Congressional Record of May 10, 1971 (S 6477–78). As indicated in Senator McClellan's letter of April 28, 1971, the undertaking will include a comprehensive review of law and practice in domestic security cases. We expect to present this material before the Subcommittee in early February.

Our complete analysis is still being prepared. Under these circumstances, it
would be premature and inappropriate for me to testify next Tuesday,
January 25.
Sincerely,

ROBERT C. MARDIAN,
Assistant Attorney General,

Internal Security Division.

JANUARY 19, 1972. Mr. ROBERT C. MARDIAN, Assistant Attorney General, Department of Justice, Washington, D.O.

DEAR MR. MARDIẢN: This is to confirm the invitation telephoned to you to appear at the hearing of the Subcommittee on Administrative Practice and Procedure on warrantless electronic surveillance on the morning of Tuesday, January 25, 1972, in continuation of our inquiry on that subject which began with my letter of February 5, 1971, to the Attorney General, and with which you have cooperated in further correspondence over the past year.

We would like you to provide the Subcommittee prior to your appearance with 'copies of any guidelines, instructions, forms, delegations, rules, regularions, or other documents relating to the procedures for requesting, approving, and installing warrantless electronic surveillances, inclduing any materials of agencies or bureaus 'of your Department or other Departments utilized in connection with requests for the Attorney General's approval of wiretap and microphone surveillance without court order.

Of course, to the extent any specific classified materials or information are Involved, the usual precautions and protection will be arranged. And naturally we will not expect you to delve into the specific facts of any pending criminal case. Rather our interst is in the general kind of policy, and procedural information which the Attorney General, Deputy Attorney General, and you have discussed in various speeches, interviews, and in your correspondence with us.

I want to stress that we are not at this time considering the provisions of Titre III which relate to court-ordered wiretapping in connection with criminal cases, and we would not expect you to be prepared to discuss that area.

Please let me know if the 25th is convenient with you. If another day is preferable we can reschedule the hearing. With warm regards. Sincerely,

EDWARD M. KENNEDY,

Chairman, Subcommittee on Administrative Practice and Procedure.

EXCERPT FROM ADDRESS OF RICHARD G. KLEINDIENST AT Boston UNIVERSITY,

MAY 7, 1970

The other aspect to the wiretap controversy is the non-court authorized electronic surveillance for national security purposes.

Here again, we were faced with constitutional polarities. There are those who believe that every search conducted by government under any circumstances must conform to the Fourth Amendment requirements of a warrant issued by a magistrate.

And there are others who believe that, on the slightest pretext of national security, the Executive should be able to conduct searches free from any court ordered showing of probable cause.

When John Mitchell became Attorney general, he was informed that every Attorney General for the past 25 years had authorized electronic surveillance as a means of gathering foreign intelligence information and intelligence information concerning domestic organizations which pose a serious threat to the national security.

This power has been exercised under the constitutional prerogative of the President to protect the security of the nation upon the belief that the courts would accept the Attorney General's determination that the search was necessary.

Thus, he decided that, as the President's lawyer, it was right and proper for him to defend the actions of his predecessor Attorneys General who acted on behalf of their respective Presidents. We have submitted this matter to the courts for their decision and we will, of course, abide by their rulings.

As a safeguard against abuse, a complete review of every existing national security wiretap was instituted. Each application must be presented to the Attorney General personally with full supporting documentation. The result has been a restricted use of non-court authorized electronic surveillance.

EXCERPT FROM TESTIMONY OF RICHARD G. KLEINDIENST, FEBRUARY 23, 1972,

BEFORE THE SENATE JUDICIARY COMMITTEE Senator KENNEDY. In the area of wiretapping, Mr. Kleindienst, as you know, the Criminal Laws Subcommittee is going to have some hearings on this matter. Our Administrative Practice Subcommittee has also been interested in this subject in terms of the procedures and practices and rules that have been followed. Our interest follows the rather extensive subcommittee interest which began many years ago under the previous chairman, Senator Edward Long of Missouri. In terms of the categories of warrantless wiretapping, is there really any reason why that kind of information can't be provided to the Congress, such as how many taps are being made under the different categories?

Mr. KLEINDIENST. Categories like microphone and telephone?

Senator KENNEDY. No. In connection with so-called national security taps, such categories for example, "clear and present danger to the structure or existence of government.” In the 1968 law there are five different categories for warrantless tapping. What I am interested in is whether you can give us a breakdown as to the number of tapis in each of these categories. Is that possible?

Mr. KLEINDIENST. I can't give it to you today. But I see no reason why the number—I know that information has been provided or is provided regularly to the Congress by the Directcor of the FBI.

Senator KEN NEDY. I think it would be helpful if we could have it. We do have these different categories, and if we know just the number of devices that were being authorized under each of the different categories, I think it would be useful and helpful.

Senator HRUBKA. Would the Senator yield for a little addition in this regard?

Señator KENNEDY. Surely.

Senator HRUBKA. Mr. Kleindienst, is there any way of estimating how many wiretaps we do not have now by reason of the fact that the present wiretap law makes it illegal for private parties or "unauthorized persons to use wiretapping?

93-045—73-16

Mr. KLEINDIENST. I think as a result of that law, Senator Hruska, there has been a fantastic diminution in electronic surveillances that were instituted by private parties, private snooping.

Senator HRUSKA. How do you know that?

Mr. KLEINDIENST. Well, because most of the people of this country are lawabiding citizens, and when they are advised of the passage of a law by the Congress that carries with it penalties of that kind, I think that they have a natural inclination to comply with the law of the land.

Senator HRUSKA. Would the sale of the equipment that is necessary for this purpose be an indicator in that regard ?

Mr. KLEINDIENST. That would be evidentiary.

Senator HRUSKA. What has happened to those sales, and the manufacture of that type of equipment?

Mr. KLEINDIENST. I don't know precisely, but I know it has gone down.

You would also have to take into account that which was already in existence. But I know it has gone down.

Senator Hruska. If you could get some estimates in the matter of how helpful this bill has been to really get at unauthorized wiretaps, which had not been illegal before, and also perhaps the volume of manufacture and sales and availability of this type of equipment, it might be helpful to round out the picture.

Mr. KLEINDIENST. That would be interesting information.
Senator HRUSKA. I thank the Senator.
Senator KENNEDY. Has wiretapping ever been legal?
Mr. KLEINDIENST. Well, in national security cases-

Senator KENNEDY. Private wiretapping, the kind of wiretapping you were just talking about?

Mr. KLEINDIENST. Yes-
Senator HRUSKA. It has not been illegal?
Mr. KLEINDIENST. It has not been illegal.
Senator KENNEDY. I thought the Communications Act had made it illegal.

Mr. KLEINDIENST. Well, there are some nice little touchy variations on that. It depends on what you do with it.

Senator KENNEDY. I thought the Communications Act made it illegal.

Mr. KLEINDIENST. Well, there is conduct described in that Communications Act. And if it didn't come within that precise conduct you could go ahead and have the eavesdropping.

Senator HRUSKA. Wasn't this the weak spot in it, it was not illegal to wiretap, but it was illegal to communicate the product of that wiretapping.

Mr. KLEINDIENST. That is correct.

Senator HRUSKA. And so in effect you had a situation where it was not illegal to go ahead and wiretap.

Now, that is no longer the case under the present law?
Mr. KLEINDIENST. That is correct.

Senator KENNEDY. As I understand it on the warrantless wiretap, you make a finding in terms of say, clear and present danger in order to justify such non-court-ordered wiretapping. Do you have any place where there's written down a definition, or an elaboration of what constitutes a clear and present danger?

Mr. KLEINDIENST. Not that I know of, Senator Kennedy, but there might be this is one function that the Attorney General has never delegated to me in any respect since I have been the Deputy Attorney General.

Senator KENNEDY. So the meaning of these words, “clear and present danger," then, really depends upon your own view, a very subjective kind of a judgment?

Mr. KLEINDIENST. Right.

Senator KENNEDY. Could you give us any kind of idea this afternoon as to the magnitude of that danger, the kind of danger that must be present in order for you to authorize this type of thing? I know it is difficult.

Mr. KLEINDIENST. Those words mean a great deal to me. And I would be inclined to use at least as much if not more restraint than almost anybody in the authorization of such electronic eavesdropping devices.

Senator KENNEDY. You said earlier that the May Day type of demonstration wouldn't have presented to you a sufficient justification for finding that there 1, was a clear and present danger. Wouldn't it be reasonable to assume, then, that there weren't any activities or individual

Mr. KLEINDIENST. No, I didn't think 3,000 or 4,000 vandals could overthrow the Government of the United States. I thought that they might come in here and clog up the streets and burn automobiles and throw trash and boulders and try to block a bridge. And I felt that-we all felt that this Government had a duty to function. But to think that a bunch of people so disposed could overthrow this Government I think would be a joke. The only thing that happened on May Day was, instead of 4,000 or 5,000, there were 25,000 of them. And they accomplished one thing, they clogged up the jails and clogged up the courts, and made it impossible for policemen to use field arrest forms. But I think that is about all they did.

Senator KENNEDY. But do I gather

Mr. KLEINDIENST. No, I wouldn't want to use electronic surveillance in that kind of situation.

Senator KENNEDY. How about individuals who were organizing for May Day?

Mr. KLEINDIENST. No.
Senator KENNEDY. That type of activity would not appear-

Mr. KLEINDIENST. Unless I got some information that some of the individuals were going to assassinate the President or going to kidnap public officials, or were going to blow up the Capitol—then I would say, they are starting now to threaten the institution of our Government, and this Government has a duty, by way of intelligence, to inform itself of that kind of conduct and to prevent it. But based upon the information that we have as to this bunch of people who came in on this, no.

Senator KENNEDY. So it has to be of that dimension, or that significance, in terms of those categories?

Mr. KLEINDIENST. Yes.

Senator KENNEDY. You said last June, I believe, on the Liz Drew show that “there should be some limits," on the warrantless taps, but you seemed to look only to the Supreme Court, which, you said, “over a period of time will carve and has carved out carefully what those limits are.”

Could you tell us a little bit about what limits you believe have already been carved out by the Supreme Court?

Mr. KLEINDIENST. Well, subject of course to what the Supreme Court saysand that case is going to be argued tomorrow—I think they should be restricted to the national security. And then I think that the executive branch, in the fashion that President Nixon and Attorney General Mitchell have demonstrated, should see to it that only one person in the Government has the responsibility to authorize that, so that at all times there will be political responsibility for this kind of conduct. And I think that so long as there is that political responsibility, and so long as it is restricted to the national security, and so long as we have our Constitution and the President, who is charged with the preservation of it, I think, in my own opinion, they ought to have that power.

Senator KENNEDY. You don't see any kind of limitations that it would be appropriate for the Department of Justice to establish? Or do you want to just leave this completely up to the Supreme Court?

Mr. KLEINDIENST. The limitation, if I become the Attorney General, would be self-imposed restraint, Senator Kennedy. And I will be answerable to the Congress of the United States at any time with respect to that restraint.

Senator KENNEDY. And it would be guided by what you referred to earlier in terms

Mr. KLEINDIENST. I am going to make the decision if I am the Attorney General, nobody else is, and it doesn't serve any useful purpose for me to publish a guideline which I could follow or not follow. A guideline is a commitment.

Senator KENNEDY. You said in Boston in May of 1970 that “each application for a warrantless tap-must be presented to the Attorney General personally with full supporting documentation.”

Mr. KLEINDIENST. That is correct.

Senator KENNEDY. Could you describe for us just generally what this documentation would be, and what kind of factual situation would be necessary to support it?

Mr. KLEINDIENST. No, I can't, because I have never participated in any of those decisions, nor have I ever examined that. I think that is about the only

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