With respect to your questions A1, A2, and A3, we submit the following: June 19 to December 31, 1968 Telephone surveillances: In operation less than one week. Microphone Surveillances : In operation less than one week. Calendar Year 1969 In operation less than one week, In operation more than 6 months. Microphone Surveillances : In operation less than one week. Calendar Year 1970 In operation less than one week. In operation more than 6 months. Microphone Surveillances: In operation less than one week. In operation more than 6 months. The annual totals set forth above can be misleading in that they reflect the total installations authorized or in place during the periods described. The total maximum number of surveillances in operation at any one time during the periods described are as follows: 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. 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. EDWARD M. KENNEDY. DEPARTMENT OF JUSTICE, Hon. EDWARD M. KENNEDY Chairman, Subcommittee on Administrative Practice and Procedure, 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. 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. EDWARD M. KENNEDY, Administrative Practice and Procedure. DEPARTMENT OF JUSTICE, Hon. EDWARD M. KENNEDY, Chairman, Subcommittee on Administrative Practice and Procedure, 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 surveillance 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. DEPARTMENT OF JUSTICE, Washington, D.C., January 20, 1972. Hon. EDWARD M. KENNEDY, DEAR SENATOR KENNEDY: This is in response to your letter of January 19, 1972, inviting me to 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, DEAR MR. MARDIAN: 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, regulations, 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 Title 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 neces sary. 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 taps 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 KENNEDY. 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 HRUSKA. Would the Senator yield for a little addition in this regard? Senator KENNEDY. Surely. Senator HRUSKA. 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? 93-045-73-6 |