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area in the Department of Justice in 3 years that I have not been involved in, and which Mr. Mitchell has not discussed with me, or which has not been delegated to me.
Senator KENNEDY. Does it bother you at all that you will be given this kind of responsibility but that there are no guidelines for you to follow? This is obviously an extraordinary kind of responsibility.
Mr. KLEINDIENST. Yes, it is.
Senator KENNEDY. And power and authority. I would think that you would either want or welcome at least some kind of guidance. Does it bother you that you don't have any ?
Let's look at it from the other point of view—that one person has all this responsibility and authority, and it appears that there is very little, other than that person's own good judgment, that is used to limit or review that authority.
Mr. KLEINDIENST. Many of the awesome responsibilities of the Department of Justice bother me. But they are responsibilities that I am willing to assume. I would rather have them assumed by one person in a sensitive area like this than delegated to a committee and have happen what happened in the past frequently, where it was done but nobody would quite own up to it. And there was also an argument as to who did it, and why and when. And I think that is very bad. Yes, it bothers me, but I am willing to assume that burden.
Senator KENNEDY. What I was talking about was whether there shouldn't be some elaboration or some definition. Obviously it would be subject again to an interpretation of the words. But I would think that everyone, both the Congress and the American people, would feel better if they knew that there was just some paragraph some place, or just a page, that lays out the basis for it. I would think that you yourself would feel better about insuring that you are meeting your responsibility and even insuring that you are moving fast enough or far enough.
Mr. KLEINDIENST. That is something I would consider. But it would be as if I were writing myself a guideline. I wouldn't be adverse to considering it, Senator Kennedy. But I don't know if I will do it or not.
ANNUAL ELECTRONIC SURVEILLANCE REPORT AND WIRETAP INVESTIGATION
(Floor Statement by Senator John McClellan, May 10, 1971) Mr. MCCLELLAN. Mr. President, on June 19, 1968, at 7:14 p.m. President Johnson signed Public Law 90-351, the "Omnibus Crime Control Act of 1968." Title III of the 1968 act, which I sponsored and which dealt with wiretapping and electronic surveillance, represented the culmination of an attempt, over the past 40 years, embracing approximately 50 bills, resolutions and joint resolutions, to arm law enforcement with a sorely needed tool to combat the forces of organized crime. District Attorney Frank S. Hogan, who has been one of the Nation's outstanding district attorneys for over 27 years, has aptly discribed this tool as: “the single most valuable weapon in law enforcement's fight against organized crime.”
Title III of Public Law 90–351 has now been in effect for a period of 3 years. At first, it was not used on the Federal level, since it was the opinion of the then Attorney General that electronic surveillance was "neither effective nor highly productive," New York Times, May 19, 1967, p. 23, col. 1. Since January of 1969, however, title III has been used on the Federal level, and from January of 1969 through March of 1971, 315 court approved surveillance orders, including extensions, have been executed. All but 12 produced incriminating evidence. As a result, over 900 persons have been arrested, and, so far, 100 of these individuals have been convicted. Additional convictions will undoubtedly result as other defendants 'among those arrested are brought to trial. No case has yet reached the Supreme Court, but I am encouraged that the lower Federal courts have twice sustained the constitutionality of the basic scheme of the act. District Attorney Hogan's characterization of electronic surveillance on the local level is fast proving true on the Federal level, and the wisdom of the Senate in rejecting a motion to strike title III from the 1968 act by a record vote of 68 to 12 is being vindicated in practice.
Mr. President, when title III was enacted in 1968, seven States, including Arizona, Georgia, Maryland, Massachusetts, Nevada, New York, and Oregon, had State level legislation which dealt with wiretapping or electronic surveillance and authorized, under varying standards, the issuance of court orders for surveillance in criminal investigations. My research indicates that 19 States, including Colorado, Florida, Kansas, Minnesota, Nebraska, New Hampshire, New Jersey, Ohio, Rhode Island, South Dakota, Washington, and Wisconsin, now have such legislation and that the majority of it was patterned .after title III. At least one of these post-title III statutes, moreover, has been sustained in a published opinion against constitutional attack in the State courts. State v. Christy, 112 N.J. Super. 48, 270 A 2d 306 (1970)). These developments, too, are heartening. If we can on the Federal and State level arm our police with the tools they so sorely need, I am hopeful that we can arrest and reverse the growth of organized crime in the United States.
Mr. President, under title 18, United States Code, section 2519, prosecutors who seek and judges who issue surveillance orders under the 1968 act or its counterparts on the State level are required to file detailed statistical reports in January of each year with the Administrative Office of the U.S. Courts and in April of each year, the Director of the Administrative Office is required to transmit to the Congress summary and analysis of the data contained in these reports. These public disclosure provisions reflect the judgment of the Congress in 1968 that public accounting is essential to any system of the limited use of electronic surveillance techniques. Public support for the exercise of the power to wiretap and bug-even under court order-can only be obtained where the public is responsibly informed of the extent and character of its use.
Mr. President, the 1970 annual report has just been released by the Director of the Administrative Office. Because of the widespread interest in these matters of late, I think it will be helpful to summarize for the Senate and comment on the basic data in the report.
This is the third report submitted under title III. It covers the period from January 1, 1970, to December 31, 1970. It indicates that during this period 597 applications for orders were made to Federal and State judges. Of these applications, 183 were signed by Federal judges, and 414 were signed by State judges. Of the 414 State orders, 125 or 52 percent were issued in New York, while 132 or 32 percent were issued in New Jersey.
The 597 applications filed during the 12 months of 1970 compare with the 304 applications filed in 1969 and 174 filed in last 6 months of 1968. On the Federal level, the increase from 33 in 1969 to 183 in 1970 reflects the growth in the Department of Justice's drive against organized crime. Federal organized crime strike forces are now in operation in cities throughout the Nation. On the State level, the increase from 269 in 1969 to 414 in 1970, reflects the implementation of new laws in several States, primarily in New Jersey. In 1969, only 45 applications were made in New Jersey ; in 1970, the figure rose to 132, of which the State attorney General's Office accounted for S2 in its increased organized crime efforts,
On the Federal level, of 183 authorized intercepts, 180 were installed and 43 extensions were granted. The 183 authorizations were granted for an average length of 17 days; the extensions for an average of 9 days. The State picture varied. In New Jersey, for example, of the 82 authorized intercepts of the attorney general's office, 82 were installed and 19 extensions were granted. The 82 authorizations were granted for an average length of 16 days; the extensions for 19 days.
In 1970, of the 583 applications that resulted in an intercept, 539 involved a telephone wiretap, 21 intercepts, used a nonconsensual listening device, such as a microphone. In 23 requests, both a telephone wiretap and a microphone were used for the interception.
The report does not, of course, include data on either the so-called national security or domestic security use of wiretaps or listening devices. In the national security area the use of these techniques, I should like to emphasize, was first begun as a result of a May 21, 1940, memorandum of President Franklin D. Roosevelt to Attorney General Robert Jackson, later Mr. Justice Jackson. In the domestic security area, this practice was first begun as a result of a July 17, 1947 memorandum of President Harry S. Truman to Attorney General Tom Clark, later Mr. Justice Clark. In both areas, it has been continued in each administration and by each Attorney General thereafter. No reports in either of these two areas are required under the 1968 act, however, since the Congress in the 1968 act did not wish to limit in any fashion the constitutional power of the President as Commander in Chief of the Nation's Armed Forces to respond to either foreign powers or clear and present domestic threats to the survival of the Nation. See 18 U.S.C. 2511(3) ; 14 CONGRESSIONAL RECORD S6245_46_daily edition May 23, 1968. Nevertheless, the President recently commented on the number of wiretaps, indicating that none are currently in operation, while the number running at any one time in recent years has not exceeded 50. In the early 1960's, the figure was 100. What the scope of the President's constitutional power is in this area is a question the Congress did not reach in 1968, and which is, I note, now in the lower Federal courts winding its way up to the Supreme Court. See United States v. Keith, No. 71-1105 U.S. Court of Appeals for the Sixth Circuit, decided April 8, 1971.
The offenses specified in the applications summarized in the 1970 report covered a wide range of criminal activities. Several broad categories of crime, however, predominated : Arson 13; bribery, 16; drugs, 127; extorition, 17; gambling, 326; homicide, 20; larceny, 31; and robbery, 13.
The locations of the interceptions authorized included 203 residences, 163 apartments, 39 multiple dwelling, 122 business locations, and 30 business and living quarters.
The character of the interceptions were also described in the reports. In 1969, the average intercept involved 116 persons and 641 intercepts, of which 252 or 39 percent were incriminating. In 1970, on the other hand, the average intercept involved 44 people and 655 intercepts, of which 295 or 45 percent were incriminating. With more experience, therefore, it seems apparent that the intercepts are becoming more discriminating, a development that works well both for privacy and justice.
In certain areas, however, the picture is even better. In 1970, for example, on the Federal level, the average intercept touched on 57 persons and embraced 821 intercepts, of which 571 or 69 percent were incriminating, while in New Jersey, in the interceptions conducted by the office of the attorney general, 42 persons were involved and 294 intercepts were made, of which 237 or 80 percent were incriminating.
The total costs of each intercept-manpower and equipment-ranged from a low of $14 to a high of $146,300, with the average national intercept running $5,524, and the average Federal intercept running $12,106. These figures alone should do a great deal to put into context people's fear of excessive use of these techniques. Most police agencies including the Federal, simply do not have the manpower and other resources to conduct widespread surveillance.
Most of the cases in which there were interceptions reported are, of course, still under investigation or are awaiting trial. Nevertheless, the reports indicate that a total of 1,874 arrests have been made as of December 31, 1970. This figure compares favorably with the 625 arrested in 1969. Supplementary court action reports dealing with intercepts first reported in 1969 were also filed for 53 percent of the 1969 intercepts. Others are coming in periodically. A total of 31 trials and 70 convictions have occurred. One motion to suppress has been granted, one withdrawn, 25 are pending, and 25 have been denied. These figures, too, say a great deal about the judgment of those who say that these techniques are not effective or that they will be subject to widespread abuse. As the experience is beginning to develop, it shows clearly how important convictions can be obtained without an undue invasion of privacy.
Mr. President, I recognize, of course, that it is not proper to draw too many conclusions from wholly statistical information. Nevertheless, I am moved to point out and to emphasize that this data does not support the position of those who fought the enactment of title III and would now seek its repeal or substantial modification. The opponents of this legislation predicted widespread and promiscuous use of wiretaps and bugs by law enforcement authorities. They are being proven wrong. They said it was neither effective nor highly productive. Now they are being made to eat their words. I would hope, too, that when they make new and equally sweeping predictions and charges today that the Senate and the Nation will remember that their track record does not warrant paying close attention to them.
On the other hand, Mr. President, I am frank to admit that I sense a certain public concern about wiretapping. I have seen no evidence that warrants
it. I assure the Senate, too, that I have made it my business to watch carefully the implementation of this statute on the Federal and State levels. When and if abuses occur, I shall do all in my power to see to it that those responsible are prosecuted to the full extent of the law and shall seek from time to time to have appropriate inquiries made to verify that abuses are or are not taking place and to bring to the public's attention how well or ill these techniques for the investigation of crime serve the public interest.
It is in this context, therefore, that I should like to inform the Senate that I have directed the staff of the Subcommittee on Criminal Laws and Procedures, which I am privileged to chair and which has legislative oversight in the area of wiretapping and electronic surveillance, to begin to undertake a comprehensive examination of law and practice on the Federal and State levels. The Attorney General has informed me that he will extend to the subcommittee every possible assistance, and I am hopeful that this examination could mature into public hearings by early fall. There is a need here for a public review of the facts—all of the facts. Hopefully, these hearings can bring out those facts. I intend to do what is in my power to see to it that they do.
Mr. President, I ask unanimous consent to have printed in the RECORD following my remarks an exchange of correspondence between the Attorney General and myself, copies of the three Presidential memorandums, a staff memo summarizing the developments of the law in this area, certain summary charts contained in the 1970 Annual Surveillance Report, and excerpts from the President's recent news conference.
There being no objection, the items were ordered to be printed in the RECORD, as follows:
[Exhibit No. 1]
APRIL 28, 1971. Hon. John N. MITCHELL, Attorney General of the United States, Department of Justice, Washington, D.C.
DEAR MR. ATTORNEY GENERAL: I write to solicit your cooperation in a study of wiretapping and electronic surveillance to be undertaken by the Subcommittee on Criminal Laws and Procedures.
As I am sure you are aware, I sponsored the enactment in 1968 of title III of Public Law 90–351, which deals with wiretapping and other forms of electronic surveillance, out of the deeply held desire both to strengthen law enforcement and to protect the legitimate need for privacy of our Nation's citizens. Title II of Public Law 90–351 will have been effective for a period of three years on June 19 of this year, a period during which it has been utilized on the federal level for 212 years and in which the legislatures of 12 of our states have enacted comparable local legislation. I note, too, that the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, established by title III and recently strengthened by Public Law 91-644, will come into operation in June of 1973 to review the operation of title III and report to the President and the Congress two years thereafter. It is appropriate, therefore, now that we are at approximately the halfway mark of the initial six-year life of title III, that we take stock of where we are and chart carefully where it is that we might go.
As you may also be aware, after the first annual surveillance report had been issued in April of 1969 by the Administrative Order of the Courts, I directed the staff of the Subcommittee on Criminal Laws and Procedures, the Judiciary Subcommittee which has legislative oversight jurisdiction over title III, to undertake a review of the operation of the statute on the state level during its first six months of operation. The results of that study were presented to the Senate on August 11, 1969. (115 Cong. Rec. S 9569 daily ed., Aug. 11, 1969.) The study had immediate and beneficial effects, including a revision of the initial regulations issued by the Administrative Office for the annual reports so that they might more accurately reflect practices under the statute and the enactment of an amendment to title II itself as a part of Public Law 91-358, to clarify the civil liability of phone company and other private personnel cooperating in the execution of court orders issued under title III and fair on the face. I would hope that a similar study now could also have beneficial effects.
Since August of 1969, of course, a number of facets of the use of electronic
surveillance techniques have come into the focus of public attention, including their use in domestic security cases, a practice that I note was first estab. lished under President Truman and Attorney General Tom Clark in 1949, and the propriety and legality of recording and other techniques in light of the Supreme Court's decision in United States v. White, No. 13, October Term 1970, decided April 5, 1971.
In light of all these items, I believe, in short, that it would be in the public interest to undertake at this time a comprehensive review of law and practice in these and related areas. I would expect that this review could mature into public hearings by early fall. Should you agree that this course of action should be followed, please have an appropriate member of your staff contact the staff of the Subcommittee. I am sure that the details of the study can be worked out without undue difficulty. With kindest regards, I am, Sincerely yours,
JOHN L. MCCLELLAN.
[Exhibit No. 2]
MAY 7, 1971.
DEAR SENATOR MCCLELLAN: This is in response to your letter of April 28, 1971 concerning a study of wiretapping and electronic surveillance to be undertaken by the Subcommittee on Criminal Laws and Procedures.
We at the Department of Justice are well aware, Senator, of your key role in the enactment of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the landmark legislation dealing with wiretapping and electronic surveillance, and of your interest in improving our law enforcement effort while at the same time safeguarding individual liberties. Our experience under the statute in the last 27 months has proved the wisdom of the framers of it on both counts.
We agree also that this is an appropriate time for us to report to the Congress on our experience under Title III, and for the Subcommittee on Criminal Laws and Procedures to undertake a comprehensive review of law and practice in the area of wiretapping and electronic surveillance, as well as related areas. You may be assured, therefore, of our full cooperation in the endeavor., Members of my staff will be in touch with the staff of the Subcommittee as you requested.
[Exhibit No. 3]
[From the Sunday Star, May 2, 1971) Q. Mr. President, regarding the use of wiretaps in domestic security matiters
Nixon. The kind that you don't have with subpoenas, in other words?
Q. Yes, court orders. The attorney general has stated the policy on that and he has been criticized by Congressman Emanuel Celler of New York, who said that this could lead to a police state. Would you comment on the threat of a police state in the use of this type of activity?
A. Well, I have great respect for Congressman Celler as a lawyer and, of course, as the dean-as you know, he is the dean of all the congressmen in the House, a very distinguished congressman.
However, in this respect I would only say, where was he in 1961? Where was he in 1962? Where was he in 1963?
Today, right today, at this moment, there are one-half as many taps as there were in 1961, '62 and 63, and 10 times as many news stories about them. Now, there wasn't a police state in 1961, '62 and '63, in my opinion, because even then there were less than 100 taps and there are less than 50 today, and there is none, now, at the present time.