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 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

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 a 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 82 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