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:

Hon. JOHN N. MITCHELL,

[Exhibit No. 1]

Attorney General of the United States,

Department of Justice,

Washington, D.C.

APRIL 28, 1971.

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 22 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 established 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.

HON. JOHN L. MCCLELLAN,

U.S. Senate,

Washington, D.C.

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.

Sincerely,

[Exhibit No. 3]

WIRETAPS

Attorney General.

[From the Sunday Star, May 2, 1971]

Q. Mr. President, regarding the use of wiretaps in domestic security mat:ters

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.

All of this hysteria-and it is hysteria, and much of it, of course, is political demagogery to the effect that "the FBI is tapping my telephone" and the restsimply doesn't serve the public purpose.

In my view, the taps, which are always approved by the attorney general, in a very limited area, dealing with those who would use violence or other means to overthrow the government, and limited, as they are at the present time, to less than 50 at any one time, I think they are justified, and I think that the 200 million people in this country do not need to be concerned that the FBI, which, with all the criticism of it, which has a fine record of being non-political, non-partisan, and which is recognized throughout the world as probably the best police force in the world, the people of this country should be thankful that we have an FBI that is so greatly restricted in this respect.

This is not a police state. I have been to police states. I know what they are. I think the best thing that could happen to some of the congressmen and senators and others who talk about police states is to take a trip-I mean a trip abroad, of course-and when they go abroad, try a few police states. This isn't a police state and isn't going to become one.

I should also point this out: Where were some of the critics in 1968 when there was Army surveillance of the Democratic National Committee-at the convention, I mean? We have stopped that.

This administration is against any kind of repression, any kind of action that infringes on the right of privacy. However, we are for, and I will always be for, that kind of action necessary to protect this country from those who would imperil the peace that all people are entitled to enjoy.

EXHIBIT NO. 4

TABLE 7.-SUMMARY REPORT ON AUTHORIZED INTERCEPTS GRANTED PURSUANT TO TITLE 18, UNITED STATES CODE, SEC. 2518, 1968, 1969, AND 1970

TABLE 1.-JURISDICTIONS WITH STATUTES AUTHORIZING OR APPROVING THE INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS EFFECTIVE DURING THE PERIOD JAN. 1, 1970 TO DEC. 31, 1970

From: G. Robert Blakey, Chief Counsel, Subcommittee on Criminal Laws and Procedures.

Subject: Wiretapping controversy.

You asked for a background memorandum on the current wiretapping controversy.

DEFINITIONS OF KEY TERMS

1. wiretapping: interception of communication transmitted over wire from phone without consent of participant.

2. bugging: interception of communication transmitted orally without consent of participant.

3. recording: electronic recording of wire or oral communication with the consent of a participant.

4. transmitting: radio transmission of oral communication with the consent of a participant.

5. electronic surveillance: generic term loosely used to cover all of the above, but often confined to "wiretapping" or "bugging."

6. national security: generic term loosely used to refer to wiretapping or bugging aimed at either "foreign" or "domestic" threats to the national security.

a. foreign security: usually meant to cover "wiretapping" or "bugging" to obtain coverage of foreign diplomats, spies, and their American contacts; also directed at Communist party and Communist front activities in the United States; sometimes used to obtain coverage of those involved in foreign intrigue, e.g., gun running to Latin American countries, etc.: primarily useful to prevent damage (theft of documents, etc.), not "solve crimes."

b. domestic security: usually meant to cover "wiretapping" or "bugging" to obtain coverage of extremist groups in the United States, e.g., the Black Panthers, groups within the K.K.K., and La Cosa Nostra; sometimes used to determine the influence of extremist groups in other legitimate organizations (civil rights or peace); primarily useful to prevent damage (assaults, bombings, kidnapping, homicides, riots, etc.).

Note that the "foreign" and "domestic" security distinction is sharper in theory than in practice. Often it is difficult without "wiretapping" or "bugging" to determine the "foreign" or "domestic" character of the threat.

Note, too, that since the emphasis is on the prevention of harmful activity rather than the punishment of those who have already caused harm, police action in these areas tends to cover more people for longer periods of time under less precise standards than conventional criminal investigations.

Caveat: Newspaper reporters, in particular, but all of us sometimes use "wiretapping," "bugging" and "national security" to refer to some or all of these techniques or areas of activity without carefully discriminating between them. This fact alone leads to most of the controversy; people often are not talking about the same things, even though they are using the same words.

CHRONOLOGY OF SIGNIFICANT EVENTS

1. Olmstead v. United States, 277 U.S. 438 (1928), held: (1) that wiretapping without a warrant did not violate the Fourth Amendment's ban on unreasonable searches and seizures because without a trespass there was no "search" and without a tangible taking there was no "seizure ;" (2) that wiretapping did not violate the Fifth Amendment's ban on compulsory self-incrimination because no compulsion was placed on the speaker to speak; and (3) that the product of wiretapping illegal under state law may be used in Federal courts, since the suppression sanction applied only to violations of constitutional rules.

2. Section 605 of the Federal Communications Act of 1934, 48 Stat. 1103 (1934), 47 U.S.C. § 605 (1968), prohibited the "interception" and "divulgence" or "use" of the contents of a wire communication. At passage of the Act, managers of the bill observed, "[I]t does not change existing law." 78 Cong. Rev. 1013 (1934).

3. Nardone v. United States, 302 U.S. 379 (1937) held that the "divulgence" of a wiretap made by a Federal officer in a Federal court violated Section 605 of the 1934 Act.

4. N.Y. Const., Art. I, § 12 (1938), authorized wiretaps.

5. President Franklin D. Roosevelt on May 21, 1940, instructed Attorney General Robert H. Jackson to use wiretapping and bugging against subversive activities against the government of the United States. (A copy of this memo is attached.)

6. Attorney General Robert H. Jackson informed Congress in March 1941 that Section 605 could only be violated by both "interception" and "divulgence" or private "use." Hearings before Subcommittee No. 1 of House Judiciary Committee on H.R. 2266 and H.R. 3099, 77th Cong., 1st Sess. 18 (1941).

7. N.Y. Code of Crime Proc. § 813a (1942) implemented state constitution to authorize court-ordered wiretaps.

8. Goldman v. United States, 316 U.S. 129 (1942) held that bugging without a warrant did not violate the Fourth Amendment's ban on unreasonable searches and seizures if there was no trespass.

9. President Harry S. Truman on July 17, 1947, concurred in the recommendation of Attorney General Tom C. Clark that the F.D.R. authorization of 1940 be extended to cases of domestic security or where human life was in jeopardy. (A copy of this memo is attached.)

10. On Lee v. United States, 343 U.S. 747 (1952) held that the use of a transmitter by police officers without a warrant to overhear conversations between an informant and a suspect did not violate the Fourth Amendment's