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Is that process going on now?
sir. As I indicated in my statement, for the present, we have decided not to seek amendatory legislation and to let the experience of the next months indicate whether or not there appears to be a legal void which we might suggest to the Congress for amendatory legislation. But for the moment, we do not intend to seek amendatory legislation and to let the experience of the next months indicate whether or not there appears to be a legal void which we might suggest to the Congress for amendatory legislation. But for the moment, we do not intend to seek such amendatory legislation from the Congress.
Senator KENNEDY. Why did the Attorney General change his mind? He said in his June 19 press release that the Justice Department was going to work with the Congress in accordance with the Invitation by the Court. Why the change now?
Mr. MARONEY. Well, we initially started on the preparation of, or at least looking at the possibility of draft legislation in light of the language in Justice Powell's decision. However, it was subsequently determined by the Attorney General that we would not at this point seek such legislation, we would let experience dictate the needs in the light of the requirements of the decision.
Senator KENNEDY. I know that you have read Justice Powell's opinion. Did it not appear to you that the Court was inviting Congress to legislate in this area? What is the administration urging the Congress to do? Do you want us to legislate in this area or not? We have been invited by the Court to do so.
Do you want us to legislate at all?
Mr. MARONEY. At this time, Mr. Chairman, we are not requesting any legislation; we are not working on any draft legislation. As time goes on, if it appears necessary or desirable, we would make such a request of the Congress.
Senator KENNEDY. Okay.
Mr. MARONEY. Now, I had indicated that I thought the difficult issue had been laid to rest by the Supreme Court decision, many of the difficult issues. In such cases, under the law as it stands, the Government must seek prior judicial approval before intercepting wire or oral communications.
The Court's opinion in the Keith case would, however, suggest the possibility that Congress might desire to legislate standards and procedures for court-approved electronic surveillance in domestic security cases under standards somewhat different from the standards now applicable in ordinary criminal cases. However, as was stated last week by the President, the executive branch has no present intention of seeking such amendatory legislation with respect to the area governed by the Keith decision. In the event that future experience demonstartes a legal void, it will then be an appropriate time to consider the necessity or desirability of requesting appropriate legislation.
[The full text of the President's remarks on this subject at his June 22, 1972 press conference follows:]
Q. Two questions about recent Supreme Court decisions, if I may ask them as two questions, because I am asking in both cases if you have any plans for meeting the situation.
In the first case, the Supreme Court rules your wiretapping program unconstitutional, saying that in cases of domestic security, wires could not be tapped without a court order. So my first question is whether you have any plans to ask Congress for legislation to restore that authority in the form of an amendment to the Safe Streets Act or other legislation.
In the second case, the Supreme Court left it up to Congress whether organized baseball came under the antitrust laws. This being a matter of some national interest, I think, I wonder if you have any plans to ask for legislation to clarify the status of organized baseball.
The PRESIDENT. On the first question, I think it is appropriate to point out that the wiretapping in cases of civilian activity, domestic civilian activity, is not, as you have described it, just this Administration's policy. As you know, this type of activity of surveillance has been undertaken, to my knowledge, going back to World War II. It reached its high point in 1963 when there were over 100 cases, as Mr. Hoover testified, in which there were taps used in cases involving domestic security.
Since that time the number of taps has gone down. It went down during the Johnson Administration, and it has sharply been decreased during the 392 years that this Administration has been in office.
Now, as far as the Supreme Court's decision is concerned, I see no need to ask for legislation to obtain the authority, because the Supreme Court's decision allows the Government, in a case that it believes necessary, to go to a court and get a court order for wiretapping. It simply prohibits wiretapping unless there is a court order. So we will abide by that.
I should also point out that the Supreme Court's decision does not rule out wiretapping in the United States in domestic matters where there is a clear connection between the activity that is under surveillance and a foreign government. That, of course, allows us to move in the internal security area where there is a clear connection between the two. So we will, of sourse, abide by the Supreme Court's decision in this instance, and I see no need to ask for additional authority from the Congress.
Senator KENNEDY. Does this mean that the executive branch will be getting intelligence warrants without statutory authorization ?
Nr. MARONEY. In wholly domestic security situations? No, sir.
Senator KENNEDY. What will you use? Do you have to use either title III or
Mr. MARONEY. You have to use either title III or nothing.
Senator KENNEDY. What percent of your cases fall within title III? The statute was obviously drafted for crime detection tapping. But there must have been a number of types which you considered to be of importance for intelligence purposes that do not necessarily fall within those provisions of title III. Do you feel restricted in your attempt to gather intelligence information without some statutory authority to do so?
Mr. MARONEY. Well, of course, in most of our cases, most of the cases that the Division handles are ordinary criminal cases, the volume. In other situations, for example, espionage or sabotage, title III provides an avenue for us to get a warrant in an appropriate situation. The Attorney General-authorized electronic surveillance has been utilized, as you know, for intelligence gathering and not to secure evidence to use in a criminal case.
It is important to recall, however, that Justice Powelll, speaking for the majority, made clear that "instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.” Slip opinion, page 10. Subsequently at page 23, the Court pointed out:
As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to the issues which may be involved with respect to activities of foreign powers or their agents.
The Keith decision made it clear that the Court was limiting the scope of the decision to "domestic organnization[s]. ...composed of citizens of the United States and which hasve] no significant connection with a foreign power, its agents or agencies.”
Senator KENNEDY. Of course, the decision did not say that warrantless foreign-intelligence taps are legal, though, did it?
Mr. MARONEY. No, it did not hold that warrantless taps on foreign agencies are legal, but the decision did not preclude the legality of such taps.
Senator KENNEDY. So that is really an open question, is it not?
Mr. MARONEY. It is an open question, not yet decided by the Supreme Court, and I think specifically carved out by the Court in this decision as well as the prior decision.
Senator KENNEDY. Of course, it would seem that a lot of the arguments which the Justice Department used in support of its position in domestic security cases could also be made with respect to your position on foreign intelligence, and yet many of those arguments were rejected in the Keith case. For instance, there was the argument about secrecy and your ability to convince judicial officials of the sensitive nature of various materials. that was just one of the arguments that was rejected. I was just wondering whether that has affected your thinking about the legitimacy of those kinds of arguments in the foreign field.
Mr. MARONEY. Well, I think in the foreign area, when you get into the area of foreign intelligence, the Court has recognized, I think, the President's constitutional authority in the conduct of foreign affairs to protect the Nation from attack. I think you undoubtedly have a great number more subleties of information that become involved in a determination as to whether or not a particular installation is necessary. I think the arguments that we made in the Keith case with respect to that are as applicable to the foreign area. I think the Court may give a different weight to those arguments in such a situation because there are not presently competing first amendment rights that the Court found quite heavy in the Keith case.
Senator KENNEDY. Of course in the Pentagon Papers case, the Justice Department felt comfortable in making sensitive material available to judges. The Department had sufficient confidence in the judges in that case to be willing to make this kind of material available to the courts.
Mr. MARONEY. Well, of course, we have made sensitive material available in a large number of cases.
Senator KENNEDY. Sure.
Mr. MARONEY. In the Keith case, itself, for example, information which we thought was sensitive and still think is.
Senator KENNEDY. So the argument which is often made-about unwillingness to get court orders on foreign intelligence taps because it would mean you would have to make sensitive material available to courts—that argument really has very little standing in your own view?
Mr. MARONEY. No, I do not think it has little standing. I think it is axiomatic that the more distribution you give to secrets, the less secrecy you have. It is certainly more desirable if you have sensitive information if you are able to restrict it in the closest possible way.
The Court recognizes that it may be difficult to distinguish between domestic and foreign unlawful activities directed against the Government of the United States where there is collaboration in varying degrees between domestic groups and organizations and agents or agencies of a foreign power. The committee has asked that we address ourselves to the question of what level of foreign dominance and control of a domestic group would be considered sufficient to bring the group into the area of foreign activities which the Court has not yet ruled upon.
The Keith decision has suggested a standard of significant connection with a foreign power, its agents or agencies. We do not interpret this as meaning casual, unrelated contacts and communications with foreign governments or agencies thereof. We would not try to apply this standard without the presence of such factors as substantial financing, control by or active collaboration with a foreign government and agencies thereof in unlawful activities directed against the Government of the United States. Obviously, such factors will be present in a very minimum number of situations.
I wish to assure the committee on behalf of the Attorney General, that the Department of Justice accepts both the letter and the spirit of the Court's ruling in the Keith case.
Senator KENNEDY. What do you think the spirit of the Court's ruling in the Keith case is?
Mr. MARONEY. Well, I think the spirit of the case is that where you are dealing with wholly domestic organizations that may bring into play first amendment considerations, the first amendment considerations outweigh the governmental necessity in securing warrantless electronic surveillance and require that the Government follow the provisions of title III in the Court-authorized warrant.
Senator KENNEDY. The decision contained, I thought, a strong and eloquent plea about the importance of the convergence of first and fourth amendment values:
National security cases, moreover, often reflect a convergence of first and fourth amendment values not present in cases of ordinary crime. Though the investigative duty of the executive may be stronger in such cases, so also is their greater jeopardy to constitutionally protected speech. ... Fourth amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect domestic security. Given the difficulty of defining the domestic security interest the danger of abuse in acting to protect that interest becomes apparent. ... The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
There seems to be a strong commitment here to the convergence of first and fourth amendment rights. I was just wondering if you shared that view and
Mr. MARONEY. Yes, sir.'
Senator KENNEDY. You were impressed by its discussion in the opinion.
Mr. MARONEY. Yes, sir; very definitely.
It is the intention of the executive branch to utilize electronic surveillance in present and future national security matters in full and ungrudging application of the rationale of the decision.
In connection with the latter point, I think it appropriate to note that it was the Department of Justice which sought a definitive resolution of the difficult constitutional questions presented by the Keith decision at the earliest possible time. When the district court ruled against the Government's position in this case, we had no right of appeal under the law as it then stood. We therefore resorted to the unusual remedy of petitioning the court of appeals for the extraordinary writ of mandamus on the basis that the question was of substantial public importance which should be decided by the courts. It was as a result of that effort, that the matter has now been decided, which is better for everyone concerned. Thank
Mr. Chairman. [The prepared statement of Mr. Maroney follows:] STATEMENT BY KEVIN T. MARONEY, DEPUTY ASSISTANT ATTORNEY GENERAL,
INTERNAL SECURITY DIVISION, U.S. DEPARTMENT OF JUSTICE Mr. Chairman and Members of the Subcommittee, I am happy to appear here today on behalf of the Department of Justice in response to your request for our views on the subject of electronic surveillance and in particular, concerning the impact of the Supreme Court's decision last week in the case of United States v. United States District Court for the Eastern District of Michigan No. 70–153 decided June 19, 1972 and more popularly known as the Keith
The immediate impact of the Keith case was set forth clearly by Attorney General Richard G. Kleindienst in his statement of June 19, 1972. Let me quote:
"In accordance with the decision of the Supreme Court, I have today directed the termination of all electronic surveillance in cases involving domestic security that conflict with the Court's opinion. Hereafter, surveillance will be undertaken in domestic security cases only under procedures that comply with the Court's opinion."
Whatever problems, Mr. Chairman, some may have had with respect to the difficult issue of electronic surveillance involving wholly domestic organizations have, in great part, been laid to rest by the Supreme Court decision. In such cases, under the law as it stands, the Government must seek prior judicial approval before intercepting wire or oral communications.
The Court's opinion in the Keith case would, however, suggest the possibility that Congress might desire to legislate standards and procedures for court approved electronic surveillance in domestic security cases under standards somewhat different from the standards now applicable in ordinary criminal cases. However, as was stated last week by the President, the Executive Branch has no present intention of seeking such amendatory legislation with respect to the area governed by the Keith decision. In the event that future experience demonstrates a legal void, it will then be an appropriate time to consider the necessity or desirability of requesting appropriate legislation.
It is important to recall, however, that Justice Powell, speaking for the majority, made clear that "the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.” Slip opinion, page 10. Subsequently at page 23, the Court pointed out:
"As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the