COMMITTEE ON THE JUDICIARY JAMES O. EASTLAND, Mississippi, Chairman JOHN L. MCCLELLAN, Arkansas EDWARD M. KENNEDY, Massachusetts QUENTIN N. BURDICK, North Dakota ROBERT C. BYRD, West Virginia JOHN V. TUNNEY, California ROMAN L. HRUSKA, Nebraska HUGH SCOTT, Pennsylvania STROM THURMOND, South Carolina CHARLES MCC. MATHIAS, JR., Maryland SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE EDWARD M. KENNEDY, Massachusetts, Chairman PHILIP A. HART, Michigan QUENTIN N. BURDICK, North Dakota STROM THURMOND, South Carolina CHARLES MCC. MATHIAS, JR., Maryland EDWARD J. GURNEY, Florida JAMES F. FLUG, Chief Counsel (II) CONTENTS Clark, Ramsey, former Attorney General of the United States- Lewin, Nathan, former Assistant to the Solicitor General of the Buzhardt, J. Fred, General Counsel of the Department of Defense, Mardian, Robert C., then Assistant Attorney General for Internal Maroney, Kevin, Deputy Assistant Attorney General for Internal February 23, 1972 (excerpt). 99 "Kennedy Charges Justice Department Hides Extent of Wiretaps," New York Times, December 19, 1971--- "Kennedy Casts Doubts on Nixon's Wiretap Figures," The Baltimore "Wiretap Figures Disputed," The Boston Globe, December 19, 1971__ "How Much Eavesdropping?", Washington Evening Star, Decem- "Wiretap Extent Disputed," Washington Post, December 19, 1971_- "A Gross Invasion," New York Times, December 19, 1971.. "Wiretaps and National Security," Commentary, January, 1972, by "Banned Bugs Turned Off," Washington Evening Star, June 20, 1972- "Court Curbs Wiretapping of Radicals," Washington Post, June 20, 1972_ "High Court Curbs U.S. Wiretapping Aimed at Radicals," New York "Top Court Limits Wiretaps," New York Daily News, June 20, 1972- "Kleindienst Sees a Decline in Wiretaps," New York Times, June 22, 144 148 "The Supreme Court: Untapped," Newsweek Magazine, July 3, 1972. Article entitled "The National Security Justification for Electronic Eavesdropping: An Elusive Exception" by Athena G. Theoharis and Elizabeth Meyer from Wayne Law Review, 1968_ Chapter entitled "The FBI and Electronic Surveillance" by Victor Navasky and Nathan Lewin, from the book Investigating the FBI.. Opinion of the United States Supreme Court in United States v. United States District Court for the Eastern District of Michigan et al. Report on the Costs and Benefits of Electronic Surveillance, by PRACTICES AND PROCEDURES OF THE DEPARTMENT OF JUSTICE FOR WARRANTLESS WIRETAPPING THURSDAY, JUNE 29, 1972 U.S. SENATE, SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE Washington, D.C. The subcommittee met, pursuant to notice, at 10:40 a.m., in room 6202, New Senate Office Building, Senator Edward M. Kennedy (chairman of the subcommittee) presiding. Present: Senators Kennedy (presiding) and Hart. Also present: James Flug, chief counsel; Michael T. Epstein, assistant counsel; and Henry Herlong, minority counsel. Senator KENNEDY. The subcommittee will come to order. I appreciate the patience of the witnesses this morning. I was testifying at the Foreign Relations Committee and they were a little late getting started. On August 1, 1971, Attorney Lewis Powell, in a newspaper article, wrote the following: The question is often asked why, if prior court authorization to wiretap is required in ordinary criminal cases, it should not also be required in national security cases. In simplest terms the answer given by the government is the need for secrecy. Court authorized wiretapping requires a prior showing of probable cause and the ultimate disclosure of sources. Public disclosure of this sensitive information would seriously handicap our counter-espionage and counter-subversive operations. Citing no basis for this finding, he then concluded, "The outcry against wiretapping is a tempest in a teapot... Law abiding citizens have nothing to fear." On June 19, 1972, Mr. Justice Lewis Powell, having read the briefs on both sides, having seen the records of 14 months eavesdropping on a security tap, and having heard oral arguments in the Keith case (U.S. v. U.S. District Court et al), wrote the following: 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. And in one of the most stirring judicial statements of our times, he concluded: 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 disclosure, is essential to our free society. (1) I cite at length the trend in Lewis Powell's statements because I think he would be the first to say that they set the pattern for the change that is required right now in the Justice Department's approach to wiretapping and bugging of Americans, especially dissenting Americans. Attorney Lewis Powell's 1971 views closely tracked-and cited-those of John Mitchell and his Department. Mr. Justice Powell's 1972 views on behalf of the Supreme Court, and without dissent, are now the law of the land. They must be followed in letter and in spirit by those who have sought to eavesdrop, without limit or review, on our citizens in their homes and offices and gathering places. The time for playing fast and loose with the Bill of Rights has come to an end. Our goal here today is to relieve all Americans of that "dread of unchecked surveillance power" and that "fear of unauthorized official eavesdropping", by having the Justice Department make clear its commitment to change its ways not only in form but in substance. For unless the Department truly adopts as its own the Supreme Court's heavy emphasis on first and fourth amendment rights, the Keith opinion will become a fraud upon the Nation's citizens, a bare judicial promise of constitutional protection, but a promise that can be broken by the performance of the executive branch. We are here to see that the constitutional promise is kept, that our right to be let alone, our right to privacy, our right to speak freely in public and in private, our right to have different views, and the other rights which keep our lives free from unwarranted government intrusion, are vindicated rather than evaded, preserved and not avoided, enhanced instead of circumvented. Attorney General Kleindienst was quoted last weekend as saying that he disagreed with the Supreme Court's holding that his Department must obtain judicial warrants to tap and bug in the interest of domestic security. But fortunately, as I am sure he would agree, his sworn duty is to uphold the constitution as interpreted by the Supreme Court, regardless of his personal preferences. I am confident that he shares the views that nothing undermines respect for our legal system more than lawlessness by lawmen, and that— especially when interference with fundamental freedoms is at stakeofficial lawlessness cannot be tolerated or condoned. Some facets of the Keith opinion are not yet clear, as we shall see this morning. But certain basic facts are clear: 1. Warrantless tapping and bugging of purely domestic organizations and individuals should have ceased on June 19. 2. Although the Court thinks Congress could set forth different warrant procedures and standards for so-called domestic security eavesdropping, the only statutory basis for issuing any warrants at present is title III of the 1968 law, with all of its limitations and requirements fully applicable. 3. The Court specifically did not decide whether warrantless tapping and bugging is permitted with respect to the activities of foreign powers; nor did it define the degree of collaboration between a domestic group and a foreign power which would turn a domestic group's behavior into foreign unlawful activities which might be subject to different surveillance rules. However, the Court clearly |