"The government urges us to adopt the principle that considerations which bear on judicially authorized wiretaps are not applicable to the wiretaps under discussion, because so-called warrantless domestic security bugging not expressly held unlawful at the time these taps were installed, was not found to be invalid until the Supreme Court decided the question in United States v. United States District Court, 407 U.S. 297 (1972). We are urged to hold therefore, that the warehousing provision, 18 U.S.C. Sec 2518 (8) (a) which requires preservation of records only for electronic surveillance authorized by Title III. . . does not apply to the wiretaps here under review. Since we do not today announce a per se rule that the government's failure to preserve the wiretap tapes must result in a reversal of these contempt orders, we need not decide the question. We note, however, that it would be a startling, if not preposterous ruling that permits a more relaxed standard for illegal than for legal wiretaps. Such a precept would serve only to encourage illegal wiretapping. Every order . . . shall contain a provision that the authorization to intercept . . . shall be conducted in such a way as to minimize the interception of such communication not otherwise subject to interception." [482 F.2d at 48].

D. The Halperin Tap as an Illustration of All the Infirmities of Current National Security Wiretap Practices.

The public evidence produced to date in the civil litigation arising out of the twenty-one month wiretap on the home telephone of Dr. Morton Halperin, Halperin v. Kissinger, et al., Civil Action No. 1187-73 (D.D.C.), illustrates in detail each of the foregoing infirmities in existing national security wiretap practices:

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1. The government has conceded that there was only a single authorization existed for the wiretaps in question (Answer, par. 17). Thus the original authorization either had no time limit or it authorized the wiretap for the entire 21 month period that it was in force-a highly unlikely possibility. Under either alternative, the wiretap violated existing strictures on the establishment of a set term for electronic surveillance. The New York wiretap statute held unconstitutional in Berger v. New York, 388 U.S. 41 (1967) permitted wiretaps for 2 month periods after a single showing of probable cause. The Court condemned this practice as a sweeping invasion of Fourth Amendment rights [388 U.S. at 59].

2. The government has admitted that it intercepted, recorded and transcribed every telephone conversation over the Halperins' home telephone for the entire 21-month period, including conversations of the three minor plaintiffs (aged 7, 9 and 11), personal and family conversations, as well as political and professional conversations of Dr. Halperin. These are all totally unrelated to the supposed leak of national security information. The government, therefore, clearly exceeded the minimization requirements applicable to Title III wiretaps.

3. The government has conceded that the original tapes of the Halperins' wiretap telephone were erased after the logs were transcribed. Such an erasure is contrary to the procedural requirements establishd for court ordered wiretaps by Title III, 18 U.S.C. §2518 (8) (a).

4. The government and John Mitchell both admitted in the Halperin case that the procedure for renewal every 90 days of a national security tap was not followed: "no other authorization was either sought or procured by any of the federal defendants." (Government's Answer, par. 17). Thus instead of seven separate authoritarians every 90 days over the 21-month period of the tap which should have been obtained under normal operating procedures, the government secured only one authorization which the Attorney General at the time does not recall signing.

What emerges from this brief outline is that national security taps lead to a massive invasion of a citizen's constitutional rights. Because the taps do not have a limit imposed by the court, they often continue for months and even years. In the Halperin case, the tap continued on his home phone for

1 Additional documentary evidence has recently been produced by the government in the suit pursuant to plaintiffs' motion to compel discovery, which was granted by the District Court on April 1, 1974. Plaintiffs' and their counsel, however, are currently bound by a Protective Order not to disclose these documents except by further order of the Court.

21 months, the last 17 of which he was not in government employ. According to statistics introduced by Senator Edward Kennedy, the average national security tap in 1970 was installed for a minimum of 71 days to a maximum of 200 days. This was 3 to 9 times greater than the average length of a Title III wiretap. [Warrantless Wiretapping, Hearings before the Subcommittee on Administrative Practice and Procedure, Senate Committee on the Judiciary, 92nd Cong., 2d Sess., June 29, 1972, at p. 70].

Because there is no statutory requiremest of minimization, every phone conversation may be overheard with no effort made to screen out innocent calls.

Because there is no requirement of preserving the taps, there is no way to check on whether the transcriptions or summaries of the taps were accurate. E. Inadequate Recordkeeping and the Breakdown of Accountability.

Apart from the documentary support required for the authorization of a national security wiretap, there are recordkeeping requirements which must be followed by the Justice Department with respect to any wiretap. The principal requirement is that the names of all persons who are overheard on a wiretap must be entered on the FBI's "Elsur Index," a central indexing system kept both for internal investigatory purposes and for the purpose of preparing responses to wiretap discovery orders. See Deposition of former Acting FBI Director William D. Ruckelshaus, July 25, 1973, at p. 12, Halperin y. Kissinger, et al. supra.

Wiretap litigation in recent years, however, has revealed that these recordkeeping requirements are so loosely followed that the government routinely evades or fails to disclose the full extent of its wiretap activity with respect to particular litigants. In national security cases the temptation appears to be particularly great for the government simply not to enter the names of wiretap subjects on the "Elsur Index." This is what happened in the Halperin case, and there is reason to believe it was also true with respect to the other so-called "Kissinger taps."

The good faith recordkeeping of the government is placed in serious doubt when, after repeated denials in courts of any electronic surveillance, it suddenly about-faces and admits that private litigants were overheard on a national security tap. See, e.g., Philadelphia Resistance v. Mitchell, 58 F.R.D. 139 (E.D., Pa. 1973) (Amended Answer to Complaint ¶25A), United States v. Russo-Ellsburg, No. 9393 (C.D., Cal. 1973); United States v. Smilow, 472 F.2d 1193, 1195 (2d Cir., 1972); Kinov v. Mitchell, 70 Civ. 5698 RJW (S.D.N.Y.) ; Dellinger v. Mitchell, Civ. Action No. 1768-69 (D.D.C.) (Transcript of Hearing on Discovery Motions, November 7, 1973, pp. 32-33). The government's original answer to the complaint in Philadelphia Resistance, for example, denied that any surveillance of the plaintiff had occurred. Seven months later, it filed an amended answer in which it admitted overhearing plaintiffs' conversations during the course of electronic surveillance of others. In the Ellsburg prosecution the government finally admitted its surveillance of Ellsburg after a year of repeated denials. Upon an order by Judge Byrne to produce all records concerning the taps, the government claimed these records had been "lost" (New York Times, May 11, 1973). As is now well known, however, a few days after the dismissal of the case, Robert Mardian, the former head of the Internal Security Division of the Justice Department, revealed that the missing records were in fact in a White House safe (New York Times, May 15, 1973).

Three years after commencement of a civil suit for damages for illegal electronic surveillance in Kinvoy v. Mitchell, supra, the government disclosed that there had been 23 incidental overhearings of the plaintiff in national security taps over a 15-year period, despite an initial statement to the contrary. Another instance of government inability or unwillingness to discover the existence of electronic surveillance was recently disclosed in Dellinger v. Mitchell, supra. After more than four years of denying that one of the plaintiffs had ever been overheard, during the argument on plaintiffs' motion for discovery, the government finally admitted over hearing him (Transcript, at 32-33). The Second Circuit in United States v. Smilow, 472 F.2d 1193, 1195 (2d Cir., 1972), summed up as follows the courts' increasing concern at the

government's inability to discover and admit its wiretapping activities in a prosecution of a grand jury witness for contempt of court:

"We cannot forbear expressing our regret that those representing the Government in court were unable, until such a late date, to discover the true state of affairs with regard to official wiretapping of the defendant's telephone conversations * * * We trust that in the future the Government will be more thorough in the investigation of such matters."

One explanation for the government's remarkable inability to keep track of its own surveillance activity must be that its recordkeeping system is woefully inadequate. This system has enabled the government to avoid full compliance with any wiretap discovery order, since apparently it cannot determine from its records the identities of all persons overheard in any given instance. An example of this problem occurred in United States v. Smilow, supra, where the government lawyers claimed they had not been able to discover that a person named "Jeffrey" had been overheard because he introduced himself in the intercepted conversation as "Jeff." The Court of Appeals. however, observed tartly that "it does not require much imagination to anticipate that an individual named Jeffrey might be known as Jeff to friends or acquaintances" [472 F.2d at 1195].

A particularly shocking illustration of the inadequacy the government's recordkeeping system was revealed in United States v. Ayers, No. 48104 (E.D., Mich.), a conspiracy prosecution of the Weathermen faction of S.D.S. Pursuant to an interim court order to disclose any transcripts of the defendants' intercepted conversations the government inadvertently turned over twelve days of logs of all conversations overhead on one domestic security tap. The logs noted 500 overhearings, half of which were listed as "unidentified." Upon inspection, the defendants were able to determine that a number of these overhearings were of the defendants themselves and of their attorneys. In each of those instances, the relevant transcripts had not been turned over to the defendants, presumably because the government had not realized that they represented conversations of the defendants. Unitd States v. Ayers, supra. (Supplemental Affidavit in Support of Defendants' Motion for Discovery, pp. 2-3, October 1973). The government ultimately dropped the prosecution so that it would not have to disclose the full scope of the wiretappings.

A series of deliberate and "patently unbelievable" misrepresentations by the government which "strained common sense" and culminated in the unexplained destruction of illegal wiretap tapes on the eve of compelled disclosure, led the Court of Appeals for the Second Circuit in United States v. Huss, 482 F.2d 38 (2d Cir. 1973), to dismiss contempt charges against an informer who had refused to testify before the grand jury. The court refused to accept as true the governmnt's "good faith" representation that the destroyed tapes would not have revealed matters of importance:

"[i]ndeed, the government's good faith did not prevent illegal wiretapping here, nor did the government's good faith prevent it from search illegally or from narrating an account of that search which the Court found to be incredible [482 F.2d at 50]."

Characterizing the attitude of the government as "cavalier, carefree and careless," the Court observed that the wiretap recordkeeping had made a "mockery of the labors of Congress to tailor [Title III] with precision" and had "offend[ed] the spirit of liberty which has distinguished this nation from its birth" [Id. at 52].

Because of these inadequate and deceptive recordkeeping practices, courts are increasingly skeptical about the conclusory and ambiguous affidavits denying electronic surveillance which are regularly submitted by the government in response to court orders to disclose. In re Korman, 13 CrL 2310 (7th Cir., June 8, 1973); United States v. Alter, 482 F. 2d 1016, 1027 (9th Cir., 1973); In re Horn, 458 F.2d 468, 471 (3rd Cir., 1972); Beverly v. United States, 468 F. 2d 732, 745 (5th Cir., 1972). The Seventh Circuit, for example, recently refused to accept a general letter from a government attorney denying electronic surveillance, which was submitted to counter the allegation of a grand jury witness that his interrogation was based on the fruits of an illegal wiretap. In re Korman, supra. Although the Court stated that it had previously been willing to accept such general denials as sufficient, "certain

indiscretions" had come to its attention which "seem to militate for a more formal and binding denial than those which were [previously] found to be adequate." Id.

The Ninth Circuit has similarly refused to accept such generalized denials of wiretapping. United States v. Alter, supra. The denial affidavit in Alter simply stated who the affidavit was, that he had "caused an official inquiry to be made with the appropriate Federal agencies," which were listed, and that based on the results of the inquiry there had been no electronic surveillance of the defendant. The court criticized such a conclusory statement because: "1. it supplied no information whatever about the identity of the stated no facts from which the court could conclude that the six listed either the substance of his inquires or the substance of the replies, 3. it stated no facts from which the court could conclude that the six sted agencies were the only governmental agencies which could have been involved in electronic surveillance, and 4. it did not reveal the dates of claimed surveillance to which the inquiries were addressed."

The court concluded by pointing out that "[i]f any of the conclusions in the affidavit were later proved wrong, it would be virtually impossible to establish that the affidavit was perjured" [482 F.2d at 1027].

In summary, the lack of recordkeeping standards in national security wiretaps allows the government to be most cavalier in what records it keeps and how much it discloses about its activities. As a result, it can hide the facts as to who it wiretaps (as it did initially in the Kissinger taps), or at the least be very careless in disclosing what it has done. This lack of accountability seriously compounds all the other problems relating to national security taps which we have discussed.

F. Invasion of Constitutional Rights

National security taps necessarily lead to a massive intrusion into Constitutionally protected rights.

1. First Amendment Rights.-National security taps have repeatedly invaded First Amendment rights to political association and free speech. In the Halperin case, for example, Dr. Halperin became a consultant to Senator Muskie's presidential campaign in 1970 and 1971. All his conversations in this area were intercepted and presumably made available to persons in the White House who were extremely interestd in Snator Muskie's ideas and efforts at this time. The government has also admitted that it monitored Dr. Halperin's efforts to write critical articles of government activities after he left the governmen.

Published reports indicate that a second target of the Kissinger taps also worked for Senator Muskie and was tapped during the very time he was an active campaign worker.

In the J.D.L. case, many persons who actively supported the J.D.L. and called its office with pledges of money or assistance had their names recorded for the use by the government. Any attempt to obtain these names directly would have been denied under the authority of the Supreme Court's decision in NAACP v. Alabama. 357 .S. 449 (1958).

There have been numerous other cases where dissident groups or civil rights activists or opponents of the Vietnam War, were wiretapped under constitutionally baseless circumstances. We have already alluded to the wiretap of Martin Luther King, Jr., who was tapped because some associates allegedly had Communist ties. In a notorious memorandum produced before the Senate Watergate Committee, Egil Krogh and David Young reported to John Ehrlichman that Richard Barnet and Marc Raskin of the Institute for Policy Studies, highly vocal opponents of the Nixon Administration's Vietnam policies, were "overheard." (Ervin Committee hearings, p. 2644.) We also know that David Dellinger and other defendants in the Chicago Conspiracy trial were overheard numerous times during the period when they were planning and carrying out protest rallies against government policy. 2. Fourth Amendment Rights.-The sweeping intrusion into a person's right to privacy by a wiretap has already been set forth above. Everything that is said on a tapped telephone is swept up by the government's electronic machinery. In the Halperin case, every conversation on the plaintiff's home telephone was recorded and transcribed over a 21-month period. These in

cluded family conversations between husband and wife or parents and children, conversations between the minor children and their friends as well as the political discussions mentioned above. These conversations were carefully transcribed by an anonymous government clerks, summarized by FBI agents and sent regularly to White House officials, who then knew virtually everything about the Halperin's thoughts and activities for nearly two years. All this was done in the name of protecting national security and it was done for seventeen months after Dr. Halperin had left government employ.

As Mr. Justice Powell pointed out in his opinion for a unanimous Court in United States v. United States District Court, 407 U.S. at 313, the historic relationship between the First and Fourth Amendments is dramatically evident in the context of a national security wiretap, and it is particularly evident in a tap like the Halperins':

"National security cases. . . 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 there greater jeopardy to constitutionally protected speech. "Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power." Marcus v. Search Warrant, 367 U.S. 717, 724 (1961).”

3. Sixth Amendment Rights.-The sweeping nature of a wiretap necessarily means that many privileged communications will be overheard by government eavesdroppers. In recent years there have been numerous instances of lawyerclient calls being overheard. In the days before Title III, bugs or taps were in police headquarters-almost certainly an intrusion upon lawyer-client conversations. See Schwartz, op. cit. 478–79.

Overhearings of lawyer-client conversations have often occurred in national security cases. See. e.g., Kinoy v. Mitchell, supra (defense lawyer overheard 23 times). In a brief submitted to the Seventh Circuit Court of Appeals in the Dellinger contempt case last week, for example, the following assertions were made about FBI wiretapping of the defendants and their lawyers in the Chicago conspiracy case:

"(i) Despite Mr. Mitchell's memorandum to Mr. Hoover, dated July 14, 1969, directing that FBI agents avoid monitoring defendants and their attorneys during the conspiracy trial, a memorandum heavily relied upon by the government in this case, they in fact did so and had to be reminded of the directive by the central office of the FBI.

"(ii) FBI agents were specifically directed to frame even their internal reports to the FBI so as to conceal the source of their material, the result of which is that records in FBI files will not reveal what FBI agents know. "(iii) The FBI was continuously making personality assessments of the defendants in the Chicago conspiracy trial, which obviously were a key to what may well have been the structuring of trial court proceedings so as to develop reactions by the defendants.

"(iv) As a foundation for a claim of a foreign security exception, the FBI has directed its agents to submit "excised" logs which would reveal only the recordings of converastions showing foreign involvement; thus, logs submitted in camera to a court on a claim that surveillance was for foreign security purposes are not an accurate report of the true logs. In re Dellinger, 73-2017, Reply brief for Appellants pp. 20a-21."

These assertions were based upon government documents produced in a civil case pending in the District of Columbia, Dellinger v. Mitchell, Civ. No. 1768-69.

Another recent instance of a national security wiretap interferring with Sixth Amendment rights is the Army's surveillance of civilian American attorneys in West Germany. Conversations among lawyers working for the Lawyers' Military Defense Committee (a plaintiff in Berlin Democratic Club, et al. v. Schlesinger, et al., supra) and their clients were intercepted on at least one wiretap installed on the phone of an American free lance journalist and consultant to LMDC. Conversations overheard on the wiretap, as revealed by Army documents summarizing them, included discussions about how to conduct the court martial defense of Larry Johnson a black GI who has since been discharged from the Army. According to the Army intelligence agents who disclosed the wiretapping, more than fifteen volumes of classified surveillance

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