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documents, including the records of other wiretaps on LMDC lawyers, were destroyed by the Army immediately after the disclosures occurred last August, thus further indicating that the Army knew the entire operation was illegal."
III. CURBING NATIONAL SECURITY ABUSES
It has been suggested that the answer to the abuses noted above is to require a separable warrant procedure apart from Title III for all national security or foreign intelligence wiretaps. We do not believe that such a procedure standing alone would adequately deal with the problems we have been discussing. A. Definition of National Security
In the first place the definition of national security is so elusive that a separate warrant procedure is not likely to restrict the wide range of wiretaps that have been installed in the past. 'National security!" was used to justify many aspects of the Watergate cover-up. It was used to justify the wiretap of Martin Luther King, Jr. It was used to justify the break-in of the office of Dr. Lewis Fielding, Daniel Ellsberg's psychiatrist. It was used to justify the wiretap of Morton Halperin for 17 months after he left the government.
The difficulty of defining “national security” was eloquently expressed by Egil Krogh, Jr., soon after he pleaded guilty to his part in the Ellsberg break-in :
“While I early concluded that the operation had been a mistake, it is only recently that I have come to regard it as unlawful. I see now that the key is the effect that the term "national security” had on my judgment. The very words served to block critical analysis. It seemed at least presumptuous if not unpatriotic to inquire into just what the significance of national security was.
“When the issue was the proper response to a demonstration, for example, it was natural for me to question whether the proposed course was not excessive. The relative rankings of the rights of demonstrators and the protection of law and order could be debated, and the range of possible accommodations explored, without the subjects of patriotism and loyalty even rising to the level of consciousness. But to suggest that national security was being improperly invoked was to invite a confrontation with patriotism and loyalty and so appeared to be beyond the scope and in contravention of the faithful performance of the duties of my office.
“Yet what is national security? I mentioned that all of the potential uses of the information sought in the Fielding incident were consistent with my then concept of national security. The discrediting of Dr. Ellsberg, which today strikes me as repulsive and an inconceivable national security goal, at the time would have appeared a means of blocking the possibility that he would become such a popular figure that others possessed of classified information would be encouraged to emulate him. More broadly, it would serve to diminish any influence he might have in mobilizing opposition to the course of ending the Vietnam war that had been set by the President. And that course was the very definition of national security. Freedom of the President to pursue his planned course was the ultimate national security objective. [New York Times, January 25, 1974, p. 161"
“Foreign intelligence" is equally difficult to define. A recent law review article succinctly points out the problem:
2 It should be noted that the Army dropped its charges against Spec. 4 John McDougal, one of the Army intelligence agents who made the "unauthorized disclosures”, after McDougal's lawyer gave notice that he intended to base his defense on the illegality and unconstitutionality of the surveillance. An even more telling admission by the Army that its surveillance program could not be defended in court was the rescission of Eighth Army Regulation 381-25 ("Military Intelligence Counterdissidence Program") in early August 1973, immediately after the first reports about the wiretapping began to appear in the press, and little more than a week after the Regulation was promulgated on July 23. The Regulation refined "dissidence" as "manifestation of a rejection of military, political or social standards," and authorized military intelligence agents to collect information about civilian or military “dissidence" by a variety of covert means.
"The definition of a foreign security surveillance is far from clear. Almost any problem of governmental concern could be said to relate, at least remotely, to the national security, and to bear, at least potentially, on the country's relations with foreign powers. If loosely drawn, a foreign security exception to the warrant requirement could thus be very broad. United States District Court did not narrow its potential scope, having been decided as a purely domestic case, and lower court cases which have applied the foreign security exception have done so quite expansively. In Zweibon v. Mitchell, for example, the court accepted as grounds for the warrantless surveillance of the Jewish Defense League the possibility that that group's anti-Soviet protest activities might bring adverse reaction from the Government of the Soviet Union and harm to American citizens in that country. The case suggests that individuals may be the subject of warrantless foreign security surveillance without themselves having the least affinity with a foreign power, if their activities threaten to affect the behavior of foreign powers. (footnotes omitted) Note, 87 Harv. L. Rev. 976, 977–78 (1974)"
In one current case, in which we are representing an Arab-American activist lawyer in a civil suit for wiretap damages, an asesrted national security justification by the government for barring discovery was rejected by the District Court. The government had submitted an ex parte affidavit which undoubtedly was more detailed than its own internal justification memoranda. Jabara v. Kelley, 42 LW 2528 (E.D. Mich. March 21, 1974).
In the so-called Kissinger taps, the justification offered for wiretapping 13 government employees and 4 newsmen was that there was a leak of national security information to the press. The government asserted a “foreign affairs”/ "national security" rationale for the tap on the Halperin home by the facile logic that because intelligence organizations read American newspapers, any leak of information to the newspapers is tantamount to a spy covertly conveying information to a foreign government.* This rationale would expose to unwarranted executive wiretapping all the hundreds of thousands of government and private industry employees who have access to classified information, all former employees who had such access, all members of Congress, and all newsmen who are potential recipients of such information. B. Ex Parte Application for a Warrant
The fact that a judge would have to pass on the government's application for a tap is not likely to solve the problem. The government could offer a plausible excuse why a national security tap was necessary. Under the ex parte circumstances of the application, it is unlikely that a judge would dispute the government's contentions as to why the tap should be installed.
In the Halperin case, for example, the government has argued as follows.
"The early months of 1969 were particularly sensitive times with regard to the formulation of this country's foreign policies and the establishment of our future relations with other nations. Statement by the President, 9 Presidential Documents 694 (1973). During this period, policies were being considered which would establish this country's fundamental approach to major foreign policy issues such as the Strategic Arms Limitation Talks (SALT), Vietnam and many other national security issues. Ibid. Because of the sensitive nature of these matters, the secrecy of each was of vital importance, and placed in lawyers' offices or in other places where attorneys would speak to their clients. The Detroit police allegedly wiretapped every public telephone the success or failure of each program turned in many instances upon the maintenance of the necessary security. Ibid. However, notwithstanding the critical need for such security during this period, the Government was confronted with leaks to the press of documents which were considered of the greatest importance to the national security
access to the classified information which had been disclosed to the press was limited to a few officials and employees within the Government, Dr. Henry A. Kissinger, then Special Assistant to the President, was directed by the President to provide the
* The gorernment's argument as follows: ". the electronic surveillance of (Dr. Halperin's home telephone) was conducted by the Executive for foreign policy purposes and for the protection of national security Information against foreign intelligence activities."
Federal Bureau of Investigation with the names of certain individuals who had such access. Hearing on Nomination of Henry A. Kissinger, supra at 12. One of the names provided to the Federal Bureau of Investigation by Dr. Kissinger's office was that of Dr. Morton H. Halperin, then a member of the National Security Council staff.
“However, notwithstanding this and other investigations being conducted by the Federal Bureau of Investigation and additional governmental efforts to curb the unauthorized disclosure of classified information, press leaks involving the most sensitive of foreign policy matters continued through 1969, 1970 and 1971, and the surveillance of Dr. Halperin was thus continued throughout this period until its termination on February 10, 1971."
The plaintiffs' were able to dispute the government's argument, however, and obtain discovery in the case, despite the assertions of national security. But without an adversary hearing, the government's assertions might well have been accepted by the court.
A warrant procedure would add limited protection if the concept of national security remains as broad and is as frequently asserted as it is now. In our view, therefore, the principal task facing the Congress is the enactment of broad prohibitory legislation. This legislation should be backed up by a warrant procedure only with respect to the extremely narrow area in which any wiretapping at all is permitted. C. Inadequate Protection of Constitutional Rights
The only arguable improvement that would come out of a separate warrant procedure for broadly defined national security/foreign intelligence taps would be better recordkeeping. The Title III requirements of a warrant and the housekeeping provisions of Section 2518 would mean that the government would not be able to be so careless in accounting for the existence of a tap. But other Constitutional infirmities mentioned above would still exist.
The government would still be able to wiretap its political enemies under the pretext o national security and thereby inhibit the exercise of their First Amendment rights. The invasion of Fourth Amendment rights would be as sweeping as they are now, as would Sixth Amendment infringements. A warrant procedure would not overcome these constitutional objections. D. Warrant Procedures and Recordkeeping Requirements
It has been argued that there must be some procedure for the government to secure foreign intelligence information through a wiretap to protect the national defense or safety; and that the government must have some means to protect itself against foreign espionage. It must be allowed to obtain intelligence to meet clear and present external dangers before they ripen into direct violence against the nation.
It has been argued that there must be some procedure for the government already has specific authority to wiretap, the constitutionality of which has not yet been decided. The crimes outlined in Section 2516 which justify a wiretap under Title III include espionage, sabotage, treason, rioting, and similar crimes. As the Supreme Court pointed out in United States v. United States District Court, 407 U.S. at 321. “Judges may be counted upon to be especially conscious of security requirements in national security cases. Title III. already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage, and treason. 82516(1)(a) (c)."
With respect to domestic activities which are under investigation by the Government for “national security" reasons, the Supreme Court has already spoken. Where “there is on evidence of any involvement, directly or indirectly of a foreign power,” the Fourth Amendment applies. United States v. United States District Court, 470 U.S. at 309.
The Justice Department in its Congressional testimony has conceded that the Supreme Court's decision narrows the area of possible executive discretion to wiretap in foreign intelligence situations. These must be limited to circumstances where "such factors [exist] as substantial financing, control by or active collaboration with a foreign government or agencies thereof in unlawful activities directed against the government of the United States.” Furthermore the Justice Department has conceded that "such factors will be present in a very minimum number of situations." Testimony of Deputy Assistant Attorney General Kevin T. Maroney, Hearing's, Warrantless Wiretapping supra, p. 12. We must point out that the Government's position in each national security wiretap case cited in our testimony is at variance with this concession.
Title III leaves open the question of discretion for Executive action in the area of foreign intelligence gathering or to protect national security information against foreign intelligence activities. This area of discretion as to which the Congress has taken no position and which the Supreme Court narrowed in the Keith case, is still too broad. At a minimum the limits of foreign intelligence wiretapping should begin with the definitions offered above. But in drawing up these definitions we hope that Congress does not authorize what it is seeking to prohibit.
We believe that a warrant procedure for foreign intelligence wiretaps does not go far enough. It does not meet the definitional problems mentioned above. It may be interpreted as lending Congressional sanction to an unconstitutional practice. The need for accountability is great and any exercise of executive discretion in this area should be subject to legislative definition and subsequent judicial review.
However if Congress does not affirmatively prohibit these kinds of wiretaps, a warrant procedure under strict definitions and standards is a conceivable alternative. As we noted above, a warrant requirement would lead to some kind of Executive accountability. It would mean that the courts could initially check on the government's claim of foreign security and later hold it to account if it exceeded its authority. It would mean that the targets of illegal use of this power might obtain redress, and Congress could also determine whether its standards have been met.
The right of privacy is perhaps the most important right of American citizens. A wiretap is and has been a most serious invasion of that right. A warrant requirement in order to legitimate vague national security wiretap practices will not cure these incursions upon the Constitution.
Thank you for this opportunity to appear before the Subcommittee today.
Mr. KASTENMEIER. The hour is late and I would like to offer the Chair's apologies to Dr. Morton Halperin, who has patiently waited to testify.
Dr. Halperin holds his Ph.D. in political science and served the Government both as Deputy Assistant Secretary of Defense during the Johnson administration and as an assistant to Henry Kissinger at the National Security Council during the early part of this administration.
Dr. Halperin was the subject of a warrantless national security wiretap for over 112 years after leaving the Government.
We welcome you, and you may proceed any way you wish. TESTIMONY OF MORTON HALPERIN, PH. D., FORMER NATIONAL
SECURITY COUNCIL STAFFER Dr. HALPERIN. Mr. Chairman, it is a great privilege for me to appear before this committee. I propose to discuss warrantless wiretapping rationalized by the incantation "national security.”
Depending on one's perspective this can be said to be a subject on which I am biased, or it can be said to be one on which I speak from great experience. In any case, my involvement with warrantless wiretaps is, which unvoluntary, quite extensive. For 21 months, the words of members of my family and those who called us on the telephone or used the telephone themselves, were duly summarized and copies of these summaries were sent to high administration officials, including Henry Kissinger and H. R. Haldeman. During all but the first 4 of these 21 months, I was a private citizen with no access to classified information, but with an active involvement in public affairs.
The lawsuit brought by my family has been brought against those we believe responsible for this surveillance and has now progressed to the stage where we have been given copies of the summaries of these telephone conversations and other documents. And I have spent, I might say, most of the last week reading these documents and they are both fascinating and frightening. I am prohibited by the court's order from discussing this material. And in restraint and the fact that Mr. Freidman and Mr. Shattuck have discussed what we know about the case from other materials. I propose to focus my remarks on some more general questions about my case in so far as I am able to do so.
My remarks then will be focused on three questions: (1) What is the current practice of the Justice Department; (2) what are the benefits of such surveillance; and (3) what should be done.
The starting point for any inquiry about current practice is of of course the Keith decision. I find Justice Powell's decision in that case unambiguous, totally unambiguous. As I read it, he says that, electronic surveillance of an American citizen requires a warrant under the procedures of the omnibus crime bill unless he or she is an "agent” of a foreign power. And the Court of course, reached no judgment at all about whether a warrant would be required for the surveillance of foreign powers or their agents. But it defined "agents” as those having a significant connection with a foreign power. Therefore, in my view, its practice under Keith should be straightforward, as Mr. Freedman suggests, and clearly it is not.
Warrants should be required under title 3 unless the surveillance is of a foreign power or its agents, and agents is narrowly defined. Now the Justice Department witnesses who testified before the Senate Judiciary Committee shortly after the Keith decision gave precisely this interpretation. William Ruckleshaus, when he was Acting Director of the FBI and later Deputy Attorney General, also gave this interpretation of the decision. But as already suggested, other signs are more disquieting.
The number of warrantless surveillances does not appear to have gone down. Mr. Richardson has presented the opinion that the Keith case did not cover any surveillance in any way related to foreign policy—the Jewish Defense League was attacking an embassy or in my case because of the view that foreign powers read newspapers and therefore anything that involves anything that might get into a newspaper, the Justice Department explicitly says involves the activities of a “foreign power."
Therefore, there is great uncertainty about what the current practices are of the Justice Department and very disquieting indications that in fact very little has been accomplished by Keith. After all, the Keith case itself involved the CIA, the blowing up of a CIA installation so presumably that would now be said to be involved with a foreign power.
In my view the committee should discover very precisely what the current practices are and insist that, if there is to be any war