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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 warrantless surveillance, until there is any further legislation, that it be limited to foreign powers, and their "agents” narrowly defined as those who have a significant connection with a foreign power, but in cases where espionage is not involved.
Because if espionage is involved, then a warrant should be required under title 3.
Let me turn now to the question of the value of warrantless surveillance for national security purposes. In my judgment, such surveillance has extremely limited value and can in no sense be called vital to the security of the United States. I should make it clear that on that specific question of what one learns from such surveillance, my information is only negative. Never during my 3 or 4 or more years in the Defense Department and the White House did I read a report which I knew to be based on electronic surveillance conducted in the United States, although I routinely saw material from far more sensitive sources.
Occasionally and at random, one might pick up a useful piece of information from an electronic surveillance of an embassy, but the systematic take must, as regards the activities of foreign powers, be mere gossip. Such things as whether the Foreign Minister is coming over this week or next week and whether he plans to stop in New York for 2 or 3 days.
As George Kennan makes clear in his memoirs, every foreign service officer going abroad assumes that his office and home phones are tapped. Nothing is said by a diplomat on a phone unless he is prepared or even in some cases desires that what he says is to be overheard by the host government.
Now not only is electronic surveillance unlikely to yield significant information, but also the American Government has many other sources of information of significantly greater value.
This is, of course, a very difficult subject to discuss in a public session or even in executive session of a Congressional committee limited to Top Secret information, I may simply assert that the executive Branch has many sources of information on the activities of foreign governments, that no single one of these sources can be considered "vital" although many yield information of far greater value than could conceivably come from electronic surveillance.
I would urge this committee to demand from the executive branch a very careful "all source” evaluation of the absolute and relative value of information obtained from warrantless electronic surveillance for national security purposes.
Now if I am right that surveillance has relatively little value, you may wonder why it is carried on so extensively and so vigorously defended by the Justice Department and the FBI. The explanation in my view lies in large part in the way the American executive bureaucracy functions.
Let me try to suggest just a few key points involved there:
First, involving the struggle over missions. One of the most enduring characteristics of the Federal bureaucracies is the struggle over responsibilities. Each agency has a view of its essence, its core activity, and struggles to keep responsibility for the areas it has while broadening into other related areas.
Such a struggle over turf engages the FBI in its relations with the CIA, NSA, DIA, and the Armed Services Intelligence branches. The FBI seeks exclusive control over investigations within the United States while the foreign intelligence agencies seek responsibility for gathering all national security information.
When such a conflict exists, the agency responsible for the mission must constantly demonstrate its willingness and ability to perform that mission.
The competing organizations seek to show that the agency is either unwilling or unable to commit the resources necessary to do the job right. And in this classic situation, the consuming agencies continue to raise their demands while the performing group struggles to meet the requests.
The foreign intelligence agencies, eager for the responsibility to monitor embassies, would like nothing better than a record of FBI refusals to perform a requested surveillance.
The FBI is unwilling to create such a record. Thus, requests for surveillance are generated whenever they are remotely plausible, and the FBI is reluctant to challenge the asserted need.
Second, is what I call, the extravagant use of “free goods”; whenever something is free to an agency, it is likely to ask for a great deal of it.
The budgetary and manpower costs of the surveillance are not charged to the foreign policy agencies. If on the other hand, the NSA for example, wanted to increase its monitoring of coded messages to and from country X, it would have to find the money and personnel to do so. But telephone taps or bugs of embassies are “free goods”, paid for from the FBI budget. Bureaucracies, like individuals, have a tendency to consume a great deal of any free good without asking how much it is costing someone else.
Third, the failure to take other values into account. Bureaucracies feel neither the responsibility nor the capability to take the values of society, other than those with which they are formally charged, into account in making decisions. For the foreign affairs agencies, who generate the requests for surveillance, not only is there no budgetary cost, but the possible infringement of constitutional rights is not viewed as a legitimate concern. Their responsibility is to gather information needed by foreign policy decisionmakers; it is somebody else's job to worry about civil liberties.
One might expect the attorney general to play this role, but he is simply not equipped to do so unless he has a staff involved in this process which can challenge national security surveillance on the grounds that it interferes with people's civil liberties and of course he has no such staff.
Finally, there is the unplanned payoffs of value to the bureaucracy. Often, an agency will pursue a program with enthusiasm for reasons unrelated to why it is asked to undertake the activity. I suspect such a phenomenon is as work here.
There is little doubt that the FBI has an insatiable appetite for information about domestic groups and individuals with an interest in one or another foreign country. Taps on embassy phones yield much information about who gets into contact with foreign govern