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ments and why. From the point of view of the FBI itself, the most valuable aspect of embassy taps may very well be the leads that it provides to American citizens who are of interest to the Bureau.
If this last phenomenon explains at least in part why our surveillance is so extensive despite the meager returns for national security, it also explains what is wrong with such surveillance. Taps on embassies do not merely pick up the conversations of diplomats talking to each other. They allow the FBI to listen in on the conversations of American citizens discussing their political beliefs. These citizens have no way of knowing which phones to avoid and do not learn that their conversations have been overheard unless and until they are indicted for a criminal offense.
Let me conclude by stating briefly what I believe should be done by way of legislation.
Let me state clearly that my own preference would be to abolish all wiretapping. I believe it is an unwarranted intrusion of the privacy of American citizens. And I do not believe that it is either legal under the Fourth Amendment or even that, if it is, that it is good policy to permit such taps.
But assuming that the Congress is not prepared to take the steps of abolishing such wiretaps, then it seems to me that it should urgently consider some most modest steps:
First, I think warrants should be required for all surveillance of American citizens and resident aliens and should be issued under the procedures of the Omnibus Crime bill in situations where there is probable cause to believe that a crime has been committed.
And I think given the Justice Department's interpretation of Keith, this requires legislation.
As far as taps on embassy personnel and nonresident aliens and noncitizens, who may be agents of foreign powers, again my preference would be that all such surveillance be made illegal and that section 3, which permits such an exception, be removed from the legislation. But again, if Congress is not prepared to take that step of banning embassy taps, but under the lesser standard of reason to believe that information of importance to the national security will be learned.
And I do not believe that information obtained from such taps should be usable in a court of law. My view of the main purpose of requiring warrants on embassy taps is that if your permit any area in which taps can be conducted without a warrant, no matter how narrowly you define that area, say it can only be on embassies or ambassadors, the Government will always extend the area. They will say “well 'we are tapping A because Ambassador Jones frequently visits him or it is his mistress' house” or whatever. I think the only way to make it clear that, if you conduct a tap without a warrant, you are doing something illegal is to require a warrant on every tap, whether it is on an embassy or ambassador or an American citizen.
Finally I think, as far as the telephone companies, that legislation should provide that the telephone company is to assist in placing taps on phones only when it is given a copy of a warrant and maintains a copy of that warrant in its files. In my view the behavior of the phone company has been even more reprehensible than that of the Government because the phone company is after all a contractee of an individual and one really doesn't have any choice but to go to the C&P Telephone Co. if one lives in Maryland and one wants a telephone. There is not much competition in this area.
And the phone company, which I let into my home in order to get its phone service, permitted the FBI, without a warrant, without any justification being given to the phone company, without even a piece of paper being given to them, permitted them--and not only permitted but put a tap on my phone and gave the end of the wire to the FBI in order to listen into conversations.
I believe that the phone company should be put on notice that its behavior is criminal if it permits a tap without a warrant.
That is another reason why I believe warrants have to be required for all taps. I believe the telephone company should be told very explicitly that a wiretap without a warrant is illegal and I believe this is of great importance because my understanding is that a tap with the help of the telephone company can be put on in 10 minutes. It is easy to put on a tāp with the help of the telephone company but a tap without the support and assistance of the telephone company is difficult to put on and it is relatively easy to detect.
Mr. Chairman, that I think concludes my remarks except to say that the changes that I think should be made, if in fact taps are not to be banned entirely, are consistent with the bill that the Chairman has introduced and I am pleased to indicate my support for it.
Mr. KASTENMEIER. I am pleased to have your support for it, Dr. Halperin. You have talked about wiretapping and to some extent electronic surveillance. Do you feel there are other ways the Government, through mere following of citizens or shadowing of them, engages in pursuits which invade the privacy of its citizens?
Mr. HALPERIN. I am sure that these things go on. In the public materials in my lawsuit there is no reference to any surveillance of me other than the phone taps but there is of course a great deal of information on the record of the Government doing this in other cases, of attending meetings, of taking down the names of people there, of taking pictures of meetings and so on.
Mr. KASTENMEIER. How did you happen to discover that you were being wiretapped?
If you are able to say, was this an accidental discovery?
Mr. HALPERIN. No, Daniel Ellsberg happened to be in my home on one occasion and made a phone call and that fact was revealed at the criminal trial where he had been indicted for conduct involved with the Pentagon Papers.
Mr. KASTENMEIER. I see.
Mr. HALPERIN. And the Government revealed there that he had been overheard on surveillance, not of him, but of me.
Mr. KASTENMEIER. Do you have any questions? We might have time for a question. Otherwise we are again being called to the floor for a yote.
Mr. DRINAN. No. I have a few but I can talk to Dr. Halperin afterwards. I am interested in pages 7 and 8 of his testimony, but
I don't want to hold him. I want to apologize because he stayed all day here and we appreciate it.
I want to tell him his testimony has been extraordinarily helpful.
Mr. KASTENMEIER. Yes, the committee is indeed indebted to you for your appearance today and for your statement. It is a brief statement but it is a very useful one and we appreciate your appearance.
Thank you very much. Dr. Halperin.
TESTIMONY OF MORTON H. HALPERIN, Ph.D., FORMER NATIONAL SECURITY
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 extensive. For 21 months, with the aid of the C&P Telephone Company, agents of the FBI recorded and listened to all of the conversations on my home telephone. The words of my family and those who called us or used our phone were duly summarized and copies sent to high administration officials, including Henry Kissinger and H. R. Haldeman. During all but the first four of these 21 months, I was a private citizen with no access to classified information, but in an active involvement in public affairs.
The lawsuit brought by my family against those we believe responsible for this surveillance has progressed to the stage where we have been given copies of the summaries of these telephone conversations and other documents. I am prohibited by the Court's order from discussing this material. In view of this restraint and the fact that, as I understand it, Mr. Friedman will be discussing my suit, as well as others, with voul, I propose to focus my remarks on more general questions. I would, of course, be happy to respond to questions about my own case in so far as I am able to do so.
My remarks, focusing on warrantless so-called national security taps, will deal with 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 into current practice is, of course, the Keith decision (U.S. v. U.S. District Court 407 U.S. 297 (1972)), I find Justice Powell's opinion for the Court unambiguous. It says, as I read it, 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. The Court reached no judgment as to whether a warrant was required for the surveillance of foreign powers or their "agents,” but it defined "agents" as those having a significant connection with a foreign power.
Practice under Keith should be straightforward. Warrants should be required unless the surveillance is of foreign power or its agents, narrowly defined. The Justice Department witness who testified before the Senate Judiciary Committee shortly after the Keith decision came down gave this interpretation of its meaning, and William Ruckelshaus took this view when he was Acting Director of the FBI and Deputy Attorney General. Other signs are more disquieting. The number of warrantless surveillances does not appear to have declined sig. nificantly since Keith. Only six were removed immediately folowing the decision and Elliot Richardson recently testified before two subcommittees of the Senate Judiciary Committee that while he was Attorney General there were an average of approximately 100 warrantless surveillances at any given time. Moreover, in Mr. Richardson's view, Keith did not affect any surveillance in any way related to foreign policy. The Justice Department has taken the same position in defending individuals in civil litigation, particularly in the Zweibon case (where the position has been upheld by the District Court, Zweibon v. Mitchell 363 F. Supp. 936 (D.D.C. 1973)) and in Halperin v. Kissinger.
Thus there is great uncertainty about current practice and disquieting indications that warrantless surveillance continues against American citizens where foreign policy is in one way or another involved. I would urge this committee to urgently seek from the Justice Department a clarification of current practices. The committee should, in my view, insist that if there is to be any warrantless surveillance, pending any further action by Congress on the Court, it should be limited to foreign powers and to their "agents" in the rare case where there is reason to believe that a significant connection exists but where espionage is not suspected.
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 considered vital to the security of the United States. I should make it clear that, on the specific question of what one learns from such surveillance, my information is only negative. Never during my three 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 in the United States, although I routinely saw material from far more sensitive sources. Occasionally and at random, one might of course pick up a useful piece of information from an electronic surveilance of an embassy, but the systematic take must, as regards the activities of foreign powers, be mere gossip.
As George Kinnan makes clear in his Memoirs, for example, every foreign service officer going abroad assumes that his office and home phones are tapped. Nothing is said by the diplomats unless they are prepared, or even want, to have it overheard.
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 an executive session limited to Top Secret information. Let me simply assert that the executive branch has many sources of information on the activities of foreign governments. No single source is itself "vital,” although many yield information of far more value than can conceivably come from electronic surveillance. I would urge this committee to demand from the executive branch a careful "all source" evaluation of the absolute and relative value of information obtained from warrantless electronic surveillance for national security purposes.
If I am right that such 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 lies in large part in the way the bureacracy of the executive branch functions. Let me just touch on a few key points.
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 the mission. The competing organizations seek to show that that agency is unwilling or unable to commit the resources necessary to do the job right. 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 surveillanre will be generated whenever a remotely plausible case can be made and the FBI will be reluctant to challenge the asserted need.
The extravagant use of “Free Goods." There is another reason why the foreion affairs agencies are likely to be casual about rerjuesting surveillance in the United States. The budgetary and manpower costs of the surveillance is not charged to them. If NSA wants to increase its monitoring of coded messages to and from country X, it must find the money and trained personnel in its budget. Telephone taps or bugs of the embassy are a "free good,” 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.
The failure to take other values into account. Bureaucracies feel neither the need 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 decision makers; it is someone else's job to worry about civil liberties.
One might have expected the Attorney General to play this role, but he has not really been equipped to do so. What he would need is a staff that is skeptical about the foreign policy value of such surveillance and concerned with civil liberties which could make the case against any proposed surveillance. In the absence of such a staff he is likely to be overwhelmed by assertions of what the “national security” indeed requires.
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 at 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 governments and why. From the point of view of the FBI itself, the most valuable aspect of embassy taps might very well be the leads that they provide to American citizens who are of interest to the Bureau.
If this last phenomenon explains at least in part why such surveillance is so extensive despite the meager returns for national security, it also explains what is wrong with such surveillance. Taps on embassies do not merely pick up the conversations of diplomats talking to each other. They allow the FBI to listen in on the conversations of American citizens discussing their political beliefs. These citizens have no way of knowing which phones to avoid and do not learn that their conversations have been overheard unless and until they are indicted for a criminal offense.
Let me conclude by stating briefly what I believe should be done by way of legislation.
Warrants should be required for all surveillance of American citizens (and resident aliens) and should be issued under the procedures of the Omnibus Crime Bill in situations where there is probable cause to believe that a crime has been committed.
Warrants should also be required for surveillance of embassies and embassy personnel, but under the lesser standard of reason to believe that information of importance to the national security will be learned. I believe that warrants should be required for such taps, among other reasons, so that there can be no ambiguity about the legality of warrantless taps. If some taps, with no one knowing how narrowly circumscribed, are legal without a warrant, officials would always be able to claim that they believed a particular tap was in the limited, permissible category. Only if all electronic surveillance requires a warrant can we have any hope of preventing illegal surveillance.
The telephone company should be instructed to assist as requested in telephone taps when it is given a copy of a warrant, and its assistance in a warrantless tap should be made a crime.
Evidence obtained from an embassy surveillance should not be usable in a criminal prosecution.
These proposals are consistent with H.R. 13825 and I am delighted to endorse that bill.
Mr. KASTENMEIER. This will conclude today's hearings, and on Friday morning next in this room at 10 a.m., the hearings will continue, at which time we will hear from a representative of the Justice Department, the Hon. David O. Cooke, Deputy Assistant Secretary of