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Defense and William Camming, attorney for American Telephone and Telegraph Co.

We will ask him a couple of questions which perhaps Mr. Halperin might like to know in connection with the phone company, in connection with some of their practices. Until that time, the subcommittee stands adjourned.

[Whereupon, at 4 p.m., the subcommittee recessed, to reconvene at 10 a.m., Friday, April 26, 1974.]

WIRETAPPING AND ELECTRONIC SURVEILLANCE

FRIDAY, APRIL 26, 1974

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE OF THE
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met at 10:10 a.m., pursuant to recess, in room 2141, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman) presiding.

Present: Representatives Kastenmeier, Danielson, Drinan, and Smith.

Also present: Bruce A. Lehman, Counsel, and Thomas E. Mooney, Associate Counsel.

Mr. KASTENMEIER. The subcommitte will come to order this morning for the second day of hearings concerning the wiretapping and electronic surveillance.

I would like to announce this morning that Mr. Smith, the gentleman from New York, informs me that there are a group of young people here from Ontario, Canada, and we welcome our Canadian friends to this Subcommittee meeting of the Congress.

Our first witness this morning is the Assistant Attorney General in charge of the Criminal Division, representing the Department of Justice, Mr. Henry Petersen. Mr. Petersen's long and faithful service in the Department of Justice is well known to this committee and we are very pleased to welcome Mr. Petersen. And with Mr. Petersen, I understand, is his Deputy, Mr. Kevin T. Maroney. Gentlemen, you are both welcome.

The Chair will observe, Mr. Petersen, that you have a 35-page statement. And we will accept that for the record. You may not necessarily want to read every line of your statement. If you could summarize, particularly those portions dealing with the legislation it would be helpful. If the Chair may observe, I think at this point the committee is more interested in the policies and practices of the Department than in receiving testimony on legislation, although some of the legislative proposals themselves are original and they appear to be plausible in terms of addressing themselves to the problems involved. Mr. Petersen, you are most welcome and you may proceed.

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TESTIMONY OF HON. HENRY E. PETERSEN, ASSISTANT ATTORNEY

GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, ACCOMPANIED BY KEVIN T. MARONEY AND PHILIP WHITE

Mr. PETERSEN. Thank you. I was disposed to read it and on your admonition I thought first of summarizing. I do not really think I can do an effective job of summarizing a 35-page statement.

Mr. PETERSEN. Let me be very brief.
We oppose the bills. That is it.

Now, I think with good reason. First of all, let us start with title III, I think that title III, or what we call title III, the provisions which both prohibit and permit wiretapping are effective safeguards. We have set up an elaborate system. Indeed, many say much too elaborate a system under title III to ensure that the wiretapping procedure in implementation of our criminal investigative function is carefully and wisely utilized. Under our practice over the past 5 years, from 1969, and I do not have a precise figure, I would say not more than 10, and I may be exaggerating, not more than 10 of our applications authorizing attorneys to go to the court have been turned down for lack of probable cause. There is a disagreement between the court and our evaluation of the procedure.

Mr. KASTENMEIER. If I my interrupt, I think probably the figure is less than that. Indeed I was struck with the few turn-downs of requests at both the State and Federal levels. For example, according to the Administrative Office of the U.S. Courts, for the period June 20, 1968, to December 31, 1972, the total number of applications for authority to wiretap was 2,751. The total number of authorizations was 2,744. There were only six denials and one withdrawal. So, your "not more than 10" figure is not far from correct.

Mr. PETERSEN. It reflects a great deal of concern and I am sure some of our agents and some of our lawyers at times consider it to be an excess of redtape, but it requires a procedure that initiates with the lawyer or investigator and involves a close working relationship between the two to develop the probable cause and a formulation of the evidence in affidavit form, and an extensive review procedure in the Organized Crime Section in the Criminal Division, and ultimately with the Attorney General. And we exercise a large degree of discretion. We are conscious of the instances where privileged communications may be intercepted, and we are conscious of the duration of the taps on the statutes authorized 30 days. It is our usual custom to authorize only for 15, and if necessary, to apply for a continuation or a renewal, which again has to be submitted with all of the formulation or reasons on up to the Attorney General. We think the practice has been a salutary one, and we think that it has paid off.

We would not like to see it changed. The statute is complex. It has given rise to a large degree of litigation, particularly with respect to the issue of the so-called Mitchell signatures. You are undoubtedly aware that we take the position that the control that the statute mandates at the policymaking level was, in fact, exercised by the Attorney General, notwithstanding the fact that he did not actually put his signature on each and every one. That issue is under consideration by the Supreme Court and, hopefully, we will have a ruling before the end of the term.

Mr. KASTENMEIER. On that question, has the practice changed because of the challenge?

Mr. PETERSEN. Yes it has. The Attorney General now, as a matter of practice, signs every one unless he is unavailable and then under a specific delegation to me, and another Assistant Attorney General on a standby basis we have the authority to approve in an emergency. And that emergency ought to be distinguished from the emergency provisions of the statute. We exercise our authority only when the Attorney General is unavailable. The emergency provisions of the statute have never been actually utilized, and only in one instance was the emergency provision invoked, and that just very recently in connection with some ongoing extortion scheme where the lives of alleged hostages were threatened. And it was on a weekend and we authorized the Bureau, with the concurrence, telephone concurrence of the Attorney General, to proceed without formal submission of the affidavits and papers. Fortunately, the law enforcement authorities raided the premises where the hostages were alleged to have been held, and there were indeed no hostages and so, we have never had to utilize that emergency authorization. Had it been protracted we would have applied again, I think it is a classic example of the discretion that is employed in the Department of Justice and how carefully, and in a limited fashion, we are exercising those powers that have been granted to us by the Congress.

Perhaps a more controversial issue involves the issue of electronic surveillance in the area of internal security. The phrase, itself, is ambiguous. In the Keith case, recently decided, it made the distinction between foreign intelligence and foreign relations matters and domestic security matters, and, obviously, we have followed that case and do not authorize warrantless electronic surveillance in domestic security matters. And the procedure in foreign intelligence and foreign relations matters is now more stringent. The applications are walked over by Bureau agents to the office of the Attorney General. They are hand-delivered from the Attorney General's office and they are brought down to me for my recommendation, and if for any reason I am unavailable Mr. Maroney sees them. They are than hand-carried back with our recommendation to the Attorney General, who personally approves, and approval is done under the specific authority of the President and has been sanctioned by history and custom, at least going back as far as President Roosevelt. The standards we use have recently been supported by the Third Circuit en banc decision in the Ivanov case, and basically those standards are reasonable suspicion and need.

The applications themselves are directed to intelligence and counterintelligence, espionage activities and activities relating to development of intelligence information for assistance to the President in the conduct of foreign relations of the United States.

Whether or not it would ultimately be practical to require submission of those applications to the court is, I suppose, to some

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degree an open question. We, in the Department of Justice, think it is rather impractical, if only because it requires a large degree of background in intelligence and the information that constitutes the intelligence to make an informed judgment with respect to whether or not the suspicion is realistic. Whether or not there is a need involves dissemination of a great deal of confidential, secret and top secret information. We think that that is best left' to the executive branch and, for that reason, we would oppose a warrant requirement and we think that we are rather firmly supported in that by the Ivanov decision.

We have thought about other things in terms of this complex, so-called English system, which I cannot speak of in a wholly authritative fashion, but I am told that they over there have a commission which serves this purpose. In any event, there are people who devote their careers to this sort of thing, and a counterpart proposal here would be to establish a commission with one member appointed by the Congress, one by the Executive and perhaps from the intelligence community.

Mr. SMITH. Mr. Petersen, excuse me just a minute. You are talking now about internal security matters?

Mr. PETERSEN. We are talking about, yes, if that phrase means foreign intelligence, foreign intelligence espionage, counterespionage activities, yes.

Mr. KASTENMEIER. My understanding is you are talking about all warrantless wire taps?

Mr. PETERSEN. Yes, sir.

Mr. KASTENMEIER. Electronic surveillance which involves either internal security or foreign intelligence ?

Mr. PETERSEN. That is correct.

Mr. Smith. This is as opposed to internal problems like organized crime and so forth?

Mr. PETERSEN. That is correct, which are covered by the warrant procedure and which we support and would like to suggest that the Congress not change.

I think that the critical area is in this area of internal security and I think that is where, frankly, I think we need some help. We welcome help from the Congress. We do not want to shoulder this responsibility wholly ourselves. We do not want to say it is not for you. We think it is too important a responsibility and our problem is not to exclude you, but our problem is to bring you in in such a fashion that we are not abdicating Executive functions, that we are not violating the separation of powers, that we are not thrusting our responsibility on you. But, we are performing our obligation in such a fashion that we can recognize, with some degree of confidence, what we are doing and that it is done properly, and the judgments are properly exercised, and that there is not calculated abuse, you know, which we do not condone, but there can be mistakes, and there is a possibility of mistakes.

Mr. SMITH. Mr. Petersen, you were talking about the British system, where there was a commission. It is my understanding that you are saying, in effect, that the commission members had a background in internal security and counterespionage work, so that they

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