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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 nnwilling to create such a record. Thus requests for surveillance will be conerated whenever a remotely plausible case can be made and the FBI will he reluctant to challenge the asserted need.
The crtravagant use of “Free Goods." There is another reason Thr the foreim affairs agencies are likely to be casual about requesting 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 continne, at which time we will hear from a representative of the Justice Department, the Ilon. David O. Cooke, Deputy Assistant Secretary of 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,
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.
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 formuiation 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, exer