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knew the sort of background that you imply is necessary to make an informed judgment?
Mr. PETERSEN. Yes, that is true. But, I do not mean to import parochialism into that concept. I do not mean to suggest that no one from without the intelligence community should be appointed. Indeed, I would think to the contrary, that we would like some fresh thinking in there.
Mr. Smith. But you would think that there should be some experts on that?
Mr. PETERSEN. That is right. But, there are people who could rapidly develop this factual development and insight into the foreign relations and intelligence problems so far as they affect a major power in the world, so that we could function in that fashion.
The other alternative, which we told to the chairman before, we have no objection to the oversight committee. But we do think, at least I think from my position in the Department of Justice, that an oversight committee by the House or an oversight committee by the Senate is really not the answer. Frankly, there is too much jealously between the bodies or maybe a lack of confidence. I do not know what you call it, but at least there is, one can discern from without the legislative branch, a certain degree of jealousy with respect to what committee even within the House or the Senate does this or that. So, we would like to suggest if that is going to be done it be a joint committee. And I would think it would be advisable, too, that it not be of such broad range that its impact is dissipated. I would like to think that perhaps we could have an oversight committee with respect to internal security problems, or internal security problems as they relate to surveillance, whether it be electronic or other surveillance, so the Congress could be assured that what we are trying to do is in the best interest of the United States,
We are distressed, you know, I am distressed, my colleagues are distressed. I think the individuals in the Federal Bureau of Investigation are distressed, that so often what we think is necessary, and what we feel conscience-bound to do is being misunderstood. We are distressed by abuse by people who are not a part of the intelligence community because of the damage they do to what we consider to be absolutely necessary and an indispensable function of the executive branch.
Mr. KASTENMEIER. Do you concede, Mr. Petersen, that there is abuse by the Federal Government in connection with this?
Mr. PETERSEN. I think-well, I have to concede that there has been at least one abuse, one abusive action. But, I think your statement is too general. Frankly, I am impressed by the lack of abuse in the areas so far as I can see. I do not mean to say, Mr. Chairman, that you
and I might share the same judgments, you know, on particular instances. There are instances where Mr. Maroney and I disagree or the Attorney General and I disagree. And ultimately he has made the decision. But, they are not irrational disagreements. They are not circumstances which are so marked that either one of us could say that the other is categorically wrong or being abusive of authority or irresponsible. I do not see that sort of thing.
Mr. KASTENMEIER. Without cataloging them, we are all aware that there have been in the past 2 or 3 years a number of cases of electronic surveillance made public by one means or another, which appear
to be abuses to many people. Mr. PETERSEN. Well, you know
Mr. KASTENMEIER. I do not want to make it any more specific than that. I do not want to go down the litany of cases, but that is one of the reasons I think both the Senate and the House are presently involved in this inquiry.
Mr. PETERSEN. You see I am not sure whether they are, indeed, abusive. For example, one of the bills here suggested a certain category of persons, justices, judges, Members of Congress, somebody else ought to be excluded. I do not agree with that. You know, I think you are no better or no worse than the rest of us. I think today's paper classifies and illustrates better still the problem. You know, Willy Brandt's chief aide turns out to be a spy. I mean those things do happen. We ought not to exclude categories, newsmen or what have you. Indeed, in the temper of the times, if I were a Russian agent the first thing I would do would be to get myself a newspaperman's job because I can tell you it is much more difficult for us either under an internal security approach or a pure criminal approach to investigate a newspaperman. I think it is wholly unwarranted. It is more difficult for us to investigate a Congressman. It is difficult to conduct an investigation with political connotations, you know. To the extent that you proceed cautiously you may be criticized as I was in connection with the Watergate
Mr. KASTENMEIER. I might say, Mr. Petersen, that it is difficult for our parent committee to conduct an investigation with political implications.
Mr. PETERSEN. Maybe that is a great safeguard for both of us, is it not?
Mr. DRINAN. Mr. Chairman, may I ask a question?
Mr. KASTENMEIER. Yes. I yield to the gentleman from Massachusetts.
Mr. DRINAN. I appreciate your concern and the concern of your colleagues with this. But, I wonder if you can enable us to make some evaluation on the basis of information other your own statement, by giving to us the evidence that the chairman has requested. I am particularly interested in the number of warrantless wiretaps. I have the previously released statements of Senator Scott and Gerald Ford on the number of warrantless wiretaps prior to 1973; but, I wonder if you could give us now, or hereafter, the number of warrantless wiretaps that have been authorized ?
Mr. PETERSEN. Mr. Drinan, I am not prepared to do so.
Mr. DRINAN. We asked for this information in a letter, dated April 11, and we asked for compliance by April 18, and we agreed to a deferrence of that. But, it seems to me that if you are not prepared, then you ought to give us a date when you are prepared.
Mr. PETERSEN. Well, I would like to be able to do it, but I cannot. That is going to have to come from the Attorney General of the United States.
Mr. DRINAN. We wrote to the Attorney General of the United States on April 11, and I have here hearings of the Senate, held 2 years ago, on warrantless wiretaps.
Mr. PETERSEN. Well, you know, all I can say, Mr. Drinan, is I can misconstrue him at times, but I cannot overrule him.
Mr. DRINAN. Are you telling us that Mr. Saxbe has denied our re
Mr. PETERSEN. I am telling you that at least as of this morning he still has it under consideration, and I have no satisfactory answer for you or myself.
Mr. DRINAN. How do you expect us to say then you feel there has been some abuse, but no grave abuse, when we do not even know the number of warrantless taps?
Mr. PETERSEN. Well, I do not know that I can do other than ask you to accept my representations. I can tell you that and if you want to swear me, I will still say it. But, other than that, I just offer my testimony as a public official.
Mr. KASTENMEIER. If the gentleman from Masachusetts will yield, I think it appropriate that this subject should be pursued. For the record, the letter that was sent to the Attorney General on April 11 contained four questions, and none of those questions have been answered in the testimony this morning. Is that correct, Mr. Petersen ?
Mr. PETERSEN. We discussed the procedures.
Mr. KASTENMEIER. The reason I have asked this is so that we can delineate which of the questions are answered in your testimony and which are not. The questions which are not, as you correctly point out, we will have to take up with the Attorney General. Possibly we can resolve this at some future time, but not this morning. Therefore, I think for the record that the Chair will pose each question asked in the April 11 letter and you will indicate whether or not it is still under consideration by the Attorney General, or whether or not your testimony considers it, and if it does, what answer your testimony gives.
Mr. PETERSEN. Okay.
Mr. KASTENMEIER. We asked the Attorney General of the United States, by letter of April 11, for each calendar year from 1969 through 1973, how many requests for permission to conduct warrantless wiretaps or electronic surveillance were granted by the Attorney General. That is the first question.
Mr. PETERSEN. That has not been answered, Mr. Chairman.
Mr. KASTENMEIER. The second question is for each of these years, how many approved requests for permission to conduct warrantless wiretapping or electronic surveillance involved a United States citizen as the chief subject of the surveillance ?
Mr. PETERSEN. That has not been answered.
Mr. KASTENMEIER. That third question is: Is a standard procedure used for processing requests for warrantless wiretapping or electronic surveillance, and, if so, what is the procedure ?
Mr. PETERSEN. I have just described that procedure orally, so I think that the record will reflect that that is answered and that that is the procedure. I might amplify that a bit. It has varied under attorneys general. Under Attorney General Mitchell, the requests were brought to him and signed by him. Under Attorney General Kleindienst, they were brought to him and he solicited then the recommendation of the Assistant Attorney General of the Internal Security Division or myself at a later date and, under Attorney General Richardson, he handled the matters wholly in his own office. And under Attorney General Saxbe, they followed the procedure I previously described.
Mr. KASTENMEIER. Do other agencies, if so, which other agencies, make such requests for approval by thé Attorney General for warrantless wiretapping?
Mr. PETERSEN. As a matter of procedure, any agency which is conducting an internal security investigation, in the broadest sense of the term, and desires information which can only be obtained by a type of electronic surveillance, is required to process that request through the Federal Bureau of Investigation and the Federal Bureau of Investigation will conduct that.
Now, we do not get into activities, foreign activities of other intelligence agencies which take place on foreign soil.
Mr. KASTENMEIER. Is it your answer, then, on the latter point, that all warrantless interceptions that take place within the United States, under the authority of the United States, are processed through the Attorney General, and through the FBI.
Mr. PETERSEN. It is my answer that they are supposed to be and all those that are legitimately done are.
Mr. KASTENMEIER. Whether these are, let us say, within the Defense Department, within the National Security Agency, the Central Intelligence Agency, or whatever agency, and are within the confines of the United States?
Mr. PETERSEN. If the Central Intelligence Agency wanted to cover x in the United States, they would be required to go through the FBI and have the FBI do that in which case it would be authorized by the Attorney General.
Mr. DRINAN. May I intervene?
Was the tap of Dr. Morton Halperin authorized by the Attorney General ?
Mr. PETERSEN. Yes, it was.
Mr. DRINAN. You mentioned that there were some abuses. Do you think that that was an abuse?
Mr. PETERSEN. I do not know, Mr. Drinan. My perception is not, but on the other hand, I have to say that has been subjected to rather extensive investigation by the Special Prosecutor, and I have not seen all of the investigative reports. The conclusions reported to me are that while one may differ with the wisdom of the procedure involved, that it was not an abuse, that there was a security problem of considerable dimension. And so, I would have to conclude on the basis of what I know that it was not an abuse.
Now, that brings us to another question: That is, the degree of abuse, or the question of abuse, seems to take on a different meaning depending on who is covered or who is surveilled. For example, let us assume for the moment that I work for Senator x, and I am a foreign intelligence agent, and the Bureau gets wind of that and they use electronic surveillance to develop precisely what I am doing. Mr. KASTENMEIER. That is not a very common case that you
have just given.
Mr. PETERSEN. No, it is not. But, you see, it is not an uncommon possibility. If you recall
Mr. KASTENMEIER. Have you had such a case ?
Mr. PETERSEN. Senator Muskie had a problem, did he not, in connection with just this very thing, because one of those people who was being surveilled happened to work for him. But, as I told him if I were an agent and I worked for him, the Bureau certainly would not stop surveilling me. So, the nature of the problem is not changed by the fact that I go to work for the New York Times, or I go to work for Congressman Kastenmeier, or I go to work for Senator x. But, the perceptions of that problem are changed, and the need for precision and care and prudence, you know, even for perhaps some disclosures in the legislative branch at an earlier date than possibly might be warranted in order to ensure that what the Executive is doing is not misconstrued.
For example, when we had an investigation of a Supreme Court Justice, we went to the Chief Justice, not because we had to, not because it was not in our power to do it, but because we wanted him to understand, and so that our motives would not be misconstrued. Prudence, yes. Is it mandated ? No. Now, if you asked me whether all of these things have been handled prudently, I would say absolutely not.
Mr. DRINAN. Would you give us an example of an abuse ? If the tap on Dr. Morton Halperin is not an abuse, then what would be an abuse?
Mr. PETERSEN. Well, I suppose that you would call an abuse, Mr. Drinan, any mistake of judgment. I think that is too stern a test. I am hard pressed to think of any official action where the action was taken purely in an abusive sense, without any regard to governmental responsibility.
Mr. DRINAN. Mr. Petersen, we are hard pressed because this is the only oversight committee in the entire House of Representatives. We have been treated very shabbily by the Attorney General. He has refused to give us the precise basis on which we may evaluate the use of wiretapping, namely, the number of warrantless taps. Would you suggest that the only way that we can get the figures is to subpoena them? I will move that we subpoena them.
Mr. PETERSEN. I do not think, if you will excuse me, that that makes a lot of sense.
Mr. KASTENMEIER. If the gentleman from Massachusetts will yield back, we have been diverted from our original line of questioning to the question of abuse. We can return to the question of abuse later if we like.
Mr. PETERSEN. I did not want to leave that, if you will excuse me, Mr. Kastenmeier. It did not make a lot of sense, period, a lot of sense in the sense that it never seems wise to me to force that kind of a confrontation under the separation of powers doctrine.