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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 the 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. Nr. 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.
Mr. DRINAN. Except we will never get the documents. We will never get the facts.
Mr. PETERSEN. I do not think that is true.
Mr. DRINAN. We have been waiting 2 years, sir; we still just do not have the basic facts of the warrantless taps, which is the essence of all of this.
I yield back to the chairman.
Mr. KASTENMEIER. I was merely stating that we were considering the question in the letter relating to the relationship between surveillance by other agencies and the Department of Justice. The question of abuse is another question. We will return now to the point where I was asking whether all of the agencies of the Federal Government operating within the United States cleared their requests for warrantless taps or surveillances through the Attorney General or through the Federal Bureau of Investigation. You indicated that was the case.
I asked this for informational purposes only. I take it that overseas, whether or not the subjects are American citizens, agencies of the United States might not necessarily clear, electronic surveillance plans through the Department of Justice. Is that correct?
Mr. PETERSEN. Overseas?
Mr. PETERSEN. I do not perceive that the Attorney General's responsibility is that encompassing. I have to say that that is an individual opinion. I have not discussed it with him and he may have another opnion. But I do not perceive that they are that encompassing, and it does not occur to me that he has, if you will, oversight responsibility with the National Security Agency or the Central Intelligence Agency. I just do not understand that to be the
Mr. KASTENMEIER. Yes. The purpose of the question is to try to delineate which procedures we are talking about or which warrantless procedures are not really covered.
Mr. PETERSEN. To the extent that we are talking about citizens overseas, and that is the only instance where I perceive there is a legal question, that legal question is far from clear, whether or not the constitutional guarantees are applicable to a citizen in a foreign country, who may be involved in any suspected activity. That is an answer on which you, or a question on which you may get different answers.
Mr. KASTENMEIER. Under present practice, if an agency did not, in fact, clear its warrantless surveillance through the Department of Justice, is there any penalty for such agency or a person in such agency conducting the surveillance?
Mr. PETERSEN. I would consider that except for those surveillances which followed the mandated government procedures; that is, through the Attorney General, that they would be subject to the penalties of the civil provisions of title III of the Omnibus Crime Act.
Mr. KASTENMEIER. These have been questions which I have added as an extension of question No. 3 in my letter.
The fourth question in the letter is, are there any written directives, memoranda, regulations, or manuals, which set forth proce
dures or guidelines to be used by investigative agencies in applying for permssion to conduct either warrantless or a court-approved wiretapping or electronic surveillance ?
Mr. PETERSEN. So far as title III is concerned, an application for court-authorized electronic surveillance, the procedure, that business about the manual is covered in my statement. We do have a very extensive manual and it is distributed to the appropriate investigative agencies and lawyers concerned with the application. It is for administrative use only. It is obviously not a rule of law. It is what we regard as proper administrative practice in connection with it, and it is very detailed. With respect to national security standards I honestly do not know what internal instructions the Bureau has for its agents. We do have the overall instructions from President Johnson, which continue in effect that all of these things are to be cleared through the Attorney General. Now, obviously, that is a general instruction and does not fall in a manual category.
Internally, after referral, I have described the procedure which takes place in the Attorney General's Office or in the Office of the Assistant Attorney General concerning those matters. I have to say that implementation of this internal security program, and perhaps as a result of current events, certainly the interest of the Congress, Mr. Maroney and I, or excuse me, I did not introduce him before, but I have here Mr. Philip White who is a staff assistant in the Criminal Division, embarked upon a program to try and articulate, if you will, standards, formalized standards, and guidance for those who are concerned with internal security electronic surveillances.
Now, I mention that with some trepidation, you know, because I do not want to disclose it to Congress if we get it, if you will excuse that. I certainly do not want to disclose it to the public at large. I do not want it to be disclosed. I do not want to create a situation where the first thing that a foreign intelligence agent does is look at the standards and see how he can adopt a cover that will take him without those standards. But, there again, it is an attempt to develop some degree of uniformity in the practice.
Now, once again, I go back to the business of oversight. When I say I do not want to disclose to the Congress, I mean I do not want to put it in the Congressional Record and have it promulgated. But, certainly I want to get this across, that we have no objection when we develop these standards and articulate them, to bring them up and show them to a specified group of a select committee to insure, or to persuade them, that what we are doing is in the interest of the United States.
Mr. KASTENMEIER. I can appreciate that there are many things you might want to present to the Congress in say a confidential or executive session, but I think it is somewhat presumptuous, Mr. Petersen, for you to say under what circumstances; that is, what the Congress must do to organize itself for you to agree to do business with us. And that is really what you are suggesting.
Mr. PETERSEN. Well, you know, certainly it was presumptuous to say I am doctrinaire about it, and 'I certainly do not mean to do that.
Mr. KASTENMEIER. In the sense we must have a Joint Committee, and we must do this or that, and then you might be agreeable to do certain things that you would not otherwise be agreeable to doing. Mr. PETERSEN. I do not want to be misunderstood on that. I offered in the sense of, in the sense of openness, if you will, and in a sense to indicate to you what we are trying to do. But, again, I am wholly opposed to the idea of confrontation, or dictating to you how it should be done. But, we do deal with different functions, we do deal with Executive authority. And, Mr. Congressman, with all deference, yours is not the power to conduct foreign relations, and yours is not the power of the Commander in Chief. And there is a separation of powers principle there. And if the effectuation of any of those mandated, important, critical, necessary duties would be jeopardized by that type of disclosure, it would be a violation of the Constitution to make that disclosure, whether it be to the Congress or to anyone else. That is what I am trying to get across. And so, when I suggest a procedure it is to avoid confrontation and it is to avoid arrogating to ourselves the power that ought to be shared and the exercise of which ought to be viewed with some degree of confidence. Only in that sense, Mr. Chairman.
Mr. KASTENMEIER. I do not want to moralize about the question either, but the Congress does have the constitutional duty to make the laws of this country, and it has the duty to exercise oversight with respect thereto on behalf of the people. And I would suggest only the lesson of the last 2 years to suggest some humility to the executive branch with respect to its unilateral exercise of power in this country.
Mr. DRINAN. Mr. Chairman, may I follow up on that?
Mr. Petersen, we do not have to reach all of those grave questions to have you give the subcommittee what we have asked for. The President of the United States authorized Senator Scott on June 5, 1973, to request the number of warrantless taps over the past several years, and I read them. There are discrepancies between these figures and figures written by Mr. Robert Mardian on March 1, 1971. I will read the latter figures authorized by the President of the United States, and the bottom line is this, that we have asked that you people furnish the number of warrantless taps in 1973. We are not asking to invade the executive branch of the Government. We are asking for the next figure.
In 1969, warrantless taps, 123; 1970 warrantless taps 102; 1971, 101; 1972, 108. We are simply asking that you supply the figures for 1973. Perhaps we will have to go to Senator Scott and ask him to authorize the President to release the 1973 figures. That is the main one that we want. And I do not think that you should lecture us on the authority of the President to conduct national security surveillance. We are simply trying to do our job, and you are preventing us from carrying out our responsibility of oversight.
Mr. PETERSEN. You know, again, I do not want to be presumptuous, and I did not mean to seem to be lecturing yon. But, on the other hand, I thought you expected candor and I wanted to express a point of view. That point of view is not wholly novel. I refer you to Dr. Schlesinger's book on the "Imperial President” in which there are some very interesting statements with respect to the right of the President to take action without the consent of Congress. And the only check on that is subsequent ratification and approval, and it is