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clear, as Dr. Schlesinger points out, that the Executive proceeds at its peril. It is a very extraordinary responsibility. But, you know, the problem is there. I do not mean to lecture you. I am trying to

Mr. DRINAN. Would you give us the figure for 1973 by next week, by Tuesday?

Mr. PETERSEN. Mr. Drinan, if I could give them to you, I would hand them to you right now. I told you that there are approximately 100. I am not permitted to go beyond that. Now, do you want me to violate my orders to the Attorney General? I could not do it if I wanted to. I do not have the precise figures. I will take your mes

Mr. KASTENMEIER. I think the point is clear that that is a matter within the authority of the Attorney General, and I will accept the point of view that we can take that matter up with Mr. Saxbe, rather than with you, Mr. Petersen.

Mr. PETERSEN. I would not mind having the authority to overrule him if you want to give it to me, but I do not have it.

Mr. KASTENMEIER. The manual which you referred to as having been furnished the Federal agencies, I take it this is a confidential manual!

Mr. PETERSEN. Well, we like to think it is. We are litigating under the Freedom of Information Act. I hope we win, quite honestly, for this very specific reason. Manuals, when promulgated to the public at large, or to defense counsel, have the habit of being translated into principles of law and, therefore, what is structure or guidelines or policies or standards, then comes back to haunt you and for that reason we should just like not to make them made public, but for that reason only.

Mr. KASTENMEIER. The reason I have asked is that we have also requested two copies of whatever manuals, guidelines, regulations or directives used in connection with electronic surveillance be supplied. If there is some difficulty with this, we will have to take that matter up with Mr. Saxbe as well. You may

continue or you have finished with your presentation, I will yield.

Mr. PETERSEN. I am at your service. The Department of Justice opposes every one of those bills for the reasons I have just stated.

I do agree to what has come through on some of these answers, that what we are concerned about is the degree of disclosure and I feel certain if total disclosure were made that we would not be very, very far apart to say the least. But, I will be happy to answer any questions that you have.

Mr. KASTENMEIER. You indicated that you found it difficult to comply with title III but you had worked under it, you were able to do it and were willing to do it, and you do not want to see title III changed.

Mr. PETERSEN. When I say difficult, it takes us for a period of time it was taking us 12 days to process those affidavits and, you know, under legal standards it almost became stale. We have cut that down to about an average of 5 days, and we are reluctant to do more I think, or to make it any less complex because we want to insist upon the degree of supervision that we now have. Difficult only in that sense. It is a very technical statute, it is a very lengthy statute

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and one of my friends from the defense said: "Henry, we are going to litigate you to death on that thing." Well, they may well, but by the same token, we find it operationally effective.

Mr. KASTENMEIER. You also indicated that very few of the applications made for warrant interceptions were denied. As a matter of fact, I read you some figures by the Administrative Office of the U.S. Court, indicating that of 2,751 applications, 6 were denied and 1 was withdrawn, presumably at the request of the court. Some would suggest, not as you suggested at the outset, that you were doing a tremendous job of setting forth your applications, but that the judges are not doing much of a job in reviewing these requests. What is your experience with respect to the critical review by the Federal Courts of these applications for surveillance orders ?

Mr. PETERSEN. I have asked that question, too, and the response I get back from the lawyers is that the judges do look at them. But to elaborate on the procedure, that application can be stopped any step of the way so that the lawyer in the field turns down more than his superior. And his superior turns down more than I do. But, when we get them, we do not send them up to the Attorney General if we do not like them. They just go back, and they either do them over, or do them better, or do not do them at all. So, I think that is the reason. It is the refinement process, you know. Every one of these lawyers is proud of his professional ability. None of them like to be told that you are a knucklehead or you missed it, or you do not know probable cause or how could you submit something like that. So, it is a matter of pride involved when they submit it, and they like to think that it is good and it is going to be praised not criticized. And I think that is wholly accounted for by the degree and the depth of review.

Mr. KASTENMEIER. I guess a comparison ought to be made to some other class of applications not dealing with electronic surveillance and one would have to ask whether the courts are more selective in approval.

Mr. PETERSEN. Well, I think there are two things: First of all, I think that if we are going to make a comparison, you would have to make the comparison to some other ex parte proceeding, and the application for a search warrant generally.

Secondly, you have got to be mindful that this is subjected to a judicial review at the trial level on motion, in the course of the trial in terms of the admissibility of the evidence, and finally in terms of appellate review. So, you know, judges, as we all know, do not like to be reversed. I think they do look at them carefully.

Mr. KASTENMEIER. Have there been any renewals?
Mr. PETERSEN. On probable cause?
Mr. KASTENMEIER. Yes.
Mr. PETERSEN. I think maybe one, one or two.

Mr. KASTENMEIER. I have just one further question and that has to do with what prosecutions, if any, has the Department of Justice undertaken for violation of title III?

Mr. PETERSEN. Well, I perceive that we are under the same stand. ards as every other citizen of the United States, so that if an agent violated title III by willy-nilly installing a wiretap, you know, he would be subject to prosecution. On the other hand, we do not perceive that a failure of probable cause, or a mistake subjects personnel in the Department to prosecution, when they have made a good faith attempt under the statute.

Mr. KASTENMEIER. I am making an assumption that there may have been somewhere in the United States some number of instances where wiretapping and electronic eavesdropping was engaged in, possibly by agents of the Government or otherwise, which were illegal under title III and which might have been prosecuted, and I am asking you how many, if any cases, you have prosecuted ?

Mr. PETERSEN. I know of two situations only, two that might conceivably be thought by outsiders to fall in that situation. One was the recently concluded hearing in the Wounded Knee case where there was at issue a party line, and the party line had been installed at the request, or reinstalled at the request of the people, the other side that was in the enclave, and there were at least 10 parties to that line. And in the course of installation, another phone was put in and there was an incidental overhearing in connection with that which led to a protracted hearing after, and the court held that the agent listening in on that party line acted illegally. Now, those in the Criminal Division do not agree with that in terms of the definition of title III but, in any event, that is what the court held. I would not consider that to be actionable in a criminal sense.

The other instance of which I can think is the VVAV Case down in Gainesville, Fla., where there were allegations that there may have been Bureau agents that were found in the telephone frame room in the courthouse. There was an extended hearing on that, and the agents were there to check out as periodically they do, the security of the lines.

Mr. KASTENMEIER. Yes. The implication of my question is, has, indeed, the Justice Department been staffed in terms of prosecuting abuses under title III of wiretapping or electronic surveillance ?

Mr. PETERSEN. No, I do not think so.

Mr. KASTENMEIER. In which case I was asking for your records in terms of prosecution.

Mr. PETERSEN. We do not have it, and we will be happy to give it to you. I do not have it at my fingertips, Mr. Chairman. But, we think we have a reasonably good record on that. It is much better than it was under 605, probably because the statute is more effective and most of the cases are against private detectives and lawyers, largely in domestic-relations cases and some commercial espionage. So there are some and at least one investigation is being conducted with respect to State law enforcement officers' actions in one of the States. I think our record is reasonably good on that question, and we will make the figures available.

Mr. KASTENMEIER. Thank you. We would like to have the figures available.

[Subsequently, the following information was supplied by the Department of Justice:]

ANALYSIS OF CASES TERMINATED UNDER THE INTERCEPTION OF COMMUNICATIONS STATUTES 1

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1 The statistics maintained by the D. J. Information Systems Section reflect case terminations for many actions which do not, in fact, represent a final termination of the case, eg., dismissals followed by the filing of a superseding information or indictment and rule 20 transfers. Such nonfinal terminations are eliminated from the statistics above.

* Statistics for fiscal year 1974 are based on data through the first 6 months of the fiscal year.

DEPARTMENT OF JUSTICE ACTIVITY UNDER THE INTERCEPTION OF COMMUNICATIONS STATUTES

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1 The statistics set forth in this category are compiled by the FBI and represent what they classify as "cases received for investigation." This term, defined generally, means all complaints which state a prima facie violation of the Federal criminal statute in question. The statistics are compiled for the broad classification of interception of communications violations, which includes 18 U.S.C. 2511 and 2512 and 47 U.S.C. 605. Separate statistics are not maintained for the individual statutes. A case is categorized under the subject matter of the initial complaint. Therefore, if an interception of communications investigation evolves from an investigation begun in another statutory area, that investigation would not be reflected in these statistics.

? Except for the figure set forth for fiscal year 74 and for 47 U.S.C. 605, these statistics exclude superseding indictments and informations. Appropriate statistics have not yet been obtained for the excepted categories to permit the elimination of superseding actions.

3 The statistics maintained by the D.J. Information Systems Section reflect case terminations for many actions which do not, in fact, represent a final termination of the case, e.g., dismissals followed by the filing of a superseding information or indictment and rule 20 transfers. Such nonfinal terminations are eliminated from the statistics in this category.

+ Title 18, United States Code, sections 2511 and 2512 became law on June 19, 1968, and 47 U.S.C. 605 was amended to its present form on that date. Therefore, the statistics set forth above cover virtually the entire history of the currently existing interception of communications sttheatutes.

6 The figure in parentheses represents number of defendants involved in the stated cases.

• The statistic as to the number of complaints received by the FBI in fiscal year 74 is based on data through the first 7 months of the fiscal year while all other statistics for fiscal year 74 are based on data through the first 6 months of the

7 As a result of the elimination of superseding indictments and informations and nonfinal terminations from the above statistics, the total of cases terminated plus cases presently pending should equal the total number of indictments and informations filed. However, as is apparent above, these figures-while close-do not exactly equate. This may be explained, in part, by the lag in data being reported from the field, and, to a small extent, by the occasional failure of United States Attorney's offices to comply with the Department reporting requirements.

fiscal year.

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