DISPOSITION OF APPEALS TAKEN UNDER THE INTERCEPTION OF COMMUNICATIONS STATUTES Mr. KASTENMEIER. At this point, I would like to yield to the gentleman from New York, Mr. Smith. Mr. SMITH. Thank you, Mr. Chairman. Mr. Petersen, pursuing the questions of Father Drinan, regarding figures for warrantless wiretaps for the years of 1969 through 1972, which were disclosed, has there been any problem because they were disclosed? Mr. PETERSEN. Well, the Bureau did not like it. I think Mr. Maroney testified to some of the figures and they said that if they had known that he was going to do that that they would not have given them to him. So, there has been some internal problem, yes, sir. Mr. SMITH. Other than the fact that they did not like it, has there been any problem because they were disclosed? Mr. PETERSEN. They take the position whether you agree with it or not, they take the position that since the Keith case, where security covers in the United States, at least, in investigating groups or those that are not clearly foreign-controlled to require a warrant, that the number has an intelligence element now, per se. You know, whether you agree with that or not that is their position and that is the basis for their objection to Mr. Maroney furnishing those figures in the past. And they say that that type of information, since we are so selective, you know, in our use of it, that a minimum number could be of intelligence value to those countries who maintain foreign agents here. Now, you know, part of the difficulty we have, Mr. Smith, is this: We are talking about approximately 100, as I told the chairman earlier. I have said that I cannot prove this, but as contrasted with that, we are talking about 75,000 of these installations in another Western European country. Now, that is a remarkable difference. Mr. SMITH. Is that what we are talking about? Mr. PETERSEN. Maybe they are wholly unrestrained. I do not know. Mr. SMITH. And we are talking about possibly 100? Mr. KASTEN MEIER. And we are talking about possibly 100. Now, maybe they are wholly unrestrained but even if they are 700 percent unrestrained, it is still a remarkable difference. Mr. SMITH. Because there is thought to be some intelligence concern, is this the reason that the Attorney General has not met our request as set forth in paragraphs 1 and 2 of the letter of April 11? Mr. PETERSEN. Well, I assume so. I did not want to impute that to the Attorney General categorically without-I was out of town until late last night, and hence I did not get the opportunity to discuss it with him yesterday, this specific point, and we had proposed to do it today, and again today I did not have the opportunity. But, I had to assume that that is the basis for his position. Mr. SMITH. I would like to suggest, Mr. Petersen, that when you do discuss it with him that you might perhaps look at the possibility of how these figures might be furnished to us, perhaps in executive session of this committee or something like that? Mr. PETERSEN. I would be delighted to do that, of you all do not perceive that I am trying to tell you how to run your business, Mr. Smith. Mr. SMITH. Now, let me get briefly to where Senator Gaylord Nelson had introduced one of the bills that is before this committee would require a court-issued warrant on probable cause in order to authorize an electronic surveillance which is now called warrantless wiretap. And you have stated categorically the Department is opposed to it. Why would you be opposed to it? Mr. PETERSEN. Well, I am opposed to it for this reason; first of all, I think that the judge lacks the factual background information and expertise in the area that I think is necessary. Secondly Mr. SMITH. But at that point is he not only deciding on the probable cause being testified to him by experts? Mr. PETERSEN. You anticipate me. Secondly, I do not agree that probable cause is the proper standard. The Supreme Court has suggested in one of its cases that perhaps some lesser standard could be employed. We have had great difficulty in trying to articulate a lesser standard. By the same token, however, the court in the Ivanov case clearly indicated that suspicion as opposed to probable cause was a satisfactory criteria. I can tell you my own standards in approving these things, or of not approving them for that matter, is to apply a standard_of suspicion and need to the extent that I can ascertain the need, and it is difficult for me, you know, because I am not immersed in intelligence every day. So, I would say that when you couple one detachment of the court with probable cause, while those factors are ordinarily quite efficacious in criminal matters, I think that they would not serve the purpose here. Now, if we apply standards of suspicion and need, the question then seems to me to be a matter of control. Now, that control I think has to be exercised by those who have a keen appreciation of those factors which constitute suspicion and which constitute a need. And I do not think that you and I are likely to get that degree of expertise in the court. That is the reason that I suggest that if there is going to be any procedure in that fashion that it be in some type of commission which has the responsibility on a day-to-day basis, so that they could develop this degree of insight that is necessary. Now, we have all seen the criticisms that arise from intelligence failures. Whenever there is an upheaval in the Middle East there is at least public criticism, or commentary, perhaps, that well, we knew, or we did not know, and if we did not know why did we not know. And how could the President be expected to take the proper courses of action if the CIA or other intelligence agencies failed in 35-391-74- -10 their responsibility to bring it here, bring you information? So, it does require a great deal of vision to fix foreign policy positions, and it is one of the functions that I am told that the National Security Council and the United States Intelligence Board do have. These factors concern the national interest of the United States and fix the patterns for the direction and the general policy directives of the intelligence agencies involved. Now, that is too much to try to translate to a judge or to someone who operates on a haphazard basis. And you may well say, on the other hand, it is too terrible a weapon to leave wholly with the investigative agencies subject only to the review of political appointees. Well, perhaps they are reasonable positions. All I am suggesting is that if there are alternatives they have not been cast in terms of probable cause by courts, particularly, when almost every court that has concluded that, that has examined this in its foreign policy and foreign intelligence implications has agreed with the Governmentthat under the fourth amendment standards a lesser guideline may be employed where foreign intelligence or foreign relations are involved. And the latest impaneled decision by Ivanov is clearly supportive. I took great consolation from reading that opinion because it reinforced me in what we were doing. Undoubtedly, the case will go to the Supreme Court and perhaps we will get a further expression of view on the subject. Mr. SMITH. Thank you, Mr. Petersen. Mr. KASTENMEIER. Does the gentleman from Massachusetts have additional questions? Mr. DRINAN. Thank you, Mr. Chairman. Mr. Petersen, Elliott Richardson, testifying in the other body on April 3, 1974, indicated that he had directed the Department of the Justice and the FBI to undertake a joint review of the electronic surveillance procedures. And Mr. Richardson said that that review was well underway when he resigned last October. Has the Department of the Justice and the FBI continued that joiat review of electronic surveillance procedures and, if not, why? Mr. PETERSEN. Well, first of all, I do not know how far it was under wayway Mr. DRINAN. Mr. Richardson said it was well under way. Mr. PETERSEN. Well, you have to ask him what was, whatever was underway. I have not been able to find that, and it has not been made available to me. And I have been saddled with the responsibility of conducting that study and I alluded to it earlier. We are in the course of doing that and we are trying to formulate that standards. But, it is now well underway and it is predicated on suspicion, on need, on the standards enunciated by the Congress in 2511, and we are trying to refine that for the guidance of the Agency and the Attorney General's Office. It has not been completed. Mr. DRINAN. Mr. Petersen, on a related question, one of the basic reasons why Elliott Richardson was so concerned about this and also the reason why you said that you and your colleagues are deeply concerned, and why the Nation is so concerned, is that around the time of Mr. Elliott Richardson's confirmation, it was revealed that certain wiretap activities had been conducted at the direct request of the White House, and that those surveillances were handled outside of the normal procedures and channels. Can you guarantee to us now that there are no wiretaps that are handled outside of the normal procedures and channels? I do not know the procedures and channels, and that is why we wanted the number of warrantless taps. We do not know where this record is kept. Senator Scott did not indicate the source from which his statistics were taken, and you will have to give us the evidence that we need in executive session so that his oversight committee of the Congress can be assured and can assure our colleagues around the country that there are no wiretaps being handled outside of the normal procedures and channels. Mr. PETERSEN. Well, I can assure you that no wiretaps should be. I can never, and under any circumstances and under any set of guidelines, assure you that none will. The technique is too generally known, Mr. DRINAN. What about right today? Are there any wiretaps asked for by the White House do not shrug, I want evidence. This is the key question, sir. This is the reason why this Nation is in turmoil over the executive branch of the Government admittedly, openly, having to concede that they had authorized electronic, warrantless taps that have been handled outside of the channels of the Department of Justice. Mr. PETERSEN. Mr. Drinan, in 1965 on June 30, President Johnson issued an order which is still in effect. It said no Federal personnel is to intercept telephone conversations within the United States by any mechanical or electronic device without the consent of one of the parties involved, except in connection with investigations related to national security and no interception shall be undertaken or continued wihout first obtaining the approval of the Attorney General. That is in force now. I cannot guarantee you that that is not breached. I cannot guarantee you that some Congressman or some Senator or some member of the executive branch, or some investigative agency has not gotten himself one of those little devices and gone out and installed it someplace. That is impossible, and that will be impossible under any set of guidelines. Mr. DRINAN. That is not my question, sir. Mr. PETERSEN. Well, but your question is susceptible to that. Mr. PETERSEN. Under any set of guidelines that is possible. But, I am telling you that I know of no instance. But, on the other hand, Mr. Drinan, if somebody is going to do that they are not going to come and tell me, because I am going to say you cannot do it. So, there is no way that I can guarantee you ever that I am going to know when there is abuse. Like you, I find out when there is abuse, when for one reason or another the abusers are ineffective and it becomes known. Mr. DRINAN. Mr. Petersen, a subsequent question: Mr. Elliott Richardson and many others have said that under the Keith decision, they feel that the Government should establish a policy that would require a warrant for any electronic surveillance on an American citizen. What is your opinion on that? Mr. PETERSEN. Well, as I did not agree with it when Mr. Richardson said it, I do not agree with it now. I do not think the fact of citizenship ought to be determinative. It seems to me that it is much more rational to talk about a reasonable basis for suspicion and need. Well, let us take deep cover agent who comes over and becomes naturalized. Should that be a factor? I do not think so. I do not think it is rational at all. Or, a natural born citizen. I do not see that. that is a criteria, a proper criteria to apply. Mr. DRINAN. Mr. Petersen, title III, as you know, authorizes theuse of warrants for such crimes as espionage, sabotage and treason.. In order to avoid the deep suspicion throughout the country and in the Congress of the number and extent of warrantless taps, would' it be a serious inconvenience for you to take advantage of title III, and secure the warrant for alleged crime of espionage, sabotage and treason, and related crimes? And if it would be a serious inconvenience because you would have to reveal the nature of this tap after it was done, would you think that the Congress could pass a bill tightening up title III, having a separate, lesser, weaker standard for those, even American citizens, who are allegedly involved in certain kinds of espionage? Mr. PETERSEN. Well, I would suppose that you can. Mr. DRINAN. Why are you opposed to it if we can? Mr. PETERSEN. Well, I did not say that. I said that I was opposed Mr. DRINAN. You are opposed to every bill that has been proposed.. Mr. PETERSEN. Well, I think that is correct. I tried Mr. DRINAN. You are opposed to any change in the law. Mr. PETERSEN. No, I did not say that. Mr. DRINAN. Any change that has been proposed. Mr. PETERSEN. No, I did not say that. Mr. DRINAN. You are opposed to every bill that is here on my desk. Mr. PETERSEN. I did not say that. Now, if you want to get to what I did say, I will be happy to do so. What I did say is that I think it would be ineffective to utilize the probable cause standards and the court standards of title III in connection with investigations which have a foreign policy or a foreign intelligence purpose. Now, espionage is not the be-all and end-all of an intelligence investigation. There are other elements involved. If we were involved in wholly a sabotage caused by a citizen at, we will say, one of the plants of the big three automakers, in all probability we would use the title III procedures. But, we would not want to use title III procedures where the saboteur was an agent of a foreign power. We would not want to make that disclosure. We would want to keep our options open. We would want to have the right to use that for intelligence or not, as we chose. Criminal prosecution then would be the last in a series of priorities. We would like to be able to determine whether or not we could make an exchange for some of the elements of importance to our |