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listed in Section 2516 of Title 18. Our successes require us to recommend that Title III remain unchanged.
The proponents of these proposed bills appear to believe that electronic surveillances, under the Title III guidelines, violate fundamental constitutional rights by infringing upon personal security. However, much of Title III was drafted to meet the constitutional requirements for electronic surveillances set out in Katz v. United States, 389 U.S. 347 (1967), and Berger v. New York, 388 P.S. 41 (1967). The Katz decision looks to the Fourth Amendment in inquiring into the “reasonableness" of the search and seizure. The Berger opinion sets out the framework within which electronic surveillance may constitutionally be used. The decision of which is paramount, justice of privacy, is not an easy one and can only be balanced by consideration of the needs and conditions which exist at any given moment. The Supreme Court has set out a structural framework to balance privacy and justice, and Title III was enacted within this framework. We believe that Title III is a workable solution arrived at to balance justice and privacy.
Before discussing the Department's position on the proposed amendments, I would first like to review for you the administrative techniques and procedures presently in effect within the Department designed to comply strictly with the electronic surveillance statutes and to centralize control over the surveillance procedures. These procedures and techniques are as follows:
Approval of the Attorney General or a specially designed Assistant Attorney General;
A written sworn application containing a complete statement of facts establishing probable cause relied on by the applicant to justify his belief that an order should be issued;
Findings of probable cause by the issuing judge before entering an order ;
A statement in the order of the period of time during which the interception is authorized, which must be no longer than is necessary to achieve the objective of the authorization, and in no event more than thirty days;
A finding by the issuing judge that normal investigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried ;
The recording on tape or other comparable device of all interceptions in such a way as to protect the recording from editing or alteration;
The filing of an inventory of persons named in the order within ninety days after termination of the period of an order;
The filing by the Attorney General in January of each year with the Administrative Office of the United States Courts of a detailed report regarding each application for an order during the preceding calendar year.
In order to insure strict compliance with these and other provisions of the statute. we have established a number of administrative procedures to achieve centralized control over the initiation of interception procedures. Briefly, these procedures are as follows:
Requests for authorization for an interception order must be made in writing to the Attorney General from the highest ranking officer of the investigative agency having jurisdiction over the offense involved ;
All requests are initially reviewed in the field by attorneys of the Department of Justice, usually Strike Force attorney of the Organized Crime and Racketeering Section of the Criminal Division, or by a United States Attorney or an Assistant United States Attorney, who assist the investigative agencies in the preparation of the affidavit and prepare the proposed application and court order;
All requests are next submitted to the Organized Crime and Racketeering Section or the Narcotic and Dangerous Drug Section of the Criminal Division where there has been established a special unit of attorneys whose primary function is to review the entire matter for both form and substance, with particular emphasis on assuring strict adherence to the required statutory standards;
When approved by this unit, requests are next submitted for review to either the Chief or Deputy Chief of the Organized Crime and Racketeering Section or the Narcotic and Dangerous Drug Section. If approved here, requests are next submitted for review and approved by the Assistant Attorney General, Criminal Division, and finally to the Attorney General. When so approved by the Attorney General, a letter is prepared authorizing the attorney named in the request for authorization to apply to the court for an interception order.
In addition, we have published and distributed to all Divisions of the Department of Justice, to all United States Attorneys, and to all appropriate investigative agencies a "Manual for Conduct of Electronic Surveillance" which sets forth in detail the procedures that must be followed with regard to every interception pursuant to court order, no matter in which agency of the Government or Division of the Department of Justice it originates. The pr edures set forth in the Manual cover every phase of the interception process—from authorization by the Department of Justice through the securing of an interception order and the conduct of the interception itself to use of the information obtained.
As you can see, these procedures are well-structured to accomplish a thorough examination of the necessity to intercept wire and oral communications. Once the need for interception is established, then and only then will the Attorney General or a designated Assistant Attorney General authorize an application for the interception to be presented to the court. In this way, it is impossible for frivolous and unrestrained applications to intercept communications to proceed for court approval.
To assist the Subcommittee, I would like to present the Department's views by first giving a rief synopsis of a bill, and second, by stating the position of the Department in respect to that bill.
H.R. 1597 proposes to amend Section 2511 of Title 18 by requiring "... the written authorization of the President specifically authorizing the particular interception or disclosure," when "... a judge or justice of the United States or a Senator or Member of Congress is a party. ..." Section 2511 presently prohibits the interception and disclosure of wire or oral communications unless compliance is made with the electronic surveillance statutes. Strict adherence to these statutes prevents unscrupulous and indiscriminate invasions of privacy.
I assume that this bill is not attempting to substitute a written Presidential authorization in lieu of a Judicial authorization for a wiretap order, but is intended to supplement those procedures in Sections 2516 (1) and 2518(1), described above. H.R. 1597 appears to suggest that these existing controls no longer insure sufficient protection of the privacies of specially categorized persons, that is, a United States judge of justice or a Senator or Member of Congress. We disagree.
There is no reasonable basis for distinguishing these persons from United States citizens in general. The unauthorized infringement upon constitutional freedoms must always be prohibited, whether the freedoms involved are those of the persons specially enumerated or anyone else's. Title III has met this challenge by (1) instituting a carefully circumscribed procedure antecedent to the intrusion, (2) implementing the exclusionary rule, (3) making unauthorized surveillance a serious crime, and (4) providing a civil action in 18 U.S.C. 2520 to sufficiently compensate for any unconstitutional intrusion by means of electronic surveillance.
This bill would create preferential treatment for a select few and would expand existing controls which already conform with Fourth Amendment standards. The impartiality of a neutral Judge provides the ultimate examination of the probable cause necessary to prevent unreasonable searches and seizures. This is the case whether the request for wire or oral interception is last examined by the Attorney General or the President.
For these reasons, the Department of Justice recommends against enactment of H.R. 1597.
H.R. 9667 and H.R. 9698 will be considered together. They both propose amendments to Sections 2511 (2) (c) and (d) requiring the consent of all parties whose communications are intercepted. Sections 2511 (2) (c) and (d) of Title 18, United States Code, now provide that it is not unlawful to intercept wire and oral communications "where such person is a party to the communications or where one of the parties to the communications has given prior consent to such interception.” (emphasis supplied). These bills desire to alter these clauses to make the consent of parties a necessary prerequisite to interception under these subdivisions of Section 2511(2).
The proposed modifications, in essence, provide that the consensual monitoring of wire and oral requirements of a third party intercepted unless the consensual monitoring was conducted with prior notice to all parties to the conversation. This would negate any efforts to obtain evidence by investigative procedures that have consistently been approved by the Supreme Court.
Court decisions have for some time distinguished between electronic surveillance of conversations without the consent of any of the parties, which requires a court order and a showing of probable cause, and the monitoring of conversations with the consent of one but not all of the parties. United States v. White, 401 U.S. 745 (1971); Lopez v. United States, 373 U.S. 427 (1963); Rathbur v. United States, 355 U.S. 107 (1957); On Lee v. United States, 334, U.S. 747 (1952). The primary difference between nonconsensual electronic surveillance and consensual monitoring is that in the latter, one participant in the conversation may be collaborating with the Government and may relate to the Government the substance of the conversation. The monitoring serves to provide instantaneous communications and to assure effective corroboration. No information is acquired which would not have been obtained without the accompanying monitor; this method is simply faster and more probative. As the Supreme Court said in United States v. White, 401 U.S. 745 (1971), we should not:
"* * * be too 'ready to erect constitutional bai rs to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent * * *. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer's unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question. 401 U.S. at 753."
The most reliable and probative evidence is always preferred in the law. Science through electronic surveillance techniques can promote the acquisition of such evidence without subjection to the vagaries and frailities of human nature. Where informants, whose credibility may be suspect, are used, where victims of crime are engaged in key conversations with the perpetrators themselves, or where the investigators as such are individually involved and their credibility will be significant factor in the subsequent trial, recorded and monitored conversations are of the utmost importance. Recorded conversations produce the precise character of the spoken words with the inflections, emphasis ,and other aspects of oral speech.
For these reasons, we strongly oppose both H.R. 9667 and H.R. 9698. We further recommend following the American Bar Association's adoption of 18 U.S.C. 2511(a) (c) and (d) as their Minimum Standard of Criminal Justice relating to consensual overhearing and recording. See American Bar Association Standards for Criminal Justice, Electronic Surveillance, Standard 4.1, and Commentary, pages 12–13 (1971).
H.R. 9781 also proposes to amend Section 2511, and in addition, Sections 2512, 2516, 2517, 2518, 2519, and 2520 of Title 18, United States Code. This bill suggests that the current procedural safeguards designed to prevent the abuse and misuse of interceptions of wire and oral communications are inadequate and tempt Government officials to further partisan political goals by means of wire and oral electronic surveillance. Further, H.R. 9781 declares that electronic surveillances have been employed too extensively, thereby spawning the undermining of personal security and the violation of the constitutional rights to free speech, press, and association, the rights to due process and equal protection, and the right to privacy.
To correct these alleged infringements, H.R. 9781 proposes, first to amend Section 2511(1) to prohibit all interceptions and disclosures of wire and oral communications. Further, a new subdivision (e) to Section 2511(1) is suggested which would prohibit the willful interception or recording of wire or oral communications without the consent of all parties to the conversations.
Second, the bill seeks to strike out Sections 2511 (2) (a)(ii), (b), (c), and (d). This would prohibit any disclosure or technical assistance by an employee of a communication common carrier, whose employment may require an incidental wire interception, to a person lawfully authorized to intercept such. It would also make unlawful the interception of wire or oral communications, the disclosure, or use of such interceptions, by the Federal Communications Commission in the normal course of its responsibilities. Consistent with the proposed addition of Section 2511 (1) (e), the elimination of Section 2511(2) (c) and (d) would make unlawful the interception of wire and oral communications where one party to the conversation consents to such monitoring.
Third, H.R. 9781 proposes to strike out Section 2511(3). This seeks to curtail the constitutional power of the President to obtain the intelligence information he deems necessary to protect the security of the United States by the interception of wire and oral communications.
The fourth proposed amendment included in H.R. 9781 would prohibit all manufacture, distribution, possession, and advertisement of wire and oral communication interception devices by amending Section 2512(1). It would also strike out the provisions in Section 2512(2), thereby making it unlawful for a communications common carrier or an employee, a person under contract with such carrier, or an employee of or person under contract with a Governmental body to transport through interstate or foreign commerce any electronic, mechanical or other device primarily useful in the surreptitious of wire or oral communications.
H.R. 9781, lastly, proposes to amend the interception statutes by striking out Sections 2516, 2517, 2518, 2519, 2510(9). These proposals prohibit the authorization and disclosure for interception of wire and oral communications, and eliminate the need for a procedure for the interception and reports concerning the intercepted communications.
As you can see, the ultimate effect of H.R. 9781 is to literally destroy the Government's authority to apply for wire and oral interceptions. The first proposed amendment to the bill recommends that all interceptions and disclosures be prohibited unless the consent of all parties to the conversation is obtained. We object to the passage of this proposal for the same reasons we objected to H.R. 9667 and H.R. 9698. Furthermore, the absolute prohibition on non-consensual interceptions and disclosures undermines the purposes for which the electronic surveillance statutes were enacted. The statements made before this Subcommittee, both now and in the past, have amply demonstrated the need for interceptions of wire and oral communications, and the results obtained from the use of these interceptions.
The second proposal in H.R. 9781 involves forbidding employees of communication common carriers or of the Federal Communications Commission to provide assistance for an interception, to intercept, or to disclose or use the interception. We also object to the passage of this proposal. As our position strongly favors the perpetuation of the electronic surveillance statutes in their present form, any attempt to frustrate the effective execution of these statutes must be strongly opposed by us.
I would like to defer discussion of the third proposal in H.R. 9781 to later discussions of H.R. 9949 and H.R. 13825, all involving national security.
H.R. 9781 also suggested a fourth proposal to proscribe the manufacture, distribution, possession and advertisement of wire and oral interception devices, as well as the interstate or foreign transportation of such devices. Obviously this proposal would prevent any interception of wire and oral communications. As previously stated, we cannot adhere to a policy that would undercut an effective source of crime detection. We, therefore, object to this amendment also.
The last amendment proposed in H.R. 9781, recommends that Sections 2516, 2517, 2518, 2519, and 2510(a) be struck from Title 18. As these Sections set out the procedures for the authorization, the interception, disclosure and use of intercepted communications, and for the reports concerning intercepted communications, their elimination would seriously hamper criminal investigative techniques. By striking these Sections from the electronic surveillance statutes, the Government's authority to seek court approval for wire and oral inerceptions is revoked.
For the above-stated reasons, the Department objects to the passage of H.R. 9781, and to any of the proposed portions of H.R. 9781.
H.R. 9815 and H.R. 11629 will be examined together as they are substantially identical bills proposing a “Freedom from Surveillance Act of 1973." These bills would prohibit the use of the Armed Forces or any state militia to investigate or maintain surveillance of civilians, except where the use of the Armed Forces is employed to carry out certain specific responsibilities. The surveillance to be curtailed includes monitoring by wiretapping, electronic eavesdropping, overt and covert infiltration, and civilian informants. To accomplish this purpose, these bills seek to add a new section to Title 18, United States Code. They would also amend Title 28, United States Code, by authorizing civil actions for damage and injunctive relief, and by permitting class actions to be initiated to enjoin such surveillance. The bills would also affect the Posse Comitatus Act, 18 U.S.C. 1385, by expanding its scope to include the Coast Guard.
We would point out that this proposed amendment of Title 18, United States Code, is inconsistent with Public Law 90-331, authorizing the use of the Armed Forces to conduct surveillance monitoring when the Armed Forces assist the Secret Service in protecting the President, Vice-President, and foreign visitors.
The Department of Justice believes that the criminal penalties provided in Section 2 of these bills are overly broad. Furthermore, we oppose Section 3 of these bills which authorizes civil actions for damage and injunctive relief. Civil damages are authorized in Section 2520 of Title 18, whenever communications are intercepted, disclosed, or used in violation of this chapter. The addition of the proposed civil remedies in Title 28 would necessarily be superfluous and could be used for harassment to test the authorization of an exception to the surveillance prohibition, thereby increasing the already burdensome load of civil litigation.
We do object to the inclusion of the Coast Guard in the Armed Forces, and urge that the Coast Guard be excluded from the Posse Comitatus Act. Section 5 of these bills, is, therefore, objectionable to the Department as it would prevent the Coast Guard from pursuing its traditional law enforcement duties. See 14 U.S.C. 89.
These reasons force the Department of Justice to oppose the enactment of H.R. 9815 and H.R. 11629.
H.R. 11838 proposes to amend Section 2516 (1) and (2) of Title 18, United States Code, to assure that all authorized interceptions of wire and oral communications receive prior court approval. This language of the bill re stricts itself to amending Sections 2516(1) and (2). It does not refer to Section 2518(7) of Title 18, United States Code, which provides :
Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that
(a) an emergency situation exists with respect to conspiratorial activities threatening the national security interest or to conspiratorial activities characteristic of organized crime that requires a wire or oral communication to be intercepted before an order authorizing such interception can with due diligence be obtained, and
(b) there are grounds upon which an order could be entered under this chapter to authorize such interception, may intercept such wire or oral communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any wire or oral communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application.
H.R. 11838 appears to be directed at the elimination of this emergency provision, but does not accomplish this stated purpose.
We believe that, although the Department has never used this emergency provision, it should be retained without limitation or change. The provision permits investigation to proceed when an emergency situation exists, follow