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 restricts 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

ing up this investigation within forty-eight hours with an application to the court to approve such interception. A court order is required as a condition precedent to the use of any intercepted evidence, thereby a sufficient safeguard to potential abuse.

This bill does not, therefore, accomplish its stated purpose. The Department of Justice does, however, object to any limitation on the emergency authorization in Section 2518(7), and objects to the use of H.R. 11838 to attempt to limit this Section of Title 18.

The last two bills pending before this Subcommittee are H.R. 9949 and H.R. 13825, both concerning the authorization of intercepted communications in national security cases. Previously, I deferred discussion of H.R. 9781, Section 2(5), until these two bills were presented, as it, too, deals with national security interceptions.

Each of these proposed amendments would substantially change the language, intent, and effect of Section 2511 (3) of Title 18, United States Code, the present recognition of national security authority for interception of wire and oral communications. Section 2511 (3) provides that the constitutional power of the President shall not be limited or restricted whenever he deems it necessary affirmatively to act to protect the national security of the United States. Such affirmative measures by the President may include the authorization of wire and oral interceptions, without prior or subsequent court approval. H.R. 9781, Section 2(5), seeks to wholly abrogate the President's constitutional power by striking out Section 2511(3). H.R. 9949 proposes to limit this constitutional power by excluding burglary or any other illegal act from the scope of measures the President, or anyone acting or purporting to act on his behalf (is authorized to utilize to protect the national security. H.R. 13825 seeks to amend Section 2511 (3) by curtailing the constitutional power of the President to act in the name of national security only against foreign agents and powers pursuant to the proposed Section 2518A. The contents, or evidence derived therefrom, of interceptions under Section 2511 (3) would not be admissible in evidence nor be otherwise disclosed in any trial, hearing, or other proceeding in Federal or state court, with the exception of admissibility in civil proceedings against foreign agents. Further, H.R. 13825 proposes to delete subsection (a) of Section 2516 of Title 18, United States Code, renumber the remaining subsections, and add a new Section 2516 following Section 2516 concerning the authorization for interceptions in national security cases. Another recommended amendment of this bill would add a new Section 2518A immediately following Section 2518, involving the procedure for interception in national security cases.

H.R. 9949 provides that no Congressional enactment shall be deemed to authorize the President, or anyone acting or purporting to act on his behalf, to engage in burglary or any other illegal act. The Department objects to the enactment of this bill as it would be needless.

It seems fairly obvious, I believe, that the Department opposes the passage of H.R. 9781, Section 2(5), which seeks to destroy the President's constitutional authority to intercept certain communications in the interest of national security. Any limitation of the Presiden's constitutional power to protect the United States against foreign instigated subversion must be objected to. We believe that the deletion of Section 2511(3), although it certainly would not detract from the President's constitutional powers, should be prevented in order to be compatible with constitutional and case law standards balancing the First and Fourth Amendment rights against the Government's need to elicit intelligence information for purposes of national security.

The reasoning employed to object to H.R. 9781, Section 2(5), also compels us to object to H.R. 13825. This bill was proposed to prevent abusive practices and procedures by the Government when engaging in investigation and law enforcement activities utilizing electronic surveillance techniques. These abusive practices and procedures were declared to be especially excessive in instances involving security. To further this end, H.R. 13825 recommends amending Section 2511 (3) to limit its provisions solely to the protection of the national security against foreign powers and agents.

The policy of the President and the Attorney General relating to national security wiretaps was recently set forth by former Attorney General Richardson. In reply to questions raised during the recent hearings on the confirma

tion of Henry Kissinger as Secretary of State, Attorney General Elliot Richardson sent a letter to the Senate Foreign Relations Committee outlining the Justice Department's policy in light of United States v. U.S. District Court, 407 U.S. 297, 11 Cr. L. 3131, (1972), and pending litigation on the subject.

The full text of Attorney General Richardson's letter to Senator J. W. Fulbright (D. Ark.) follows:

"SEPTEMBER 12, 1973.

"DEAR MR. CHAIRMAN: During the confirmation hearing of Dr. Kissinger, a question was raised as to this Administration's position concerning the power of the Executive to conduct electronic surveillance without warrant in the national security field. Dr. Kissinger said that he would try to elicit a statement for the record that would clarify our general policy on this matter. "I believe that there will continue to be situations which justify the conduct of electronic surveillance for the purpose of national security. This surveillance is carried out to meet the obligations of the President as both Commander-inChief and as the Nation's instrument for foreign affairs. I will continue to attempt to ensure that a genuine national security interest is, in fact, involved whenever we invoke this power and that we operate within the limits set by Congress and the courts.

"The Department of Justice scrupulously observes the law as interpreted by the courts. There may be questions as to what certain decisions mean and whether surveillance, such as that discussed by the committee, has been affected by later court decision. These and other issues are before the courts now and we expect any ambiguities to be settled within the normal judicial process. The policy statement that follows therefore refers to procedures for any surveillance that may be carried out at present.

"A year ago in the Keith case (407 U.S. 297, 11 Cr. L. 3131), the Supreme Court ruled unanimously that the Government may not carry on electronic surveillance in domestic security operations, as opposed to foreign intelligence operations, without first obtaining a judicial warrant. The Court pointed out that it was condemning warrantless electronic surveillance carried out in domestic security cases directed at a "domestic organization (whether formally or informally constituted) composed of citizens of the United States and which has no significant connection with a foreign power, its agents or agencies." The Keith decision necessarily is Departmental policy and is being followed.

"Although the Keith case did not address warrantless national security electronic surveillance, to date, the lower courts which have addressed this problem have agreed with the contention of this Department that a judicial warrant is not a necessary requirement for the Government's use of electronic surveillance to obtain foreign intelligence or foreign policy information necessary for the protection of national security. E.G., United States v. Clay, 430 F. 2d 165 (5th Cir. 1970), reversed on other grounds, 403 U.S. 698 (1971); United States v. Brown, 317 F. Supp. 531 (E.D. La., 1970), affirmed, No. 72-2881 (5th Cir., Aug. 22, 1973); United States v. Smith, 321 F. Supp. 424 (C.D. Calif. 1971); Zweibon v. Mitchell, 42 U.S. L. Week 2054 (1973). Pending a decision on this issue by the Supreme Court I believe that we are justified in relying on the case law as it is being developed in the lower courts to conduct national security electronic surveillance, without warrant, in a limited number of cautiously and meticulously reviewed instances.

"When Congress enacted legislation in 1968 requiring a judicial warrant for the use of electronic surveillance in investigations of violations of certain criminal laws, it made clear that it did not intend to add or subtract from whatever measure of constitutional power the President may have to use electronic surveillance in the national security field. However, as a guide, it set forth a number of purposes, divided between the domestic and foreign aspects of national security, that it understood to be proper for the exercise of Presidential power. The Keith decision subsequently held that this power could not, in the absence of a warrant, be exercised for the domestic security purposes mentioned by Congress. However, as a matter of policy, I shall keep in mind the contours of the President's power suggested by Congress in the 1968 law as it relates to foreign intelligence. In general, before I approve

any new application for surveillance without a warrant, I must be convinced that it is necessary (1) to protect the nation against actual or potential attack of other hostile acts of a foreign power; (2) to obtain foreign intelligence information deemed essential to the security of the United States. or (3) to protect national security information against foreign intelligence activities. 18 U.S.C. 2511(3).

"As the Supreme Court itself observed in Keith, it may well be difficult to distinguish between "domestic" and "foreign" unlawful activities directed against the United States where there are relationships in varying degrees between domestic groups or organizations and foreign powers, or their agents. All I can say is that, as the applications are presented to me, I will, together with my staff, try scrupulously to follow the guidance and instruction given to us by Congress and the courts, bearing in mind the importance of balancing individual privacy with the needs of national security."

Therefore, the proposal in H.R. 13825 deleting the second sentence of Section 2511 (3) is needless, as the former Attorney General's statement, adhering to United States v. United States District Court, 407 U.S. 297 (1972), indicates that the Department is scrupulously observing the procedures laid out by the Supreme Court.

In addition, the proposal in H.R. 13825 limiting the admissibility of contents or evidence of intercepted communications to civil proceedings against foreign agents is also objectionable to us. As we feel that wire and oral communications may be intercepted in the name of national security, both against foreign and domestic subversion, subject to the Keith decision.

Further, we feel that Section 2515 of Title 18 adequately covers the situation which this proposal seeks to amend. Section 2515 states that ". . . no part of the contents of such [intercepted] communication and no evidence derived therefrom may be received in evidence . . . if the disclosure of that information would be in violation of this chapter." (Emphasis supplied). This statute obviously covers the suppression of intercepted evidence where the interception procedure and authorization is pursued contrary to Sections 2516 and 2518. It further covers the procedures for national security surveillances, under Section 2511(3), and United States v. United States District Court, 407 U.S. 297 (1972). These reasons compel us to object to the enactment of the proposal in H.R. 13825 limiting the admissibility of national security surveillance to civil proceedings.

H.R. 13825 also proposes to supplement the present Sections 2516 and 2518, by adding the new Sections 2516A and 2518A. These recommended amendments are consistent with the bill's earlier proposal to limit the provisions of Section 2511 (3) to national security surveillances solely against foreign agents and powers. We understood that the intent of this bill is to make foreign intelligence surveillances by electronic means obtain prior court approval before utilization.

Since the Supreme Court's decision in United States v. United States District Court, 407 U.S. 297 (1972), this Department would employ an appropriate prior warrant procedure where security surveillances were to be applied for in the name of domestic security. It is our view that neither this decision nor Section 2511 (3) requires a warrant, or judicial approval, before surveillance may be undertaken where the national security is threatened by or on behalf of foreign powers. Former Attorney General Richardson's letter to Senator Fulbright points out that several lower Federal courts and courts of appeals also adhere to this belief. Further, the Executive power "to preserve, protect and defend the Constitution" in Article II, Section 1, also supports our view.

Thus, we cannot support the proposal in H.R. 13825 to establish guidelines for the authorization of and procedures for interceptions of wire and oral communications relating to national security cases against foreign powers. We cannot help but feel that these amendments would contravene the President's power under the Constitution by requiring a prior judicial determination of probable cause to believe certain enumerated crimes have been or are about to be committed by foreign agents thereby endangering the national security. Unless, and until, we receive a judicial construction of the Executive