power in Article II, Section 1, that requires prior judicial approval for electronic surveillances in national security cases against foreign powers, we do not believe that Congress should enact these proposals. For this reason, we object to their passage.

In sum, I want to thank you for the opportunity to express the views of the Department of Justice on pending legislation relating to the subject of wiretapping and electronic surveillance. We do not feel that these proposals will further nor support the present Title III of the Omnibus Crime Control and Safe Streets Act of 1968, nor are they consistent with the expressions of the various Federal courts. Consequently, we recommend against the passage of H.R. 1597, H.R. 9667, H.R. 9698, H.R. 9781, H.R. 9815, H.R. 9949, H.R. 11629, H.R. 11838, and H.R. 13825.

Mr. KASTENMEIER. Thank you, Mr. Petersen and Mr. Maroney. The Chair would next like to call, representing the Department of Defense, the Deputy Assistant Secretary of Defense for Administration, Mr. David O. Cooke. Prior to joining the Department, Mr. Cooke served as a career naval officer, retiring with the rank of captain. We are very pleased to have Mr. Cooke and his assistants here this morning. I know that at least one of your group may have time problems, and we will try to expedite your testimony.


Mr. COOKE. Thank you, Mr. Chairman. May I introduce my two colleagues. On my right, is Mr. Joseph Liebling, Deputy Assistant Secretary of Defense for Security Policy and on my left, Mr. Robert Andrews, Assistant General Counsel in the Department of Defense. Mr. Chairman and members of the committee, I am here in response to your invitation to the Secretary of Defense to furnish information in connection with your inquiry into changes to title III of the Omnibus Crime Control and Safe Streets Act of 1968, and to provide information relating to the policies and procedures by which wiretapping and electronic surveillance are authorized and controlled within the Department of Defense.

For management purposes, the Department has placed wiretapping and electronic surveillance activities into two separate categories. Department policies and procedures which limit the use of telephone monitoring and control the use of information obtained by third parties, are set forth in Department of Defense Directive 4640.1, "Telephone Monitoring." DOD policies which restrict the use of wiretapping and eavesdropping during the conduct of investigations for law enforcement purposes are published in DOD Directive 5200.24, "Telephone Interception and Eavesdropping." Both of these directives apply to the United States, the Commonwealth of Puerto Rico and U.S. territories. They do not apply elsewhere overseas, nor are they applicable to our foreign intelligence collection activities. Copies of the two directives were provided to your committee last week.

First, I would like to discuss telephone monitoring which is administrative rather than investigative in purpose. There are four classes of telephone monitoring. They are:


Listening to or recording office telephone communications by use of mechanical or electronic devices or recording by written means, for the purpose of obtaining an exact reproduction or a summary of the substance of the telephone conversation and with the consent of all parties.


Listening to or recording telephone communication in DOD command centers for the purpose of obtaining a record of conversations, or parts thereof, for command and control purposes.


Listening to or recording of the transmission of official defense information over DOD-owed or leased telephone communication, by any means, for the purpose of determining whether such information is being properly protected in the interest of national security. Notice of this action is given to users that these systems are subject to communications security monitoring at all times.


Listening to or recording telephone communications on DODdedicated systems or the common-user systems of the Defense communication system, by any means, not for the contents but for the purpose of determining whether the systems are functioning properly for official purposes. Almost every phone company has a counterpart activity.

The first class of telephone monitoring is one in which you are all familiar, called office monitoring. With the use of either a recorder equipped with "beeper" or with a stenographer, it requires the advance consent of all parties to the conversation. Office telephone monitoring, in such cases, is a valuable management tool to reflect the exact nature of agreements and understanding achieved by telephone. One of the parties to the conversation may be outside the DOD but again let me emphasize that all parties concerned must consent to office telephone monitoring.

The other three classes of telephone monitoring are largely internal. That is, they are directed to the manner in which DOD military and civilian personnel use telephones which are part of DOD communications systems.

Telephone monitoring in command centers, for communications security and for communications management purposes, does not require express consent in each case. The purpose of command center monitoring is to obtain accurate records for command and control purposes of official calls to a command center. Examples of the command centers are the National Military Command Center, its alter

nate, the Airborne Command Post, the North American Air Defense Command Post, the Military Services Operations Centers in Washington, the Military and Security Police Operations Centers, Fire and Rescue Control Centers and Air Traffic Control Centers.

DOD monitoring for these Centers closely compares with the recordings made by the Federal Aviation Agency in its many air traffic control centers. Similarly, most police, fire, and rescue control centers in our large cities and counties monitor incident reports and requests for assistance to insure accuracy and for record purposes. Furthermore, command centers are able to record messages to be rebroadcast to subordinate and lateral units.

DOD Directive 4640.1 requires for each center specific regulations be published prior to the initial operation of the recording equipment. The existence of such monitoring, however, is required by DOD Directive 4640.1 to be so widely and expressly publicized throughout DOD and its components as to amount to constructive

[merged small][ocr errors]

Our authority for this class of monitoring equipment and its use stems from communications common carrier tariffs which have been approved by the Federal Communications Commission. This class of monitoring is provided for in DOD Directive 4640.1, which I mentioned earlier.

Communications security monitoring-COMSEC monitoring-is the third class of administrative telephone monitoring which is used, albeit rarely, on Department of Defense telephone circuits. The purpose of COMSEC monitoring is to provide a basis for analysis to ensure that classified information is not discussed on unsecure telephones. This monitoring may only be conducted when authorized by the commander or DOD official in charge of an installation or activity or his superior. Let me stress that security organizations organized and equipped to perform communications security monitoring are not authorized to monitor communications systems on their own initiative. Communications security monitoring is employed infrequently. Less than one percent of our telephones are monitored for security in any given year.

The lines selected for security monitoring consist mainly of those serving command posts, major operational headquarters, war rooms, and field exercises both in the United States and overseas.

Let me emphasize that the purposes of COMSEC monitoring are to advise commanders on actual or possible security compromises and improve the security protection of telephone communications.

DOD Directive 4640.1 expressly states that the information obtained as a result of telephone communications security monitoring shall not be authorized for law enforcement purposes unless the General Counsel authorizes an exception in a specific case.

The last class of administrative telephone monitoring is communications management monitoring, often called service observation. Service observation is conducted largely by computer analysis and pay count methods rather than by actual listening to telephone conversations in progress.

It is a tool used to determine if telephone systems are functioning properly, not with the contents of conversations, but with such things


as the precedence and number of calls, their duration, response to signals, number of busy signals for a given time period, total load on a system in numbers and duration of calls, etc.

The purpose of administrative telephone monitoring previously described, is distinctly different from the purpose of wiretapping or eavesdropping. Telephone monitoring is to accurately preserve records of conversations as in command centers or to analyze a total system for adherence to protection of classified information as in COMSEC monitoring.

Wiretapping and eavesdropping are used for the purpose of criminal investigations.

Let me now turn to the Department's policies and procedures for telephone interception and eavesdropping techniques used in investigating criminal cases. DOD defines these terms exactly as they are defined in title III of Public Law 90-351:

Telephone Interception-wiretapping. The use of electronic, mechanical, or other devices to intercept a wire communication for the purpose of obtaining information as part of a criminal investigation.

Eavesdropping-Electronic Surveillance. The use of electronic, mechanical, or other devices to intercept an oral communication for the purpose of obtaining information as part of a criminal investigation.

DOD Directive 5200.24 authorizes, under controlled circumstances, the use of telephone interception-or wiretapping- and nontelephonic electronic surveillance eavesdropping by DOD criminal and investigative agencies when there are reasonable grounds to believe that:

1. A criminal offense concerning the national security is involved; or 2. a felony has been or is about to be committed; or 3. telephone calls involved obscenity, harassment, extortion, bribery, or threat of bodily harm have been made to a subscriber-user on a military base. Wiretap and eavesdrop operations conducted by DOD are in full compliance with the policies and requirements established by the Attorney General and issued pursuant to 18 U.S. Code, chapter 119. Let me stress most strongly that the DOD is not in the business of conducting electronic surveillance of civilians not affiliated with the Department. DOD Directive 5200.27 expressly forbids such practices except in narrowly defined circumstances. In other words, the wiretaps or eavesdrops DOD conducts are employed only in cases involving military or, in extremely rare cases, DOD civilian personnel provided the FBI has yielded jurisdiction.

The procedures I am about to describe are those instituted by the Attorney General for consensual wiretaps and eavesdrops. That is, at least one party has consented. All non-consensual cases, should any arise, must be referred to the Attorney General. None have arisen in DOD since the passage of P.L. 90-351 in 1968.

Under the Attorney General's procedures and the provisions of DOD 5200.24, consensual wiretaps may be authorized by heads of DOD components or their designees for the investigation of criminal cases and harassing telephone calls. DOD components have issued. regulations setting forth procedures and controls for these authori


The Attorney General has adopted stricter rules in the case of eavesdrops. For consensual eavesdropping of nontelephone conversations, prior approval normally must be obtained from the Department of Justice. Again, DOD Directive 5200.24 provides first that the head of the DOD component concerned, or his designee, must approve the proposed eavesdrop. Then it must be approved by the DASD/A before it is sent to the Attorney General requesting his approval. Attorney General regulations provide for emergency monitoring in advance of his approval to prevent the immient loss of essential evidence. In such cases, a full report of justification must be provided to him.

Each request for approval of proposed wiretapping or eavesdroppnig must contain a detailed statement as to the crimes and persons involved and a statement that the consent of one party has been obtained with his identity. All approvals are limited to 30 days, as are any renewals.

DOD Directive 5200.24 provides careful safeguards both as to the integrity of equipment and any information obtained by their use.

The wiretapping and eavesdropping devices are carefully accounted for and stored under secure conditions by the investigative agencies of our Military Departments. Both categories of electronic devices are only authorized for use in approved cases under the supervision of experienced aegnts who have been instructed in the legal and private rights aspects of their use.

With respect to the information that might be received by wiretapping or eavesdropping activities, DOD Directive 5200.24 requires that it be stored in appropriate investigative files at a central location; that the information so stored is always identified, when used for any purpose, as information which was obtained by wiretapping or eavesdropping; that access to information so stored is strictly controlled and recorded and that this information shall not be disclosed outside of the Department of Defense unless the head of the DOD Component concerned determines that disclosure is essential to governmental operations.

Finally, the Directive requires quarterly reports to the Secretary of Defense concerning the employment of wiretaps and eavesdrops, including those conducted in areas of the world where the substantive provisions of the Directive do not apply. We also have an annual summary and electronic equipment report to make to the Attorney General.

In recent years, wiretapping has shown an increase in cases involving drugs and telephonic bomb threats or other harassing calls. Eavesdropping activities have shown a marked increase over the last several years attributable almost completely to the narcotics and drug problem.

Consensual intercepts, particularly eavesdrops, have contributed significantly to our success in drug cases. However, because of the type and short duration of the calls, we have been only moderately successful in identifying the callers in bomb threats and similar cases. Both wiretapping and eavesdropping are essential elements in the DOD Law enforcement program.

Department of Defense programs and activities under DOD 5200.24 which have been discussed would be affected adversely by

« ForrigeFortsett »