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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 puwer 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, re number 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 confirmation 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 electronie 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 muy 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 fo 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 priór 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 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. TESTIMONY OF HON. DAVID O. COOKE, DEPUTY ASSISTANT SECRE
TARY OF DEFENSE FOR ADMINISTRATION, DEPARTMENT OF DEFENSE, ACCOMPANIED BY JOSEPH J. LIEBLING, DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR SECURITY; AND ROBERT T. ANDREWS, ASSISTANT GENERAL COUNSEL
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:
1. OFFICE TELEPHONE
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.
2. COMMAND CENTER COMMUNICATIONS 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.
3. COMMUNICATIONS SÉCURITY
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.
4. COMMUNICATIONS MANAGEMENT
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