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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 consent.
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 authorizations.
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 DĀSD/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 pending legislation relating to wiretapping and electronic surveilsance. In particular H.R. 9698 would prohibit the interception of certain communications unless all parties to the intercepted communication consent. The effect of H.R. 9698 would be to eliminate the use of wiretaps or eavesdrops in any criminal case. Obviously, none of the narcotic and drug cases which the Military Services have investigated successfully on the basis of consensual intercepts undertaken in accord with the present law would have been possible if the prior consent of each of the parties had been a necessity.
The bill, in my judgment, would not impact on our administrative telephone monitoring procedures which are now based on actual or implied consent of all parties.
Mr. Chairman, I have appreciated the opportunity you have afforded the DOD to describe its policies and practices in the area of electronic surveillance. We realize that this is an area of balancing the rights of the individual on one hand and the legitimate needs of an organized society on the other. We believe our directives are not only in full compliance with the law and the Attorney General's regulation but also have achieved that balance.
Mr. Drinan (presiding]. Thank you very much, Mr. Cooke.
In the absence of the chairman temporarily, I will begin the questioning
On page 1 of your statement you indicate that the Department of Defense (DOD) Directive which restricts the use of wiretapping does not apply overseas. Does that mean that the DOD conducts warrantless national security wiretapping in the United States, as well as overseas, and to what extent, if you do that, is that approved by the Attorney General!
Mr. COOKE. Mr. Drinan, the Department of Defense does not conduct warrantless wiretapping in the United States, although the Directive does provide that in cases we would go to the Attorney General, as we do in the case of consensual eavesdropping exempted, as you know, from the provision of title III. But, since the law has been passed, we have had no occasion in the United States to go to the Attorney General for a request for warrantless wiretap.
Mr. DRINAN. What about overseas?
Mr. COOKE. Overseas, the Department of Defense Directive does not apply. By its terms, it is limited, as I indicated, to the United States, the Commonwealth of Puerto Rico and the U.S. territory. Mr. DRINAN. Does it apply to American citizens overseas? Mr. COOKE. It does not.
Mr. DRINAN. Therefore, was the wiretapping and surveillance of McGovern campaing workers in Germany in 1972 conducted in this manner, pursuant to an exception, if you will, or without the DOD Directive?
Mr. Cooke. Mr. Drinan, I am aware it goes back to July and August of 1973, and there appeared to be in the press a number of stories concerning alleged Army surveillance of U.S. citizens, foreign nationals and organizations, both foreign and domestic, based in the Federal Republic of Germany and in Berlin. The Army looked into this matter, and I can only say at this time that, as you know, in February 1974, a complaint was filed in the U. S. District Court for the District of Columbia against the Secretary of Defense and the Secretary of the Army and the entire chain of the Army Command responsible for intelligence activities in Europe concerning this alleged surveillance. The case is entitled, Berlin Democratic Club et al. v. Schlesinger et al. It alleges charges: of illegal wiretapping, interception of mail, infiltration and penetration of meetings and maintenance of intelligence dossiers. It would be highly inappropriate for me to comment on a case now in litigation, and on the advice of the Department of Justice I would prefer not to discuss the facts involved in the lawsuit. I can add that the counter-intelligence measures that were adopted by the Army in Europe have been conducted in accordance with our international obligations, the laws of the host nation in which troops are located. We are confident of the issue as presented in the pending litigation will be resolved in the government's favor.
Mr. Drinan. Well, Mr. Cooke, would you answer my question? If these were conducted, I assume there is some record of it, and would that record be included in the quarterly and annual reports to the Secretary and to the Attorney General ?
Mr. COOKE. The record, as I said, would not be governed by the provisions of our Directives because they are overseas. We would have a quarterly report of eavesdrops or telephone interceptions in areas outside of the purview of the directives.
Mr. DRINAN. Where are they contained ?
Mr. COOKE. The quarterly reports are sent into the Office of the Secretary of Defense.
Mr. DRINAN. Could we have that quarterly report? You mention on page 10 that you do have these quarterly reports on warrantless national security surveillance. Would you furnish us with one or more, and particularly with the one in which the wiretapping or alleged wiretapping and surveillance of the McGovern campaign workers is noted ?
Mr. COOKE. Mr. Drinan, I have stated that the Department of Defense has no record of engaging in warrantless surveillance within the meaning of title III of the law, because, as you know, the provisions of the law are limited, as are the provisions of our directives to the United States, to the Commonwealth of Puerto Rico and the United States territories and possesions. So, to use the term warrantless activities, or warrentless wiretaps overseas, I think is not the proper use of the term.
Mr. DRINAN. Mr. Cooke, may I rephrase and clarify it.
state: 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.
Consequently, I am asking therefore that quarterly or annual reports, or both, which contain a record of all wiretaps and eavesdrops, including those conducted in areas of the world where the directive does not apply, be supplied.
Mr. Cooke. Mr. Drinan, we will attempt to furnish you that. The record of the wiretaps and eavesdrops conducted overseas of neces