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The directive expressly states that information obtained as a result of telephone communications security monitoring shall not be used for law enforcement purposes.
Now, it is true that it says any proposed exceptions shall be submitted by the head of the DOD component concerned to the General Counsel for consideration. And I will state categorically we have never had a request for such an exception.
Mr. DRINAN. Thank you, Mr. Cooke.
Mr. Cooke, I think you just answered the question I was going to ask you and that was in regard to COMSEC information being authorized for law enforcement purposes. And you just said that you never had such a request.
Mr. COOKE. We have never had although the directive does contemplate that possibility.
Mr. SMITH. When you talk about that in connection with law enforcement, are you talking about military law enforcement or any kind of law enforcement purposes?
Mr. Cooke. We are talking both, but essentially as you know, the Uniform Code of Military Justice, in its penal provision, which applies to all of our military personnel, in large measure repeats most of the offenses of title XVIII, generally. But, in our criminal law enforcement investigations in the United States, we are focusing almost exclusively on military personnel, very rarely on a civilian employee of the Department, and then only in terms of the delimitations agreement between the Bureau and the Department of Defense.
Mr. Smith. If I understood your statement, you are prohibited by regulations, if not by law, from monitoring civilians who do not have any connection with the military?
Mr. COOKE. Yes, we do. DOD Directive 5200.27 has a prohibition. We can furnish a copy of it. It expressly eliminates electronic or other surveillance except under some very narrowly, carefully defined circumstances, where it constitutes an immediate threat to personnel or property. But, there is an express prohibition in the directive, sir.
Mr. SMITH. And the civilians that might be monitored if I understood your statement correctly, who are employed by the Military Service, you may monitor them only if the FBI has in advance waived their right?
Mr. COOKE. If we are talking about criminal investigations, of our civilian employees, of course.
Mr. SMITH. I can understand that. But, in criminal investigations?
Mr. CookE. Yes. We had, as you know, a De-limitations Agreement with the Bureau as to who investigates many of the offenses, as I indicated, for military personnel, which could be subject to either trial by court-marital or trial in a local or Federal court.
Mr. Smith. Let me ask you a possible for instance. For instance, if there were a civilian employed by the military, who was selling drugs as a moonlighter at home, this would probably be pursued by the FBI?
Mr. COOKE. I think so or local authorities, yes, sir.
Mr. Smith. But if you were selling drugs on the base, a military base, it probably would be pursued by the military?
Mr. COOKE. Pursued, perhaps investigated would be the better word because we would have made arrangements for jurisdiction and for a criminal trial by civil court.
Mr. SMITH. I will accept that amendment. Thank you very much.
Mr. DRINAN. Thank you, Mr. Smith. I yield to our counsel for some questions.
Mr. LEHMAN. Mr. Cooke, I wonder if you could clarify something you mentioned a little earlier, and that is, did you mean to indicate that you would supply the committee with the quarterly report to the Secretary of Defense and the annual summary to the Attorney General ?
Mr. COOKE. I indicated we would supply you the numerical tabular data for it. I would want to go back and check as to the exact details of factual information, as to the facts involved in such case. I think we can do that, but recognizing that some cases would have the information classified, and in other cases, there are other provisions of the Freedom of Information Act, other than classification which would impede public disclosure.
Mr. DRINAN. Well, Mr. Cooke, I would take it that is the sense of the committee, that the information would be very helpful, and we hereby request it. We, obviously, will keep classified information classified.
Mr. COOKE. We will be back in touch on that.
You supplied the committee, in response to the Chairman's letter to the Secretary of Defense, with a copy of DOD Directive 5200.24 dated August 17, 1967.
[The exchange of correspondence between the Chairman and the Department of Defense follows:)
HOUSE OF REPRESENTATIVES, U.S.,
COMMITTEE ON THE JUDICIARY,
Washington, D.C., April 10, 1974. Hon. JAMES R. SCHLESINGER, Secretary of Defense, Department of Defense, Washington, D.C.
My DEAR MR. SECRETARY: The Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Committee has scheduled hearings on April 24, 26, and 29 on wiretapping and electronic surveillance. In order that the Subcommittee may be adequately informed about the surveillance practices of the Department of Defense, I would appreciate your replying to the following questions by close of business, April 18.
1. Does the Department permit monitoring of incoming or outgoing telephone calls by third persons : a. with the consent and knowledge of both parties to the call? b. With the consent and knowledge of only one party to the call? c. Without the consent and knowledge of either party to the call ?
2. Does the Department permit monitoring of telephone calls betwen tele. phones within the Department under the circumstances described in a, b, and c above?
3. Does the Department have any rules or regulations covering telephone monitoring, recording, and surveillance? If so, please provide two copies.
4. Does the Department permit the use of wiretapping or electronic surveillance as an investigative technique by military police agencies invstigating suspected criminal violations?
5. Does the Department ever utilize non telephonic electronic surveillance devices of any kind? If so, of what type and for what purposes?
6. Does the Department possess telephonic recording devices? If so, how many, and is a beeper or other warning device required to warn parties to the call of the recording?
If you or your staff have any questions regarding this request please call
ROBERT W. KASTENMEIER,
Administration of Justice.
OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE,
Washington, D.C., April 19, 1974. Hon. ROBERT W. KASTENMEIER, Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of
Justice, Committee on the Judiciary, House of Representatives, Washing
on, D.C. DEAR MR. CHAIRMAN: Your letter to Secretary of Defense Schlesinger of April 10, 1974, regarding wiretapping and electronic surveillance has been referred to me for reply.
The Department of Defense separates wiretapping and electronic surveillance into two categories:
1. Telephone monitoring.
2. Telephone interception (wiretapping) and eavesdropping (electronic surveillance) employed during the conduct of investigations for law enforcement purposes in the United States.
Telephone monitoring in turn is divided into four classes :
1. Office telephone-Listening to or recording office telephone communications by use of mechanical or electronic devices or recording by written means, for th purpose of obtaining an exact reproduction or a summary of the substance of the telephone conversation.
2. Command center communications.-Listening to or recording telephone communications in DoD command centers for the purpose of obtaining a record of conversations, or parts thereof, for command purposes.
3. Communications security.—Listening to or recording the transmission of official defense information over DoD owned or leased telephone communications, by any means, for the purpose of determining whether such information is being properly protected in the interest of national security.
4. Communications management.—Listening to or recording telephone communications on DoD-dedicated systems or the common-user systems of the Defense Communications System, by any means, for the purpose of determining whether the systems are functioning properly or being used for other than official purposes.
The following answers are keyed to your questions which have been included verhotim for ease of reference.
Question 1. Does the Department permit monitoring of incoming or outgoing telephone calls by third persons: a. with the consent and knowledge of both parties to the call?
Answer. (1) Office telephone monitoring is permitted only with the consent of all parties to the call.
(2) Command center communications recording is authorized for command and communications purposes pursuant to regulations issued by the head of the DoD component concerned in command centers such as the National Military Command Center in the Pentagon.
(3) Communications security monitoring is undertaken only as specified in regulations issued by the head of the DoD component concerned to provide
for analysis and to determine the degree of security being afforded telephone transmissions.
(4) Communications management monitoring is undertaken only to provide material for analyses within DoD to determine the operational efficiency and -proper use of DoD communications systems.
Question 16. With the consent and knowledge of only one party to the call ?
Answer. (1) Office telephone monitoring is not authorized unless the consent of all parties is obtained.
(2) The other three classes of telephone monitoring are permitted as described in the replies to question 1.a. above.
Question 1c. Without the consent and knowledge of either party to the call?
(2) DoD directives and implementing regulations relating to the other three classes of telephone monitoring prescribe wide advance notice of such monitoring to users, tantamount to consent.
Question 2. Does the Department permit monitoring of telephone calls between telephones within the Department under the circumstances described in a, b, and c above?
Answer. The answers to question 1 also apply to telephone calls within the Department of Defense.
Question 3. Does the Department have any rules or gulations covering telephone monitoring, recording, and surveillance? If so, please provide two copies.
Answer. DoD policy with respect to telephone monitoring is contained in DoD Directive 4640.1 DoD policy with respect to telephone interception and eavesdropping is contained in DoD Directive 5200.24. Copies of both directives are attached.
Question 4. Does the Department permit the use of wiretapping or electronic surveillance as an investigative technique by military police agencies investigating suspected criminal violations?
Answer. Yes. Wiretapping and eavesdropping may be authorized for use by DoD criminal investigative agencies when there are reasonable grounds to believe that: 1. a criminal offense concerning the national security in 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 subscriber-user on a military base. The conditions under which such wiretapping or eavesdropping is conducted are specified in DoD Directive 5200.24.
Question 5. Does the Department ever utilize non telephonic electronic surveillance devices of any kind ? If so, of what type and for what purposes?
Answer. As previously noted in the answer to question 4 above, the Department of Defense uses non-telephonic electronic surveillance devices. These devices include miniature transmitters, microphones and receivers which may use either wire or radio as a means of transmission. They are employed in criminal investigations primarily involving allegations of the sale of narcotics and dangerous drugs after responsible supervisory officials have determined that non-electronic investigative techniques would not provide the evidence needed or protect the military personnel involved. Their use is subject to the policies prescribed by the Attorney General.
Question 6. Does the Department possess tlephonic recording devices? If so, how many, and is a beeper or other warning device required to warn parties to the call of the recording?
Answer. Yes. Of of June 30, 1973, DoD possessed 755 telephone recording devices. DoD Directive 4640.1, “Telephone Monitoring." requires that any recording device used for office telephone monitoring must be equipped with a beeper or other warning devices. The use of the warning tone is in addition to the requirement for prior consent by all parties participating. Warning devices are not used in connection with command center communications recording, communications security monitoring, communications management monitoring or telephone interceptions conducted during criminal investigations. Sincerely,
D. O. COOKE,
Deputy Assistant Secretary of Defense. Attachments.
DEPARTMENT OF DEFENSE,
August 17, 1967. DEPARTMENT OF DEFENSE DIRECTIVE
Subject: Telephone Interception and Eavesdropping
(47 U.S.C. 605)
partments and Agencies, June 30, 1965 (c) Memorandum to the Heads of Executive Department and
Agencies from the Attorney General, June 16, 1967 (d) Deputy Secretary of Defense Multiple-addressee Memorandum,
"Reporting Interception Activities,” August 10, 1966 (C) (hereby cancelled)
I. PURPOSE AND SCOPE
This Directive implements references (a), (b) and (c), and sets forth the policies and restrictions governing telephone interception and eavesdropping by DoD personnel engaged in the conduct of investigations for law enforcement purposes in the United States. It also establishes certain worldwide reporting requirements regarding storage, inventory, and use of interception and eavesdropping devices by DoD Components in the conduct of such activities.
II. CANCELLATION Reference (d) is hereby superseded and cancelled.
This Directive is applicable to all DoD Components. It does not apply to activities which are related directly to the protection of the national security.
For the purpose of this Directive, the following definitions apply:
A. Wiretapping—the act of listening to or recording of any telephonic conversation by the use of any electronic, mechanical, or other device without the advance consent of all of the parties to the conversation; sometimes referred to herein as interception.
B. Eavesdropping—the act of listening to or recording of any conversation other than telephonic by the use of any electronic, mechanical, or other device without the advance consent of all of the parties to the conversation.
C. Heads of DoD Components—the Secretaries of the Military Departments (or if they so designate, the Under Secretary, Assistant Secretary, the principal staff officer responsible for the investigative activity concerned, or the head of the investigative agency concerned), the Directors of the Defense Agencies, the Chairman of the Joint Chiefs of Staff, and the Assistant Secretary of Defense and other activities assigned for administrative support.
A. To insure the privacy of telephone conversations to the maximum practical extent, the interception of telephone conversations is prohibited unless 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 involving obscenity, harassment, extortion, bribery, or threat of bodily harm have been made to a subscriber-user on a military base under the jurisdiction of the Department of Defense.
B. National Security Investigations—The following requirements must be met:
1. One of the parties has freely and voluntarily consented in advance to the interception. If none of the parties has consented in advance, the interception must be approved by the Attorney General in advance, see paragraph V.F.3., below; and,