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not taken for purposes of delay. Such appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted.”.
SEC. 6. (a) The analysis of chapter 119 of title, 18 United States Code, is amended by inserting immediately after the item "2516. Authorization for interception of wire or oral communications." the following new item : "2516A. Authorization for interception of wire or oral communications in
national security cases.". (b) Such analysis is further amended by inserting immediately after the item *2518. Procedure for interception of wire or oral communications." the following new item : “2518A. Procedure for interception of wire or oral communications relating to
national security.". SEC. 7. Section 2519(1) is amended by inserting immediately after “2518," the following: “or section 2518A.”.
Mr. KASTENMEIER. Our first witness this morning has long expressed his concern on this subject and is a chief sponsor of Senate legislation to require court approval for all wiretapping and electronic surveillance, including national security wiretapping. I am pleased to welcome a fellow member of the Wisconsin Delegation and my good friend Senator Gaylord Nelson.
TESTIMONY OF HON. GAYLORD NELSON, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Senator NELSON. Mr. Chairman, and members of the committee, there is a Democratic Conference at the Senate side that I need to get to, so if it is all right with the chairman, I would ask that my full statement be printed in the record as so read, and then I would like to submit for the record some materials in support of the statement.
The first item is a statement which details the history of abuses in the use of warrantless wiretaps for so-called “national security cases," and the second item is a section-by-section analysis of the Surveillance Practices and Procedures Act to prohibit warrantless wiretaps. It shows quite clearly that every section of the bill is fully supported by historical and legal precedents. Finally, I would like to submit some newspaper columns and editorials which discuss the importance of a bill to prohibit warrantless wiretaps.
Mr. KASTENMEIER. Without objection, your 11-page statement will be received and made a part of the record and the additions you have described will also be received.
| The documents referred to appear at p. 29.]
Senator NELSON. Mr. Chairman it seems to me the time is long past due for congressional action to check the dangerous abuses of government wiretapping and other surveillance activities.
The need for action, and therefore the importance of this subcommittee's inquiry, are quite clear. Uncontrolled government wiretaps and other surveillance activities constitute an intolerable threat to fundamental constitutional rights and liberties. Individual freedom—the cornerstone of our democratic system-is but an illusion in a society where the government can invade an individual's privacy at will.
Until recently, most of the public did not appreciate the inherent dangers of government snooping. Now the public understands that government snooping poses a real threat to everyone, regardless of his or her station in life. Now 77 percent of the public favors legislation to curb the abuses of government wiretapping and spying.
Hearings by the Senate Watergate Committee and other congressional bodies as well as reports by various periodicals exposed in great detail how the government could and did invade the privacy of law-abiding individuals. Reference to just a few recent examples is sufficient to illustrate the magnitude of dangers of government snooping:
Now, Mr. Chairman, I list a series of examples, all of which have been either publicized in the papers or presented to committees on either the House or Senate side, so I will not read them into the record.
For many years constitutional authorities and other citizens have repeatedly expressed alarm over the rapidly expanding practice of governmental invasions of privacy by wiretapping, data collection, and other forms of surveillance. In 1967 I made a speech on the floor of the Senate on this issue and in 1971 introduced legislation to establish a joint congressional committee to control Government snooping.
Mr. Chairman and members of the committee, this specific proposal that
is before the committee today refers to warrantless wiretaps. That is just one step that needs to be taken by the Congress to protect the constitutional rights of citizens. There is a further step which the Congress must also take up at some subsequent date, and that is a step that will insure that the Constitution and the law are complied with. I have introduced legislation on our side on this issue. This legislation proposes creation of a joint committee of the House and Senate, a bipartisan committee with equal representation by each party. Each year every agency of the Government which has or asserts any power or authority to spy-such as the military intelligence, the FBI, and others-must come before that committee and present to that committee, either publicly or in executive session, a record of all of the wiretaps and surveillance of any kind that was performed by that agency, the legal justification for it, and the purpose of it. All of this would be presented under oath with the penalty of perjury, of course. The purpose of this would be to enable the people's representatives to guarantee that the Constitution and the statutes are complied with and furthermore, Mr. Chairman, for the Congress to be informed as to what kind of activities are engaged in by these agencies so that we may decide if further legislation is necessary.
I think that piece of legislation is critical to assuring compliance with any other legislation that we pass and to assure compliance with the fourth amendment of the Constitution.
The bill entitled "Surveillance Practices and Procedures Act of 1973” is before the subcommittee and has been introduced on both sides by myself in the Senate and by the chairman of this subcommittee in the House of Representatives.
The bill is a direct response to wiretap abuses in so-called national security cases. Last May it was revealed that in 1969 the White House bypassed established procedures and authorized wiretaps on the telephones of 17 Government officials and newspapermen. The purported basis of these taps was a concern that sensitive information was being leaked to reporters by Government officials. The Government, however, did not obtain a judicial warrant before installing the taps. The Government alone decided whom it would tap and for how long
Subsequent investigation showed that some of the Government officials tapped did not have access to sensitive information. It was also learned that two of the taps were maintained after the individuals involved had left Government service and joined the Presidential campaign staff of Senator Muskie. In none of the cases was the individual suspected of having violated the law.
These are not isolated incidents. Warrantless taps based on socalled national security reasons were placed on the telephones of newspaper columnist Joseph Kraft in 1969 and in 1971 on friends of a Navy yeoman suspected of passing sensitive information to the Joint Chiefs of Staff. Again, none of these individuals was even suspected of having violated the law.
The use of so-called national security taps, however, has not been confined to the present administration. Democratic and Republican administrations since the 1930's have used such taps to spy on law-abiding individuals. Various government reports indicate that since that time thousands of individuals have had their telephone conversations intercepted for so-called national security reasons.
From the very beginning, those sensitive to civil liberties recognized the dangers of warrantless wiretaps. Such taps enable the Government to exercise unchecked and unreviewed power over the individual. There is no opportunity for a court, the Congress, or the public to demonstrate that the taps are unreasonable. For this reason, Supreme Court Justice Oliver Wendell Holmes called them dirty business. In my view, such taps are also clearly unconstitutional.
To understand the basis of this opinion it is necessary to examine the language and judicial interpretation of the fourth amendment. That amendment states quite simply that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
That language is clear and unequivocal. It allows for no exception.
One need not be an historian or a lawyer to understand the essential purpose of this amendment. It is intended to protect the individual's privacy from unreasonable invasions by the Government. To afford this protection, the amendment contemplates that a neutral court-not the Government—will determine whether any search and seizure planned by the Government is reasonable. Otherwise the Government would be both advocate and judge of its own case.
The fourth amendment thus limits the power of the Government. Like the other amendments in the Bill of Rights, it reflects the framers' intention that individual liberty, rather than unrestrained governmental power, be the hallmark of our political system. In his dissent in the 1928 Olmstead case Supreme Court Justice Louis Brandeis articulated the importance of the fourth amendment in our scheme of government:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustified intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the fourth amendment.
The fourth amendment's protections apply to all Government searches and seizures. No exception is made for national security cases or any other kind of circumstance.
When the Constitution was drafted in 1787, our country was only 11 years old. The new American citizens had recently concluded a long war with England to preserve their country's independence. That independence was not entirely secure. The threat of foreign attack and subversion remained ever present. Despite the existence of this threat, the Founding Fathers adopted the fourth amendment and made no exception to its application.
In the 1967 Berger and Katz cases, the Supreme Court held that the fourth amendment applies to wiretapping for criminal purposes. In effect, these decisions required the government to obtain an approving judicial warrant before it could install a wiretap in a criminal investiration.
In the 1972 Keith case the Court, by an 8–0 vote, decided further that the Government could not wiretap individuals without a indicial warrant even when the individual's activitins threatened the Nation's "domestic security.” A rain, the Court made clear that wiretaps must adhere to the safeguards delineated by the fourth amendment:
“Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, the broader spirit now shields private speech from unreasonable surveillance.
The Supreme Court has not yet decided whether the fourth amendment's protections apply to cases involving the activities of foreign powers and their agents. In the Keith case, the court stated explicitly that it did not consider those situations where American citizens have a "significant connection” with foreign powers and their agents.
Because the Court has not ruled on these "national security” taps, the present administration maintains that it may install warrantless wiretaps in certain situations. In a September 1973 letter to Senator William Fulbright, chairman of the Senate Foreign Relations Committee, then Attorney General Elliot Richardson stated that the administration would continue to install warrantless wiretaps against American citizens and domestic organizations if the administration believes their activities affect "national security" matters-although "national security” is never defined.
Mr. Richardson's comments apparently still reflect administration policy. Last January the Justice Department reported that it had authorized three warrantless wiretaps for national security reasonsan average week's quota according to the Department. The Department did not explain to any neutral party such as the Court the justification for the taps or identify the subjects of the taps.
The continued use of warrantless wiretaps for so-called national security reasons underscores the need for congressional action. People in our country should not be afraid to speak to one another on the telephone, never knowing whether the Government is listening or how the Government might use any information obtained. Every citizen should be assured that the privacy of his or her telephone conversations will not be invaded unless a neutral court first determines that the invasion is justified pursuant to the Constitution.
The Surveillance Practices and Procedures Act is designed to provide that assurance. The bill includes three principal provisions.
First, before it could wiretap American citizens for national security reasons, the Government would have to obtain a judicial warrant based on probable cause that a specific crime has been or is about to be committed. This provision would thus protect an individual's privacy against unjustified national security wiretaps.
Second, before the Government could wiretap a foreign power or its agents, it would have to obtain a judicial warrant based on the belief that the tap is necessary to protect national security interests. The warrant standards for foreign powers and their agents would thus be less rigorous than those required for American citizens. This warrant requirement will in no way undermine the government's ability to protect against foreign attack or subversion; the government will be able to wiretap foreign powers and their agents any time there is a need for such surveillance and the need is presented to the court.
The justification for this second warrant procedure is plain. The Government's desire to wiretap should be reviewed by a court in all instances.
Third, every American citizen wiretapped would be informed of the surveillance with 30 days after the last anthorized interception. This provision would assure every wiretapped American citizen the opportunity to protect against violations of his or her constitutional rights. The disclosure of the wiretap could be indefinitely postponed, however, if the Government satisfies the court that the person wiretapped is engaged in a continuing criminal enterprise