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I, like all of you, am concerned with the abuses of electronic surveillance. Abuses redound to the detriment of the legitimate, fair and effective use of electronic surveillance as a valuable tool against criminal activity and foreign intelligence operations.

Some would seek to outlaw the use of electronic surveillances in all cases, perhaps based on the fact that electronic surveillance is not sufficiently selective, and often intercepts many communications not directly pertaining to the matter under investigation. This is often true; but in many cases, it is not true. Use of electronic surveillance involves a delicate balancing of protecting the common good against individual rights. While some communications are intercepted which are extraneous to the offense which justifies the surveillance, evidence of the communications which form part of the offense cannot generally be obtained in any other way; consequently, many crimes would go undetected and unprosecuted without use of electronic surveillances. In many cases electronic surveillances intercept no extraneous communications, e.g., listening in to kidnapers or extortionist's telephone calls, and the use of a body recorder by an undercover agent or informant.

The use of electronic surveillance in foreign intelligence cases is an absolutely essential and indispensable tool. Information of much value beyond neutralization is obtained in such cases.

While the Congress certainly should direct itself to abuses of electronic surveillance, it hopefully will include in its deliberation the effect such legislation might have on the practical necessities of criminal and intelligence investigations, For that reason, I welcome the opportunity to appear before you today to present my views on the bills pending before this Subcommittee on the proper and improper use of electronic surveillances. I disagree with the complete abolition of electronic surveillance as an investigative tool, but I support measures to properly regulate and control its use.

There is a need for Congress to act, which need has been dramatized by recent cases, to provide for the use of electronic surveillances in criminal intelligence and domestic internal security investigations. The Keith case recognized that it was creating a void in the law by prohibiting the use of electronic surveillances in domestic internal security intelligence investigations by ruling that the President did not have inherent powers to authorize them without judicial warrant, and invited Congress to consider procedures by which such surveillances could be obtained. The Court recognized that the standard of probable cause might be somewhat different in justifying the need for an intelligence electronic surveillance than the standard required under the current provisions of Title III for criminal cases.

There is a need for domestic intelligence electronic surveillance in some cases in the United States today; however, there is no mechanism or procedure by which such surveillances can be utilized. We hope in the near future to present to Congress, following approval of the Department of Justice, a bill which will authorize the use of domestic intelligence electronic surveillances, with prior judicial approval, under reasonable probable cause, notice, and reporting requirements suited to the legitimate objectives of intelligence investigations.

Mr. Chairman, I am confident that you and the members of the Subcommittee are aware that I cannot discuss details of electronic surveillance in the national defense and foreign policy areas in open session.

Detailed discussion in these areas could possibly allow foreign intelligence services to assess the success of their operations, and adjust their efforts or tactics to avoid neutralization and penetration.

Sensitive foreign policy and foreign relations considerations are also involved in any discussion of this nature.

Further, detailed discussion of the mechanics of electronic surveillance practices, in the national defense, foreign policy, or organized crime areas, would be of inestimable value to the targets by perhaps enabling them to take countermeasures.

If the Subcommittee feels it has a need for more detailed discussion in these areas, I would be most willing to meet you in executive session.

My prepared testimony makes a case for the value of electronic surveillance in combating organized crime and provides an example of its effective use, under the regulations of Title III. Let me summarize that presentation merely by saying that organized crime is a highly sophisticated, far-flung, and pervasive evil influence in American life today. Much of its effectiveness, like any other organization's, depends on its communications capabilities. The telephone is an integral element in its success; and without secure oral communications between leaders and between superiors and subordinates it could not function. Title III has done much to neutralize the efficiency of organized crime. Any measure which wiuld revoke the electronic surveillance capability of law enforcement against organized crime would be a serious disservice to the American people.

TITLE III ELECTRONIC SURVEILLANCES

Title III electronic surveillances have been used against organized crime in investigations involving racketeer influenced and corrupt organizations; interstate transportation in aid of racketeering; interstate transmission of wagering information ; illegal gambling businesses; and extortionate credit transactions. As a by-product, evidence was also developed concerning illegal narcotics traffic; prostitution; auto theft; alcohol, tobacco, and firearms tax violations; government corruption; stolen property violations ;and local robbery and gambling offenses. Title III surveillances have been used by the FBI in bribery ; bank robbery; obstruction of justice; theft from interstate shipment; interstate transportation of stolen property, and kidnaping cases.

Title III has provided a most effective weapon in attacking syndicated gambling and other organized illegal activities. Since 1969, Title III electronic surveillances in FBI cases have led to over 1,100 convictions, and the confiscation of cash, property, weapons, wagering paraphernalia, and contraband valued at more than $7,000,000. Of approximately 2,700 organized crime subjects being prosecuted as of April 1, 1974, nearly 1,700 were arrested as a result of information obtained via Title III surveillances.

An example of the value of electronic surveillance is the DeCavalcante case:

Samuel Rizzo DeCavalcante, the head of an Elizabeth, New Jersey, mob allegedly engaged in gambling, loan sharking, extortion, labor-racketeering, and other illegal activities, had been the subject of an extensive FBI investigation for some time. In September, 1969, probable cause was established to indicate that DeCavalcante was involved with an individual named Alessio Barrasso in running one of the largest numbers operations in the State of New Jersey. A Title III surveillance on a key bet-taking telephone at Belleville, New Jersey, was authorized.

This coverage confirmed that DeCavalcante, Barrasso, and others were conducting a large-scale gambling business, and enabled us to obtain additional court orders authorizing telephone interceptions in New Jersey and Troy, New York, In December, 1969, DeCavalcante, Barrasso, and 53 others were indicted on conspiracy to violate Federal antigambling statutes, and eventually 49 of the 55 indicated pleaded guilty to the conspiracy charges.

Extensive investigation in this case, preceding the use of electronic surveillances, included five months of physical surveillances, motor vehicle and telephone toll record examinations, and interviews with informants, but it was the Title III surveillance which made the case.

My statement details, step-by-step, the manner by which'a Title III surveillance is requested, approved, implemented and regulated. I think you will find that the rights of the citizen are well protected against unreasonable government action; and are provided a fair balancing against competing societal rights, both by the internal administrative procedures of the FBI and the Department of Justice, and an intervening magistrate.

THE CHRONOLOGY OF THE USE OF TITLE III ELECTRONIC SURVEILLANCE IN AN FBI

CRIMINAL INVESTIGATION

A. Preliminary Investigation and Preparation of Affidavit

1. It is established through informant information or other general investigation, that a Federal criminal violation is being committed.

2. Further follow-up, corroborating investigation is conducted through contact with informants, physical surveillances, and general investigation.

3. An opinion of a Federal Strike Force Attorney or United States Attorney as to the prosecutive potential of the alleged violation is obtained,

4. An affidavit for application for a Title II electronic surveillance is prepared by the case agent after all other efforts to acquire necessary evidence have been exhausted.

5. The affidavit is reviewed by the legal officer in the FBI field office for probable cause and legal sufficiency and then submitted for review to a Strike Force Attorney or United States Attorney.

6. If the Strike Force Attorney or United States Attorney approves the aindavit, it is forwarded to FBI Headquarters. B. Review of Affidavit at FBI Headquarters and Department of Justice

1. The affidavit is reviewed by the Office of Legal Counsel, case supervisor, his unit chief, section chief, Deputy Assistant Director, Assistant Director, Deputy Associate Director, Associate Director, and Director.

2. If the Director of the FBI approves the affidavit, it is forwarded to the Office of Special Operations, Department of Justice, for review, and it is submitted up the chain of command at the Department of Justice for final approval by the Assistant Attorney General, Criminal Division.

3. If the affidavit is approved by the Assistant Attorney General, it is sent back to the appropriate Strike Force Attorney or United States Attorney and FBI field office. C. Application for Court Order

1. When the approved affidavit is received by the case agent, he files it before a United States District judge along with an application for the surveillance.

2. If the judge approves, he issues a court order directing the FBI to conduct the requested surveillance for a specified period of time which is set forth in the court order, usually 15-20 days.

3. This court order is then served upon the telephone company by the FBI agent to secure the necessary technical information and assistance to install the surveilance. D. Operation by the FBI of a Title III Electronic Surveillance

1. After the necessary technical information and assistance is obtained, FBI personnel install the surveillance.

2. FBI supervisory personnel at the field level including the Special Agent in Charge, field supervisor, and case agent, inform all personnel who will participate in the surveillance of the investigation to be conducted. The legal officer also advises all personnel of legal limitations concerning monitoring, such as husband-wife, lawyer-client relationships.

3. A monitoring room is set up and specialists brief all participating personnel concerning the technical equipment and its operation.

4. Once operation is initiated, all surveillance activity is closely coordinated with operations within the monitoring room, i.e., limited to participating personnel and investigators with a need to know the results of the surveillance.

5. All results of the surveillance are recorded, i.e., pertinent tapes are transcribed and logs are maintained of all surveillances.

6. The Strike Force Attorney or United States Attorney is kept informed, on a daily basis, of the results of the surveillance.

7. The field office is required to inform FBI Headquarters every two days of the results of the surveillance.

8. The Strike Force Attorney or United States Attorney must inform the United States District Court which approved the surveillance of its results at intervals specified in the order.

9. Extensions or renewals of the surveillance are requested by the United States Attorney or Strike Force Attorney. E. Termination of the Surveillance

1. At the termination of the surveillance, the tapes are sealed and are retained at a location specified by the District Court for a period of ten years. Pertinent information from the tapes, necessary for further investigation, is made available to investigators with a need to know.

2. Results of the surveillance are included in affidavits to support search and/or arrest warrants. F. Prosecution

1. Evidence obtained during the entire investigation, including information developed through Title II interception, evidence seized in raids, and information developed through general investigation is presented to a Federal grand jury. If indictments are returned, arrests are made.

2. Upon motion of defense attorneys, a suppression hearing is generally held before a United States District Court judge at which probable cause, and the consequent legality, of all warrants, including the Title III warrant, are tested.

3. Prior to trial, the United States District Court orders relevant Title III tapes unsealed and the government to furnish copies of these tapes and transcripts to defense attorneys.

My statement also contains some examples of the value of consensual monitoring, i.e., monitoring of conversations with the consent of one party to the conversation. This technique is used significantly in organized crime cases, in which perjury intimidation or murder of witnesses, and destruction of evidence are not uncommon phenomena. A mechanical reproduction of a conversation and a law enforcement officer/witness who monitored the conversation have been indispensable to successful prosecution in several cases, and because there has been independent evidence of a conversation, the life of the party who consented to the monitoring who might otherwise have been the only witness, may have been saved.

As previously noted, consensual monitoring has assisted in not only solving kidnapings but may also have saved victims' lives.

CONSENSUAL MONITORING

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In United States v. White, 401 U. S. 745 (1971) (regarding the use of a transmitting device concealed on the person of an informant) Justice White, speaking for the Court stated :

“Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. .. For constitutional purposes, no different result is required if the agent, instead of immediately reporting and transcribing his conversations with the defendant, either (1) simultaneously records them with electronic equipment which he is. carrying on his person ... (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency.... If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

the law permits the frustration of actual expectations of privacy by permitting authorities to use testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants. .. If the law gives no protection to the wrongdoer whose trusted accomplice is, or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case.”

FBI regulations require that either the Special Agent in Charge of a local field office or, in sensitive cases, FBI Headquarters must personally approre all consensual telephonic overhearings. Justice Department regulations require Departmental approval for all other consensual monitoring, i.e., concealed radio transmitters or recording equipment.

The value of consensual monitoring is evidenced by the following case:

Between 1968 and 1970 two Long Island businessmen had been paying off a usurious business loan to Joseph Randazzo and Giuseppe Maida. During this time the victims alleged that they had been subjected to threats of physical harm, at times involving guns, kickings, and beatings. In November, 1970, the victims made telephone calls to Vincent Lore, an associate of Randazzo and Maida, who had been involved in physical attacks on the victims. These calls were monitored by FBI agents and incriminating evidence was obtained. Justice Department authority was given to equip the victims with body recorders to monitor future conversations with Randazzo, Maida, and Lore. Based in part on evidence recorded, Randazzo, Maida, and Lore were arrested, and eventually pleaded guilty to extorionate credit transactions.

Hoodlum loan sharking, because of the violence often associated with it, is one of the most vicious and profitable enterprises engaged in by the organized underworld. In this case, without the use of consensual monitoring devices, it is questionable whether successful prosecutions could have been obtained since murder of the businessmen could have eliminated the only witnesses to the criminal activity.

I have also included in my prepared statement a detailed analysis of the bills pending before this Subcommittee and the impact they could have on FBI operations.

H.R. 1597

H.R. 1597 requires that electronic surveillance of a United States Judge or Justice or a Senator or Member of Congress can be conducted only on the written authorization of the President of the United States.

The FBI has no comment on this bill; it in no way affects FBI operations..

H.R. 9667 (ALSO INTRODUCED AS H.R. 9973, H.R. 10008, AND H.R. 1033)

H.R. 9698; H.R. 9781 Via different types of amendments to 18 U.S.C. 2511, these bills either totally prohibit electronic surveillance of any type, for any reason (H.R. 9781), or require the consent of all parties to the conversation to be monitored except when a judicial warrant has been issued. (H.R. 9667, H.R. 9698).

The FBI is opposed to H.R. 9781; and constitutional problems may be presented by H.R. 9667 and H.R. 9698.

Electronic surveillance is an effective, and often a unique investigative technique by which information essential to a successful prosecution or thwarting of foreign intelligence or terroist activity is obtained which is not available from any other source. Electronic surveillance is an essential investigative tool in combating organized crime; it has been used effectively, fairly, and without prejudice to individual rights in bribery, embezzlement, Hobbs Act, obstruction of justice, interstate theft, kidnaping extortion, sports bribery, and racketeering cases.

Congress has weighed the need for electronic surveillances in these, and other types of cases; and, finding that the need was real and necessary, provided a mechanism and authority for the fair and effective use of electronic surveillance, while protecting the individual in his right to due process and against unreasonable search and seizure-Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

Use of electronic surveillance in these cases has been of utmost value to fair and efficient law enforcement. As the Subcommittee is aware, use of Title III during the six years since its passage will undergo a year-long examination by a committee of experts appointed by the Congress. The committee begins" its study this year. I am confident that the committee's report will support my general observations that Title III has provided law enforcement with an effective and indispensable investigative tool, and its use has been administered fairly, without prejudice to individual rights.

These bills would prohibit even the listening in to a telephone conversation by a law enforcement officer at the request of a party who was being extorted or was receiving ransom instructions via the telephone. This practice is often instrumental in the return of the kidnaped victim safely, and in the solution of the crime.

It should not be assumed however that a Title III warrant could be obtained in all, or even in many, of these types of cases. An allegation of organized crime loan sharking originally consists of just the word of the victim, plus some general knowledge of the subject's background. This is generally not sufficient to support a Title III application, but at the time the victim comes to us he is generally already in some danger and there is no time for extensive general investigation to support an affidavit, hence we use a consensual monitoring device to obtain the necessary incriminatin evidence rapidly.

In, kidnaping cases the call to the victim's relatives often occurs within hours after the kidnaping; there is no time to run a Title III application through FBI and Department of Justice administrative channels to obtain the Attorney's General prior approval, required by Title III, much less present the application to a court.

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