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that would involve, for example, organized crime activities, or that disclosure would endanger national security interests.

The need for legislation such as this should be beyond dispute. Warrantless wiretaps-whether for “national security" reasons or other purposes-pose a grave danger to individual rights of speech and privacy. Such taps invest the Government with an absolute power over the individual. They enable the Government to pry into an individual's private affairs without justification. They foster the reality of an Orwellian state in which the government becomes a monster to be feared rather than a servant to be trusted.

That is not the kind of government envisioned by our Founding Fathers. The underlying and fundamental permise of our Constitution is that all Government power is limited by checks and balances. This is no less true of the Government's power to protect “national security.” That power is not so absolute that it can excuse infringements of the right to privacy and other constitutional libertins. It would indeed be ironic if the government could invoke "national security” to violate those individual freedoms which the government is obligated to defend.

Mr. Chairman, I think I have covered everything that needs to be covered on my testimony.

Mr. KASTENMEIER. Thank you, Senator Nelson, for your very compelling testimony. I have just a couple of questions.

While it may be said that one could determine what is crime in the Federal svstem and what is not a crime, are you satisfied that there is any definition as to what constitutes “national security” or “national security interest” for these purposes?

Senator NELSON. There is none. In the past, national security has been what the users of the wiretap considered national security to be. So during the Vietnam war and during the demonstrations, the National Council of Churches was invaded by military intelligence people, and all kinds of people were spied on if they attended a demonstration where no crime was committed and where no violence occurred. For some unknown reason the government believed these people must threaten the national security. As a result they were spied on or wiretapped.

If you allow that gaping hole to exist, you have simply destroyed the intent of the fourth amendment and you have given unlimited power to the government under the statute to do wiretapping.

Mr. KASTENMEIER. Yes, what you propose to do is bring all wiretapping into a situation where a warrant is required, whatever its definition?

Senator NELSON. I think that the language of the fourth amendment is so clearly spelled out that there is absolutely no exception under any circumstances. I don't think you can leave any exception.

There should be no problem with "national security" matters because espionage and treason are in fact crimes. They are spelled out as crimes.

If some Government agency believes that there is a matter involving the security of this country which justifies a wiretap, all this proposal says and all the Constitution says is that you must go to à court. It will authorize the wiretap upon oath or affirmation show

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ing probable cause. After all, if the Government does not have to make a showing of probable cause, it has a license to spy on everybody. And there is no way to leave a little crack open without it bursting the whole dam.

Mr. KASTENMEIER. What sanction would you recommend for officials who, notwithstanding the existence of the requirement for a warrant, might nonetheless wiretap, feeling that the reason is such a compelling one that they would resort to both legal wiretapping or illegal wiretapping, similar to the "plumbers'" unit?

Senator NELSON. I don't remember what the provisions are, but that is a criminal offense.

Mr. KASTENMEIER. Do you think we ought to concern ourselves especially with government officials who conduct wiretapping unauthorized by law?

Senator NELSON. I don't think that officials are above and beyond the reach of the law. And of course, people can do things illegally and commit crimes and we may not know it. That is one of the reasons that I would want a bipartisan committee to call before it, at least annually, the head of the FBI, look at his records and put him under oath in order to be sure that he doesn't dare perjure himself. I would then call the head of the FBI in New York and Chicago and Los Angeles and put them under oath. Then next I would call the head of the FBI from Milwaukee and Miami and Houston and put them under oath so that at all times you are having a half dozen people under oath respecting the activities of that agency. Congress can thus be assured that somebody who is dishonest and in a position of power is required to testify under oath. Congress can also be assured that there will be additional testimony that might expose the dishonest agent.

I would do that with respect to military intelligence and all other intelligence. I think that gives you a pretty good guarantee.

For example there is no reason for somebody to risk going to jail for the purpose of spying on citizens participating in Earth Day ceremonies in 1970 to express their concern about the deterioration of the environment. Nor is there any reason for the Government to involve the National Council of Churches' meetings, as was testified before Senator Ervin's committee, and listen to the discussion of these very fine people who were doing nothing criminal and who happened not to like the war that we were involved in.

I don't think that anybody is going to risk going to jail in order to spy illegally upon a perfectly decent citizen, particularly since, if there is probable cause that somebody threatens the national security or probable cause that a crime is being committed or probable cause that shows some citizen is involved with a foreign agent, the court warrant would be issued.

And the reason you can't make any exception is that the exception becomes the rule.

Mr. KASTENMEIER. I take it that the scope of your bill is wiretapping, electronic surveillance? Does it also involve other surveillance, common surveillance ?

Senator NELSON. This bill is limited specifically to warrantless wiretaps.

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Mr. KASTENMEIER. Would that cover electronic eavesdropping?
Senator NELSON. Yes
Mr. KASTENMEIER. But not other forms of surveillance ?
Senator NELSON. No, not other forms of this surveillance.

Mr. KASTENMEIER. The examination conducted by the Joint Committee annually, would that be in executive session, in secret session, or would that be public?

Senator NELSON. I think the committee would have to decide that. It should probably be left up to the authority of the committee. There are obvious cases which you don't want to disclose. And really, the purpose is not to disclose for publication in the paper. The purpose is to disclose to the Congress, to the other branch, what is going on so that we are sure the law is complied with.

The details of who might have been surveilled aren't always the important thing so far as publicity is concerned. If there are violations or wholesale violations, obviously the Congress would do something about it and probably disclose it. But if it involved organized crime or things such as that, obviously they wouldn't and shouldn't.

Mr. KASTENEIER. My last question is, I take it you accept the need for wiretapping and electronic surveillance philosophically but only under conditions which you have described, that is, under warrant?

Senator Nelson. Yes, I accept what the Founding Fathers said that upon probable cause under Oath or affirmation presented to a court, that then a warrant may be issued. I think the government needs that. You need to have a neutral party deciding whether or not the Fourth Amendment to the Constitution is being complied with. And I then would want the third branch of the government do its annual oversight to be sure that the other two branches are complying with the Constitution.

Mr. KASTENMEIER. I yield to the gentleman from California, Mr. Danielson.

Mr. DANIELSON. Thank you, Mr. Chairman. And thank you, Senator Nelson. I infer from your answers to Mr. Kastenmeier's questions that you do ascribe to the provisions of the Fourth Amendment which, as I read them, at least would permit wiretapping under certain carefully defined circumstances.

In looking at your three points, the major points of the Surveillances Practices and Procedures Act, I note that you have restricted the bill to wiretapping. As I understand it, you are excluding the implantation of a microphone, for example

Senator NELSON. No, we include it.
Mr. DANIELSON. Your definitions would include that?
Senator NELSON. Yes, electronic devices of all kinds.

Mr. DANIELSON. All right. You also, however, seem to tie it only to national security reasons, or national security interests.

Senator NELSON. Pardon? I missed the first part.

Mr. DANIELSON. You seem to restrict the authorized wiretapping to national security reasons, or national security interests.

Senator NELSON. No, the other way around; this is aimed at being sure that this vague phrase "national security” doesn't except wiretaps from the provisions of the Fourth Amendment.

Mr. DANIELSON. Then you do not intend to exclude—and let me use the term here for reference "authorized wiretapping”-you do not intend to exclude wiretapping for the purpose of investigating crimes, in other words, again assuming you got the warrant issued upon probable cause and so forth?

Senator NELSON. Title III of the act and the Constitution covers crime. I wouldn't exclude anything.

Mr. DANIELSON. You say you would not exclude anything?

Senator NELSON. No. I think anything involving electronic surveillance, wiretapping—and I am using "wiretapping" in its broadest term-none of that should be excluded from the provisions of the Fourth Amendment.

Mr. DANIELSON. No, that was not the thrust of my question.
Senator Nelson. Oh, I misunderstood.

Mr. DANIELSON. Let me restate it. I would fully agree with you on that. I don't think that there is any way we can, even if we wish, get away from the Constitution, and I don't wish to.

However, on page 8 of your presentation in the next to the last and the last paragraphs, and then again on page 9, in each of your explanations you say the bill can change three principal provisions: first, before one could wiretap American citizens for national security reasons, the Government would have to obtain a judicial warrant; second, before the Government could wiretap a foreign power or its agents, it would have to obtain a warrant; and the like. And you refer to "national security” in each instance.

Do you intend by referring to “national security" to exclude the possibility of a lawful wiretapping for a nonnational security purpose ?

Let's say a felony investigation, which does not involve national security, such as an investigation of a kidnapping or extortion or bank robbery or narcotics peddling or some such thing, where would that fit into wiretapping? There is no national security involved, in other words, just criminal law.

Senator NELSON. No, they are covered in title III of the act now.

Mr. DANIELSON. In other words, you do not intend to restrict this to national security?

Senator NELSON. No, what we intend it to do is to cover what is called "national security”.

Mr. DANIELSON. Well, I favor that.
Senator NELSON. No, we do not intend it to exclude anything.

Mr. DANIELSON. I thought you meant that but I was not sure from your presentation.

Senator NELSON. Yes. Mr. DANIELSON. Thank you. Mr. KASTENMEIER. If the gentleman from California would yield ? The premise is that no one denies that for purposes of investigating a crime, a warrant is required for wiretapping. That is presently the law. The exception claimed by those in the Federal Government is in the area of national security” and a warrant is not required for certain national security matters. And Senator Nelson's bill covers that and says that in that area too, a warrant shall be required.


Mr. DANIELSON. Which I am very pleased to support. However, I can't quite agree with my chairman that no one would disagree. There are many people who feel that there should be no wiretapping almost under any circumstances, including the violations of criminal law.

Mr. KASTENMEIER. The only point I was making is that presently the law requires a warrant for any Federal or State wiretapping. The only exception claimed by the government presently is in the area of national security, and that is the purpose of Senator Nelson's bill, to make sure that that type of tap as well must be authorized by warrant; is that correct?

Senator NELSON. That is correct and that is the only issue involved here that has not been to the Supreme Court. They ruled on what is called "domestic security" and that is covered clearly.


Senator NELSON. But the assertion of the right to a warrantless wiretap as an exception to the Constitution or as not being covered by the Constitution hasn't been to the Supreme Court. I think clearly if it went there, you wouldn't need this statute. If it went there, I am sure there is no way that the Court could logically rule other than that warrantless wiretaps are in fact unconstitutional, that they are prohibited by the Fourth Amendment. But the issue hasn't gotten there and I don't know whether it will.

Mr. DANIELSON. I don't either. But you know when we pass new legislation, it always has an impact on previous legislation, and I think it is a valuable contribution to this record to make it clear.

Senator NELSON. I agree.

Mr. DANIELSON. To make it clear that you are talking only about national security and you do not intend to restrict or in any way limit the existing laws relative to nonnational security wiretapping,

Senator NELSON. You stated it exactly correctly.

Mr. DANIELSON. Which I fully agree should be governed and I hope are governed by the fourth amendment. Thank you so much. Senator

NELSON. Thank you. Mr. KASTENMEIER. I would like to recognize the gentleman from New York, Mr. Smith. And the Chair should at the outset state that we are pleased to have Mr. Smith here. The Republican members of our subcommittee are in a formal caucus on a very important issue and may be here a bit later, but in any event I am pleased the gentleman from New York could attend.

Mr. SMITH. Thank you, Mr. Chairman. Senator Nelson, thank you very much for coming here today and giving us the benefit of your testimony. You have given us a lot of food for thought and I don't have any questions, but it has been a good presentation, and thank you.

Senator NELSON. Thank you very much, Congressman.
Mr. KASTENMEIER. The gentleman from Massachusetts, Mr. Drinan.

Mr. DRINAN. Thank you very much Senator Nelson, I will reveal my biases immediately by stating that I and some others have filed a bill to abolish all wiretapping. And the preamble says this: "The chance of its misuse outweighs any potential benefits which might otherwise be found in it."

So I assume that you have concluded that Olmstead was correctly decided ?

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