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 evidenceare 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 becausethere 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

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:

For

"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. 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 approve 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 Randazzoand 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 incriminating 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.

H.R. 9815 (ALSO INTRODUCED AS H.R. 11629)

The heart of H.R. 9815 is a prohibition against any civil officer of the United States or officer of the United States Armed Forces from employing any part of the United States Armed Forces or any State militia "to conduct investigations and to maintain surveillances over, or record or maintain information regarding, the beliefs, associations, or political activities" of non-Armed Forces personnel or members of any civilian organization.

I assure the Subcommittee that the FBI does not utilize military personnel in its domestic internal security investigations.

However, H.R. 9815 presents serious difficulties for our current practices, and our continuing investigative needs, in the foreign counterintelligence area. This is a matter which must be reserved for executive session.

H.R. 9949

H.R. 9949 seeks to amend 18 U.S.C. 2511 (3) by adding the following sentence:

"Nothing contained in this paragraph shall be deemed to authorize the President, or anyone acting or purporting to act on his behalf to engage in burglary or any other illegal act that is not prohibited by this chapter." Section 2 provides that nothing previously enacted or hereafter to be enacted by Congress shall authorize the President to engage in burglary or any other illegal act without express statutory authorization of Congress.

H.R. 9949 merely bolsters the interpretation that 18 U.S.C. 2511 (3) was merely Congress's disclaimer that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 did not in any way affect constitutional Presidential powers.

The bill neither adds to nor detracts from constitutional Presidential powers to conduct foreign affairs; to preserve, protect, and defend the Constitution; and to protect the States against invasion.

H.R. 9949 seeks merely to make it clear that 18 U.S.C. 2511(3) cannot be cited as any type of congressional authority for Presidential action.

As such, the FBI has no comment on the bill, since it does not affect current FBI operations. However, while the FBI also interprets 18 U.S.C. 2511(3) as congressional disclaimer of any intent to affect, i.e., to expand, restrict or define Presidential powers, we do, when requesting approval from the Attorney General for foreign counterintelligence electronic surveillances. cite the areas of Presidential powers enumerated in 18 U.S.C. 2511 (3) as an indication that Congress, and the people, do feel there are constitutional Presidential powers in these general areas.

H.R. 11838

H.R. 11838 seeks to amend 18 U.S.C. 2516(1) and (2) by eliminating the provision for an "emergency" electronic surveillance permitted under 18 U.S.C. 2518 (7). 18 U.S.C. 2518 (7) permits an electronic surveillance to be installed without prior court approval in an emergency situation, provided that court approval is subsequently obtained within 48 hours.

H.R. 11838 avoids the tack of attempting to repeal 18 U.S.C. 2518(7) by amending 18 U.S.C. 2516(1) and (2) so that these subsections can only be read as requiring prior judicial approval of electronic surveillances in all

cases.

As an indication of the discretion with which the FBI utilizes Title III electronic surveillances. I point out that the FBI has never used the emergency provision of Section 2518(7); however, this is merely to emphasize that we recognize the sensitivity of such a provision, and to refute the notion that if Congress gives the Executive an exception it will make the exception the rule.

Although we have never used the emergency provision, I resist its revocation. Congress has recognized that in unique serious situations in which urgency does not allow for the pre-surveillance warrant procedure the Executive should have the means to utilize a surveillance.

If restrictions on consensual monitoring are effected, I can foresee where we would be forced to utilize the emergency provision in many kidnaping, extortion, and perhaps organized crime cases.

H.R. 13825

H.R. 13825 presents both constitutional and practical problems. In general, the constitutional problem presented is that the bill would have Congress define and regulate powers and actions of the President in areas which have heretofore been referred to as constitutional. The question is then whether these powers are, in fact, constitutional, and if so, Congress would apparently have no authority to legislate in those areas.

The practical problems presented apparently stem from a lack of understanding of how foreign intelligence services operate in the United States; how electronic surveillance is utilized in this area; and how use of the technique is now controlled.

The bill specifically tells the President whom he may subject to electronic surveillance in taking actions he deems necessary to protect the Nation against hostile acts of a foreign power, or to obtain essential foreign intelligence information, or to protect national security information against foreign intelligence activities. Under the bill, the President may only employ electronic surveillance against "foreign agents," whom the bill defines as any person who is not an American citizen or in the process of becoming an American citizen and whose first allegiance is to a foreign power and whose activities are intended to serve the interest of that foreign power and to undermine the security of the United States."

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The bill tells the President how he is to implement an electronic surveillance against a "foreign agent" by referring him to a new provision of Section 2518A which embodies a lesser standard of proof than "probable cause to believe a crime has been or is about to be committed."

The bill deletes that provision of Section 2511(3) which exempted from Title III of the Omnibus Crime Control and Safe Streets Act of 1968 those actions as regards electronic surveillance taken by the President ". . . to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government." This deletion, in essence, forces the President into the current provisions of Title III as regards electronic surveillance in all national security cases involving United States citizens. The bill amends Section 2511 (3) to prohibit the contents of any communication of a "foreign agent" intercepted pursuant to a warrant issued in accordance with Section 2518A from being used as evidence in a court proceeding, except civil proceedings against "foreign agents." Although the legislative policy behind the "civil proceedings" clause of this provision is obscure, the evident purpose of this section is to insure that no individual, whether a "foreign agent" or not, is deprived of his liberty on the basis of information obtained during an interception of communications in a case wherein the lesser standards of probable cause of 18 U.S.C. 2518A had been employed to secure the warrant.

Recently, the Supreme Court, in United States v. United States District Court (407 U.S. 297 (1972), commonly referred to as the Keith case, noting that Congress specifically disclaimed any effect on the constitutional powers of the President in Title III, observed that Congress might wish to prescribe protective standards for domestic security surveillances which would differ from standards already prescribed for Title III criminal surveillances. The court commented that different standards for the two kinds of surveillances "may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."

H.R. 13825 evades the difficult questions presented by the distinctive character of intelligence investigations in the determination of the "balance-point" at which certain intrusions into privacy incident to intelligence collection are outweighed by the public benefits to be gained. The bill does this by transposing the "probable cause" standard of the Fourth Amendment as it pertains to the commission of a crime into the field of pre-crime, intelligence investigation as it relates to electronic surveillance of United States citizens.

It appears that H.R. 13825's wholesale transposition of Fourth Amendment criminal law standards pertaining to "probable cause" negatively affects the authority of the President to meet a foreign intelligence threat in at least two ways: (1) It has forced the adoption of an impractical definition of

"foreign agent." This result has occurred because transposition of Fourth Amendment standards requires that the bill define those individuals whom the President has power to defend the Nation against as being non-United States citizens in every instance. In many cases, agents of foreign intelligence services are American citizens. (2) By excluding from trial all evidence obtained from an electronic surveillanec unless obtained under a warrant based on probable cause that a crime had been or was about to be committed, H.R. 13825 would probably preclude use of information obtained from an intercept conducted with a judicial warrant, under the Section 2511 (3) constitutional presidential powers provision, in the prosecution of a foreign intelligence officer who did not possess diplomatic immunity. In many cases electronic surveillance of known intelligence officers is conducted without probable cause, in the traditional criminal law understanding of that term, but it eventually produces evidence of intelligence gathering in violation of criminal laws.

Section 2518A (2) requires that application for a court order authorizing an intercept against either a "foreign agent" (under Section 2511(3)) or a United States citizen (under Section 2516A) must furnish "evidence" that the intercept shall serve one of the purposes of these two sections. In the foreign counterintelligence field this requirement presnts significant difficulties. Discussion in this area has to be reserved for executive session.

Subsection 2518A (8) provides that anyone whose communications are intercepted pursuant to Section 2516A be furnished copies of the affidavits, the order, and relevant transcripts within thirty days. Although this provision excepts intercepts against "foreign agents" under subsection 2511 (3) its value is nullified by the requirement that the intercept would have to be disclosed to anyone intercepted in communication with the targeted "foreign agent."

Prior to considering specific restraints, or conversely, grants of additional authority whether pertaining to interceptions of communications or other investigative techniques, it appears necessary for Congress to first give full and careful consideration to what it desires the FBI's function to be, particu larly in the intelligence area. Only in this manner can we resolve the inconsistency between what the FBI views as its legitimate and mandated objectives, and the limitations being considered on our practices to attain those objectives. Mr. KASTENMEIER. You are correct in stating that the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance will begin operations shortly. Our first meeting, and I am a member of that Commission, will be May 9. But, as so often happens with regard to subjects of national concern, the exigency of the situation tends to outrun the time required for the Commission's study. For example, the National Commission on Pornography and Obscenity was still deliberating when this subcommittee was called upon to consider legislation. We did not have the benefit of its final work product.

In any event, whatever legislative activity is undertaken by the Congress, in the field of wiretapping, the work of the Commission will be beneficial, and many of us have high hopes for it.

Has compliance with title III, posed any extraordinary difficulties for the Bureau since 1968 ?

Mr. MILLER. After the legislation was passed, we had studied the procedures, we felt-and I think Mr. Cleveland will support thiswe felt that it was necessary for us to conduct extremely tight-knit, detailed investigations to develop sufficient probable cause to support a title III application. We felt that our probable cause statement and our applications for title III surveillances had to be highly detailed. We approached the problem with all sincerity, because we knew that we were in a sensitive area. We recognized the title III surveillance immediately as an extremely valuable tool for law