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main concern is, that, because the wiretap is a very valuable investigative technique, some effort must be made for all of us to get together on this important issue. And if some committee were set up to oversee the problem

Mr. DRINAN. This is the committee, sir. If this committee of the House does not do it, then it is not going to be done.

I find it significant that you have not mentioned the word privacy in your testimony or in the questioning. I find it disappointing that an administration whose President speaks about privacy and has appointed a Commission on Privacy, can come forward represented by the Department of Justice and the FBI who have totally rejected every legislative proposal to correct the abuse of wiretapping and electronic surveillance, have made some vague suggestion that maybe in the future you may come forward with a bill, but that is not very helpful to this committee. I thank you for coming.

Mr. KASTENMEIER. The gentleman from Maine, Mr. Cohen.
Mr. COHEN. Thank you, Mr. Chairman.

Mr. Miller, as you can understand, we are very concerned about the serious overtones and implications of wiretaps, also with defining the role of the FBI in solving crime, and as I think you indicated, in preventing it. I, like my colleague, Mr. Drinan, have had some experience in teaching criminal law, and as I recall, two things are necessary for crime. One is the mens rea, which is the criminal mind, and the other is the overt act. You get into a very difficult situation when people are just talking about committing a crime and not actually engaging in any overt act to carry it out. This raises in my mind certain Orwellian nightmares about police when the FBI or some other Federal agency tries to determine what people are thinking about or talking about when they have engaged in an overt act. And so, we are very cautious on this committee, as we should be, with our Constitution. We must make sure that the line is strictly drawn between legitimate dissent and the talk of revolution. We are trying to determine what standards have been applied in the past and what kind of a protection can we give to the people of this country.

I think the air, as you have indicated in your statement, has been permeated with a sense of distrust and cynicism about this Government, and there is a great deal of apprehension. And I guess from your statement this is based upon something more imaginary than real, if what you were saying is correct.

I also was interested in your statement in that in the domestic surveillance area you become concerned with bomb throwers and, of course, you may have noticed in the paper, several members of this committee have been accused of being bomb throwers of sorts, and have expressed some apprehension and anxiety that their own offices are being wiretapped. I assume that there is no basis for their fear or apprehension that members of the Judiciary Committee would be wiretapped under the domestic surveillance rationale merely on account of the views that they express? Is that correct?

Mr. MILLER. Certainly not.

Mr. COHEN. We are dealing with wiretaps specifically under this law, but electronic surveillance takes in a great deal more than simply the wiretap, does it not? And I would assume the FBI has at its disposal a number of very sophisticated devices which do not involve tapping wires or even tape recordings, but devices which are capable of picking up conversations at the end of the room,

in another room, without the knowledge of the participants. Does it not?

Mr. MILLER. Well, when you talk about sophisticated devices, I know that there are—from å drawing board standpoint there are probably a lot of things we would like to do that we are not capable of doing. I think in the electronics area much credit has been given to our investigative and intelligence agencies for capabilities that do not exist.

Mr. Cohen. For example, would the FBI have in its possession devices which could be pointed, let us say, at the far corner of this room to pick up a conversation taking place at the end of this room?

Mr. MILLER. You are talking about devices similar to those that they have in professional football games where they listen to the signals of the people? Mr. COHEN. Right. Mr. MILLER. Those devices are conceivable.

Mr. COHEN. Not conceivable. Do you have them, and do you use them?

Mr. MULLER. I do not have the technical capability to discuss our state of the art.

Mr. COHEN. I guess what I am trying to get at might fall beyond the range of our general discussion about wiretapping, someone putting a physical interceptor on a telephone wire, but what I am talking about is this whole realm of investigation of privacy, the Government trying to prevent crime from taking place. Do we have the type of sophistication that would simply pick up conversations? It is readily available to CBS, NBC, and ABC, and I assume the FBI must have similar devices.

Is that correct?

Mr. MILLER. As I say, I do not know what our state of the art is in that particular area. What I can say is this: If we were using any kind of a device like that, then I most certainly would be asked for the authority or permission to use it. I have never been asked by anyone to use that kind of a listening device. We just do not use them. We do not see the necessity for it in a one to one situation where we would have a desire to know what one of the people is talking about. For example, one of the most vicious crimes that we have in the United States today is the extortionate credit situation whereby the time the case comes to us, the victim, in his own mind, feels he is heading towards his last few days. Now, in a situation like that, the best-kind of a device that we would use would be a consensual monitoring of a telephone, and the other would be a body recorder on the victim. Now, rather than trying to go out to some meeting place and aim something at a group, we would take this other route instead. It is a far more effective investigation technique than the kind of a listening device you describe.

Mr. COHEN. Then is it fair to say that

Mr. MILLER. If we have them we do not use them, and I do not even know that we have them.

Mr. COHEN. Is it fair to say that you do not think you have any such device, but if you did it has never been used to your knowledge, or to the knowledge of any of your associates in the field of domestic or foreign intelligence? Is that correct?

Mr. MILLER. Yes.

Mr. COHEN. I am inquiring, here, because it does not seem to be specifically covered by our general discussion of wiretapping when we are not dealing with the wire itself, and I was interested in your statement that people who might be listening in or overhearing conversations at some point make the subjective judgment as to which conversation may stay in or be deleted.

For example, I think you mentioned in discussing the attorney, client situation that someone could be overhearing a conversation and would recognize a voice as the attorney for the Chicago Seven or someone and, therefore, the monitor would be turned off. And I am just wondering from a technical point of view how you gather this information? I assume it is on tape recordings?

Mr. MILLER. Yes.
Mr. COHEN. Are they then transcribed ?
Mr. MILLER. In part.

The pertinent portions are transcribed, but all the conversation is available.

Mr. COHEN. This carries significant overtones in other areas with which you may be familiar. Are they edited, for example?

Mr. MILLER. There is a particular purpose for every wiretapping situation. Portions of intercepted telephone conversations pertinent to a subsequent trial or presentation of facts to the U.S. attorney are transcribed from the tape. The whole tape is maintained. We maintain the tape, and that tape can be replayed to see what it does have on it at any time, but only the pertinent portions are originally transcribed. There may be "Bring home a dozen eggs" types of situations which would not be pertinent, and these are not transcribed.

Mr. COHEN. Well, as I understand it then, the FBI does try to maintain a very strict adherence to confidentiality, the right of privacy, and the recognition of certain privileges such as the attorney-client privilege? How about physician-patient privilege?

Mr. MILLER. The same. Any kind of a privileged situation.

Mr. COHEN. So that what would apply too, for example, to the Ellsberg situation, Ellsberg-Fielding, that would be a private conversation between a doctor and his patient, which would not be of interest to the FBI or anyone in trying to determine what Mr. Ellsberg is saying to his doctor, is that correct?

Mr. MILLER. Yes, that is correct. We did not have a wiretap on Mr. Ellsberg

Mr. Cohen. And had you had a wiretap on Mr. Ellsberg, or possibly his physician, any information that had been relayed or related by Ellsberg to his physician would have been deleted or simply not monitored?

Mr. MILLER. Well, we did not have one.

My guess would have been, that the agent who was doing the monitoring would have considered that a privileged situation.

Mr. COHEN. Would it have been the judgment of the FBI that it would have been illegal to monitor that conversation, or simply a recognition of a privilege?

I mean, is it not just as much of interest to you in investigating espionage, or foreign intelligence or domestic intelligence cases, as to what that person under suspicion might be saying to his doctor or his lawyer?

Mr. MILLER. Well, there you get into a matter of judgment. If it were an espionage case—if á spy were talking to his doctor-prosecution in that situation would generally not be your end goal; however, if prosecution were the thing that you had hoped for or had in mind, and the intercepted conversation went to the heart of the case, the agent may well go ahead and record the conversation, but then notify the United States Attorney so that whatever necessary precautions to preserve prosecutable case could be taken. For example, sometimes in a title III case, conversation may be recorded and just before the conversation is terminated the identity of the parties becomes known to the agent. But, there it is already recorded; then, we go to the U.S. attorney and explain what happened and the U.S. attorney will generally say seal it. And that is how it is handled where there is an accidental overhearing of a privileged conversation.

Mr. COHEN. But as a matter of policy though, the FBI would never engage in wiretap or electronic surveillance of conversations between an attorney and client or doctor and patient? Is that a fair statement?

Mr. MILLER. Well, when you put the word never in there-we would not want to do it, unless the facts and circumstances of the situation were such that would

Mr. COHEN. To your knowledge has it been done?
Without getting into the specifics.
Mr. MILLER. No, I do not know of any case.

Mr. COHEN. What percentage of the requests for permission to apply for a court ordered surveillance are disapproved by the Criminal Division of the Justice Department?

Mr. MILLER. By the Criminal Division ?

Mr. CLEVELAND. We had 112 court orders in 1973, and there were 28 additional ones turned down by the Department of Justice.

Mr. COHEN. 28 requests?
Mr. CLEVELAND. Yes, 28 were turned down; 112 were approved.

Mr. COHEN. Just a couple more questions, and I suspect that you do not have all of the answers. But, if you do I would like to have them for the record and if not, perhaps you can furnish them at a later time. But, how many of the wiretaps- I would like to go through the tests that have been used by the Supreme Court-are related to protecting the Nation against actual or potential attack, or other hostile acts of a foreign power? That would be one category I guess you would have some wiretaps. Second, to obtain foreign intelligence information deemed essential to the security of the United States. Third, to protect national security information against foreign intelligence activities. Fourth, protecting the United States against overthrow of government by force or other unlawful means, and, five, against any other clear and present danger to the structure or existence of government. Would you be able to give us a breakdown on those ? Not now, but at some other time?

Mr. MILLER. As I indicated, the answer to some of those questions most certainly can be furnished.

Mr. COHEN. Thank you very much.

Mr. KASTENMEIER. May I inquire of the gentleman from Maine, and perhaps Mr. Miller as well, with regard to the five categories you gave, which seemed very useful, are these identifiable categories that are actually used ?

Mr. Coxen. These are the tests that are used by the court under the act, I believe.

Mr. MILLER. Yes.

Mr. COHEN. I believe that three and four are probably negated by the Keith decision, but I would still like to have the information.

Mr. MILLER. Yes.

Mr. KASTENMEIER. Incidentally, amplifying the gentleman from Maine's question, what percentage of all taps conducted or authorized by the Bureau involve investigation under criminal statutes versus either counterintelligence or foreign intelligence gathering, or what would have been domestic intelligence gathering?

Mr. MILLER. All title III surveillances are criminal.
Mr. KASTENMEIER. Yes.
Mr. MILLER. Every one of them.

Mr. KASTENMEIER. Right. And how many Federal warranted wiretaps are there versus warrantless taps?

Mr. MILLER. Well now, we are talking about numbers again and the number that Mr. Peterson gave you yesterday would be our response. Does thalt

Mr. KASTENMEIER. I do not recall. I think there are numbers that were available for a certain class. Actually, I was asking only for a ballpark response in terms of the substantial majority of taps conducted. Are the substantial majority of taps conducted under title III?

Mr. MILLER. Well, I think Mr. Cleveland said 112 were authorized in 1973. Now, these generally would be wiretaps which were on for a period of only a few days. In the other area, intelligence gathering, as Mr. Decker indicated some of these would have been employed for a period of quite some time, so it is difficult to compare the use of title III wiretaps with the use of warrantless wiretaps for national security purposes, because they are really two different animals. Incidentally, all of the wiretaps in the national security area are submitted to the Attorney General every 90 days for reauthorization.

Mr. KASTENMEIER. It may be more productive to try to get the figures from the Attorney General on that question.

Let me ask you then, is there more activity in terms of wiretapping and electronic surveillance, in the title III area than in the area

outside of title III? I'm talking about authorized areas in the Federal System?

Mr. MILLER. Are there more in the title III area than in the nontitle III area?

Mr. KASTENMEIER. Right.
Mr. MILLER. I would say that they are generally comparable.

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