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Mr. KASTENMEIER. They are comparable ?
Mr. CLEVELAND. Most of them are organized crime cases.
Mr. MILLER. The figures in my statement indicating the productivity of title III, reflect that out of 2,700 organized crime arrests, 1,700 of them were attributable to title III surveillance.
Mr. KASTENMEIER. I have just one other line of questions, and this has to do with the policies governing overhearings. What system does the Bureau have for indexing overhearings?
Are title III and national security cases treated differently?
Mr. MILLER. No. They are treated primarily the same, Mr. Kastenmeier. The indexing procedures are standard. The material is reviewed by a case agent, and he would determine what was pertinent to the situation he is investigating, and if it is pertinent then he would index it.
Indexing makes the material retrievable, as I indicated to Mr. Smith. In a legal proceeding, if the defense and usually it does, asks the FBI or the Department of Justice if the defendant or his attorney have ever been overheard on any kind of an electronic surveillance, we would be able to determine from a review of our rcords whether or not the individuals had ever been overheard. If they had then we advise the Department. The Department handles the matter in camera with the judge. If the judge feels that this information is necessary to the defendant for his defense, then the information is furnished to him.
Mr. KASTENMEIER. Thank you.
Mr. KASTENMEIER. Yes. I yield to the gentleman from Massachusetts.
Mr. DRINAN. One last question. Mr. Miller, I assume that the FBI or another agency regularly collects intelligence from foreign embassies in Washington. May I ask, on the assumption that this is done and it seems to be accepted that it is done, does another agency sometimes alert the FBI to wiretap evidence that they have acquired as to some potential crime that might be forthcoming ?
Mr. Miller. Would another agency alert us to a situation that they felt we would be interested in? They would; yes, sir. We, in the intelligence community, all of the intelligence agencies in the United States, the State Department, the CIA and so forth, cooperate very closely on intelligence matters.
Mr. DRINAN. The tap that the CIA or someone else might have on the Russian Embassy, that is not included in the number of taps that you have given to us, is it?
Mr. MILLER. Well, the CIA would notMr. DRINAN. I am sorry, some domestic agency, or would it be the FBI?
Mr. MILLER. It would be the FBI. Anything domestic would be the FBI, yes, sir.
Mr. DRINAN. And in the number of wiretaps of a quasi-permanent nature, that you mentioned, would the wiretaps to the embassies be included ?
Mr. MILLER. Well, we are talking about numbers.
Mr. DRINAN. And every 90 days I understand that somebody sends a piece of paper to the Attorney General and he approves the continuation of these wiretaps on the embassies?
Mr. MILLER. I would prefer in discussing this particular type of thing to brief you in closed session, Mr. Drinan.
Mr. DRINAN. All right. Thank you. I yield back to the chairman.
Mr. Smith. Mr. Miller, in title III wiretaps it would seem to me that once in a while some incriminating evidence against people who are outside of the court order, people who drifted into the conversation someplace would be overheard.
Are cases ever built against people who are casually overheard on an authorized wiretap?
Mr. MILLER. Let us take, for example, a court-authorized wiretap on a certain telephone instrument. Let us say it is on an illegal gambling operation. We do not know at the time that wiretap is authorized, everybody who is going to be a part of this network of crime. Now, it is entirely possible that in addition to the people whom we identify in our application as being involved in this situation, there are others involved. Part of the effect of the wiretap itself is to identify others who may be involved. So, to identify individuals who are part of the $30,000-a-day operation, it can. But, then they are handled under separate considerations in ongoing investigations. They can be drawn into the network. That is why, in many instances following one of these kinds of electronic surveillances, you will have a situation where there are 65 arrests growing out of one title III wiretap, and I am sure at the time that the thing was authorized, we did not know all of the 65 people were going to be a part of it. But, in his prosecutive opinion, the U.S. attorney feels that enough probable cause has been developed both from the wiretap. and follow-up investigation on which to base a warrant for the arrest of all of these individuals.
Mr. COHEN. Would the gentleman yield?
Glad to. Mr. COHEN. Just to elaborate a little bit further about the incidental caller or the casual caller on one of these wiretapped phones, would it be that you would continue to have this man or this woman's name in the record, however you may not use it for any prosecution of that individual at that time, but even though it was an incidental caller on an unrelated matter and even a noncriminal matter, that
caller's name as I understand it, remains in the file, and I assume you have computerized filing systems, do you not?
Mr. MILLER. No.
Mr. MILLER. We do not. Our electronic indices are not computerized. We cannot assume
Mr. COHEN. I just say that I am a little bit surprised at the lack of sophistication in the FBI systems where you do not even have equipment which is equivalent to that of CBS or NBC or ABC at your disposal nor do you have computerized records so that you can call a man's name or a woman's name up at a moment's notice to search back over your records or tapes and transcripts and so forth. I am rather amazed at that, but I am sorry. Go ahead. Why don't you
Mr. MILLER. Well, in answer to your question, I did not say we didn't have the equipment at our disposal. Certain equipment can be
sed to do certain kinds of jobs, but if the equipment is not necessary to perform a certain type of investigation then there is no real need to have the equipment. On the matter of automated indices we do not have them. We do not feel it is necessary to have them. It is not that gigantic a proposition. It can still be handled very, very easily manually.
And now, in answer to your first question—you cannot necessarily say that an incidental caller's name is going to be indexed. It may or may not be. That is a judgment on the part of the case agent. If it is the corner grocer, or the minister, or else who clearly does not have anything to do with the actual investigation, his name probably will not be indexed, but he will be on the tape which is preserved. However, for all intents and purposes his identity is not with us unless the tapes were replayed.
Mr. COHEN. Let me just go back over this to clarify the record if we could. As I understand what you are saying, the FBI does not have the sophisticated equipment at its disposal? You do not have the type of equipment that I was talking about with these zoom microphones or whatever they want to call it, the boom microphones, you do not have that!
Mr. MILLER. We do not have a need for it.
any. Mr. MILLER. I do not know that we have that equipment. I do know similar equipment is available, just like these directional football devices to listen to the signals.
Mr. COHEN. Well, the FBI does not have it in its stockpile, let us say, of information gathering devices. They are readily available on the open market to commercial networks, but you do not see the need to resort to this type of sophisticated listening device, correct?
Mr. MILLER. Yes. If it were necessary I am sure that we would.
Mr. COHEN. And therefore, you have not done so in the past and do not foresee doing so in the future?
Mr. MILLER. Well, I cannot say that we do not many of the things we hear discussed are in the technical dreaming stage, and in the
realm of, "Would it not be nice to be able to do such and such." But, we have not done that.
Mr. COHEN. The only reason I am pursuing this is because we are being called upon to draft legislation and in drafting it I want to be sure that we take into account every possibility.
Mr. MILLER. Yes.
Mr. COHEN. While sitting on another subcommittee, when one of the members of the Justice Department testified before us last week, that I asked hypothetically, if the chairman of the subcommittee were on an enemies list as someone who was hostile to a particular interest in this country, and if I had a conversation with him, or were seen socializing with him, would my name go in the file as well, and the answer was it probably would. And I suspect this is the line of questioning that is being developed here. When you have the casual caller calling up on a wiretapped phone, and records are maintained permanently, his name is on those records or in the transcripts where transcripts are made. You are building up files on incidental calls which may be used in the future. And what we are asking is, are there any limits or can we define limitations upon the proliferation of people who are under surveillance? We do not have any guidelines other than the individual judgment of the FBI agent, and we have to consider whether we can draw enforceable standards to deal with this situation.
Mr. MILLER. That is the only way thus far that we have been able to handle this situation. In drawing guidelines, you still get back to the judgment of the individual who is doing it—whether the material is pertinent or not pertinent. And please understand, these are professional people, schooled in their work, who are supposed to be able to make a determination of relevancy.
Mr. COHEN. Thank you.
Mr. KASTENMEIER. On behalf of the committee, Mr. Miller, we wish to thank you and your colleagues for appearing this morning.
These 2 hours have been very productive and you have been very patient and we appreciate the contribution you have made.
Undoubtedly there will be further need for us to get together, and we will leave that to the future. And in the meantime, the subcommittee would appreciate your fulfilling the request of the gentleman from Maine. Your response should be directed to the subcommittee.
Thank you very much for your presentation this morning.
Mr. Bender has represented clients in numerous cases involving national security electronic surveillance and wiretapping. The houris late, but nonetheless, Mr. Bender, we appreciate your appearance.
You have a prepared statement which you may read, or if you: desire, you can summarize it, either way, it is up to you.
Welcome to the subcommittee.
TESTIMONY OF WILLIAM J. BENDER, ESQ., ADMINISTRATIVE
DIRECTOR, CONSTITUTIONAL LITIGATION CLINIC, RUTGERS UNIVERSITY SCHOOL OF LAW, NEWARK, N.J.
Mr. BENDER. Thank you, Mr. Chairman. And I am sorry for my delay in arriving here this morning. I was tied up in the Monday morning airport syndrome.
I think I would begin by reading part of my statement and if it becomes laborious I will stop and then I would be glad to try and answer any questions the subcommittee may have.
First, I welcome the opportunity to appear before you today and to relate some of my experiences with electronic surveillance matters in several cases, both civil and criminal, in which I have appeared as counsel. The cases include the following: United States v. Ahmad, which was the Harrisburg Conspiracy case; United States v. Ayers, which was the SDS Conspiracy case in Detroit; In Re Dellinger, et al., a contempt case arising out of the Chicago Seven conviction; United States v. Butenko, which I am presently handling, a criminal espionage case in the district of New Jersey; United States v. United States District Court, which as we all know is now over; and Dellinger, et al., v. Mitchell, et al., a civil action in the District of Columbia arising out of the disclosure of wiretapping in the Chicago Seven Case in June of 1969. Sinclair v. Kleindeinst, and that is a civil action arising out of the disclosure in U.S. v. U.S. District Court; and McAlister, et al., v. Kleindienst, a civil action arising out of the disclosure in the Harrisburg Seven case.
I shall attempt to create a composite picture for you of the governmental abuses of first and fourth amendment and statutory rights from the public records of wiretap matters in these cases. Based on these experiences, I urge you to reject legislation which provides for so-called national security investigatory electronic surveillance of any kind in both foreign and domestic concerns. I will leave the debate on the constitutionality of prosecutorial surveillance authorized by prior judicial warrant to others. However, I do want to suggest that if the privacy guarantees of the fourth amendment are to be meaningful, the Congress must legislate meaningful administrative controls for the conduct of such prosecutorial surveillance. These controls must be implemented vigorously by the legislative branch.
Mr. KASTENMEIER. When you mention prosecutorial surveillance, you are talking strictly about criminal or Title III wiretapping!
Mr. BENDER. That is right. I am talking about that surveillance wherein the law enforcement agencies have sought permission to wiretap in order to gather evidence or the fruits of their surveillance activities to further the prosecution of crime.
Now, it strikes me that the most serious revelation in these cases I have handled has been the discovery that the Government has intentionally sought to mislead the Federal courts into believing that national security electronic surveillance was for investigatory, intelligence gathering purposes as contrasted with the prosecutorial electronic surveillance which is utilized to gather evidence. And I just want to read, if I may, some of the comments by the Assistant Atitorney General, Robert Mardian, made during the Keith case, in the