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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. Ön 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 verypatient 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. MILLER. Thank you, sir.

Mr. KASTENMEIER. Next the Chair would like to call Mr. William Bender, director of the Constitutional Litigation Clinic at Rutgers University School of Law in Newark, N.J.

Mr. Bender has represented clients in numerous cases involvingnational 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. KASTEN MEIER. 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 Attorney General, Robert Mardian, made during the Keith case, in the

U.S. v. U.S. District Court case, which are typical of the comments made in the dozens of cases that I am aware of, and all of the cases in which I have been involved. And then I want to point out, if I can, the stone cold reality of what has gone on in these cases, because it is here where I believe one of the largest abuses is to be found. Mr. Mardian put it thusly:

This gathering of information is not undertaken for prosecution of criminal acts, but rather to obtain the intelligence data deemed essential to protect the national security. (Government's Brief, at 16)

Mardian added:

We stress once again that, in conducting such national security surveillances, the Attorney-General is gathering intelligence information for the President, not obtaining evidence for use in criminal prosecution. (Id, at 19)

Moreover, unlike the traditional searches made pursuant to warrant that magistrates issue upon a showing of probable cause, national security surveillances are not designed to obtain facts needed in a criminal investigation, but to obtain intelligence information.

Mr. KASTENMEIER. If it is agreeable to you, Mr. Bender, we will have a 10 minute break so that members of the committee can answer a quorum call on the floor, and we will return directly and resume at 12:25.

Mr. BENDER. I am at your disposal.

Mr. KASTENMEIER. At this time the committee will be in recess. [Short break.]

Mr. DRINAN [presiding]. Would the meeting please come to order. I am happy to resume this hearing and to ask Mr. Bender, in the absence of the Chairman, to proceed.

Mr. BENDER. Thank you, Mr. Drinan.

When the Keith case finally reached the stage of oral argument before the Supreme Court, Assistant Attorney General Mardian again asserted that the case was not one, "where electronic surveillance was authorized for the purpose of obtaining prosecutive evidence in a criminal proceeding" or a case "where the defendant was the target of the electronic surveillance which was authorized."

I have quoted at length in my statement from the continuing assertions in the same vein, and I will not read them all into the record here. But, the point was clearly and simply made. I think the important thing for this committee to realize is this argument was universally made in all the cases, both foreign and domestic, where the Nixon administration chose to admit to electronic surveillance in recent criminal cases and submit the legality claim to the test in litigation. For example, before the trial the Government in Ahmad, "admitted to what *** [it] believe[d] are probably conversations of Sister Elizabeth McAlister, one of the defendants in this case," and conversations having been overheard in a national security electronic surveillance authorized by the Attorney General of the United States [hearing of May 24, 1971, pp. 56-57]. The Government steadfastly maintained from the outset that the overhearing of Sister McAlister was inadvertant, having nothing to do with furthering the prosecution of its case and having no relationship to trial evidence [T.78]. The Government's earlier representations, that whatever illegal electronic surveillance-of the so-called national security variety-it

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may have conducted was only for intelligence data gathering, were promptly contradicted. FBI agent Smith, who initiated the request for the surveillance in question [Hearing of May 2, 1972, partial transcript p. 31], and then supervised the surveillance operation [T. 36], testified in direct opposition to the prior representations of the Government attorneys; and almost the first words out of his mouth were very clearly and unequivocally stated; the surveillance was conducted to gather evidence to further the prosecution in this case [T. 24, 45, 47].

The same can be said for the Ayers case, and I have set forth some of those facts in the statement.

Now, after almost 5 years of civil litigation in the Dellinger case, which I cite on the first page of the statement, the Government has turned over the requests for surveillance of the national security variety and authorizations for those surveillances wherein the Chicago Seven defendants were heard, and other specific organizations that were parties to the litigation.

I am bound by a protective order not to reveal the contents of those documents before this committee. However, I want to strongly urge that before this committee considers any specific legislation that it take up Mr. Miller of the FBI and the Department officials on their offer, and in Executive session ask for and examine those documents. The actual inter-departmental correspondence on specific surveillances, which I have seen, all the surveillances I have seen, contain references to the intention of using the surveillance for prosecutive purposes. The specific crimes which were sought to be investigated and the person to be investigated, and the prosecution to be mounted, are all set forth in infinite detail, and I would suggest as strongly as I know how, that you ask for and examine this documentation.

What I am suggesting is that the claim of investigatory surveillance is a ruse, and it is a ruse which the Government used in order to attempt to win the power which the court repudiated in U.S. v. U.S. District Court, and which it again is bringing before this Congress with regard to the foreign security surveillances to which some of the legislation before this committee refers. And I would suggest that this committee has got to pierce the claims in both areas if this legislation is going to be meaningful.

Mr. DRINAN. Mr. Bender, if I may follow up on that for a moment. If we do not have the votes for the total abolition of this type of surveillance, how can we regulate it?

Mr. BENDER. Well, I believe you have to regulate the process by which the agents conduct all surveillance. In other words, specific records have to be designated by the legislation, and what the agent does, by way of requesting an authorization, how the authorization comes back, and then how the delegation to conduct the tap is made, has got to be specified by the legislation in specific detail, and then what the agents do when they conduct their surveillance has got to be memoralized in specified writing. So, for example, the following cannot occur: An agent conducting a national security tap sits with earphones on his head, and a tape recorder in front of him, and a radio microphone by his side, and he overhears a conversation con

cerning a criminal transaction. And he has the capability of directing agents in the field to take investigatory action based on what he has heard over the tap. Thereafter, he may or may not make a cut on the tape or contemporaneously make an entry in a log or send out a formal lead through an airtel. But, the fact of the violation of privacy has already occurred, and then after the fact, in the criminal case or in a civil case, when it is attempted to put it all back together again, it is almost an impossible task because the whole record keeping system has been designed to obliterate, at least in terms of criminal process, the critical violation. So, I would suggest that you have to have a housekeeping committee of the Congress, of the House or of the Senate Judiciary Committees, and that the activities of the agents conducting all surveillance has got to be scrutinized, subjected to periodic review, and the legislation ought to specify that if any agent transgresses from the prescribed train of events, does not use the forms, does not specify the requisite information on the memoranda, then he loses his job.

And that has got to be an offense, and I believe whatever the legislation is, that is the only way to ensure that in the administration of legislation there will not be any abuse.

Mr. DRINAN. Mr. Bender, do any of the bills under consideration, mentioned in the opening of your statement, approximate what you are suggesting now?

Mr. BENDER. I have not seen that in any of the legislation that is before this committee now, and I am suggesting it as an addition.

Now, I do not want to be understood to suggest that I am in favor of bills which authorize surveillance. I am not. But, if we are dealing in the practical world where either a version of Title III surveillance for prosecutive purposes, or a version of a bill allowing for investigatory surveillance in the foreign area is to be provided for, then to make the guarantee reasonable, we have to close the loopholes and find a way of regularizing the conduct of the officials who administer the legislation.

Mr. DRINAN. Mr. Kastenmeier's bill attempts to do that by restricting the number of days that the wiretap can be installed, and Mr. Kastenmeier can speak to that, but I think that is an approach, that it is 15 days and then it follows to 10 days on the renewal. Now, do you think that that is a welcome approach to stopping this openended surveillance, as they were talking about this morning?

Mr. BENDER. Absolutely. I would limit it as to time and I would limit it as to scope and direction. And it would also have to regularize what happens during the 15 days so as to be meaningful.

Now, this is not to suggest that the only problem flowing from electronic surveillance is the problem of tainted evidence in a criminal case. Not so at all. The invasion of constitutional privacy occurs whenever the overhearing takes place, and somebody else hears someone else's thoughts or words. But, the window into the problem that I have seen is when the government chooses to admit to electronic surveillance in the criminal case and that is

Mr. DRINAN. If the Congress is unable or unwilling to establish all of those specified limits that you suggest, could the courts do it?

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