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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 eridence 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.
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 Thearing 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 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 carphones on his head, and a tape recorder in front of him, and a radio microphone by his side, and he overhears a conversation concerning 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?
Mr. BENDER. The difficulty is that after the fact there is no real way of enforcing such requirement. After the fact you are taking testimony on cross-examination from agents in a taint hearing and the agents are attempting to show, to sustain the governmental burden that the government has an independent source for its evidence, and it is in the adversary proceeding where one party is trying to save the case; namely, the government, and the other party, the defendant, is trying to kill the case by either finding taint throughout the investigation, or taint of particular trial evidence. So, I do not think in these circumstances the adversary system is necessarily the best way of regularizing the conduct.
It is no secret that there are virtually no reported cases where federal courts have found taint following electronic surveillance, and when one contrasts that fact with the experience of finding taint in the whole other realm of violations of the fourth amendment, I find it somewhat astounding. I do not believe, by the way, that it is the product of there being no taint. I think it is the product of a system which is clandestine in nature, and where the facts are controlled by the agents engaging in the illegality in the first place.
Mr. DRINAx. Thank you. I yield back the Chair to Mr. Kastenmcier.
Mr. KASTENMEIER. Mr. Bender, did you want to continue !
Mr. BENDER. Yes. Let me pick up with a few sections of my statement, and I will make myself available to the committee for questions. I am looking at page 6 now in the middle of the page.
Interim disclosures by the government in the Ayers case, that is the SDS Conspiracy case in Detroit, reveal the enormity of some of these problems and the difficulty of getting at the truth in the context of a criminal prosecution suppression proceeding.
United States v. Ayers, No. 48104, U.S. District Court, Eastern District of Michigan, Southern Division, was a conspiracy prosecution of the Weathermen faction of the Students for a Democratic Society; the case was dismissed by the court on October 15, 1973.
The Government moved to dismiss this case because of its unwillingness to suffer the revelation of the identity in adversary hearings ordered by the court of an agency that had admittedly conducted some of the illegal surveillance activities.
However, pursuant to an interim order on June 4, 1973 by Hon. Damon J. Keith for disclosure of illegal electronic surveillance, the Government turned over to the defendants 3,000 pages of transcripts of telephone conversations covering eight months of surveillance. And these were surveillances where the government conceded that the defendants had standing and othrwise were entitled to disclosure following the Opinion of the Supreme Court in U.S. v. U.S. District Court. However, the Government asserted that these transcripts represented full compliance with the interim disclosure; namely, those surveillances covered by Keith. Although the judge reserved decision as to whether or not the defendants had standing to receive summary logs of the overhearings made during this time period, in the large carton with the 3,000 pages of transcripts, and we inspected those logs prior to returning them to the government, an inspection of these logs by the defendants indicated that the Government was either unwilling or unable to comply with the interim disclosure order concerning surveillance even where illegality and standing were conceded. The logs listed 500 overhearings during the 12-day period; in the 500 overhearings 239 parties were listed as "unidentified” by the government. Upon inspection, defendants were able to determine that a number of these unidentified overhearings were of the defendants themselves and at least eight were of their attorneys. In each of these instances, no transcripts of the illegal overhearings were provided by the government to the defendants.
Now, in the ensuing proceeding, we debated with the government the numbers of our projections as to the size of this problem. We estimated that at any time the Government was unable to formally identify for record keeping purposes one-half of the participants. The Government said that our arithmetic was somewhat overblown and it was more like 10 to 20 percent, at which point we said we will concede that it is only 10 to 20 percent, and in a criminal case it makes absolutely no difference. The Government has got to disclose all instances of Hegal overhearings pursuant to Alderman v. United States, and it has created a system, a record keeping and disclosure. system, which is designed to do, or at least accomplishes, exactly the opposite.
În the Ahmad case, also in the Ayers case, and I am looking now at page 9 at the bottom, we began to flush out some of the mechanics of how this system fails in its disclosure responsibility.
In the Ahmad or Harrisburg conspiracy case the tentative determination of the participation of Sister McAlister on the calls was surmised by the Government by reference to the telephone numbers that they were called by the subject of the surveillance [T.12], namely the number of the convent where Sister McAlister then resided along with other nuns. However, no effort was made to identify the voice of any person calling into the tapped location during the course of the surveillance or afterward [T.14]. Unless a full name was mentioned in the course of a tapped conversation, the only means of identification was by way of the name of the phone service subscriber to whom the intercepted call was made (T.14]. FBI Agent Smith recognized that often in phone conversations, a full name is not used. So, even in the case where the Government made disclosure, they were unwilling to make the formal assertion of identification. Now, this is not to say that when agents are monitoring a live tape recorder in front of them, and they have earphones on their head, and a microphone with which they can communicate with an agent in the field, that they do not indulge in the luxury of tentative identification. With the agent investigating Sister McAlister in the Harrisburg case, he hears somebody who he thinks is Sister McAlister say "I am going to the airport and meet so and so", and although he cannot say this is Sister Elizabeth McAlister, he does pick up his microphone and direct a field agent to get out to the airport and see if McAlister shows up. But, then, in concluding the sunmary log, because I do not have the full name or the ability to make a meaningful identification, he just might write down "Liz, last name unknown”, or a phonetic spelling of a name, or “unidentified call placed, unidentified person”. And he may not even bother