As to the suggestion that there has been no surveillance following district court, I would point this committee toward the hearings undertaken in Minneapolis or was it St. Paul, within the last several weeks arising out of Wounded Knee, where they are now about 5,000 pages of court transcript demonstrating an effort by the FBI to wiretap the Wounded Knee participants during the negotiations that took place in the Wounded Knee enclave. And the court has determined that those surveillances were illegal and has ordered they be suppressed, and not be used in the ensuing prosecution.

I know of no other examples by the way but I do know of that one and the committee may want to inquire into it specifically.

Mr. KASTENMEIER. I have many other questions I would like to ask of you, and perhaps we can continue our dialog at another time. These are only the opening hearings on the subject of wiretapping and electronic surveillance. We are not really prepared to consider legislation without at least another set of hearings which will be more refined based on these 3 days which have been largely to inform ourselves of the question and try to understand its dimensions. In any event I would like now to yield to my colleague from New York, Mr. Smith.

Mr. SMITH. Thank you, Mr. Chairman. Thank you Mr. Bender, for giving us a very interesting statement from the background of your extensive experience with this problem.

I take it you feel, and I think you said, that you do not feel there should be any domestic intelligence surveillance.

Mr. BENDER. That is correct.

Mr. SMITH. Of course if there is no domestic intelligence surveillance the big problem comes, of course, in squaring that with the constitutional guarantee of privacy. And here, of course, you come into the old argument and the ongoing argument of the right of the individual as against the ultimate welfare of the Nation, if anybody can ever make decisions in that regard.

For instance, the problem that we have, the problem that the Congress would have, the problem the people of the country would have, would be we have always felt in this country that differing opinions were perfectly valid and legal, and that even a change of government, if it be done by the ballot instead of the bullet was legitimate. And that is what this country is about. But, an overthrow of the Government by violent and revolutionary means was not contemplated in the Constitution and the feeling has been, of course, all along that the Government ought to be able to protect itself against that kind of activity. The difficulty is who is to say when there is or might be that kind of activity and when there is activity that is protected by the Constitution. And do you see any means which we could devise to protect the Government of the United States against violent overthrow while preserving the rights of the individual under the Constitution?

Mr. BENDER. The Congress grappled with this problem in enacting title III. And in those circumstances where an act of sabotage or treason or the like is about to or has occurred and there is a probable cause to get a warrant, the Justice Department can apply to the court and get a prior judicial warrant, as the fourth amendment re

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quires, authorizing the search and there is even the emergency provision in title III which allows the Department of Justice to act 48 hours in advance of going before a judge to conduct a surveillance

Now, I find it interesting that the 48-hour emergency provision, at least as I understood Mr. Miller's testimony, and from my own experience in this field, never has been utilized. The Government has rather chosen to go the route of intelligence gathering.

I have difficulties with some aspects of title III as administered. But, assuming its constitutionality, and the courts have found it to be constitutional, it seems to be a much safer way to strike the balance that you are talking about; that is, the balance between privacy and the need for the Government to protect its citizenry.

That is, when crimes are or are about to be committed, you get a warrant, and the separation of powers is fulfilled. A judicial officer stands between the zealous prosecutor and the accused and the rights are protected in the constituitonal fashion. I know of no way to answer your specific question where a grant of power to protect the national security could be made and not abused by virtue of its own weak and sweeping definition. I have hoped that we have learned as a Nation in the last 3 years, the danger where national security has been called out to justify some of the most horrendous abuses I believe, by a wide variety of people.

Mr. SMITH. Well, I tend to agree with you, Mr. Bender, in that I cannot see why a proceeding under title III, for instance, in socalled domestic intelligence cases where crime is about to be committed or has been committed, is as difficult for the FBI as Mr. Miller testified. I can understand that it restricts the intelligence-gathering function, but I tend to agree with you that perhaps this is the only way that you can balance the constitutional guarantees.

Mr. BENDER. I think that you will find in looking at some of the record, to which I have alluded, authorizing investigatory national security surveillances, that there is a large measure of fear of constitutionally protected dissent, a very large measure running through these documents. And it is impossible to separate out the zeal with which that fear has been pursued in authorizing surveillances and the effort to use the criminal process in order to, in some of these cases, chill and deter speech and struggling with this problem. I am glad to hear that you are going to struggle with it a long time. And I would hope that you would look at these documents. I think that the proof of an assertion lies in our own recent history with it, and it is a history that has got to be told where intelligence-gathering surveillance has not been used in the way in which it has been justified. It has been used in a highly abusive fashion, and I do hope you will get a chance to look at it and make your own judgment instead of relying on mine.

Mr. SMITH. Thank you.

Mr. KASTENMEIER. The gentleman from Maine, Mr. Cohen.

Mr. COHEN. Thank you, Mr. Chairman. I just have one question. On page 7 of your statement, Mr. Bender, toward the bottom of the page you say "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."

How did you make that determination? Do you know of your own knowledge?

Mr. BENDER. Yes. Because the logs gave the phone numbers and it gave the familiar names that the individuals involved used in conversations with their clients. One entry would be "Skip, last name unknown" and then the name of the defendant, and the time and the date and the phone number.

Well, Skip happens to be the name of the attorney whose first name that was his nickname, and the phone number was his office telephone, so except for the recording purposes, the Government did not make the identification, which by the way, on its face, was patently absurd because the attorney happened to be rather well known in the local georgraphical area, and his nickname appeared in the press frequently and the phone number was certainly well known, and it appeared throughout the logs in question, so it was an obvious abuse.

Mr. COHEN. Well, we had testimony earlier this morning, and I do not know if you were present or not, that whenever an attorney would be talking with his client, that the FBI agent would disconnect, or not monitor that conversation. That seems to be in contrast to your testimony.

Mr. BENDER. I am familiar on this issue with a memorandum from the then Attorney General Mitchell instructing agents to do just that, to interrupt, but we just made available to the seventh circuit, which is considering the Dellinger contempt case, some of the documents we found in the Dellinger v. Mitchell, the civil case, with permission of the district judge here and although I cannot tell you the exact words in the document, in the public brief we filed we suggested that the directive was not followed and we cited to a specific memorandum where a particular conversation between a client and his lawyer discussing trial strategy was mentioned, with a warning at the bottom to be more careful in the future.

Mr. COHEN. Were the Attorney General's guidelines and recommendations limited to the attorney-client privilege, or did they include the doctor-patient, priest-penitent privileges? Do they have any of the other normally recognized privileges?

Mr. BENDER. The one that I have seen, which I believe is dated July 1969, I am sorry, I guess it is July 1970 and I can make that available to the committee if you like

Mr. COHEN. If you would, yes.
[The document referred to follows.]

JULY 14, 1969.

EXCISED COPY OF MEMORANDUM OF JOHN MITCHELL FURNISHED TO THE DISTRICT COURT BY MR. CALHOUN

J. Edgar Hoover, Director, Federal Bureau of Investigation, and John N. Mitchell, Attorney General

ELECTRONIC SURVEILLANCES

Both the Criminal and Internal Security Divisions have been reviewing the legal problems in connection with present and future prosecutions, in view of the information furnished by you concerning overhearings of some conversations in recent months of some of the defendants involved in the Chicago anti-riot case.

The likelihood of continued-interception of several of the Chicago defendants 'on existing installations does indeed present the possibility of serious legal problems arising in connection with future criminal trials, particularly if a defendant in a pending Federal case is overhead discussing trial strategy or tactics with his attorney. Moreover we must also be aware of the problems presented by an agent of the government surreptitiously overhearing conversations of a defendant which may be relevant to the criminal case. See Massiah v. United States, 377 U.S. 201.

In an effort to minimize the possibility of overhearing conversations involving defendants or their attorneys which relate to trial strategy I have concluded that the Bureau should undertake the following precautions.

The telephone surveillances which I have authorized should continue under the current directives. However, the Bureau should take steps to insure that each telephone surveillance on should be personally monitored by a special agent or special employee. Each such monitoring agent or employee should be instructed in writing that he is to immediately cease monitoring, both in person and by electronic recording, and conversation as soon as he becomes aware that one of the parties to the conversation is a defendant in a pending Federal criminal case or an attorney of such defendant. For the time being each such agent or employee should be furnished with a list of defendants and their attorneys who are involved in the Chicago anti-riot case so that he will be aware of the persons whose conversations should not be monitored. A list of those defendants and attorneys is attached. He should also be instructed to make a notation in the log, as appropriate, that the conversation was cut off and was not overheard, after identifying the name of the defendant or attorney who was on the line which occasioned the cut-off.

The same procedure should be followed with respect to the monitoring of since it appears that some of the Chicago defendants will be overheard in connection with some of those surveillances. It is also possible that one or more of the defendants or attorneys would be overheard on other currently operative electronic surveillances. Reasonable precautions should be taken to prevent such overhearings. The primary purpose of these procedures is to avoid the government's learning of defense strategy or plans in such a way as there might be an intrusion into the Sixth Amendment rights of a defendant. Any time a conversation relating to such strategy or tactics, between any two persons, takes place, the conversation should be immediately cut off as soon as the subject matter of the conversation becomes apparent.

If a conversation of a defendant or one of his attorneys should inadvertently be overheard and later comes to the attention of a special agent, that special agent shall immediately seal the record of the conversation, attaching a memorandum certifying that he has not and will not orally or in writing relate the substance of the conversation to any other representative of the government or to anyone else except upon order from the Attorney General. This sealed log and the agent's certification should be immediately forwarded to you for transmittal to the appropriate Assistant Attorney General.

I know that these procedures will place an additional burden on the Bureau but I am sure you will appreciate that it is a reasonable balance in an effort to secure needed intelligence and at the same time safeguard future prosecutive steps which should be taken.

Attachment.

Defendants and Attorneys in United States v. Dellinger, et al., N.D. IN., 89 CR. 180.

Mr. BENDER. It refers only to the attorney-client overhearings and does not recognize any other privileges.

Mr. KASTENMEIER. That would be very helpful to the committee and we would appreciate receiving a copy.

Mr. SMITH. If the gentleman will yield, I think that Mr. Miller testified this morning that the Attorney General's instructions covered all privileges.

Mr. COHEN. It would be helpful if we can have that.

Mr. BENDER. I will let the memo speak for itself. It is my recollection that only the attorney-client privilege is specifically mentioned. Mr. COHEN. That is all I have.

Mr. KASTENMEIER. On behalf of our committee, we want to express our appreciation to you, Professor Bender, for your appearance here today.

[The statement of William J. Bender follows:]

PREPARED STATEMENT OF WILLIAM J. BENDER, ADMINISTRATIVE DIRECTOR, CONSTITUTIONAL LITIGATION CLINIC, RUTGERS UNIVERSITY SCHOOL OF LAW, NEWARK, N.J.

Chairman Kastenmeier and members of the subcommittee: 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, et al., No. 14950, United States District Court, Middle District of Pennsylvania, reported 347 F.Supp. 912 (1972); United States v. Ayers, et al., No. 48104, United States District Court, Eastern District of Michigan, Southern Division; In Re Dellinger, et al., 72 Criminal 925, United States District Court, Northern District of Illinois, Eastern Division and the Seventh Circuit Court of Appeals; United States v. Butenko, United States District Court, District of New Jersey, No. 418-63; United States v. United States District Court, 407 U.S. 297 (1972); Dellinger, et al. v. Mitchell, et al., United States District Court, District of Columbia, No. 1768-69; Sinclair, et al., v. Kleindienst, et al., United States District Court, District of Columbia, Nɔ. 610-73; McAlister, et al., v. Kleindienst, et al., United States District Court, Eastern District of Pennsylvania, No. 72-1977. 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 will 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. Probably the most serious revelation in these cases has been the discovery that the government intentionally sought to mislead the federal courts into believing that national security electronic surveillance was for investigatory, intelligence gathering purposes as contrasted with prosecutorial electronic surveillance which is utilized to gather evidence. Assistant Attorney General Robert Mardian expressed this proposition in briefs and arguments throughout the Keith case:

"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)

"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." (Id., at 25)