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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.
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
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.
Defendants and Attorneys in United States v. Dellinger, et al., N.D. III., 89 CR. 180.
David T. Dellinger
Jerry C. Rubin
Charles R. Garry
Michael E. Tiger
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. ŞMith. 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
[The statement of William J. Bender follows:]
PREPARED STATEMENT OF WILLIAM J. BENDER, ADMINISTRATIVE DIRECTOR, CON
STITUTIONAL 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, No. 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)
“The individual overheard is not himself the subject of surveillance, but his conversation is intercepted incidentally and wholly irrelevantly (in respect to his prosecution), in connection with a surveillance to obtain intelligence information to protect the national security." (Id., at 39–40)
“In this case, the defendant, Plamondon, was not the subject of the surveillance authorized by the Attorney General, He was overheard when, fortuitously, he made a call to the telephone installation which was the subject of the surveillance.” (Id., at fn. 18, 40)
At 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.” (Transcript of Oral Argument at 8) Mardian went on to say:
“And I think that beyond question the in camera exhibit will show that the purpose of the surveillance was for the sole and limited purpose of obtaining counter-intelligence information as distinguished from prosecutive evidence in a criminal case.” (Id., at 24)
“In the Alderman case, the surveillance was authorized for the purpose of obtaining prosecutive evidence to be used in a criminal case, and it was directed against the defendant. In this case we have a situation, as in Clay, where, as I said, the defendant unfortuitiously-or fortuitiously, depending on the outcome of this case—happened to call the wrong number.” (Id., at 25)
“The only purpose is, as I have stated: one, to obtain the on-going intelligence necessary to compete in the area of foreign affairs, and the on-going intelligence necessary for this nation to protect itself against not only its foreign foes but its domestic foes." (Id., at 79)
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 may have conducted was only for intelligence data gathering, were promptly contradicted. F.B.I. 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 (1.36), testified in direct opposition to the prior representations of the government attorneys; the surveillance was conducted to gather evidence to further the prosecution in this case (T.24, 45, 47).
In its answer to the motion seeking disclosure of electronic surveillance filed to the indictment, in the Ayers case, the government characterized its illegal electronic surveillance activities as they affect this case as follows:
“A review of the records of the Department of Justice has established that the defendants Linda Evans, Dianne Donghi, Russell Neufeld, Jane Spielman, Robert Burlingham were never the subjects of direct electronic surveillance, nor were any premises in which they had a proprietary interest. However, the said defendants did participate in conversations that are unrelated to this case and which were overheard hy the Federal Government during the course of electronic surveillance expressly authorized by the President acting through the Attorney General.”
An examination of the disclosed logs demonstrated that this statement was patently false. This tap was directed at the national office of an organization of which these defendants were members at a time when the government alleged these defendants, the subjects of the tap, were formulating the conspiracy for which they were indicted. They, contrary to the assertion above,
the subjects of direct electronic surveillance," and the tap was on the phones of an organization wherein they had constitutionally protected expectation of privacy.
These facts and like circumstances in other cases have been pieced together bit by bit in criminal cases. The conclusion—that the claim of a “fortutious overhearing“ on an intelligence tap was a deliberate falsehood, designed by this administration to hoodwink the judiciary into granting the national security exception to the Fourth Amendment-is borne out by recent events. Civil Discovery, after almost five years of litigation in the Dellinger case, has resulted in the disclosure of documentation which pierces the fraudulent claim of intelligence electronic surveillance once and for all. A protective order prohibits the revelation of specifics to this Committee. However, I strongly urge that before any legislation is reported out for floor action, that this Committee seek out from the Justice Department the requests for national security electronic surveillances and the authorizations allowing them. This documentation will demonstrate the extent of the abuses and the need for corrective action.
Interim disclosures by the government in the Ayers case 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, United States 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 conducted some of the illegal surveillance activities.
Pursuant to an interim order on June 4, 1973 by the Honorable 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. The government asserted that these transcripts represented full compliance with the interim disclosure. 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, twelve days of logs were inadvertently included with the 3,000 pages of transcripts. 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 twelve 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 overbearings were provided by the government to the defendants.
Simple arithmetic shows the enormity of the problem if the tap operated for eight months at the same level. More than 12,000 overhearings with more than 5,000 unidentified voices occurred.
I don't believe the disclosure failures in virtually all national security electronic surveillance cases are mere happenstance. The indexing and reporting systems within the Department of Justice function so as to avoid rather than allow requisite disclosures in the ciriminal process: In the Ahmad case F.B.I. Agent Gary Owen Watt, a supervisor of the F.B.I.'s domestic intelligence division, supervised the general search of records (T.54), pursuant to a letter from the Justice Department attorneys (1.57), in order to disclose any electronic surveillance as to defendants, their attorneys or any unindicted coconspirators. The means for ascertaining the existence of surveillance is an F.B.I. index comprised of an alphabetical list of names (T.57). Index cards would indicate that a telephone belonging to the person listed, was tapped, that someone was overheard who called into the installation, "the date the installation was installed might be also included in the file, and the location
possibly" (T.58). Unidentified callers who may only use first names who call into a tapped installation would not be reflected in the index (T.59). Agent Watt was not certain if the fact of the existence of unidentified callers on the tap would be listed in some manner. No index is kept by investigating subject, by name of case or by place. The only way to determine whether someone has been overheard is to search for a name alphabetically in an index file (T.61). Watt knew of no other method within the department of determining whether or not a particular individual has been overheard (T.61-62). The only way to determine if a residence had been overheard would be if the resi.