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Mr. KASTENMEIER. Would that cover electronic eavesdropping?
Mr. KASTENMEIER. The examination conducted by the Joint Committee annually, would that be in executive session, in secret session, or would that be public?
Senator NELSON. I think the committee would have to decide that. It should probably be left up to the authority of the committee. There are obvious cases which you don't want to disclose. And really, the purpose is not to disclose for publication in the paper. The purpose is to disclose to the Congress, to the other branch, what is going on so that we are sure the law is complied with.
The details of who might have been surveilled aren't always the important thing so far as publicity is concerned. If there are violations or wholesale violations, obviously the Congress would do something about it and probably disclose it. But if it involved organized crime or things such as that, obviously they wouldn't and shouldn't.
Mr. KASTENEIER. My last question is, I take it you accept the need for wiretapping and electronic surveillance philosophically but only under conditions which you have described, that is, under warrant?
Senator NELSON. Yes, I accept what the Founding Fathers said that upon probable cause under Oath or affirmation presented to a court, that then a warrant may be issued. I think the government needs that. You need to have a neutral party deciding whether or not the Fourth Amendment to the Constitution is being complied with. And I then would want the third branch of the government do its annual oversight to be sure that the other two branches are complying with the Constitution.
Mr. KASTENMEIER. I yield to the gentleman from California, Mr. Danielson.
Mr. DANIELSON. Thank you, Mr. Chairman. And thank you, Senator Nelson. I infer from your answers to Mr. Kastenmeier's questions that you do ascribe to the provisions of the Fourth Amendment which, as I read them, at least would permit wiretapping under certain carefully defined circumstances.
In looking at your three points, the major points of the Surveillances Practices and Procedures Act, I note that you have restricted the bill to wiretapping. As I understand it, you are excluding the implantation of a microphone, for example
Senator NELSON. No, we include it.
Mr. DANIELSON. All right. You also, however, seem to tie it only to national security reasons, or national security interests.
Senator NELSON. Pardon? I missed the first part.
Mr. DANIELSON. You seem to restrict the authorized wiretapping to national security reasons, or national security interests.
Senator NELSON. No, the other way around; this is aimed at being sure that this vague phrase "national security” doesn't except wiretaps from the provisions of the Fourth Amendment.
Mr. DANIELSON. Then you do not intend to exclude—and let me use the term here for reference "authorized wiretapping”—you do not intend to exclude wiretapping for the purpose of investigating crimes, in other words, again assuming you got the warrant issued upon probable cause and so forth?
Senator NELSON. Title III of the act and the Constitution covers crime. I wouldn't exclude anything.
Mr. DANIELSON. You say you would not exclude anything?
Senator Nelson. No. I think anything involving electronic surveillance, wiretapping—and I am using “wiretapping” in its broadest term-none of that should be excluded from the provisions of the Fourth Amendment.
Mr. DANIELSON. No, that was not the thrust of my question.
Mr. DANIELSON. Let me restate it. I would fully agree with you on that. I don't think that there is any way we can, even if we wish, get away from the Constitution, and I don't wish to.
However, on page 8 of your presentation in the next to the last and the last paragraphs, and then again on page 9, in each of your explanations you say the bill can change three principal provisions : first, before one could wiretap American citizens for national security reasons, the Government would have to obtain a judicial warrant; second, before the Government could wiretap a foreign power or its agents, it would have to obtain a warrant; and the like. And you refer to "national security" in each instance.
Do you intend by referring to "national security" to exclude the possibility of a lawful wiretapping for a nonnational security purpose ?
Let's say a felony investigation, which does not involve national security, such as an investigation of a kidnapping or extortion or bank robbery or narcotics peddling or some such thing, where would that fit into wiretapping? There is no national security involved, in other words, just criminal law.
Senator NELSON. No, they are covered in title III of the act now.
Mr. DANIELSON. In other words, you do not intend to restrict this to national security?
Senator NELSON. No, what we intend it to do is to cover what is called "national security".
Mr. DANIELSON. Well, I favor that.
Mr. DANIELSON. I thought you meant that but I was not sure from your presentation.
Senator NELSON. Yes. Mr. DANIELSON. Thank you. Mr. KASTENMEIER. If the gentleman from California would yield? The premise is that no one denies that for purposes of investigating a crime, a warrant is required for wiretapping. That is presently the law. The exception claimed by those in the Federal Government is in the area of national security" and a warrant is not required for certain national security matters. And Senator Nelson's bill covers that and says that in that area too, a warrant shall be required.
Mr. DANIELSON. Which I am very pleased to support. However, I can't quite agree with my chairman that no one would disagree. There are many people who feel that there should be no wiretapping almost under any circumstances, including the violations of criminal law.
Mr. KASTENMEIER. The only point I was making is that presently the law requires a warrant for any Federal or State wiretapping. The only exception claimed by the government presently is in the area of national security, and that is the purpose of Senator Nelson's bill, to make sure that that type of tap as well must be authorized by warrant; is that correct?
Senator NELSON. That is correct and that is the only issue involved here that has not been to the Supreme Court. They ruled on what is called "domestic security" and that is covered clearly.
Mr. KASTENMEIER. Yes.
Senator NELSON. But the assertion of the right to a warrantless wiretap as an exception to the Constitution or as not being covered by the Constitution hasn't been to the Supreme Court. I think clearly if it went there, you wouldn't need this statute. If it went there, I am sure there is no way that the Court could logically rule other than that warrantless wiretaps are in fact unconstitutional, that they are prohibited by the Fourth Amendment. But the issue hasn't gotten there and I don't know whether it will.
Mr. DANIELSON. I don't either. But you know when we pass new legislation, it always has an impact on previous legislation, and I think it is a valuable contribution to this record to make it clear.
Senator NELSON. I agree.
Mr. DANIELSON. To make it clear that you are talking only about national security and you do not intend to restrict or in any way limit the existing laws relative to nonnational security wiretapping.
Senator NELSON. You stated it exactly correctly.
Mr. DANIELSON. Which I fully agree should be governed and I hope are governed by the fourth amendment. Thank you so much.
Senator NELSON. Thank you.
Mr. KASTENMEIER. I would like to recognize the gentleman from New York, Mr. Smith. And the Chair should at the outset state that we are pleased to have Mr. Smith here. The Republican members of our subcommittee are in a formal caucus on a very important issue and may be here a bit later, but in any event I am pleased the gentleman from New York could attend.
Mr. SMITH. Thank you, Mr. Chairman. Senator Nelson, thank you very much for coming here today and giving us the benefit of your testimony. You have given us a lot of food for thought and I don't have any questions, but it has been a good presentation, and thank you.
Senator NELSON. Thank you very much, Congressman.
Mr. Drinan. Thank you very much Senator Nelson, I will reveal my biases immediately by stating that I and some others have filed a bill to abolish all wiretapping. And the preamble says this: "The chance of its misuse outweighs any potential benefits which might otherwise be found in it."
So I assume that you have concluded that Olmstead was correctly decided ?
Senator NELSON. No, Olmstead went the other way. Olmstead said the fourth amendment didn't cover wiretapping. I think they were clearly wrong
Mr. DRINAN. Do you think wiretapping can be permitted at all by the fourth amendment?
Senator NELSON. Pardon?
Mr. DRINAN. In examining the fourth amendment I have great difficulty in understanding how wiretapping of any nature can come within that provision because in the latter part of the fourth amendment, that is quoted on page 5 of your fine testimony, it says that those who want wiretapping must particularly describe the place to be searched and the person or things to be seized.
And I have the fundamental difficulty that the four dissenters in Olmstead had, that all wiretapping cannot comply with that particular requirement.
And your testimony says that the Federal Government has to go to a court to get this warrant, but I don't understand how anybody who wants wiretapping can particularly describe the place and the persons or the things to be seized.
Senator NELSON. Of course at the time the fourth amendment was adopted, there were no telephones and hence no wiretaps; but I think that unreasonable searches and seizures cover wiretaps and electronic surveillance. I take it that you are saying that in fact they don't permit it?
Mr. DRINAN. I am saying, Senator, that in the Surveillance Practices and Procedures Act that you have proposed, there is no description or way by which the Federal Government can comply with the fourth amendment. You have included nothing as to how they shall particularly describe the place to be searched and the persons or things to be seized.
And I say that fundamentally they can't do that. If the judge gives them a warrant and all judges give warrants whenever they are asked—they simply are in violation of the fourth amendment. Now this is my position, and you haven't come to that position, but how would you answer that difficulty?
Senator NELSON. I think the Congressman can make a reasonable argument as he has. But when you go to the court, you have to describe whose conversation you want to wiretap, you have to describe the premises that you want to wiretap, and you have to give the probable cause for the wiretap. You are making a different argument. You are arguing it is a violation to use it at all, even with a court order, correct?
Mr. DRINAN. Yes.
Senator NELSON. And that is a reasonable argument. I don't think the court would uphold it, but then that doesn't mean you are wrong.
Mr. DRINAN. Before it might not. It might be different now.
Senator, is there any empirical evidence that Federal judges will, in fact, be very careful and scrupulous in granting the warrants that are requested ?
Senator NELSON. Well, the law requires them, and the bill requires them to be in compliance with the fourth amendment. It is perfectly clear that it is very common, particularly in the lower courts, for them to just issue a wiretap order upon request. And I suspect that very frequently there is no reasonable probable cause that would stand up if tested.
So you have the law and you have the Constitution violated by failure to require strict compliance with the law.
Mr. DRINAN. And your bisl provides no remedy, no sharpening of the standards for Federal courts.
Senator NELSON. Yes, it does. And I commented, as the Congressman may recall, earlier, that we also need the third branch of the government involved. The Constitution says the government has to go to the court and show probable cause. Now you have the executive branch and the courts involved. I have introduced legislation which will now involve the Congress by its annual oversight, perhaps in executive session. By calling representatives of the Government before it, Congress can require those who have requested warrants to justify those requests. Then we can have oversight over the judicial branch and the executive branch to see whether or not they are in compliance with the Constitution and the specifics of this statute.
Mr. DRINAN. But Senator, we really have no oversight over the courts. If they continue to hand out warrants like green stamps as they now do, then the situation will continue despite your bill.
Senator NELSON. The bill requires that the court must require independent evidence to support the assertion of probable cause; but anyway the court doesn't initiate a request. If you have oversight by the Congress of everyone who initiates the requests and you put them under oath and you make them come in and show the jurisfication that they give the courts, we will find out every single year any particular case where they were in violation. Of course, if they didn't have probable cause, the court also was acting in violation of the Constitution. But at least we've got control over part; at least we've got oversight over the activities of the executive branch. And if they continue to violate the law, we will just have to up the penalty.
Mr. DRINAN. They will make another exemption, Senator, on the ground that the enforcement of the law, particularly in national security really requires that we have wiretapping. And I assume on that premise you would say that the Federal Government should be able to get a warrant to intercept and to read the mail going to the Russian Embassy?
Senator NELSON. The court has already ruled on that.
Senator NELSON. And the court has ruled that the fourth amendment covers wiretaps in criminal cases and domestic security cases and that you have to present probable cause for it. And they have ruled that wiretaps and electronic surveillance involves unreasonable searches and seizures.
Now what the Congressman I think is saying is that provision ought to be modified.
Mr. DRIAN. Would you say that the Federal Government should have the power to get a warrant to read the mail of Joseph Kraft?
Senator NELSON. Not if there wasn't probable cause.
Mr. Drinan. But if there is probable cause, they can get a warrant to read the mail?