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 bill 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.

Mr. DRINAN. I know.

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?

Senator NELSON. Let's not use my friend Joseph Kraft's name. Let's use Mr. X. If there is probable cause to believe that an individual is involved in a treasonous activity with a foreign power and has access to information involving the security of the United States, and that is presented to the court upon oath and affirmation, and the probable cause is clearly demonstrated, then I think under the fourth amendment, and for the protection of the security of the country, the Government should be able to conduct surveillance, wiretaps, and examine the mail. But they have to describe what they seek and why. Mr. DRINAN. Senator, does your bill really add anything to the law that the Berger decision, the Katz decision and the Keith decision don't already say that the law is?

Senator NELSON. Those decisions did not touch the question of national security.

Mr. DRINAN. No, the Keith decision did, eight to nothing. You quote it here.

Senator NELSON. Not national security. Domestic security.

Mr. DRINAN. So you go beyond the Courts decision to a point that they haven't touched?

Senator NELSON. There are no clear distinctions between "domestic" and "national security." The problem is this administration— and it has been violated in the same way in the past-asserts that here is a so-called national security case and therefore we can have a warrantless wiretap. That apparently is what they did in the Joseph Kraft case. If the Government says the national security is threatened, whatever that may be, then it asserts that the provisions of the fourth amendment are not applicable.

This bill is limited to making it clear that there is no such thing as a warrantless wiretap described under the umbrella of national security assertion.

Domestic security has been to the Supreme Court, but not national security.

Mr. DRINAN. But Senator, you are putting all of your faith and hope to dispose of this problem in the Federal Courts, are you not? You think that they are going to be tougher. And I am just suggesting that there is no empirical evidence at all from our recent history to suggest that the Federal courts are going to be tougher with prosecutors. They will give the warrants, and we will have the same thing by a different name.

Senator NELSON. The bill specifically requires them to require the submission of independent evidence showing probable cause.

Mr. DRINAN. Is that a new element of the law, though? You said "independent evidence," but already in the United States Code they have to have the equivalent. You are not adding anything to the standards by which Federal judges are to give out warrants.

Senator NELSON. That is incorrect. We are adding the new standard to cover the argument concerning national security. But in addition, and I repeat, you need the third branch to have oversight to be sure that the court does comply.

If the Government comes before this bipartisan committee to discuss a wiretap issue, and it is shown that there was no probable cause, it will be demonstrated that the law has been violated. I don't

think the Federal judges are going to want to be exposed year after year as in violation of the law.

Mr. DRINAN. It will take a lot of years though before we really have oversight and expose them, as you say.

Senator NELSON. I would like to pass the bill next year and then we would have oversight.

If you pass a law, you are going to have oversight. Then the handful of Federal judges, or other judges, who are likely to be careless with the standards will pay more attention to the standards of probable cause or know that they are going to be exposed by a bipartisan committee of the Congress for not upholding their oath of office.

Mr. DRINAN. You have faith in the Congress that we can expose a body of judges. We haven't been too successful, I am afraid Senator. One last question. You say, for some reason I don't understand, Senator, that this individual who has been wiretapped without his knowledge or consent would be informed 30 days after the unauthorized interception. There is a very large escape clause there. So I think that under present and probably future practices of the Department of Justice, this man or woman would never really know that his phone had been tapped over a period of time.

Why did you use the arbitrary time of 30 days? Why not the next day or the next hour? And don't you think this is going to be subject to terrible abuse; that disclosure of wiretapping is going to be postponed if the Government tells the court that the person being wiretapped is engaged in a continuing criminal enterprise or that disclosure would endanger national security interests? I mean, here we go again, we've heard that before.

Senator NELSON. That is incorrect. And I repeat again, it is also necessary to pass the oversight bill. With respect to the disclosure requirement, the purpose is to let the citizen know that he has been wiretapped and I think he ought to know. However, if it involved a continuing criminal activity, then the court could postpone disclosure upon petition of the Government based on independent evidence. The Government would have to say, "We don't want to expose our wiretap because it is part of organized crime," or the Government may assert national security and explain what it is. The court could then say "All right, we won't disclose it." But again, it is necessary to have legislation that makes all of this come under the oversight of the Congress.

Mr. DRINAN. All right. Thank you, Senator. I still go back to your major fundamental premise. You assume that wiretapping is a useful and a necessary law enforcement device; yet many law enforcing people say that it is not, that it is an unnecessary device, and it is not really useful. I think the burden is on those who would justify electronic wiretaps as necessary for law and enforcement purposes, to justify it. It is a terrible scandal, as you pointed out eloquently here, and I don't think the scandal is going to go away just by shifting it a little bit so that federal judges have that responsibility. Senator NELSON. Now Congressman, I haven't testified at all about its usefulness or its value. Maybe it is valueless. I have testified only that wiretapping is covered by the provisions of the fourth amendment. As to its merits, it may be quite valueless. I don't know.

Mr. DRINAN. I am saying you assume that it is valuable because you go to all of these precautions.

Senator NELSON. I am sorry, I don't assume that. The courts have said that wiretapping in domestic security cases and criminal matters is covered by the fourth amendment. I am saying that all of this activity is covered by the fourth amendment.

You are making a second argument that it is useless and valueless and that you shouldn't have it at all. That may be true, but I am saying this is the status of the law and I want every wiretap covered by the fourth amendment. That is all I am arguing here today.

Now if the Congressman comes up with legislation that says that this is all valueless and too dangerous an invasion of privacy and ought to be prohibited, then we ought to look at that in hearings and debate it; but that is a different question.

Mr. DRINAN. I hope you will support such legislation in the Senate. Thank you.

Senator NELSON. You get it over to our side, and I might.

Mr. KASTEN MEIER. Senator, on behalf of the committee I want to express my appreciation to you for the contribution you have made today and for the legislation you have introduced in this field. Thank you very much.

Senator NELSON. Thank you very much, sir, and gentlemen. [The documents referred to at p. 15 follow:]

STATEMENT BY GAYLORD NELSON, A U.S. SENATOR

The time is long past due for Congressional action to check the dangerous abuses of government wiretapping and other surveillance activities. Indeed, continued inaction by Congress in this area would be inexcusable.

The need for action, and therefore the importance of this subcommittee's inquiry, are clear. Uncontrolled government wiretaps and other surveillance activities constitute an intolerable threat to fundamental constitutional rights and liberties. Individual freedom-the cornerstone of our democratic systemis but an illusion in a society where the government can invade an individual's privacy at will.

Until recently, most of the public did not appreciate the inherent dangers of government snooping. Now the public understands that government snooping poses a real threat to everyone, regardless of his or her station in life. Now 77% of the public favors legislation to curb the abuses of government wiretapping and spying.

The explanation for this shift in public opinion is easy to understand. The Watergate scandals and other events have underscored the dangers of government snooping in a dramatic fashion.

Hearings by the Senate Watergate Committee and other Congressional bodies, as well as reports by various periodicals, exposed in sordid detail how the government could and did invade the privacy of law-abiding individuals. Reference to just a few recent examples is sufficient to illustrate the magnitude of dangers of government snooping:

On April 14, 1971, it was revealed that the FBI had conducted general surveillance on those who participated in Earth Day celebrations in 1970. These activities involved tens of thousands of citizens, state governors, representatives of the Nixon administration, and members of Congress. As the one who planned that first Earth Day, I cannot imagine any valid reason for spying on individuals exercising their constitutional rights of speech and assembly in a peaceable manner. There is still no satisfactory explanation of the surveillance. Nor is there any guarantee it could not be repeated in the future.

A 1973 Senate subcommittee report detailed the extensive spying secretly conducted by 1500 agents of the U.S. Army on more than 100,000 civilians in the late 1960's. This surveillance was directed principally at those suspected of engaging in political dissent. No one in the Congress knew about this

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