“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 (T.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 by 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, “were . 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 overhearings 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 (T.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 heen 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.

dence was identified with a name in the index (T.65). The defendants' submission to the govrnment of a list of places, wherein they had an expectation of privacy, to assist the government in searching its files, was a worthless exercise because, “if his name wasn't mentioned, his name wouldn't be included in the indexes [sic]” (T.67). Where several people shared a residence with a tapped phone, only the name of the telephone subscriber would appear on the index, not the other users of the phone. No search was made for an item “Religious Sacred Heart of Mary," the residence of Defendant Sister McAlister, one of the places listed in defendants' motion (T.77).

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 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). F.B.I. Agent Smith recognized that often in phone conversations, a full name is not used, as was the case with the two logs before the court where only a first name, to wit, “Liz" was used (T.15). The agent also recognized the possibility that names are not always used (T.18), making identification by names impossible. The mechanical devices which recorded the phone numbers of out-going calls from the tapped location could not register the phone numbers of incoming calls, so incoming calls were not formally

identified for record-keeping purposes. This is not to suggest that agents overhearing calls or conversations during the course of an investigation lack the capability of acting on their "tentative" identifications. The problem faced by defendants is that the reality of the government's prosecutive use of electronic surveillance is carefully concealed from judicial scrutiny.

I urge this subcommittee to deeply probe the Justice Department during these deliberations on the following issues :

(1) How are agents of the F.B.I. instructed to circulate facts during an investigation which are gleaned from an electronic surveillance source? Testimony in some cases and recently revealed specific documentation in materials covered by protective orders will show elaborate efforts to conceal electronic surveillance sources. This practice makes a showing of taint extremely difficult and insulates illegal activity from even internal Justice Department controls.

(2) How are electronic surveillances numerically counted and described to the legislative and judicial branches? These materials will show efforts to conceal the extent of national security electronic surveillances by grouping many surveillances under a specific reporting heading.

(3) How has the Justice Department sought to analyze the foreign and/or domestic character of its national security surveillances? These materials will show an attempt to over-emphasize the contacts and involvements with persons in foreign countries by the subjects of certain surveillances to support argiments in court of the foreign security character of the electronic surveillances in question,

(4) How extensive bas national security surveillance been? Disclosed materials would indicate that the program was far more extensive than anything indicated in Department of Justice statistics.

(5) What are the constitutional consequences of the national security elertronic surveillance program? Materials already disclosed indicate a surveillance program of breath-taking enormity involving hundreds of thousands of overhearings, authorized on fear, innuendo and speculation without regard to the privacy rights and rights of association and free speech of a free people. The program is the consequence of raw executive power, unchecked hy this legislature or the judiciary. To legislate against and then to control these abuses a full investigation must be undertaken and specific review procedures established.

I close these remarks hy asking you whether these past two years, charar. terized as they were hy the constant invocation of the spectre of threats to national security for all necessary occasions will foreclose the meaningful pursuit of your task. I would hope that recent history suffices to demonstrate that the shop-worn talismanic incantation “national security" can no longer foreclose democratic processes. A good beginning would be full scrutiny of the entire national security electronic surveillance program and the legislation of substantial controls to prevent its ugly reoccurrence.

Mr. KASTENMEIER. With that, the Chair will also announce that statements of Congresswomen Abzug and Mink, Congressman Kemp, and Dr. Lapidus will be accepted for the record and that the record will be kept open for a period of two weeks during which time other relevant material and statements can be received for inclusion therein.

[The statements referred to above follow :)

STATEMENT OF REPRESENTATIVE BELLA S. ABZUG Mr. Chairman and members of the subcommittee, I appreciate the opportunity of appearing before you today to discuss a subject about which I feel most strongly and to speak in support of two bills which I have introduced to guarantee to individuals their constitutional rights of privacy, H.R. 9698 and H.R. 9815.

The first of these bills would make a simple but significant change in Section 2311 (2) (c) and (d) of Title 18 of the United States Code. It would provide that wire and oral communications can be intercepted without a judicial warrant only if all the parties to the communication give prior consent. The second bill, H.R. 9815, would prohibit investigations, surveillance, or data-keeping by the military into the beliefs, associations or political activities of civilians and civilian organizations.

For many years, I and several of my colleagues in both bodies of Congress have spoken out in decrying the violations of privacy and other individual rights perpetrated by the government in the guise of its legitimate functions. But our voices seemed to fall on deaf ears. Now, however, the protection of privacy has become a more popular issue and even a "fashionable" legislative subject. In this session of Congress alone, more than a hundred different bills and resolutions relating to privacy have been introduced and are now being considered by several committees of the House. A recent Harris Poll indicated that the general public, by 77 per cent to 14 per cent, overwhelmingly favors passage of legislation to curb the abuses of governmental wiretapping and bugging. And last February even President Nixon, in creating his Committee on the Right of Privacy, headed by Vice President Hord, recognized the dangers to our democratic institutions that invasions of privacy represent. Perhaps it took the shocking disclosures of the Watergate scandals to awaken the general public and my colleagues to the realities of life in this electronic age and to the urgent need for legislation to place some limitations on unbridled government snooping. Whatever the causes for the change in attitudes, I am delighted that it has come about, that the time is now ripe for passage of legislation that will put an end to ever-incrasing governmental intrusions on citizens' private lives. The hearings which this subcommittee is now conducting give me hope that we may still be able to check, before it is too late, the drift towards totalitarianism and thought control which must ensue when every aspect of an individual's life is subject to electronic monitoring.

These words may sound overly dramatic but there is no more insidious invasion of privacy than electronic surveillance. It is insidious not only because of its covert nature-even now this subcommittee does not know how many warrantless wiretaps were approved by the Department of Justice in 1973but because it reaches into the innermost aspects of an individual's life, to his thoughts and beliefs, to those basic rights that are guaranteed by the First Amendment. As Ramsey Clark stated when, as Attorney General, he testified in support of the Right of Privacy Act of 1967 (S. 928) :

"Nothing so mocks privacy as the wiretap and electronic surveillance. They are incompatible with a free society and justified only when that society must protect itself from those who seek to destroy it."

I agree wholeheartedly.

The use of wiretapping and electronic surveillance is relatively recent, dating only from the invention of the telephone. With the increasing sophistication of electronic devices, undoubtedly the use of such devices has kept pace with their refinements though none of us can claim to know the real extent of this use. Aside from Congress' need to know the extent of warrantless wiretaps authorized by the Department of Justice, we have no idea of the degree to which unauthorized wiretapping has been engaged in by Federal agents or to what extent other types of electronic surveillance have been employed. Without this knowledge, we cannot begin to measure the value or necessity of electronic monitoring in the area of crime control or national security.

Since the invention of the telephone, the microphone, and recording devices, the courts and the Congress have been attempting to reconcile this necessity with the fundamental constitutional rights guaranteed by the First, Fourth and Fifth Amendments. The issue of the use in a criminal trial of evidence obtained by wiretapping first came before the U.S. Supreme Court in 1928, in Olmstead v. United States, 277 U.S. 438 (1928). On a five to four vote, the Court held that wiretapping was not within the confines of the Fourth Amendment, interpreting the search and seizure proscription as applying only to physical property and tangible items. In a vigorous dissent, Mr. Justice Brandeis stated :

“To protect [the right to be left alone), every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment ... There is, in essence, no difference between the sealed letter and the private telephone message The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject ... may be overheard."

Six years later, Congress enacted the Federal Communications Act of 1934, 48 Stat. 1103, Section 605 of which provided that “. . . no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, purport, effect, or meaning of such intercepted communication to any person.” Unfortunately, no well-established consistent body of case law developed in the years that followed. The leading Supreme Court cases, before the enactment of the Omnibus Crime Control and Safe Streets Act of 1968, were Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), in which the Supreme Court in essence adopted Justice Brandeis' dissent in the Olmstead case, and held that electronic eavesdropping was subject to the requirements of the Fourth Amendment. Mr. Justice Stewart, speaking for the Court in the Katz case, (389 U.S. at 352–353) stated :

“We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the 'trespass' doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied . . . and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment."

In 1968, following the Berger and Katz cases, Congress attempted to resolve the dilemma by enactment of the Omnibus Crime Control and Safe Streets Act. This, as you no doubt recall, was during a period when "crime in the streets” was becoming a major political issue and crime control was more popular than the protection of privacy. Although certain types of wiretapping and electronic eavesdropping were prohibited and criminal sanctions and civil remedies were provided, Congress for the first time. in Title III, specifically authorized the use of electronic surveillance in criminal investigations and specifically exempted national security cases from any of the restrictive provisions of the Act. Here again those two familiar ratch-alls—criminal investigations and national security-were used to justify governmental invasions of privacy.

One of my bills, H.R. 9698, which is identical to H.R. 9667, introduced oy Rep. Long and co-sponsored by twenty five other Members of the House, would amend 18 U.S.C. Section 2511 (2) (c) and (d) by providing that wire and oral communications can be intercepted lawfully without a judicial warrant only if all the parties to the communication give prior consent. The present Act requires the consent of only one party to the communication. The Department of Justice is opposed to this bill as it is to all proposed amendments to Title III. First, the Justice Department argues, its "successes require (them) to recommend that Title III remain unchanged.” Electronic surveillance terhniques have allegedly been most effective, if not indispensable, in combatting organized crime. As the Justice Department has yet to furnish any concrete

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