« ForrigeFortsett »
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 electronic 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, chararterized as they were hy the constant invocation of the spectre of threats tn 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 2511(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 Ford, 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 1973– but 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 by 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 Jawfully 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 regnire (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 evidence in support of this allegation. I have no way of knowing how valuable— necessary-electronic surveillance has been in controlling crime.
Second, the Justice Department argues, HR 9698 would negate any efforts to obtain evidence by investigative procedures that have consistently been approved by the Supreme Court. It is true that the Court has drawn a distinction between electronic surveillance without the consent of any of the parties, requiring a court order and a showing of probable cause, and the monitoring of conversations with the consent of only one party. As recently as United States v. White, 401 U.S. 745 (1971), a closely divided Supreme Court adhered to its old ruling that the use of bugged informers was outside the requirements of the Fourth Amendment. The railroads appear to be that one who confidesor talks to another assumes the risk that his confidence may be disclosed and the risk is no different even if the other person is recording or broadcasting the first person's disclosures. I submit that these cases are bad law. The number of separate opinions in the White case and the lack of a majority opinion are evidence of the lack of consensus in this area. Moreover, if existing law permits the interception of communications without a warrant or any showing of probable cause or even of reasonableness without the prior consent of all the parties to the communication—and the White case and Section 2511 (2) (c) and (d) so indicate—there is a clear need for a change in the law. The Federal Communications Commission, in instituting the "beep tone rule" and in prohibiting eavesdropping by radio devices unless all parties to the communication consent, has already recognized this need. The FCC regulations, however, lack effective sanctions-only discontinuation of telephone service or a $500 fine. My bill, however, would make willful interception, disclosure, or use of a wire or oral communication without the prior consent of all parties subject to the existing criminal penalties and civil remedies provided in Title III. As the existing provisions for court ordered interceptions in criminal investigations would still be available, it can hardly be argued-as both the Justice and Defense Departments do—that the amendment proposed by HR 9698 would seriously hamper crime control activities.
Although HR 9698 would amend only one section of Title III, increasing the types of cases in which a judicial warrant would be required, there are other bills presently before this subcommittee which would make more sweeping changes. Rep. Drinan's bill, for example, HR 9781, would eliminate all provisions of the Act authorizing electronic surveillance and would retain only those sections prohibiting the interception, use, or disclosure of any wire or oral communication without the prior consent of all parties to the communication. H.R. 13825, introduced by the Chairman of this subcommittee and identical to a bill introduced by Senator Nelson, would provide specific controls for the use of electronic surveillance in “national security" cases. Following guidelines suggested by the Supreme Court in the Keith case (United States v. United States District Court, 407 U.S. 297 (1972)), it would prohibit all warrantless wire or oral interceptions (except for one party consensual interceptions and others enumerated in Section 2511 (2)), but would require less than a showing of "probable cause" to obtain a judicial warrant to authorize surveillance of a foreign power or its agents.
Because of my own opposition to Title III of the Omnibus Crime Control and Safe Streets Act, I am convinced that more basic changes are needed than those proposed in my bill. In the area of criminal investigation, for example, the standards set forth in Section 2518, even if strictly adhered to—as the Justice Department so painstakingly asserts has been done are hardly adequate to meet the test of “narrowly circumscribed" surveillance required by the Berger and Katz cases. Perhaps electronic surveillance, by its very nature, can never conform to the strict requirements of the Fourth Amendment, even when such surveillance is conducted pursuant to a judicial warrant. As the ACLU has pointed out in its excellent presentation before this subcommittee, "the technology itself stands in the way of any kind of effective control.”
It is certainly arguable that even court authorized electronic surveillance, as conducted under Title III, may be proscribed by the Fourth Amendment. There is no doubt, however, that warrantless wiretaps and monitoring conducted by the government in the guise of “national security" present a clear threat to our basic First Amendment rights. Because of the imprimatur of "security,” these activities are shielded by a veil of secrecy not only from the individuals subjected to surveillance but from the courts and the Congress as well. And, unless they are known, they cannot be subject to challenge or to control. It is only in recent years that we have begun to learn of government spying and snooping dating back to the sixties. We may never learn the full extent of this aotivity. More recently, we have heard sordid accounts of incidents occuring during this Administration-spying activities, wiretapping, and other forms of surveillance directed at law abiding citizens suspected only of engaging in political dissent or viewed as political "enemies"-all undertaken by the federal government in the name of “national security.”
A 1971 Senate subcommittee report revealed, for example, that during the late 1960's extensive spying was secretly conducted by 1500 agents of the Defense Intelligence Agency on more than 100,000 civilians. Anti-war activists, blacks, and students were particular targets. After disclosure of this illegal political surveillance in 1971, the Pentagon issued strict regulations against spying on civilians. Yet a Senate committee recently learned that the U.S. Army has continued to maintain numerous surveillance operations on civilians in the United States.
The Department of Defense, in its testimony before this subcommittee, unequivocally stated that it does not conduct electronic surveillance of civilians not affiliated with the Department. It cited DOD Directive 5200.27, which expressly forbids such practices "except in narrowly defined circumstances." It did not, however, explain the nature of those circumstances.
The DOD testimony indicated, however, that neither the Omnibus Crime Control Act nor its DOD regulations apply to its activities outside U.S. territory. Its overseas activities, even when directed at United States citizens, are governed by the Status of Forces Agreement and the laws of the host country. There appear to be no constraints on its spying activities, or any explanations deemed necessary for the lack of constraint.
During the 1972 Presidential campaign, army authorities sent intelligence agents to infiltrate a branch of the U.S. Democratic party in Berlin, as well as an offshoot of the American Civil Liberties Union and a group of Protestant missionaries supported by the World Council of Churches. For at least a year, these agents photographed members, acquired lists, opened mail, copied correspondence, and reported on the activities of the Berlin Democratic Club and Concerned Americans in Berlin. An autographed copy of a photograph of George McGovern was solemny regarded as a suspicious document and duly noted. The agents' attempt, apparently, was to link the Berlin Democrats to so-called leftist groups in America and to the East German communists . just as McGovern supporters in this country were harassed and put on “enemy lists."
Although the United States Army sought to justify the surveillance of these American civilians on "national security" grounds—that is, they were responsible for “dissidence" among American troops-nothing even remotely subversive was ever discovered and no action was taken against any of these civilians. But the danger lies in the fact that these military agents collected reams of data on the personal lives and politics of American citizens and delivered them to an undercover army "countersubversive" intelligence unit. Reports were then forwarded to the chief intelligence officer in Europe who was later promoted to a top intelligence job in Washington.
Senator Lowell Weicker turned the documentation of this spying over to the Senate Armed Services Committee, but very little happened. The Army explained that such spying was legal in Germany. West German officials even cooperated by tapping telephones themselves. Further, they said, it was not political in nature—though no one seems to have been keeping records on any chapters of CREEP in Europe.
It is hardly necessary to comment on the intimidation that results from this kind of snooping. Were it allowed to continue unchecked, the democratic process would wither away. Fortunately, vigilant citizens and concerned members of Congress will not allow this to happen.
My bill, H.R. 9815, which is identical to a bill introduced in the other body by Senator Ervin, is specifically directed at this kind of unconstitutional surveillance. The bill would prohibit use of the Armed Forces or of any State militia to conduct investigations into, maintain surveillance over, or record or maintain information regarding the beliefs, associations or political activities of any civilians or civilian organizations. The bill provides criminal penalties for civil or military officers who violate these provisions and also provides civil remedies for damages and for injunctive relief.