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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. KASTENMEIER. 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 magni. tude 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 adininistration, 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
spying. No one in the executive branch would accept responsibility for it. Again, there is no guarantee that this sorry episode could not be repeated. In fact, a Senate committee learned recently that in the last three years-after the administration assured the public that the military would no longer spy on civilians—the U.S. Army has maintained numerous surveillance operations on civilians in the United States. And an article in The New Republic magazine of March 30, 1974 detailed the U.S. Army's use of wiretaps, infiltrators, and other surveillance techniques to spy on American citizens living abroad who supported the presidential candidacy of George McGovern. The Army's spying, was reportedly so extensive that it even intercepted a letter from a college libarian in South Carolina who requested information about a German publication:
On December 5, 1973, Retired Rear Admiral Eugene La Roque revealed the existence of a secret unit in the Pentagon which engages in the same kind of activities conducted by the White House "plumbers" ;
Testimony before the Senate Watergate Committee and the Senate Judiciary Committee documented White House efforts to use confidential tax returns of thousands of individuals to spy on and harrass its “enemies."
For many years Constitutional authorities and other citizens have repeatedly expressed alarm over the rapidly expanding practice of governmental invasions of privacy by wiretapping, data collection, and other forms of surveillance. In 1967 I made a lengthy speech on the floor of the Senate on this issue and in 1971 introduced legislation to establish a joint congressional committee to control government snooping. In this session of Congress I have introduced three separate bills designed to remedy the abuses of government spying. One of these measures—a bill to prohibit the use of wiretaps without approval of a a judicial warrant in so-called “national security" cases—has been introduced in the House by the Chairman of this subcommittee.
Because this last bill, entitled the "Surveillance Practices and Procedures Act of 1973,” is presently before the subcommittee, the remainder of this testimony will be devoted to a discussion of it.
The bill is a direct response to wiretap abuses in so-called "national security" cases. Last May it was revealed that in 1969 the White House by-passed established procedures and authorized wiretaps on the telephone's of seventeen government officials and newspapermen. The purported basis of these "taps" was a concern that sentitive information was being leaked to reporters by government officials. The government, however, did not obtain judicial warrant before installing the taps. The government alone decided when it would tap and for how long.
Subsequent investigation showed that some of the government officials tapped did not have access to sensitive information. It was also learned that two of the taps were maintained after the individual involved had left government service and joined the presidential campaign staff of Senator Muskie. In none of the cases was the individual suspected of having violated the law.
These were not isolated incidents. Warrantless taps based on so-called "national security" reasons were placed on the telephones of newspaper columnist Joseph Kraft in 1969 and in 1971 on friends of a Navy yeoman suspected of passing sensitive information to the Joint Chiefs of Staff. Again, none of these individuals were even suspected of having violated the law.
The use of so-called "national security" taps, however, has not been confined to the present administration. Democratic and Republican administrations since the 1930's have used such taps to spy on law-abiding individuals. Various government reports indicate that since that time thousands of individuals have had their telephone conversations intercepted for so-called "national security" reasons.
From the very beginning, those sensitive to civil liberties recognized the dangers of warrantless wiretaps. Such taps enable the government to exercise unchecked and unreviewed power over the individual. There is no opportunity for a court, the Congress, or the public to demonstrate that the taps are unreasonable. For this reason, Supreme Court Justice Oliver Wendell Holmes called them "dirty business." In my view, such taps are also unconstitutional.
To understand the basis of this opinion it is necessary to examine the language and judicial interpretation of the Fourth Amendment. That amend. ment states quite simply that:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searchers and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
One need not be an historian or a lawyer to understand the essential purpose of this amendment. It is intended to protect the individual's privacy from unreasonable invasions by the government. To afford this protection, the amendinent contemplates that a neutral court-not the government—will determine whether any search and seizure planned by the government is reasonable. Otherwise the government would be both advocate and judge of its own case.
The Fourth Amendment thus limits the power of the government. Like the other amendments in the Bill of Rights, it reflects the Framers' intention that individual liberty, rather than unrestrained governmental power, be the hallmark of our political system. In his dissent in the 1928 Olmstead case Supreme Court Justice Louis Brandeis articulated the importance of the Fourth Amendment in our scheme of government :
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, 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.” (Emphasis added).
The Fourth Amendment's protections apply to all government searches and seizures. No exception is made for national security cases or any other kind of circumstance. The absence of any expressed exceptions, moreover, cannot be interpreted as an oversight or a failure of the Founding Fathers to appreciate future developments in which world affairs would be overshadowed by the nuclear sword of Damocles.
When the Constitution was drafted in 1787, our country was only 11 years old. The new American citizens had recently concluded a long war with England to preserve their country's independence. That independence was not entirely secure. The threat of foreign attack and subversion remained ever present. Despite the existence of this treat, the Founding Fathers adopted the Fourth Amendment and made no exception to its application.
In the 1967 Berger and Katz cases, the Supreme Court held that the fourth Amendment applies to wiretapping for criminal purposes. In effect, these deci. sions required the government to obtain an approving judicial warrant before it could install a wiretap in a criminal investigation.
In the 1972 Keith case the Court, by an 8-0 vote, decided further that the government could not wiretap individuals without a judicial warrant even when the individual's activities threatened the nation's "domestic security.” Again, the Court made clear that wiretaps must adhere to the safeguards delineated by the Fourth Amendment:
“Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, the broader spirit now shields private speech from unreasonable surveillance.”
The Supreme Court has not yet decided whether the Fourth Amendment's protections apply to cases involving the intelligence activities of foreign powers and their agents. In the Keith case, the Court stated explicitly that it did not consider those situations where American citizens have a “significant connection" with foreign powers and their agents.
Because the Court has not ruled on these “national security” taps, the present administration maintains that it may install warrantless wiretaps in certain situations. In a September 1973 letter to Senator William Fulbright, Chairman of the Senate Foreign Relations Committee, then Attorney General Elliot Richardson stated that the administration would continue to install warrantless wiretaps against American citizens and domestic organizations if the administration believes their activities affect "national security” matters.