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Mr. Richardson's comments apparently still reflect administration policy. Last January the Justice Department reported that it had authorized three warrantless wiretaps for national security reasons—an average week's quota according to the department. The department did not explain to any neutral party the justification for the taps or identify the subjects of the taps.
The continued use of warrantless wiretaps for so-called "national security" reasons underscores the need for Congressional action. People in our country should not be afraid to speak to one another on the telephone, never knowing whether the government is listening or how the government might use any information obtained. Every citizen should be assured that the privacy of his or her telephone conversations will not be invaded unless a neutral court first determines that the invasion is justified.
The Surveillance Practices and Procedures Act is designed to provide that assurance. The bill includes three principal provisions.
First, before it could wiretap American citizens for national security reasons, the government would have to obtain a judicial warrant based on probable cause that a specific crime has been or is about to be committed. This provision would thus protect an individual's privacy against unjustified national security wiretaps.
Second, before the government could wiretap a foreign power or its agents, it would have to obtain a judicial warrant based on the belief that the tap is necessary to protect national security interests. The warrant standards for foreign powers and their agents would thus be less rigorous than those required for American citizens. This warrant requirement will in no way undermine the government's ability to protect against foreign attack or subversion; the government will be able to wiretap foreign powers and their agents any time there is a need for such surveillance.
The justification for this second warrant procedure is plain. The government's desire to wiretap should be reviewed by a court. There should be no exceptions. Otherwise the exceptions may be stretched to sanction an unreasonable invasion of an individual's privacy-a situation which would violate the rights and liberties guaranteed under our Constitution.
Third, every American citizen wiretapped would be informed of the surveillance within 30 days after the last authorized interception. This provision would assure every wiretapped American citizen the opportunity to protect against violation of his or her constitutional rights. The disclosure of the wiretap could be postponed however, if the government satisfies the court that the person wiretapped is engaged in a continuing criminal enterprise or that disclosure would endanger national security interests.
The need for legislation such as this should be beyond dispute. Warrantless wiretaps—whether for “national security” reasons or other purposes—pose à grave danger to individual rights of speech and privacy. Such taps invest the government with an absolute power over the individual. They enable the government to pry into an individual's private affairs without justification. They foster the reality of an Orwellian state in which the government becomes a monster to be feared rather than a servant to be trusted.
That is not the kind of government envisioned by our Founding Fathers. The underlying and fundamental premise of our Constitution is that all government power is limited by checks and balances. This is no less true of the government's power to protect "national security.” That power is not so absolute that it can excuse infringements of the right to privacy and other constitutional liberties. It would indeed be ironic if the government could invoke “national security" to violate those individual freedoms which the government is obligated to defend.
The public apparently agrees that invocation of "national security" cannot excuse violations of constitutional rights and liberties. A recent Harris opinion poll found that 75% of the public believes that "wiretapping and spying under the excuse of national security is a serious threat to people's privacy."
More than 20 years ago, Justice Felix Frankfuter voted with a majority of the Supreme Court to condemn as unconstitutional President Truman's seizure of the steel mills, an action which that President also tried to justify in terms of "national security." In explaning his vote, Justice Frankfuter observed that:
"The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”
The observation is equally true of warrantless wiretaps in so-called "national security" cases. Over the past few decades, the use of these taps has generated an unchecked power in the executive branch. The danger has now been exposed. In wiretapping, as in other matters, unchecked power can be and often is exercised in an arbitrary and abusive fashion.
It is not a question of good faith. Even the best of intentions can lead individuals
and their government-astray. If Congress wants to insure respect for constitutional limitations and constitutional liberties, it should not rely on the good will of government officials; it should enact legislation which defines clearly the government's obligations and the individual's rights. This is at least one lesson of Watergate. Time will tell how well Congress has learned the lesson.
SECTION ANALYSIS OF THE SURVEILLANCE PRACTICES AND PROCEDURES ACT OF
This section identifies the bill as the "Surveillance Practices and Procedures Act of 1973."
This section consists of findings and declarations by Congress. It is stated that recent events have exposed abuses by governmental agencies and departments when engaging in certain surveillance practices, including the use of wiretaps. It is stated further that these abuses have undermined and/or threatened the individual's constitutional right to privacy and other constitutional rights and liberties. Because of these past violations of constitutional rights and liberties, and because the possibility of future violations has rightly aroused public concern, it is declared that Congress should establish praetices and procedures so as to reconcile the interest in protecting constitutional rights and liberties with the interest in enabling the government to execute its investigative and law enforcement responsibilities. The section concludes that the need for these practices and procedures is particularly acute in cases inrolving the use of wiretaps by the government.
This section amends section 2510 of title 18, United States Code, by adding a definition for the term "foreign agent." A foreign agent is defined as an individual who is not an American citizen, whose first allegiance is to a foreign power and whose activities are intended to serve that foreign power and to undermine the security of the United States.
This subsection amends subsection 2511(3) of title 18, United States Code. It empowers the President to authorize wiretaps against foreign powers and their agents when necessary to protect the nation against actual or potential attack or other hostile acts, to obtain foreign intelligence information essential to the security of the United States, or to protect national security information against foreign intelligence activities. In authorizing these wiretaps, the President must adhere to the procedures delineated in section 2518A (described below).
Comment.—Read in conjunction with section 2518A, this subsection requires the President to obtain a judicial warrant before wiretapping foreign powers and their agents. The warrant must be based on evidence, establishing probable cause, that the information derived from the wiretap will serve at least one of the three national security purposes described above.
Under the present wording of section 2511(3), both the government and numerous courts have maintained that the government can conduct wiretaps
without a judicial warrant if the information sought would, in the government's eyes, serve one of the three national security purposes. (See, for example, United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973; United States v. Clay, 430 F.2d 165, 171-72 (1970), rev'd on other grounds 403 U.S. 698 (1971).)
These warrantless wiretaps, however, often pose a fundamental danger to the individual rights and liberties guaranteed by our Constitution. Foremost among these threatened rights and liberties are those protected by the Fourth Amendment. That amendment provides that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches 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."
The amendment thus protects the individual's privacy from unreasonable invasion by the government. To protect individual privacy, the amendment contemplates that a neutral court or magistrate—not a government intent upon pursuing an investigation-must determine whether any search planned by the government is reasonable. (Shadwick v. City of Tampa, 407 U.S. 345, 354 1972); Johnson v. United States, 333 U.S. 10, 13-14 (1948).)
The Supreme Court has made clear that the amendment's "protection reaches all alike, whether accused of crime or not, and the duty of giving it force is obligatory upon all.” (Weeks v. United States, 232 U.S. 383, 391 (1914).) Even foreign agents engaged in espionage enjoy some protection under the Fourth Amendment. (Abel v. United States, 362 U.S. 217 (1960).)
The greatest dangers of warrantless wiretaps for so-called “national security" reasons are to the constitutional rights and liberties of American citizens. Reports by congressional committees and others have demonstrated that such wiretaps were often by the government to engage in surveillances of American citizens whose activities bore no reasonable relationship to this nation's security.
These abuses underscore the need to have a neutral court review all "national security” wiretaps to insure that they are used for lawful purposes. The Fourth Amendment does not except "national security" cases from the scope of its protection. Nor should there be any exception for "national security" cases. Otherwise it is possible--if not likely—that the power to conduct warrantless wiretaps can be used again to violate the constitutional rights and liberties of American citizens. Section 4(a) of the bill minimizes that possibility by requiring the government to obtain an approving judicial warrant before it can wiretap foreign powers or their agents.
The warrant procedure does not impose any unconstitutional restriction on the President's constitutional powers as Chief Executive, as Commander-inChief of the Armed Forces, or as the Nation's chief foreign policy officer. To begin with, the fundamental premise of our Constitution is that there are no absolute powers in any branch of the government--all power is “fenced about." (Berger, Congress y. The Supreme Court 8–15 (1969).)
Congress has the Constitutional power to define the limits of the President's wiretap authority. In the Keith case (United States v. United States District Court, 407 U.S. 297 (1972)), the Court stated explicitly that Congress has the power to establish standards under which wiretaps could be authorizedeven if those standards restricted the President's powers. (See esp. 407 U.S. at 338, n.2, White, J., concurring opinion.) No court has held to the contrary. Indeed, in sustaining presidential authority to conduct warrantless wiretaps, courts have placed primary reliance on United States v. Curtiss-Wright, 299 U.S. 304 (1936), and Chicago & Southern Air Lines, Inc. v. Waterman Steamship Co., 333 U.S. 103 (1948)—two cases which involved authority delegated to the President by laws enacted by Congress. (See Youngstown v. Sawyer, 343 U.S. 579, 635, n.2 (1952) (Jackson, J., concurring opinion.) Thus, the courts have not upheld the President's powers to exceed limitations imposed by Congress.
(b) This subsection deletes the second sentence of subsection 2511(3), title 18, United States Code. That sentence states that nothing in the subsection shall limit the President's authority to take measures which he deems necessary to protect the government from violent overthrow or other clear and present dangers.
Comments. This second sentence is ambiguous and, in light of the clarifying provisions of this bill, unnecessary. The ambiguity derives from the fact that the sentence does not confer or recognize any presidential power; it merly states that if the President has certain inherent constitutional powers, subsection 2511 (3) will not disturb that power (Keith, supra, 407 U.S. at 303– 308.)
From this construction, some individuals have maintained that the second sentence might tolerate the President's authorization of warrantless wiretaps against American citizens and others whom the government believes pose a threat to the nation's security.
The provisions of this bill make clear, however, that government cannot use warrantless wiretaps under any circumstance. The bill also provides that wiretaps to protect national security can be authorized by a court only when certain criteria are satisfied. (See Seos. 4(a) and 5(a).) In view of this clarification, and since the second sentence does not constitute an affirmative grant of power, it should be deleted.
(c) This subsection amends subsection 2511 (3) of title 18, United States Code, so that information obtained from foreign power or foreign agent wiretaps cannot be used in criminal proceedings but can be used in civil proceedings against foreign agents.
Comment.-All aliens-even those engaged in espionageenjoy Fourth Amendment protections in at least criminal matters. (Abel, supra. See Weeks, supra.) Therefore, if the government wishes to use wiretap information in a criminal prosecution, it must follow the stricter standards delineated in section 5 of the bill. However, the information gained from foreign power or foreign agent wiretaps could be used in deportation proceedings or other civil proceedings. (Abel, 362 U.S. at 237.)
This section amends section 2516, title 18 of the United States Code to remove "national security” crimes from the list of crimes for which a wiretap could be authorized under section 2518 or title 18.
Comment. This section is purely a technical one to separate "national security" crimes from other crimes and make them subjeot to the procedures of section 2518A as delineated in section 5(b) of the bill.
SECTION 5 (a)
This section creates a new section, (2516A), in title 18, United States Code. The section provides that the Attorney General, or a specially designated Assistant Attorney General, may seek court authorization for a wiretap pursuant to section 2518A when (1) there is probable cause to believe a party has committed, is committing, or is about to commit a specific “national security" crime; and (2) the wiretap sought will probably provide evidence concerning the commission of that crime.
Comment.—This subsection permits the government to obtain court authorization for a wiretap when there is probable cause to believe that the wiretap will produce evidence concerning the commission of a crime. This subsection does not in any way limit the President's power to obtain court authorization under a less rigorous standard when the subject of the wiretap is a foreign power or foreign agent. (See Sec. 4(a).)
Subsection 5(a) merely codifies the protections afforded to individuals under the Fourth Amendment. That amendment prohibits government searches and seizures which are unreasonable. A long line of Supreme Court decisions has held that in most circumstances a search must be supported by a warrant in order to be reasonable. (Coolidge v. New Hampshire, 403 U.S. 443 (1971); Vale v. Louisiana, 399 U.S. 30, 34-35 (1970); Chimel v. California, 395 U.S. 752, 762 (1969); Camara v. Municipal Court, 387 U.S. 523, 528-29 (1967); Chapman v. United States, 365 U.S. 610, 613-15 (1961); Johnson v. United States, 333 U.S. 10, 13-14 (1948); Agnello v. United States, 269 U.S. 20, 32 (1925).) Moreover, in most cases the warrant must be based on probable cause that a crime had been or was about to be committed. (Brinegar v. United States, 338 U.S. 160, 175-76 (1949); Husty v. United States, 282 U.S. 694, 700-01 (1931) ; Dumbra v. United States, 268 U.S. 435, 439, 441 (1925); Boyd v. United States, 116 U.S. 616 (1886). See Lasson, The History and Development of the Fourth Amendment to the United States Constitution, 106-121 (Da Capo Press 1970).) As the Supreme Court stated in Berger v. New York, 338 U.S. 41, 59 (1967), “The purpose of the probable cause requirement of the Fourth Amendment [is] to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime as been or is being committed, . Noncriminal warrants have been sanctioned only for social welfare purposes, such as in housing ins ctions. (Camara, supra.)
The Fourth Amendment protections also apply to invasions of privacy achieved through wiretapping. (Berger, supra; Katz v. United States, 389 U.S. 347 (1967).) Under these decisions, the government must obtain a warrant before it can wiretap an individual's telephone.
The Supreme Court also held, by a unanimous 8-0 vote, that the government cannot wiretap without a warrant even when the object is to gather intelligence about individuals whose activities threaten “domestic security.” In fact, the Court stated that the warrant requirement is even more important when the real object of the wiretapping is intelligence-gathering. In such cases the government may have a tendency to view as "security threats" those who are critical of government policies. According to the Court, the judicial warrant would help insure that intelligence-gathering does not become an excuse for the government to suppress or punish constitutionally-protected speech :
"The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society." 407 U.S. at 314. See Stanford v. Texas, 379 U.S. 476 (1965).
The Court reserved judgment though, for those situations where American citizens have a "significant connection" with foreign powers or their agents.
The Fourth Amendment's protections against wiretapping should not be suspended merely because the citizens' activities may involve foreign intelligence activities or otherwise affect "national security.” As noted above, the amendment itself does not provide an exception for cases involving “national security.” Indeed, many thoughtful individuals have declared that no exception can be made for national security cases. In arguing that the Fourth Amendment's protections apply to national security cases, Supreme Court Justice William 0. Douglas stated that "there is, so far as I understand constitutional history, no distinction under the Fourth Amendment between types of crimes.” (Katz, 389 U.S. at 360 (concurring opinion).)
Whatever the interpretation placed on the Fourth Amendment, however it is clear the Congress has the constitutional power to establish reasonable standards for authorizations of wiretaps. (Keith, supra; Katz, supra. See generally Youngstown, supra, 343 U.S. at 587, 589, 645-46.) The provisions of section 5(a) are reasonable and are consistent with the letter as well as the spirit of the Fourth Amendment.
(b) This subsection establishes a new section 2518A in title 18. United States Code. This new section, in turn, delineates a procedure by which the government can obtain a court warrant for a wiretap in a case concerning "national security.” Essentially, the procedures parallel those contained in existing law for wiretaps for domestic crimes. (18 U.S.C. § 2518.) In certain areas, the new section 2518A includes new provisions which eliminate many of the constitutional infirmities and practical problems of existing procedures. (It should be remembered that the Supreme Court has not ret ruled on the constitutionality of existing wiretap procedures.) Generally, the standards incorporated within section 2518A conform with the guidelines issued by the Surseme Court in Berger, supra, and refined in subsequent cases.
(b) (1) This subsection provides that applications for an order authorizing a wiretap under title section 2511 (3) or section 2516A can be made to a judge of competent jurisdiction. The subsection provides further that in orders involving anplication of section 2511(3)—wiretaps on foreign powers or their agents—the annlication can. at the government's discretinn. alwars he made to a indge sitting on the Federal District Court in the District of Columbia : the section thus enables the government to limit the numher of indges who would have access to information relating to the need to wiretap foreign powers or their agents.