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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 telephones 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 a 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 affirma- : tion, 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 decisions 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.
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 practices 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.
SECTION 4 (a)
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, ('ongress v. The Supreme Court &–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.