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That statute, title III of the Omnibus Crime Control and Safe Streets Act, actually extended official wiretapping by authorizing frequent and prolonged eavesdropping by Federal and State investigators. It also authorized, for the first time, the use of wiretap evidence in criminal trials. In the 6 years since the enactment of title III we have witnessed an intensive, widespread, but perhaps avoidable encroachment on some of our most necessary rights.
These hearings are not the first congressional effort to examine privacy invasion by electronic eavesdropping. Between 1934 and 1967 at least 16 sets of congressional hearings on wiretapping were held. From 1965 to 1971 former Congressman Corneillius Gallagher conducted numerous hearings on privacy invasion as chairman of the Special Subcommittee on Privacy of the House Committee on Government Operations. However, in 1972 the House defeated a resolution sponsored by Congressman Gallagher to establish a Select Committee on Privacy, Human Values, and Democratic Institutions. The then chairman of the Judiciary Committee, Congressman Celler took the position that the entire subject of privacy was within the jurisdiction of this committee even though Congressman Gallagher tried without success to assure Chairman Celler that the proposed select committee would not encroach on the Judiciary Committee's recognized jurisdiction in the area of bugging, wiretapping, and surveillance.
In scheduling these hearings this subcommittee is reasserting the Judiciary Committee's longstanding involvement with the problems of privacy invasion and electronic surveillance.
Of course, we are not alone in our examination of this sensitive subject. Within the last few weeks, two subcommittees of the Senate Judiciary Committee and one subcommittee of the Senate Foreign Relations Committee have begun joint hearings on warrantless wiretapping and electronic surveillance.
In addition, there are two independent commissions which are authorized to consider the problem. Public Law 90-351 established a National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance. Recently, Congressman Railsback of this subcommittee and I were appointed as two of the House Members on this Commission. Congressman Edwards of California and Congressman Steiger of Arizona are the other House Members.
Public Law 91-452 established another Commission, the National Commission on Individual Rights, which also has a mandate to consider wiretapping and electronic surveillance. I am also a member of that Commission. Unfortunately, this Commission cannot function presently as the President has failed to appoint its public members.
Undoubtedly, these two Commissions will serve a useful purpose in undertaking a full scale reappraisal of the problem of privacy invasion by electronic eavesdropping. However, the growing public concern in this area requires that we not wait for the result of the Commission's findings to exercise our oversight in this sensitive area.
Within the last year numerous reports have appeared in the press describing abuses of wiretapping and electronic surveillance on the part of the Federal Government. Only last week this issue of illegal Government wiretapping was raised in a Federal court in Minnesota in prosecutions arising out of the incident at Wounded Knee. Recent testimony before the Senate Judiciary Subcommittee on Constitutional Rights revealed that U.S. military intelligence units had tapped telephones of American citizens living in Europe who were organized to support Senator George McGovern's 1972 campaign for the Presidency. In addition, there have been numerous reports of wiretapping of members of the press, advisors to Presidential candidates and even members of Congress. These reports emphasize the need for immediate Subcommittee consideration of Government eavesdropping activities.
The procedures used within the Department of Justice to approve wiretapping requests have also been questioned. In litigation presently pending before the Supreme Court, the Justice Department has admitted that former Attorney General John Mitchell's executive assistant actually reviewed and signed wiretap requests in spite of the fact that the law requires that such requests be signed by the Attorney General or a designated Assistant Attorney General. This failure by the Attorney General to observe the law could compromise hundreds of prosecutions of organized crime figures who were wiretapped under such procedures.
That reported abuses of wiretapping and electronic surveillance have generated public concern is reflected by the fact that over 30 members of Congress have sponsored legislation which would restrict currently authorized eavesdropping. This legislation is currently pending before this subcommittee.
In view of the public and congressional concern about eavesdropping, the subcommittee has an obligation to find out the facts about this much publicized subject. Hopefully, these hearings will provide some of those facts. I feel very strongly that the all-too-clever techniques of modern electronic eavesdropping require the vigilance of the Congress to protect the right of the individual. This most insidious invasion of privacy demands full recognition and certain action.
We must also recognize the needs of investigative agencies for the best techniques available in the fight against organized crime and in the protection of our national security. I think that most citizens want our law enforcement agencies to be well equipped to perform their investigative responsibilities within the limitations imposed by the Constitution.
We will be hearing from a variety of witnesses representing both those who have been under surveillance and those who have conducted surveillance.
[The bills are as follows:]
[H. R. 1597, 93d Cong., 1st sess.) A BILL To amend certain Federal law relating to the interception of wire and oral
communications Be it enacted by the Senate and House of Representative of the United States of America in Congress assembled, That section 2511 of title 18 of the United States Code is amended by adding at the end thereof the following:
"(4) Notwithstanding any other law or provision of law, whoever, acting under color of law. intercepts or discloses any wire or oral communication, with respect to which a judge or justice of the United States or a Senator or Member of Congress is a party, without the written authorization of the President (specifically authorizing the particular interception or disclosure) shall be fined not more than $20,000 or imprisoned not more than ten years, or both."
[H. R. 7773, 93d Cong., 1st sess.) A BILL To amend title XII of the Organized Crime Control Act of 1970, and for
other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title XII of the Organized Crime Control Act of 1970 (84 Stat. 922, 960) is amended as follows:
(a) The heading of the title is amended to read :
"TITLE XII-NATIONAL COMMISSION ON INDIVIDUAL RIGHTS AND PERSONAL
(b) Section 1201 is amended by adding "and Personal Security" after the word "Rights".
(c) Section 1204 is amended to read as follows:
"SEC. 1204. It shall be the duty of the Commission to conduct a comprehensive study and review of Federal court decisions, laws, and practices relating (1) to special grand juries authorized under chapter 216 of title 18, United States Code, dangerous special offender sentencing under section 3575 of title 18, United States Code, bail reform and preventive detention, no-knock search warrants, the accumulation of data on individuals by Federal agencies as authorized by law or acquired by executive action, and (2) the conduct of stop and frisk arrests, searches and seizures, interrogations, appellate review by the prosecution, lack of mutual pretrial criminal discovery, self-incrimination and prosecutor comment on failure to testify, the conduct of lineups, disclosure of informants' identities, fingerprinting and photography, and trial delay, finality and collateral review of Federal and State criminal proceedings. The Commission may also consider other Federal court decisions, laws, and practices which in its opinion may infringe upon the individual rights of the people of the United States to liberty or to personal security. The Commission shall determine which legal rules, laws, and practices are needed, which are effective, and whether they infringe upon the individual rights of the people of the United States to liberty or to personal security.”
(d) Section 1207 is amended to read as follows:
"SEC. 1207. (a) The Commission or any duly authorized subcommittee or member thereof may, for the purpose of carrying out the provisions of this title, hold such hearings, sit and act at such times and places, administer such oaths, and require by subpena or otherwise the attendance and testimony of such witnesses and the production of such books, records, correspondence, memorandums, papers, and documents as the Commission or such subcommittee or member may deem advisable. Any member of the Commission may administer oaths or affirmations to witnesses appearing before the Commission or before such subcommittee or member. Subpenas may be issued under the signature of the Chairman or any duly designated member of the Commission, and may be served by any person designated by the Chairman or such member,
“(b) In the case of contumacy or refusal to obey a subpena issued under subsection (a) by any person who resides, is found, or transacts business within the jurisdiction of any district court of the United State, the district court, at the request of the Chairman of the Commission, shall have jurisdiction to issue to such person an order requiring such person to appear before the Commission or a subcommittee or member thereof, there to produce evidence if so ordered, or there to give testimony touching the matter under inquiry. Any failure of any such person to obey any such order of the court may be punished by the court as a contempt thereof.
“(c) The Commission is an 'agency of the United States' under subsection (1) of section 6001 of title 18, United States Code, for the purpose of granting immunity to witnesses.
"(d) Each department, agency, and instrumentálity of the executive branch of the Government, including independent agencies, is authorized and directed
to furnish to the Commission, upon request made by the Chairman, on a reimbursable basis or otherwise, such statistical data, reports, and other information as the Commission deems necessary to carry out its functions under this title. The Chairman is further authorized to call upon the departments, agencies, and other offices of the several States to furnish, on a reimbursable basis or otherwise, such statistical data, reports, and other information as the Commission deems necessary to carry out its functions under this title.”
(e) Section 1208 is amended to read as follows:
“Sec. 1208. The Commission may make interim reports and recommendations as it deems advisable, and it shall make a final report of its findings and recommendations to the President of the United States and to the Congress at the end of three years following the date of enactment of this amendment to this section. Sixty days after the submission of the final report, the Commission shall cease to exist."
[H. R. 9667, 93d Cong., 1st sess.) A BILL To amend title 18 of the United States Code to require the consent of all
persons whose communications are intercepted under certain provisions relating to certain types of eavesdropping
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 2511(2) of title 18 of the United States Code is amended by striking out paragraphs (c) and (d), and inserting in lieu thereof the following:
"(c) It shall not be unlawful under this chapter for a person to electronically record or otherwise intercept a wire or oral communication where all parties to the communication have given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act."
[H. R. 9698, 93d Cong., 1st sess.) A BILL To amend title 18 of the United States Code to prohibit the interception of
certain communications unless all parties to the intercepted communication consent
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 2511 of title 18 of the United States Code is amended by
(1) striking out, in subsection (2) (c), "or one of the parties to such interception" and inserting in lieu thereof", but only if all of the parties to the communication have given prior consent to such interception.”; and
(2) striking out, in subsection 2(d), “or where one of the parties to the communication has given prior consent to such interception" and inserting in lieu thereof “, but only if all of the parties to the communication have given prior consent to such interception,”.
[H. R. 9781, 93d Cong., 1st sess. ] A BILL To amend certain sections (authorizing wiretapping and electronic surveillance)
of title 18 of the United States Code Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Congress finds and declares that
(1) Widespread wiretapping and electronic surveillance, both by private persons and Government agents, both under color of law, and without pretense of legal excuse or justification, has seriously undermined personal security and often violated fundamental constitutional rights, including the rights to free speech, press, and association, the rights to due process and equal protection, and the right to privacy.
(2) Complexities and defects in current Federal law have aided those who engage in wiretapping and electronic surveillance, and current Federal law 'has not provided adequate safeguards against corrupt abuses of communications technology.
(3) No person, in any branch of the Federal Government, in however high an office, or in any other governmental or private position should be authorized either explicitly or implicitly to violate the constitutional rights of persons by eavesdropping on private conversations through wiretapping and electronic surveillance.
(4) The end of prosecuting those who violate the law does not justify wrongdoing on the part of the Government.
(5) The peculiar susceptibility of wiretapping and electronic surveillance to misuse in the furtherance of partisan political goals renders wiretapping and electronic surveillance a particularly dangerous temptation to Government officials, and the chance of its misuse outweighs any potential benefits which might otherwise be found in it. SEC. 2. Title 18 of the United States Code is amended
(1) by striking out in section 2511 (1) "Except as otherwise specifically provided in this chapter any person who" and inserting in lieu thereof “Whoever—";
(2) by inserting immediately after subparagraph (d) of section 2511(1), but before “shall be fined" the following new subparagraph:
“(e) willfully intercepts or records any wire or oral communication without the consent of all the parties to such communication";
(3) by striking out “or" at the end of section 2511 (1) (c) and by inserting “or” at the end of section 2511(1)(d);
(4) by striking out sections 2511(2)(a)(ii), (b), (c), and (d);
(6) by striking out section 2512(1) "Except as otherwise provided in this chapter, any person who willfully~" and inserting in lieu thereof “Whoever—";
(7) by striking out section 2512(2); and
[H. R. 9815, 93d Cong., 1st sess.) A BILL To enforce the first amendment and fourth amendment to the Constitution,
and the constitutional right of privacy by prohibiting any civil or military officer of the United States or the militia of any State from using the Armed Forces of the United States or the militia of any State to exercise surveillance of civilians or to execute the civil laws, and for other purposes
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. This Act may be cited as the “Freedom from Surveillance Act of 1973”.
SEC. 2. (a) Chapter 67 of title 18, United States Code, is amended by adding at the end thereof the following new sections: "S 1386. Use of the Armed Forces of the United States for surveillance pro
hibited “(a) Except as provided in subsection (b) of this section, whoever being a civil officer of the United States or an officer of the Armed Forces of the United States employs any part of the Armed Forces of the United States or the militia of any State to conduct investigations into, maintain surveillance over, or record or maintain information regarding, the beliefs, associations, or political activities of any person not a member of the Armed Forces of the United States, or any civilian organization, shall be fined not more than $10,000, or imprisoned not more than two years, or both.
“(b) The provisions of this section shall not apply to the use of the Armed Forces of the United States or the militia of any State:
“(1) to do anything necessary or appropriate to enable such forces or militia to accomplish their mission after they have been actually and publicly assigned by the President to the task of repelling invasion or suppressing rebellion, insurrection, or domestic violence, pursuant to the Constitution or section 331, section 332, or section 333 of title 10 of the United States Code; or
“(2) to investigate criminal conduct committed on a miliary installation or involving the destruction, damage, theft, unlawful seizure, or trespass of the property of the United States; or