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days after the last court-authorized interception occurs. In no event, however, need the government disclose the identity of a foreign power or foreign wiretapped pursuant to Section 2511(3). Moreover, the disclosure of the wiretap can be postponed if the government satisfies the judge that the individual tapped is engaged in a continuing criminal enterprise or that disclosure would endanger national security interests. The judge would have the discretion to determine the length of any postponement.
Comment.—Existing law concerning wiretaps for domestic crimes provides that a wiretap must be disclosed only prior to the use of wiretap information as evidence in a legal proceeding. This provision offers little protection for the individual tapped for national security reasons.
In most cases, those wiretapped for national security reasons are not prosecuted in a legal proceeding. (See Laird v. Tatum, 408 U.S. 1 (1972).) In those cases where prosecution is initiated, the government usually abandons the case rather than disclose the wiretap. (See, for example, Salpukas, “Weathermen Case is Dropped by U.S.," N.Y. Times, Oct. 16, 1973, P. 1.). In either case, individuals involved are usually deprived of an opportunity to seek redress in court for violations of their Constitutional rights.
This result conflicts with the original understanding of how constitutional rights would be safeguarded. From the beginning, it was presumed that individuals who were the subject of a government search would learn about it. (Berger, 388 U.S. at 60. See Lasson, The History and Development of the Fourth Amendment to the United States Constitution, Chapters 3 & 4.) Having knowledge of the government search, to the individual could have his day in court to argue that the search infringed on his rights. In proposing adoption of the Bill of Rights in the first Congress, James Madison acknowledged this fundamental role of the courts in protecting constitutional rights:
"Independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the Declaration of Rights."
1 Annals of Congress 440 (1789).
This role is equally important in protecting constitutional rights against national security wiretaps. As Circuit Court Judge Goldberg explained in United States v. Brown, supra.
“It remains the difficult but essential burden of the courts to be ever vigilant so that foreign intelligence never becomes a pro forma justification for any degree of intrusion into zones of privacy guaranteed by the Fourth Amendment."
484 F.2d at 427 (concurring opinion).
It is beyond dispute, then, that an individual's constitutional rights to privacy and speech can be violated by national security wiretaps. A violation is no less real or dangerous because the government does not prosecute the individual tapped.
It is obviously impractical to provide advance notice of the wiretap to the individual who is the object of the surveillance. As the Supreme Court observed in Katz, 389 U.S. at 355, n.16, advance notice might "provoke escape of the suspect or the destruction of critical evidence.” Such concerns have little force after the wiretap is completed and removed. Therefore, except in “exigent circumstances" (Berger, 388 U.S. at 60), an individual should be informed of completed national security wiretaps of his conversations so that there is an opportunity for legal redress even if the government does not prosecute.
Subsection (b) (8) of the bill achieves this constitutional purpose. It provides for disclosure of national security wiretaps after the tap has been removed. Disclosure could be postponed only when the authorizing judge is satisfied that the individual tapped is engaged in a continuing criminal enterprise or that disclosure would endanger national security interests. This discretion for postponement would insure that important national security interests are not compromised unnecessarily.
(b) (9) This subsection provides that any aggrieved person may prevent the use of wiretap information as evidence against him in any legal proceeding if such information was obtained unlawfully or is being used in an unlawful manner. The subsection also provides the government with a right for immediate appeal to a higher court if the presiding judge should prevent the use of wiretap information.
Comment.—This provision simply parallels existing law concerning the use of information obtained from wiretaps for domestic criminal purposes. (18 U.S.C. $2518 (10).) This section is in part a codification of Supreme Court decisions that evidence secured by the government as a result of an unconstitutional search is “poisoned” and cannot be used in a legal proceeding. (Weeks, supra. See Alderman v. United States, 394 U.S. 165 (1969).)
This section provides for the codification of the bill's two new titles, 2516A (application for wiretaps for national security purposes on those other than foreign powers and their agents) and Section 2518A (procedures for obtaining a court order authorizing a wiretap for national security purposes).
This section provides that certain information concerning wiretaps authorized under the new Section 2518A shall be reported to the Administrative Office of the United States Courts within thirty (30) days of the last authorized interception.
Comment. The existing law provides that all wiretaps for domestic criminal purposes must be reported to the Administrative Office of the United States Courts. (18 U.S.C. 8 2519(1).) Wiretaps authorized under the new section 2518A also should be reported so that there can be accurate records of all wiretaps. There should be no concern that this reporting requirement will in any way compromise sensitive information. Past experience has demonstrated that any confidential information transmitted to the Administrative Office remains confidential,
[From the Congressional Record, Feb. 4, 1974] SURVEILLANCE PRACTICES AND PROCEDURES OF 1973—AMENDMENT
AMENDMENT NO. 960
(Ordered to be printed and referred to the Committee on the Judiciary.)
INDIVIDUAL PRIVACY AND THE NATIONAL SECURITY
Mr. NELSON. Mr. President, the time has come to end the wiretapping abuses perpetrated in the name of national security. These national security taps today are not authorized by a judicial warrant. The Government is, therefore, free to determine whom it can tap and when it can tap.
Warrantless taps pose a grave danger to fundamental constitutional liberties. Recent events demonstrate that the individual's right to privacy has been and made continue to be violated by the Government's use of such, wiretaps. Often they reflect nothing more than a desire to pry into an individual's private affairs. Generally they are not supported by concrete evidence to justify the invasion of an individual's privacy. And always they escape the scrutiny of the courts, the Congress and the public at large because the Government is not required to disclose their existence unless it prosecutes the individual involved—a rare occurence in the history of national security wiretaps.
Congress should act now to end this intolerable situation. Every American citizen should be assured that his privacy will not be invaded unless a court has determined that the invasion is justified.
Last December I offered a bill (S. 2820) which would provide this assurance. The bill would prohibit the use of warrantless wiretaps against American citizens in national security cases. The basis of this legislative proposal is clear.
The fourth amendments to the U.S. Constitution prohibits Government invasions of a citizen's privacy without a judicial warrant, Supreme Court decisions make clear, moreover, that the fourth amendment protections generally apply to Government wiretaps.
Despite the clear meaning of the fourth amendment, the Government continues to authorize wiretaps without a judicial warrant. A couple of weeks ago
the Justice Department reported that it had authorized three warrantless wiretaps for national security cases.
The danger of warrantless wiretaps is not confined to the criminal and truly subversive elements without our society. Warrantless wiretaps are a serious threat to everyone, regardless of his or her station in life. Many distinguished Americans, for instance, have been among those subject to national security wiretaps.
Those wiretapped in recent years include Dr. Martin Luther King, Jr., who was wrongly suspected om being a Communist dupe in the early 1960's; Joseph Kraft, the syndicated newspaper columnist; 17 newspapermen and Government officials who were suspected of leaking or reporting sensitive information in 1969 — despite the fact that some of those tapped did not even have access to such information; congressional aides who knew reporters involved in the publication of the Pentagon Papers; and only last week the Washington Post revealed four more warrantless wiretaps conducted by the White House “plumbers” in 1972 against friends of a White House official suspected of passing information to the Chairman of the Joint Chiefs of Staff of the U.S. Armed Forces.
These and other incidents show that often national security wiretaps have been used to protect an administration from adverse publicity rather than to protect the Nation against foreign attack or subversion.
The abuses of warrantless wiretaps have rightly aroused concern among the public. Numerous opinion polls indicate that more than 75 percent of the people now favor legislation to curb Government power to wiretap.
The vast majority of the public instinctively recognize that lack of control breeds an official state of mind that condones the Government's invasion of a citizen's privacy. This official attitude is a dangerous threat to freedom. It led to Watergate and other illegal acts of political espionage.
It is incumbent upon Congress to adopt measures to prevent future abuses and alleviate public concerns. S. 2820 provides Congress with a timely opportunity to meet its responsibility.
The basic purpose of the bill is to guarantee that the individual's constitutional rights and liberties do not fall prey to national security wiretaps. It would indeed be ironic if the Government's invocation of "national security" could justify a violation of those constitutional rights and liberties which the Government is supposed to make secure.
After the bill was introduced, comments from legal scholars and other authorities throughout the country were solicited by my office. Their responses, as well as the additional materials which they brought to our attention, were considered carefully. That consideration, in turn, has made clear that certain amendments are both necessary and appropriate to insure that the bill strikes a proper balance between constitutional liberties and legitimate national security needs.
Accordingly, I am introducing those amendments today. These amendments effect three basic changes in the bill.
First, before the Government could wiretap American citizens in national security cases, it would have to obtain a judicial warrant based on probable cause that a specific crime has been or is about to be committed. This change would help protect an individual's constitutional rights against 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 not in any 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 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 a citizen's privacy-a situation which would violate the rights and liberties guaranteed to every citizen under our Constitution.
Third, every American citizen wiretapped would be informed of the surveillance within 30 days after the last authorized interception. This change would assure every wiretapped American citizen the opportunity to protect against violations of his 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.
These amendments are essential to achieve the bill's stated purposes. Mr. President, I, therefore, ask that the amendments be referred to the Judiciary Committee so that the committee can consider them when it reviews the bill.
I. THE SCOPE OF THE FOURTH AMENDMENT'S PROTECTION To appreciate the dangers of warrantless wiretaps, it is first necessary to understand the scope of the Fourth Amendment's protection. 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.”
This amendment thus restricts the Government's power over the individual. As James Madison observed, this amendment, as well as the other amendments in the Bill of Rights :
"Limit and qualify the powers of Government, by excepting out the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. 1 Cong. Journal 483 (June, 1789)."
In this light, the basic purpose of the fourth amendment is clear. It is designed to protect each citizen's privacy from unreasonable invasion by the Government.
The fourth amendment was borne from the American Colonies' bitter experience with their British rules. The English King's officers—armed with nothing more than a general warrant and a desire to suppress political dissent-frequently entered an individual's home and rummaged through his personal effects. Those warrants, and the indiscriminate searches which they sanctioned, quickly became a subject of dread among the American Colonies. See N. Lasson, "The History and Development of the Fourth Amendment to the United States Constitution," chapter 3 and 4 (1937).
In drafting a constitution to govern their new nation, the American citizens were concerned that there be no resurrection of those indiscriminate searches by the Government. The fourth amendment was, therefore, adopted to meet that justified concern.
The fourth amendment's protection is twofold. On the one hand, it precludes unreasonable invasions of an individual's privacy by the Government. On the other hand, the fourth amendment guarantees that that privacy can be invaded only when there is a judicial warrant based on probable cause. The fourth amendment's twofold protection was aptly summarized in a recent issue of the Arizona Law Review:
"The fourth amendment was intended not only to establish the conditions for the validity of a warrant, but also to recognize an independent right of privacy from unreasonable searches and seizures. Justice Frankfurter, dissenting from the (Supreme) Court's decision in Harris v. United States, interpreted "(t) he plain import of this (to be) * * * that searches are ‘unreasonable' unless authorized by a warrant, and a warrant hedged about by adequate safeguards.' "
"NOTE.—'Warrantless Searches in Light of Chimel: A Return to the Original Understanding,' 11 Ariz. L. Rev. 455, 472 (1969).”
It is quite clear, moreover, that the fourth amendment's protections were not to be suspended in cases of national security. When the fourth amendment was adopted, our Nation was only 11 years old. Foreign threats to the Nation's Newly won independence remained ever present. Yet the fourth amendment provides for no exception to its application. The compelling conclusion is that the amendment should be applicable to all situations, includisg cases involving national security crimes. This conclusion is supported by innumerable constitutional scholars, including Justice William 0. Douglas, who has stated :
"There is, so far as I understand constitutional history, no distiction under the Fourth Amendment between types of crimes. Katz v. United States, 389 U.S. 347, 360 (1967) (concurring opinion).”.
Our Founding Fathers, of course, did not contemplate the advent of telecommunications. Consequently, the amendment does not expressly include wiretaps of telephones within the ambit of its protection. But there is no question that the constitutional right to privacy in no less imporant in cases where the Government listens to a telephone conversation than when it physically enters an individual's home.
In the 1967 decision of Berger against New York and Katz against the United States, the Supreme Court held that the fourth amendment therefore generally requires the Government to obtain a judicial warrant before it can wiretap a citizen's phone. In issuing the Katz decision, the Supreme Court made clear that
“The fourth amendment protects people, not places."
The soundness of the Berger and Katz decisions have been reaffirmed repeatedly by the Supreme Court. See, for example, Alderman v. United States, 394 U.S. 165 (1969). Most recently, in United States v. United States District Court (407 U.S. 297 (1972)), commonly referred to as the Keith case, the Court held that the Government could not wiretap American citizens without a judicial warrant—even when the citizens' activities threatened the domestic security of the Nation. Again, the Court made clear that wiretaps must adhere to the saftguards 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, its 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 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” wiretaps, 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 private citizens and domestic organizations if the administration believes that their activities affect national security matters.
Mr. Richardson's comments apparently still reflect administration policy. A couple of weeks ago the Justice Department reported that it had authorized three warrantless wiretaps concerning national security matters.-See N.Y. Times, January 16, 1974, p. 18. col. 1—The Justice Department did not indicate whether the wiretaps included surveillance of American citizens. And that is precisely the problem of national security wiretaps.
The discretion to determine when such warrantless wiretaps are justified and properly executed has been the sole province of the executive branch. There has been no opportunity for the Congress, a court, or any other public body to examine the exercise of that discretion in order to prevent abuses. The results are not surprising. Warrantless wiretaps have produced and continue to produce the very evils which the fourth amendment was designed to eliminate.
II. THE HISTORY OF WARRANTLESS WIRETAPS
Warrantless wiretaps were first employed early in the 20th century. Almost from the very beginning constitutional scholars and law enforcement officials recognized the serious dangers of warrantless wiretaps. In an early surveillance case, the venerable Justice Oliver Wendell Holmes referred to warrantless wiretaps as "dirty business.” Olmstead v. United States, 277, U.S. 438, 470 (1928) (dissenting opinion.)
In 1931, J. Edgar Hoover, who by then had been FBI director for 7 years, commented that
“While (the practice of warrantless wiretaps) may not be illegal, I think it is unethical, and it is not permitted under the regulations by the Attorney General.”
In 1939 Mr. Hoover wrote to the Harvard Law Review that he believed wiretapping to be “of very little value” and that the risk of "abuse would far outweigh the value."