By 1939, however, pervasive reservations about wiretapping had inspired enactment of a law by Congress. In 1934, Congress passed the Communications Act. Section 605 of that act prohibits the "interception and divulgence" or "use" of the contents of a wire communication. From the moment of enactment, the provision seemed to erect a total prohibition to wiretapping and the use of information obtained from wiretapping. See Nardone v. United States, 308 U.S. 338 (1939); Nardone v. United States, 302 U.S. 379 (1937). This, at least, was the interpretation of civil libertarians acquainted with the legislative history. Indeed, subsequent efforts in the 1940's and 1950's to legalize certain kinds of wiretapping were repeatedly rebuffed by those in Congress who feared the consequences which wiretapping would have for civil liberties. See Theoharis and Meyer. "The National Security' Justification for Electronic Eavesdropping: An Elusive Exception," 14 Wayne L. Rev. 749 (1968).

On the eve of World War II, however, President Franklin D. Roosevelt became convinced that use of warrantless wiretaps would be necessary to protect the Nation against the "fifth column" and other subversive elements. Roosevelt, therefore, instructed his Attorney General, Robert Jackson, to authorize wiretaps against subversives and suspected spies.

But Roosevelt was not insensitive to the risks which wiretapping could have for constitutional rights and liberties. In a memorandum to Jackson dated May 21, 1940, Roosevelt indicated that he was aware of section 605 and had read the Supreme Court's interpretive decisions. Roosevelt basically agreed with the restrictions against wiretapping:

Under ordinary and normal circumstances wiretapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.

Roosevelt consequently instructed Jackson

"To limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens."

Roosevelt's sensitivity to the dangers of warrantless wiretaps did not necessarily rescue their legality. Many legal scholars have suggested that until enactment of title III of the Omnibus Crime Control and Safe Streets Act of 1968, all wiretapping was illegal. See, for example, Navasky and Lewin, "Electronic Surveillance," in hearings before Senate Subcommittee on Administration Practices and Procedures (U.S. Senate, 92d Cong., 2d sesis., pp. 173-74, 180 (June 29, 1972). Theoharis and Meyer, for instance, observed that until 1968:

"All wiretapping violated the absolute ban of section 605 of the Federal Communications Act of 1934, and all other electronic eavesdropping which resulted in trespass of a constitutionally protected area was prohibited."

The questionable legality of wiretapping did not deter its use after World War II. In the 1950's and the 1960's the Government's reliance on warrantless wiretaps mushroomed. No precautions were taken, though, to minimize the dangers to civil liberties recognized by Roosevelt. Concern for "national security" consequently led to the use of warrantless wiretaps against political dissidents-including Dr. Martin Luther King, Jr., who was wrongly suspected of being an unwitting dupe of the Communists.

The use of warrantless wiretaps had become a monster with its own momentum. Even the President did not always know the full extent to which such taps were used. Thus, upon learning of the taps on Dr. King and others, President Lyndon Johnson became irate.

On June 30, 1965, Johnson issued a directive placing severe restrictions on the use of warrantless wiretaps. Johnson initially made clear his general opposition to warrantless wiretaps:

"I am strongly opposed to the interception of telephone conversations as a general investigative technique."

Johnson nonetheless ordered that wiretaps be permitted in national security cases but only with the specific authorization of the Attorney General. Johnson apparently believed, in good faith, that authorization of warrantless wiretaps by the Attorney General would prove to be an adequate safeguard for the individual's constitutional right to privacy and other constitutional liberties.

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Sadly, but not unexpectedly, Johnson's belief proved to be illusory. Recent events have demonstrated that warrantless wiretaps-no matter how benign the Government's motives cannot insure the sanctity of the individual's right to privacy. Reference to the examples cited in my statement of December 17, 1973-S23026-makes this clear:

"On December 5, 1973, Eugene La Roque, a retired rear admiral in the U.S. Navy, revealed that the Pentagon currently has a unit which is authorized to engage in the same kind of surveillance activities conducted by the "Plumbers Unit" in the White House. The purported basis of these activities is a need to protect "national security." Rear Adm. La Roque emphasized that there is currently no procedure for Congress, the courts, or the public to determine the scope or lawfulness of the Pentagon unit's surveillance activities.

"In a report issued in October 1973, a House subcommittee found that certain White House officials invoked national security considerations to make the CIA their "unwitting dupe" in the burglary of Daniel Ellsberg's psychiatrist's offices and in other unlawful surveillance activities.

"Recently it was learned that in 1969 the administration installed warrantless taps on 13 government officials and 4 newsmen for the purported reason that these individuals were leaking or publishing sensitive foreign intelligence information. In virtually all the cases there was little or no concrete evidence to justify the taps. In many cases the evidence shows that the individual tapped did not even have access to such information. Indeed, in at least two cases the taps were continued after the individual had left Government service and had joined the Presidential campaign staff of Senator Muskie.

"In 1969 the White House authorized the burglary of the home of newspaper columnist Joseph Kraft so that a warrantless tap could be installed. The alleged basis for this action was again national security. But there was and is no concrete evidence to establish that Mr. Kraft was acquiring or reporting any information which compromised our national security.

"Testimony before the Senate Watergate Committee revealed that the White House authorized warrantless wiretaps "from time to time" when it was conducting an independent investigation of the publication of the "Pentagon papers" in 1971. The taps were placed on numerous citizens, including aides of Members of Congress, whose only connection with the "Pentagon papers" was a personal relationship with some of the reporters involved. Again, the taps were justified on national security grounds and, again, there was and is no concrete evidence to support the need for the taps.

"In 1970, the White House conceived and drafted a broad plan which proposed warrantless wiretapping, burglary, and other insidious surveillance practices. The staff assistant responsible for the plan started in a memorandum to the President that certain aspects were "clearly illegal." Nonetheless, the plan was approved on the basis of national security, only to be scrapped shortly afterward when FBI Director J. Edgar Hoover objected."

In addition to these abuses, the Washington Post disclosed last week four more warantless wiretaps conducted by the White House "plumbers" in 1972 against American citizens. The presumed basis for these taps was again national security. But there was no involvement of foreign powers or their agents. Nor were the taps in any way necessary to protect our Nation from foreign attack or subversion. The taps were instead justified on the grounds that a White House official was distributing certain information to the Chairman of the Joint Chiefs of Staff of the U.S. Armed Forces. In order to stop this distribution, the “plumbers" believed it necessary to wiretap the official's friends.

These abuses of warrantless wiretaps underscore the wisdom of the fourth amendment's protections. It would be naive to assume that the Government can make a disinterested judgment as to whether a planned search by Government agents is reasonable. The Government cannot properly be worth advocate and judge of its own.

Our Founding Fathers recognized this problem and adopted the fourth amendment. That amendment contemplates that a distinterested court will decide whether searches desired by the Government are reasonable. See, for example, the Keith case; Coolidge v. New Hampshire, 403 U.S. 443 (1971). The need for this disinterested judgment is no less necessary in cases involving the national security than it is in other cases. This essential point was advanced eloquently by Justice Douglas in the Katz case:

"Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and distinterested. Rather, it should vigorously investigate and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and the Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the positions of adversaryand-prosecutor and disinterested, neutral magistrate. 389 U.S. at 359-60 (concurring opinion)."

In short, regardless of how beneficient the Government's intentions, warrantless wiretaps-whether in "national security" cases or in any other kind of case pose serious dangers to the right to privacy as well as other constitutional rights and liberties.

III. AMENDMENTS TO PROTECT AGAINST WIRETAP ABUSES IN NATIONAL SECURITY CASES The history of warrantless wiretaps for "national security" cases demonstrates the need for corrective action. For too long Congress has closed its eyes to the abuses of those wiretaps-perhaps in the hope that the country would be better served if implicit trust were placed in the executive branch to safeguard constitutional rights. The history underlying the fourth amendment should have given Congress pause before being so trusting.

But whatever the rationale for past inaction, the Watergate scandals make clear that Congress must act now to insure the preservation of precious constitutional rights-especially the right to privacy. Invocation of "national security" should not enable the Government to wiretap without regard to traditional constitutional limitations. These amendments provide Congress with an opportunity to assure the sanctity of those limitations.

The amendments effect three basic changes in S. 2820, the bill offered last December.

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 crime had been or was about to be committed. The crime involved, moreover, would have to be one affecting this Nation's security. Such crimes include those under the Atomic Energy Act, treason, espionage, and sabotage.

This change merely reasserts the traditional safeguards provided by the fourth amendment. That amendment states that the Government cannot invade an American citizen's privacy without first obtaining a judicial warrant based on probable cause. The history of the amendment suggests that, except in certain matters such as housing inspections-the "probable cause" requirement must relate to the commission of a crime. See, for example, Wyman v. James, 400 U.S. 309 (1971); Camara v. Municipal Court, 387 U.S. 523 (1967).

The history of the fourth amendment also underlies the need for prior judicial authorization for national security wiretaps. In United States against Brown, Circuit Judge Goldberg explained the importance of the court's role in supervising such wiretaps:

"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 418, 427 (1973) (concurring opinion)."

The Watergate scandals should teach us that the courts cannot carry this essential burden unless prior judicial approval is required for national security wiretaps.

The amendments offered today provide a second basic change: Before it can wiretap foreign powers or their agents, the Government would have to obtain a judicial warrant. This warrant would be issued if the Government satisfies a judge only that the wiretap is necessary to protect the national security. The Government need not establish that the commission of a crime is involved. The standards for foreign power taps, therefore, would be less rigorous than the standards applied for American citizens.

This second change is to insure that the power to wiretap foreign powers is not abused in a manner which infringes on the rights of American citizens. A power to conduct warrantless wiretaps for foreign powers and their agents might enable the Government to violate the constitutional rights and liberties of American citizens. The recent past provides many occasions when legal restrictions on Government wiretapping have been ignored or misinterpreted. Those abuses, in fact, have inspired deep public concern that individual privacy can be violated at any time by Government wiretaps. Public opinion polls reveal that more than 75 percent of the public now favors a curb on the Government's power to wiretap.

Many of those most familiar with foreign power wiretaps share this concern. Former Attorney General Ramsey Clark, for example, recently testified at a congressional hearing:

"Certainly there should be absolutely no use of wiretap or electronic surveillance without a court order under any circumstances. . . Foreign as well as domestic."

Morton Halperin, a former member of Secretary Henry Kissinger's National Security Council staff, is another individual who shares this view.

There should be no concern that a requirement of judicial warrants for foreign power wiretaps will undermine the security of this Nation. Courts will be most responsive to legitimate requests for foreign power taps; as a result, there will be no restriction on the Government's ability to protect the Nation against foreign attack or subversion. Moreover, the implementation of title III of the Crime Control Act—which requires judicial authorization for domestic criminal wiretaps demonstrates that judges will jealously guard any sensitive information made available to them.

In short, judicial warrants for foreign power wiretaps will have no adverse consequences for this Nation's security. Indeed, former Attorney General Clark has testified that the impact of such warrants on national security "would be absolutely zero."

The third basic change provided by the amendments concerns national security wiretaps on American citizens. Within 30 days after the last authorized interception, the Government would have to disclose the existence of the surveillance to those citizens tapped. This disclosure could be postponed, however, if the Government satisfies the court that the individual involved is engaged in a continuing criminal enterprise and that disclosure would endanger national security interests. This option for postponement would prevent disclosures from undermining the Government's ability to protect the Nation against foreign attack or subversion.

This change again merely codifies the traditional safeguards afforded by the fourth amendment. From the beginning, it was assumed that the courts would protect the individual's right to be secure from unreasonable searches by the Government. In proposing adoption of the fourth amendment and the other amendments in the Bill of Rights, James Madison outlined this role to be played by the courts:

"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 Cong. Journal 440 (June, 1789)."

The courts could guard the right to privacy in one of two ways. Either the courts could refuse to issue a warrant authorizing a Government search; or the courts could respond to an individual's complaint that the Government had conducted an unconstitutional search.

The latter response of course presumed that the individual would know that the Government had in fact conducted a search. In the early days of our Republic the Government agents would generally knock at the individual's door, present the warrant, and conduct the search. Having knowledge of the search, the individual could complain to a court that the warrant was insufficient or, perhaps, that the Government executed the search despite the lack of a warrant. This opportunity to complain existed even when the American colonies suffered under British rule. Indeed, if the colonials were not informed of the indiscriminate searches conducted by the British, they would have had no basis to believe that adoption of the fourth amendment was necessary. See N Lasson. "The History and Development of the Fourth Amendment to the United States Constitution," chapters 3 and 4 (1937).

The advent of telecommunications has changed all this. Warrants can be issued and searches conducted without the subject ever learning of them. Unless the Government decides to prosecute the individual tapped, it need not make any disclosure to the individual at any time. For this reason, few of the American citizens tapped for national security reasons in the last few decades have ever learned of the Government's surveillance even though in some cases it continued for years.

The fourth amendment's protection against Government invasion of individual privacy is weakened if a citizen can be kept ignorant of Government wiretaps. Without knowledge of those wiretaps, the individual is stripped of all opportunity to complain to a court that they have violated his rights. Telecommunications have enhanced considerably the Government's power to snoop on its citizens; telecommunications should not become an excuse to avoid constitutional safeguards.

IV. CONCLUSION..

For decades the Government has used warrantless wiretaps to serve its view of the national security. These wiretaps have always posed a fundamental danger to the freedoms guaranteed by our Constitution. The Watergate scandals and other events have exposed that danger in a dramatic and clear fashion.

We should not fail to heed the warning signs. Constitutional provisions empowering the Government to protect the Nation's security were never thought to justify the subversion of individual freedoms afforded by other constitutional provisions. As Judge Ferguson declared in the United States against Smith, a case concerning the use of warrantless wiretaps for national security purposes: "To guarantee political freedom, our forefathers agreed to take certain risks which are inherent in a free democracy. It is unthinkable that we should now be required to sacrifice these freedoms in order to defend them. 321 F. Supp. 424, 430 (1971).”

Congress cannot and should not tolerate governmental violations of the individual's constitutional right to privacy by wiretaps or any other means. That right to privacy, as well as other constitutional liberties, are the cornerstone of our democratic system. If those rights and liberties are eroded, the very fabric of our constitutional system is imperiled. Congress should, therefore, act now to protect our cherished rights and liberties from abusive national security wiretaps.

[From the Capital Times, Feb. 7, 1974]
WARRANTLESS WIRETAPS

One of the great mysteries of the U.S. Congress is how much speed it can generate to enact dubious proposals into law, while permitting worthwhile legislation to crawl along like refrigerated sorghum.

One of the most ridiculous charades in recent times was the speedy enactment of a daylight saving bill in the middle of the winter as a supposed salve to the energy crisis.

Wisconsin's Sen. Gaylord Nelson has introduced a vitally needed bill aimed at banning warrantless wiretaps for national security purposes. But watch how slowly that the Nelson bill will work its way forward, despite the sordid revelations of the existence of the White House "plumbers" and the Watergate scandal.

In introducing his proposed ban, Nelson said that the security "taps" which are not authorized by judicial warrant often reflect nothing more than a government desire to pry into an individual's private affairs.

It need not be pointed out to the knowledgable that the Fourth Amendment prohibts government invaasion of a citizen's privacy without a judicial warrant: The Supreme Court has made it clear that the amendment's protection extends to wiretapping.

The Nixon administration has taken upon itself the right to violate the Constitution and determine for itself when to order a warrantless wiretap.

"Although the vast majority of the public will never be the object of a tap, they instinctively recognize the lack of control breeds an official state of mind that condones the government's invasion of a citizen's privacy," said Nelson in introducing his proposal. "This official attitude is wrong and dangerous. It led to Watergate and other illegal acts of political espionage."