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"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 me. 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 nat. urally 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 decadės 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 provision's 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)
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 à 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."
Revelations that are an outgrowth of the Watergate investigations indicate distressingly that the danger of warrantless wiretaps is not confined to crimi. nal and truly subversive elements within our society. A prime example of the abuse was the tapping of Joseph Kraft, an outstanding syndicated newspaper columnist.
Public opinion polls indicate that more than 75 per cent of the people now favor legislation to curb government power to wiretap.
Nelson's proposed ban is long overdue. We hope it does not get buried in the morass of molasses that seems to entrap other worthwhile proposals.
(Senator Gaylord Nelson has introduced legislation to require the government
to obtain court approval before it can wiretap in national security cases. The following editorials discuss the importance of this legislation)
[From the Washington Post, Feb. 9, 1974)
(By Tom Braden) President Nixon said the other day that “personal privacy is a cardinal principle of American liberty" and that “electronic snoopers have left Americans deeply concerned about the privacy they cherish. The time has come,” he added, “for a major initiative."
Coming from a man whose administration has been notable for wiretapping, mail covering, breaking and entering and spying, it was, at first blush, a surprising statement.
But only at first blush. The text reveals that the President wasn't talking about any of these blatant invasions of privacy. He was talking about the accumulation of electronic data on consumers by credit card companies, banks, department stores and other businesses. Without taking anything away from Mr. Nixon's laudable desire to regulate in this area, it still seems necessary to put the question, "What about the Fourth Amendment?”
Just last week, Atty. Gen. William Saxbe said he had initiated three new national security wiretaps. Naturally, Saxbe didn't say who was being wiretapped, whether the taps were being placed upon Americans or foreigners. We may never know. No law requires Saxbe or any subsequent attorney general to tell us. No law requires an attorney general to say what he means by "national security.”
Sometimes we are told the numbers. In 1972, testimony before the Senate revealed that 97 "national security" wiretaps were in operation during the year 1970. Since then, we have been given good reason to suspect that a lot of these taps were not placed for the national security but in order to spy on White House enemies. The Watergate investigations have determined that 17 newspapermen and government officials were wiretapped during 1969, and many of the taps were not removed until much later.
Just last week it was revealed that four more wiretaps were conducted by the White House plumbers during 1971 against friends of a White House official.
All of this is in direct contradiction to the Fourth Amendment which declares it “the right of the people to be secure in their persons, houses, papers and effects against unreasonable search and seizure.” The Supreme Court has ruled that wiretapping is a "physical entry into a house."
The Founding Fathers never envisioned that a physical entry into a house could be made without a warrant issued upon probable cause and “particularly describing the place to be searched.” But not one of these "national security" wiretaps has been authorized by a warrant. Recent attorneys general and Presidents have tapped whomever they wanted to tap. Whether the tap was in the interests of national security or in the interests of politics or in their personal interests has been left to their own consciences.
Thus, Rohert Kennedy tapped Martin Luther King—apparently at the insistence of J. Edgar Hoover. Lyndon Johnson is alleged to have tapped memhers of his Cabinet. and Richard Nixon has widened the "physical entries” to include the press. Under Mr. Nixon, the practice seems to have been so widespread that the President and his attorney general delegated their authorities.
H. R. (Bob) Haldeman, John Ehrlichman and even Henry Kissinger were permitted to make nominations for wiretapping targets, and Mr. Nixon may not have seen the final list of those to be spied upon.
So the President is right when he talks about invasions of privacy as a growing danger, and Sen. Gaylord Nelson (D-Wis.) has introduced a bill which may fix his mind upon the aspect of privacy which he ignored.
Nelson's bill would require the government to seek a warrant before a "national security” wiretap could be authorized or installed. Thus, an independent third party would be able to check upon the power which successive Presidents and attorneys general have used with such frequency.
If the President is really concerned about privacy, he will endorse Nelson's bill.
[From the New York Times, Feb. 17, 1974)
No WARRANTS, No TAPS
(By Tom Wicker) The Internal Revenue Service's summons for certain records of telephone calls from the Washington Bureau of The New York Times illustrates how a Government that is either careless, callous or expansive can stretch what might appear to be a harmless or even useful power into something different and threatening.
The I.R.S., it seems, has the statutory authority to obtain by civil summons the telephone records of persons it is investigating for tax fraud or delinquency. Most telephone companies have been routinely acquiescing in such summonses.
But the I.R.S. is not investigating The Times or any member of its Washington Bureau-although the I.R.S. also issued a summons for, and received, records of long-distance calls placed from the home telephone of David Rosenbaum, one of The Times' Washington reporters. Instead, it appears that the I.R.S. may be investigating the possible leak of some information from one or more of its employes to Mr. Rosenbaum. Last year, he was working on a story-never published—about a possible I.R.S. investigation of a major contributor to Richard Nixon's re-election campaign.
The point is that the statutes in question do not appear to grant the I.R.S. authority to obtain The Times' or Mr. Rosenbaum's telephone records for the purpose of maintaining its own internal security. Perhaps worse, when finst asked about the matter, Donald C. Alexander, Commissioner of the I.R.S., said, “I know nothing of this." Does that mean that lower-level officials can routinely authorize actions that appear to violate the law and offend the First and Fourth Amendments? Since the I.R.S., under challenge, has returned The Times' records, the agency appears to have at least tacitly conceded that it had no legal right to them.
This stretching of authority into areas it was not intended to reach is a relatively old story in government. It lends particular point to a measure introduced by Senator Gaylord Nelson of Wisconsin that would ban all “warrantless" wiretapping and give American citizens a chance to fight back if the Government has its electronic ear on them.
In 1968, Congress authorized the Attorney General to go into court and obtain warrants to tap the telephones of certain persons who could be shown to be criminal suspects. This measure was aimed primarily at organized crime; it did not require the Government to seek warrants before placing taps on persons or organizations for "national security" reasons.
When the Nixon Administration took office, Attorney General John Mitchell began authorizing—without warrants—numerous wiretaps on persons and organizations suspected of threatening “domestic security”; in effect. this "Mitchell doctrine" permitted the Government to tap the phone of anyone it could even remotely link to domestic or national security matters.
In 1972, the Supreme Court, in the so-called Keith case, barred warrantless taps for "domestic security"; but again, the Court did not rule on the question of wiretaps for “foreign intelligence” purposes, which meant that the Government could continue warrantless tapping of foreign embassies, agents of foreign governments and the like. This left a significant loophole in the Fourth Amendment rights of American citizens, who still could be tapped without a