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warrant if their activities caused the Government to consider them possible agents or dupes of foreign governments.
In September, 1973, in fact, Attorney General Elliot Richardson wrote Senator J. W. Fulbright that the Government was continuing warrantless tapping of citizens and organizations whose activities it believed could affect national security. His successor, William Saxbe, said he authorized three warrantless “national security” taps his first week in office whether against foreign embassies or American citizens he did not make clear.
Senator Nelson's bill would close this final loophole by requiring the Government to go into Federal court and get a judicial warrant for every wiretap it wanted to install. If a tap were to be requested on the phone of an American citizen, the Government would have to show "probable cause” that a crime was about to be committed ; if the request was for a tap on, say, a foreign embassy, only a national security reason would have to be adduced. And any American citizen tapped after issuance of a court order would have to be informed of the tap within thirty days, unless the Government obtained a court-ordered delay.
There is no reason to suppose that judges would not issue wiretapping warrants when justified, or that they would thereafter disclose national security information that might have been presented to them. But there is every reason to believe that the Nelson bill would give needed contemporary meaning to the Fourth Amendment's guarantee of “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.
[From the Washington Post, Mar. 21. 1974]
(By Gaylord Nelson)
'NATIONAL SECURITY TAPS Civil rights leader Martin Luther King, Jr., newspaper columnist Joseph Kraft, former Nixon presidential aides William Safire and John Sears, former National Security Council staff members Morton Halperin and Anthony Lake, former congressional aide Dunn Gifford, and boxer Muhammed Ali-these citizens have something in common. Their telephone conversations have been wiretapped by the federal government for so-called “national security" reasons. And they are merely a handful among thousands.
In each case the government acted without obtaining a judicial warrant approving of the "tap.” The government therefore did not explain to a court the justification for the surveillances. Nor did the government voluntarily inform any of the individuals involved that their telephone conversations had been secretly intercepted. Most of those tapped never learn about it.
Despite the righteous indignation of congressional representatives, lawyers, and the public, warrantless wiretapping continues. Last January the Justice Department reported that in one week it had authorized three warrantless wiretaps in national security cases—an average week's quota according to the department. The department did not indicate whether the taps included surveillances of American citizens. Nor did the department indicate the basis for believing the taps necessary. And that is precisely the problem.
Warrantless wiretaps give the government an unreviewed and unchecked power to invade a citizen's privacy. The government alone determines whom it should tap and when it should tap. Neither a court, nor the Congress, nor the individual involved has an opportunity to demonstrate that there is no justification for the tap.
Because they escape scrutiny by anyone outside government, warrantless wiretaps are a dangerous and fundamental assault on the individual's right to privacy and other civil liberties. They pose a threat to the freedom of every citize regardless of his or her station in life. In a 1928 surveillance case Supreme Court Justice Oliver Wendell Holmes called warrantless wiretaps "dirty business.” In 1931, J. Edgar Hoover-who by then had been FBI director for seven years--called them "unethical" (his position softened in later years).
Warrantless taps also are, in my view, unconstitutional. The Fourth Amendment explicitly provides that every citizen should be free from government searches and seizures that are not authorized by a judicial warrant. There is no exception for “national security" cases. The basic notion underlying the Amendment is that a neutral court--not a government blinded by its lawful investigatory responsibilities—should decide whether any search contemplated by the government is reasonable.
In the 1967 Katz and Berger decisions, the Supreme Court held that the Fourth Amendment's protections apply to government wireapping. The Court also held in the 1972 Keith case that the government could not wiretap American citizens without a judicial warrant even when the citizen's activities threaten “domestic security.” The Court reserved judgment, however, for those cases in which American citizens have a "significant connection" with foreign powers and their agents.
Because the Court has not yet decided this latter question, the present administration maintains that the government can, without a warrant, tap American citizens and others whose activities involve foreign affairs. It was on this basis that the Justice Department authorized three warrantless wiretaps last January.
Congress should not tolerate the continued use of these warrantless wiretaps for so-called "national security" purposes. It is indeed ironic for the government to invoke "national security" to violate those constitutional rights and liberties which the government is obligated to defend. Any remedial legislation should include at least four basic elements.
First, before the government could wiretap American citizens for national security purposes, it should have to obtain a judicial warrant based on probable cause that a crime had been or was about to be committed. This provision would simply recognize the rights guaranteed to every citizen by the Fourth Amendment.
Second, before the government could wiretap foreign powers (i.e., embassies) or their agents, it should have to obtain a judicial warrant based on a belief that the surveillance is necessary to protect national security. The warrant standards for foreign power taps should thus be less rigorous than those applied to American citizens.
The justification for this second provision is plain. The government's desire to wiretap should be reviewed by a court. There should be no exceptions. Otherwise the exceptions could be stretched to sanction an unreasonable invasion of an American citizen's privacy. This second warrant requirement would in no way undermine the government's ability to protect against foreign attack or subversion; the government would be able to wiretap foreign powers and their agents any time there is a real need.
Third, every American citizen wiretapped should be informed of the surveillance within 30 days after the last authorized interception. This would afford the individual an opportunity to protect against violations of his constitutional rights. The disclosure of the wiretap should 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.
Fourth, there should be continuing congressional oversight of wiretaps and other surveillance activities engaged in by the government. At least once a year, representatives of the government should testify, under oath, before a joint congressional committee about their surveillance activities. In this way, Congress can determine whether the government is complying fully with the laws and whether additional legislation is needed to protect individual privacy.
A number of Senators have joined me in introducing two bills (S. 2820 and S. 2738) which incorporate these basic elements. Other bills might be able to improve on these measures. But in any event, the need for congressional action is clear. A citizen's constitutional right to privacy should not exist at the sufferance of some government official's definition of “national security.”
Mr. KASTENMEIER. The Chair would like to observe, while he is not a witness, the presence of General Kenneth Hodson who is Executive Director of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, which is about to undertake its work. Both Congresssman Railsback and I serve on the Commission and we wish General Hobson the best on his undertaking.
I would like to call on my colleague, from Maryland, Congressman Clarence Long. Congressman Long is the author of legislation which would make illegal the practice of secret electronic monitoring and recording of conversations, under certain conditions.
I am pleased to greet my friend and colleague, Congressman Clarence Long.
TESTIMONY OF HON. CLARENCE LONG, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MARYLAND
Mr. Long. Thank you, Mr. Chairman. I am very pleased to have this opportunity to speak to the distinguished subcommittee about the need to protect the right of an American citizen to have his personal and private communications remain private.
The disclosure last summer of the White House practice of recording the conversations of important officials of the Government, diplomats, and even White House staff members—secretly and without their knowledge-shocked the entire Nation. The White House bugging, however, is only the tip of the iceberg. Throughout the country, persons who have assumed that their private conversations were private have been rudely awakened by the widespread incidence of uncontrolled eavesdropping.
My bill, H.R. 9667, would amend title 18, section 2511 of the States Code to require the consent of all parties to a conversation before it may be recorded or otherwise intercepted.
It is important to emphasize "all parties.” If there are a halfdozen people in the conversation, they must all be notified that whatever they say is being electronically recorded. As the law now stands, if only one of the parties knows, there would be no violation.
My bill would make such bugging punishable by fines ranging from $10,000 and up to 5 years in jail, and violators would also be subject to civil suits. The courts would, of course, retain the power to authorize wiretaps for investigations involving criminal activities, or national security.
I think there was a very useful colloquy between the gentleman from Massachusetts and Senator Nelson on the question of National Security wiretaps. I want to leave that area open.
All I am saying is that, under my bill, a conversation could be recorded by the police under a court warrant pursuant to a criminal investigation.
Now, as Mr. Drinan has pointed out, the courts mav unduly issue warrants. But I don't think a court would have ever issued a warrant to allow the President to tane the conversations of the people with whom he was conversing. There are many other instances in which courts are unwilling to issue warrants. Therefore, I think my bill wonld be very useful.
Twenty-five of my colleagues have joined me in sponsoring this measure.
I want to point out that my home State of Maryland has, since 1936, had an official policy of protecting private communications which could well serve as a model for the Nation.
The Maryland statute provides :
The interception and divulgence of a private communication by any person not a party thereto is contrary to the public policy of this State, and shall not be permitted except by court order in unusual circumstances to protect the people. It is further declared to be the public policy of this State that the detection of the guilty does not justify investigative methods which infringe upon the liberties of the innocent.
U.S. District Court Judge Gesell recently pointed out that legally sanctioned snooping has become a common practice which has been able, under the present Federal law, to proliferate without judicial supervision.
I would like to put in the record an excerpt here from Judge Gesell's statement.
Mr. KASTENMEIER. Without objection, that excerpt will be received and made a part of the record.
[The statement of Judge Gesell follows:]
Informers, in return for government promises or hope of favors, are equipped with recording devices and sent into the homes and offices of their friends and confidants to try to trap their words on tape
Many individuals, without any knowledge of the government, secretly tape their own conversations with others for ulterior purposes and use casual remarks to extort or intimidate * * * 366 F. Supp. 994.
Mr. Long. The time has come to protect individual citizens against unrestricted wiretapping, spying and surveillance.
I might point out that we all talk informally in ways that are very different from the way we would talk if we knew that the world were listening. So this legislation is important not merely in cases where life or liberty is involved, but in other cases as well.
A recent Harris poll confirms the timeliness of such legislation. By 77 to 14 percent the public favors passage of a law forbidding such intrusions into their private lives. The Watergate affair may have acted as a trigger to public opinion, as Mr. Harris pointed out, but there has been a widespread and underlying shift towards greater
protection of the constitutional right to privacy. The President himself has now recognized the need for a new law. In his State of the Union message, the President told the Congress that we need "a new set of standards that respect the legitimate needs of society, but that also recognize personal privacy as a cardinal principle of American liberty.”
It is my hope that this subcommittee will report favorably on this legislation, which deals with one aspect of the privacy issue which you are considering in a much wider context. Thank you.
Mr. KASTENMEIER. Thank you very much. You have touched on an area which is certainly part of the general problem. I take it that you would contemplate wiretapping in only two situations: One in which wiretapping is authorized by warrant through the courts, and the other is the situation in which all parties consent?
Mr. LONG. That is right.
Mr. KASTENMEIER. Consent in advance to the recording of the conversations?
Mr. Long. Yes.
Mr. KASTENMEIER. Do you have reason to believe that you yourself may have been a victim of eavesdropping?
Mr. Long. No, I have no reason to believe that. I never felt I was important enough for anybody to do this to me.
Mr. KASTENMEIER. You know there are Members of the Congress as well as many other people who feel and presumably have knowledge of the fact, that they have been the subject of such types of wiretapping or electronic eavesdropping. The argument is made that some people or entities desire to record conversations to protect themselves by having an exact account of the conversation. But it is your view that any such reason is outweighed by the fact that another person did not know of the conversation being recorded. And that that person's rights out weigh the desire of the person who is recording the conversation for purposes of some form of protection or official account?
Mr. Long. I am not quite certain that I understand the gist of your question.
Mr. KASTENMEIER. I am asking whether you can contemplate any good reason why, other than through a court warrant, a person or an entity with his own consent should be able to record à conversation even without the knowledge of another person !
Mr. Long. I tried hard during the drafting of this bill and I couldn't think of any such reason. It is always possible, I suppose, that you can come up with an exceptional situation. We all know that such cases require a balance of rights and privileges.
I don't think there are any absolute rights or privileges written anywhere in our law. There are always conflicts. Í
suppose a person could argue that he could obtain a better historical record of what people are really thinking and saying if they didn't know they were being recorded. If he is writing a book, for example, he may think that if he can get people to speak very frankly, then he would get a much better book than if the people were told in advance that their words were being recorded.
I realize that somebody might think that. I don't think he would be justified in inflicting such recording on unsuspecting people.
Mr. KASTENMEIER. I yield to the gentleman from California, Mr. Danielson.
Mr. DANIELSON. Thank you, Mr. Chairman. Mr. Long, would you tell me please what you mean by the word "intercept” in your bill?
Mr. Long. Record.
Mr. Long. In doing this I simply used the language of the bill itself.
Mr. DANIELSON. Yes, I know. I have looked at your bill and I assume that all of these different versions of the bill are the same. But it says "electronically record or otherwise intercept a wire or oral communication” and that appears in the printed bill as well as in your presentation.
Mr. Long. There is a definition of "intercept” in the bill. I don't have it.
Mr. DANIELSON. I have here, for example, H.R. 9973, which is one of your bills, and starting with subparagraph (c) on line 6 it states: “It shall not be unlawful under this chapter for a person to electronically record or otherwise intercept a wire or oral communication" et cetera.