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.

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(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 lay 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 members 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)


(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 first 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 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)

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 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 tar. 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 citizen, 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.



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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, à 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 tape 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 would 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 1956, had an official policy of protecting private communications which could well serve as a model for the Nation.

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