Warrantless Wiretapping

The subcommittee met, pursuant to notice, at 10:40 a.m., in room 6202, New Senate Office Building, Senator Edward M. Kennedy (chairman of the subcommittee) presiding.

Present: Senators Kennedy (presiding) and Hart.

Also present: James Flug, chief counsel; Michael T. Epstein, assistant counsel; and Henry Herlong, minority counsel.

Senator KENNEDY. The subcommittee will come to order.

I appreciate the patience of the witnesses this morning. I was testifying at the Foreign Relations Committee and they were a little late getting started.

On August 1, 1971, Attorney Lewis Powell, in a newspaper article, wrote the following:

The question is often asked why, if prior court authorization to wiretap is required in ordinary criminal cases, it should not also be required in national security cases. In simplest terms the answer given by the government is the need for secrecy . . . Court authorized wiretapping requires a prior showing of probable cause and the ultimate disclosure of sources. Public disclosure of this sensitive information would seriously handicap our counter-espionage and counter-subversive operations.

Citing no basis for this finding, he then concluded, "The outcry against wiretapping is a tempest in a teapot... Law abiding citizens have nothing to fear."

On June 19, 1972, Mr. Justice Lewis Powell, having read the briefs on both sides, having seen the records of 14 months eavesdropping on a security tap, and having heard oral arguments in the Keith case (U.S. v. U.S. District Court et al), wrote the following:

The danger to political dissent is acute where the government attempts to act under so vague a concept as the power to protect domestic security. Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.

And in one of the most stirring judicial statements of our times, he concluded:

The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of government action in private conversation. For private dissent, no less than open public disclosure, is essential to our free society.

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I cite at length the trend in Lewis Powell's statements because I think he would be the first to say that they set the pattern for the change that is required right now in the Justice Department's approach to wiretapping and bugging of Americans, especially dissenting Americans. Attorney Lewis Powell's 1971 views closely tracked-and cited-those of John Mitchell and his Department. Mr. Justice Powell's 1972 views on behalf of the Supreme Court, and without dissent, are now the law of the land. They must be followed in letter and in spirit by those who have sought to eavesdrop, without limit or review, on our citizens in their homes and offices and gathering places. The time for playing fast and loose with the Bill of Rights has come to an end.

Our goal here today is to relieve all Americans of that "dread of unchecked surveillance power" and that "fear of unauthorized official eavesdropping", by having the Justice Department make clear its commitment to change its ways not only in form but in substance. For unless the Department truly adopts as its own the Supreme Court's heavy emphasis on first and fourth amendment rights, the Keith opinion will become a fraud upon the Nation's citizens, a bare judicial promise of constitutional protection, but a promise that can be broken by the performance of the executive branch.

We are here to see that the constitutional promise is kept, that our right to be let alone, our right to privacy, our right to speak freely in public and in private, our right to have different views, and the other rights which keep our lives free from unwarranted government intrusion, are vindicated rather than evaded, preserved and not avoided, enhanced instead of circumvented.

Attorney General Kleindienst was quoted last weekend as saying that he disagreed with the Supreme Court's holding that his Department must obtain judicial warrants to tap and bug in the interest of domestic security. But fortunately, as I am sure he would agree, his sworn duty is to uphold the constitution as interpreted by the Supreme Court, regardless of his personal preferences. I am confident that he shares the views that nothing undermines respect for our legal system more than lawlessness by lawmen, and thatespecially when interference with fundamental freedoms is at stake— official lawlessness cannot be tolerated or condoned.

Some facets of the Keith opinion are not yet clear, as we shall see this morning. But certain basic facts are clear:

1. Warrantless tapping and bugging of purely domestic organizations and individuals should have ceased on June 19.

2. Although the Court thinks Congress could set forth different warrant procedures and standards for so-called domestic security eavesdropping, the only statutory basis for issuing any warrants at present is title III of the 1968 law, with all of its limitations and requirements fully applicable.

3. The Court specifically did not decide whether warrantless tapping and bugging is permitted with respect to the activities of foreign powers; nor did it define the degree of collaboration between a domestic group and a foreign power which would turn a domestic group's behavior into foreign unlawful activities which might be subject to different surveillance rules. However, the Court clearly

rejected title III as a source of affirmative authority for any warrantless installations and clearly rejected the Department's arguments against judicial involvement in so-called national security cases. Thus the Department is plainly on notice that the key underpinnings of its position, even on purely foreign targets, have been removed and that it continues its practices in this field at its own risk.

4. The Court has clearly placed a heavy presumption in favor of the protection of fourth and first amendment rights as against asserted security needs, and that presumption applies equally to a decision whether to install a warrantless device on a foreign subject, or deciding what procedures apply to a domestic group with foreign contacts, or determining whether to seek to eavesdrop at all on a domestic group. In other words, whatever the dividing lines used to be between spying and not spying on people electronically, that dividing line has been moved significantly in the direction of not spying.

Our witnesses today will provide us with a variety of viewpoints on the implications of the Supreme Court's opinion.

Deputy Assistant Attorney General for Internal Security Kevin Maroney was suggested personally by Attorney General Kleindienst as the Department's representative at today's hearing, and we have been assured that he is in possession of all the facts and fully authorized and prepared to speak in detail on behalf of the Department on the vital matters before us.

Former Attorney General Ramsey Clark has very graciously rearranged his busy schedule to be here today to give us the benefit of his experience with national security wiretapping, the procedures which control it, its utility, and its problems.

Former Assistant Solicitor General Nathan Lewin is here to provide an independent legal view of the meaning of the decision, and to analyze the probable course that the Court may take henceforth and the implications of that projection.

Today's hearing is not designed to deal comprehensively with all of the remaining problems and prevailing practices in the field of security eavesdropping. We hope to meet that need at later hearings. Today's session will, however, meet the immediate need to reassure the American people that the Justice Department knows that the constitution means what the Supreme Court says.

[The complete text of the Supreme Court, opinions in the Keith case appears at page 183. The complete text of the Federal Wiretapping status appears at page 183.]

I would like to welcome our first witness, Kevin Maroney of the Department of Justice.

Mr. Maroney is Deputy Assistant Attorney General of the United States for Internal Security. As I said, Mr. Maroney was recommended to us for these hearings by Mr. Kleindienst.

I want to welcome you here today. I understand you have a prepared statement.

TESTIMONY OF KEVIN MARONEY, DEPUTY ASSISTANT ATTORNEY GENERAL FOR INTERNAL SECURITY, DEPARTMENT OF JUSTICE

Mr. MARONEY. Thank you, Mr. Chairman.

Mr. Chairman. I am happy to appear here today on behalf of the Department of Justice in response to your request for our views on the subject of electronic surveillance and in particular, concerning the impact of the Supreme Court's decision last week in the case of United States v. U.S. District Court for the Eastern District of Michigan, No. 70-153 decided June 19, 1972, and more popularly known as the Keith case.

The immediate impact of the Keith case was set forth clearly by Attorney General Richard G. Kleindienst in his statement of June 19, 1972. Let me quote:

In accordance with the decision of the Supreme Court, I have today directed the termination of all electronic surveillance in cases involving domestic security that conflict with the Court's opinion. Hereafter, surveillance will be undertaken in domestic security cases only under procedures that comply with the Court's opinion.

Senator KENNEDY. Now, just at this point where Mr. Kleindienst said, "In accordance with the decision of the Supreme Court, I have today directed. . . .”

Whom did he direct with respect to the termination of all such electronic surveillance?

Mr. MARONEY. The FBI.

Senator KENNEDY. What procedures were to be followed by the FBI in making decisions whether the taps that they were operating fell within the purview of the Keith decision? Was there an outline of any kind of procedures? How was it left?

Mr. MARONEY. A review was made by the Attorney General of all the electronic surveillances which were then in place in light of the information which had been submitted to him in connection with the request for the initial installation. Based on that factual information and applying the standards of the Keith decision, the Attorney General directed that certain of those installations be removed, since they were covered by the prohibition of the Keith case.

Senator KENNEDY. Who applied the standards of the Keith decision? Who made those decisions? Was that the Attorney General himself?

Mr. MARONEY. Made by the Attorney General in consultation with the Assistant Attorney General of the Internal Security Division. Senator KENNEDY. Well, who looked at the facts regarding each tap?

You see, there now is a Supreme Court decision setting up some standards, and I want to find out how you have been applying those standards to the actual taps that have been on. Is it the Attorney General himself who has been reviewing all the facts? Is he the one who has been deciding which taps fail to meet the standards and that therefore they should be lifted? Or are you telling the head of the FBI to do that? If you are telling the FBI to do that, then we want to know what procedures you have formulated. We want to know who has the authority and what instructions he has received from the Attorney General.

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Warrantless Wiretapping: Hearings, Ninety-second Congress, Second Session ...