eign government's power to commit violence upon the United States, then there might be a basis for issuing a judicial warrant. I do not see why that cannot be put into title III prohibiting all-all-wiretapping or eavesdropping even of foreign organizations unless a judge is satisfied from a warrant that that standard is met. And as he explained the materials that were submitted to him as Attorney General, they are certainly within the understanding, within the grasp, within the timeframe that a district judge can apply to that kind of a case.

Senator KENNEDY. Of course, if the Justice Department is wrong in its interpretation, there may be 2 or 3 more years of unconstiturespoitory, the sole repository, of facts upon which the rights of tional tapping.

Mr. LEWIN. I wish it were only 2 or 3 more years. I think the problem is that the Justice Department intends to continue and that cases in the foreign area, Mr. Chairman-I think what must be borne in mind is that in the foreign policy area, in most of this tapping and bugging, most of it never becomes public and will never become public under the Department of Justice policy announced today, because it does not result in any prosecution. And if it does not result in any prosecution, there may be 3 or 4 years before there is ever a case which even remotely raises the issue of a foreign organization wiretap. That is when the case may first come up in the district court, and by the time it gets up to the Supreme Court, it could be 6 or 7 and there could be thousands upon thousands of people affected.

Senator KENNEDY. A very helpful statement and a very thoughtful commentary. Your testimony will be a very valuable addition to our understanding of this subject.

We want to thank you very much for coming. I hope you get to court on time.

The subcommittee stands in recess, subject to the call of the Chair. [Whereupon, at 1:30 p.m., the subcommittee was adjourned, subject to the call of the Chair.]

Additional Exhibits

TEXT OF LETTER BY SENATOR EDWARD M. KENNEDY, CHAIRMAN, TO MEMBERS OF ADMINISTRATIVE PRACTICE SUBCOMMITTEE REGARDING NON-COURT ORDERED ELECTRONIC SURVEILLANCE

DECEMBER 17, 1971.

DEAR SENATOR: As you may have noticed in two recent speeches and at Judiciary Committee hearings a few weeks ago, I referred to the fact that there has been three to nine times as much federal listening going on as a result of warrentless electronic surveillances as there has been on devices operated under judicial authorization.

Some of the members of the Subcommittee have asked for the factual data underlying my statements on this subject, and I thought I would take this occasion to forward to all of the members copies of the correspondence I have had with the Justice Department which gave rise to these observations. I would also like to share with you some other preliminary conclusions I have reached about issues raised in this correspondence in keeping with the significant oversight this Subcommittee has exercised with respect to the subject of electronic surveillance in the past.

Briefly stated, study of the correspondence and related public materials suggest that: 1) the number of federal wiretapping and bugging devices installed without court authorization is substantially greater than the Executive Branch has led the public to believe; 2) the average duration of such devices is many times longer than the average duration of court-approved devices; 3) as a result, the total amount of federal electronic eavesdropping without court permission far exceeds the eavesdropping with judicial approval; 4) there is strong reason to doubt the validity of the repeated public assurances by the Justice Department that it fully complies with the 1968 Congressional standards before installing any tap or bug without a court order; and 5) despite the Department's assertions to the contrary there is an absence of well-defined procedures which would promote compliance with the statutory standards and permit meaningful Congressional scrutiny of this extraordinary Executive activity.

I am sure you are aware of the fact that numerous public statements have been made by high federal officials during the past year suggesting that there is a comparatively limited amount of federal electronic surveillance operated without court orders.

For example in April President Nixon told the annual convention of the American Society of Newspaper Editors:

Now in the 2 years that we have been in office-now get this numberthe total number of taps for national security purposes by the FBI, and I know because I look not at the information but at the decisions that are made the total number of taps is less, has been less, than 50 a year. And, just three months ago the Solicitor General told the Supreme Court in a brief filed in the Keith case (the case still pending on the constitutionality of warrantless electronic surveillance) that only 36 warrantless telephone surveillances were operated in 1970.

The above figures are flatly contradicted by Assistant Attorney General Mardian's March 1 letter to me, in which he reveals that a total of 97 warrantless telephone taps were operated in 1970-almost double the President's figure, and almost triple the Solicitor General's figure. (This ratio excludes the 16 microphone installations in 1970, which neither the President nor the Solicitor General took note of.)

Further, the repeated references by Government officials to the limited number of warrantless devices ignore the far more significant question of the duration and total usage of these surveillances. I am extremely concerned about the fact that in 1970 there were from 3.4 to 9.6 times as many days of (66)

federal listening on warrantless devices as there were on devices installed under judicial authorization. To assist you in your assessment of this problem I am attaching a chart which reflects the figures upon which these ratios are based. You will note that the calculations we have made also reflect that for the two-year period 1969-1970, warrantless devices accounted for an average of 78 to 209 days of listening per device, as compared with a 13-day per device average for those devices installed under court order.*

In short, Mr. Mardian's March 1 reply poses the frightening possibility that the conversations of untold thousands of citizens of this country are being 'monitored on secret devices which no judge has authorized and which may remain in operation for months and perhaps years at a time. The figures certainly seem to suggest that the Attorney General was being less than accurate last April when he said on the David Frost Show that these Executive-ordered devices "relate to particular subject matters at a particular time", if he meant to imply that such devices were installed only briefly and only to enable the Government to prevent specific acts threatening immediate peril to the security of the nation.

Apart from the indication that these surveillances are apparently far more pervasive than any of us had ever realized, the correspondence raises the recurring problem of whether any standards and guidelines are being followed in the employment of these techniques. As you will recall, in enacting the Safe Streets Act of 1968, Congress described five categories of danger to the Nation for which warrantless devices might be utilized if they were constitutionally permissible at all namely: (1) to protect the Nation against actual or potential attack or other hostile acts of a foreign power; (2) to obtain foreign intelligence information; (3) to protect national security information against foreign intelligence activities; (4) to protect against the overthrow of the government by force or other unlawful means and (5) to protect against other clear and present danger to the structure or existence of Government. Of course, there is a substantial issue, now before the Supreme Court, as to whether any such warrantless electronic surveillances are permissible under the Fourth Amendment, but on the assumption that some are, the Justice Department has repeatedly assured the courts that it is operating under procedures and standards which assure strict control and complete adherence to the statutory categories.

For example, briefs and memoranda filed by the Department in several cases in support of this claim that warrantless electronic surveillances are lawful contain the following unequivocal assertions:

"Another restraint on the exercise of the power is the existence of strict standards, recognized by the Congress which are met before the President or the Attorney General acts. . . . Additionally, there exists a compelling wisdom in the policy of having one official, the Attorney General acting for the President, to authorize such a surveillance in accordance with the standards set forth in the Omnibus Crime Control and Safe Streets Act of 1968, in order that such policy will provide a uniformity in the application of those standards...." [See, e.g. Memorandum in U.S. v. Bieber, 71 CR. 479, E.D.N.Y.]

Indeed, the Solicitor General's most recent brief on the subject, which was filed in the Supreme Court in the Keith case just three months ago, contained the assurance that:

"The standard of the national security that the Attorney General applies in authorizing electronic surveillance without a warrant is the same standard that Congress provided in the Omnibus Crime Control and Safe Streets Act of 1968."

The brief then refers to the five statutory categories described above and says: "three of these categories relate to the hostile acts of a foreign power and to foreign intelligence activities and are not directly involved here." It continues: "The two other categories are 'to protect the United States against the overthrow of the Government by force or violence or by other unlawful means, or against any other clear and present danger to the structure or existence of Government,'" citing the 1968 statute. It concludes: "These were the grounds upon which the Attorney General authorized the surveillance in the present case."

*Duration figures for noncourt ordered devices are given in terms of maximum and minimum levels because the information provided is in terms of duration ranges. See pages 1, 2, 3 of March 1 letter.

Obviously this officially asserted Executive compliance with Congressional standards is vital in an activity which lies in the grayest possible area of Constitutional law. Certainly Congress expected that well-defined procedures would be established to guarantee that each warrantless surveillance would clearly meet one or more of those categories when installed, and the public has the right to assume that these limits on electronic surveillance are being assiduously applied in every instance. Moreover, precise prior categorization of such surveillances is necessarily central to Congressional review of the implementation of the 1968 law, and is essential to a full understanding of the overall figures, discussed above, relating to the amount and duration of bugging and tapping on the sole discretion of the Executive Branch. For example, if it were true that 95% of the total number of installations were initiated for the sole purpose of obtaining foreign intelligence information from aliens, and only 5% for the purpose of surveilling domestic dissidents whom the Attorney General genuinely considered to be a clear and present danger to the existence of the Government, the meaning of the statistics might be quite different from the meaning if the percentages were reversed. Indeed, if the "clear and present danger" category were being used at all regularly, the Congress would certainly want to hear more about the nature of that danger.

It was with these considerations in mind that my original letter asked the Attorney General to provide a breakdown of the Executive-ordered surveillances by statutory category. I was therefore disappointed when Mr. Mardian's first reply failed to provide such a breakdown, allegedly because the "installations cannot be categorized exclusively under a single criterion," although he did assure me that each installation met one or more of the statutory criteria. I thereupon indicated that the breakdown could be made in terms of more than one category. This time I was surprised and dismayed to receive a response which said not only that the subject matter "is such as to preclude categorization under a single criterion, "but also that "no such categorization exists."

I next requested merely that the Department provide the number of installations which fell into either of the categories which the Department itself had spelled out in its court submissions, namely those employed to gather "foreign intelligence information" and those employed to gather "intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government," the latter of which, I should point out, is not one of the statutory categories. Mr. Mardian's response to this request was absolutely shocking, in view of the position of the Department in the Courts. "The Department," he said, "has never attempted such a categorization."

Thus, despite the litigative positions taken by the Department and the assurance by Mr. Mardian, in his March 1 letter to me, that the Attorney General's discretionary wiretaps and bugs all fall within the statutory categories, the Department now admits in essence that it actually does not know-and thus presumably does not care-which installations fall into which categories. It seems clear from the correspondence that when the Attorney General is asked to authorize a warrantless electronic surveillance, he is not told what category or categories justify its use, nor how the statutory elements for the category or categories are met by specific facts; for if he were, the Department would have had no difficulty at all providing the statistical breakdown I requested.

This conclusion is strengthened by the Department's response to my effort to determine the precise nature "of the administrative practices and procedures which culminate in a determination whether [the statutory] criteria have been met." In court, of course the Department has consistently asserted that in applying the statutory categories, "there exist adequate procedures to insure that the standards are met." (See, e.g. Memorandum in U.S. v. Hoffman, CR. No. 973-71, D.C.) But in his answer to my inquiry, Mr. Mardian, on behalf of the Attorney General, was "unable to supply" any information on those procedures, other than to say that applications for electronic surveillances to be ordered by the Attorney General "have come from the Director of the Federal Bureau of Investigation personally," and "are handled exclusively by the Attorney General acting for the President."

Apart from the fairly explicit admission, once again, that there really are no procedures to assure adherence in advance to the statutory standards, the response raises new questions of who is doing what and why. For in June, on

the one hand the Attorney General, in a speech in Roanoke, Virginia, was stating flatly that "only the President is in a position to evaluate adequately" the kinds of sensitive information relevant to so-called "national security" surveillances, because only the President is familiar with "the various intelligence data submitted by the independent agencies within the intelligence community." On the other hand, the Deputy Attorney General the same month was arguing (on the Liz Drew Show) that the requisite judgements should be made in the Executive Branch because of the presence there of "professional career people" who "understand" sensitive materials. Yet if Mr. Mardian's response is accurate, it is neither Presidential expertise nor career expertise that is being applied but the lone judgement of the Attorney General based on each separate submission to him by the investigators who wish to do the surveilling, and without specific focus on the statutory criteria.

The answer to this seeming inconsistency, and to other issues raised in the correspondence, such as whether federal dissemination of information from warrantless taps and bugs-not identified as such-to state law enforcement agencies may be tainting many local cases across the nation, will have to await the Subcommittee's further pursuit of these matters next year, but I wanted to bring you up to date in view of the inquiries from some Subcommittee members, as well as from the academic and legal communities and the press. At the very least, the correspondence demonstrates that any reliance on Congressional scrutiny as a continuing constraint on Executive abuse of "national security" eavesdropping is misplaced. The Deputy Attorney General has specifically suggested (on the Liz Drew Show) that "Congress . . . is informed regularly" with respect to the "categories" of such surveillance. According to the Department's brief in Keith placing sole responsibility in the Attorney General permits greater control over use of this technique by facilitating close Congressional oversight of the Executive's action." The correspondence, however, shows plainly that the Department has no procedures or record-keeping practices which allow, let alone facilitate, any meaningful Congressional review of the purposes for which warrantless taps and bugs are being used, or the way in which the statutory criteria are being met.

The copy of the correspondence I am enclosing is unedited, but the Justice Department has requested that the specific surveillance duration figures not be released, and the copies made publicly available will have those figures excised. I believe that you will find the enclosed chart, which is derived from these figures but does not disclose them, adequate for any public discussion of this material.

I look forward to working with you on these and other subjects of mutual interest during the coming year, and I thank you for your assistance and participation during 1971.

With best holiday wishes.

Sincerely,

EDWARD M. KENNEDY,

Chairman, Subcommittee on Administrative Practice and Procedure.