Mr. BENDER. The difficulty is that after the fact there is no real way of enforcing such requirement. After the fact you are taking testimony on cross-examination from agents in a taint hearing and the agents are attempting to show, to sustain the governmental burden that the government has an independent source for its evidence, and it is in the adversary proceeding where one party is trying to save the case; namely, the government, and the other party, the defendant, is trying to kill the case by either finding taint throughout the investigation, or taint of particular trial evidence. So, I do not think in these circumstances the adversary system is necessarily the best way of regularizing the conduct.

It is no secret that there are virtually no reported cases where federal courts have found taint following electronic surveillance, and when one contrasts that fact with the experience of finding taint in the whole other realm of violations of the fourth amendment, I find it somewhat astounding. I do not believe, by the way, that it is the product of there being no taint. I think it is the product of a system which is clandestine in nature, and where the facts are controlled by the agents engaging in the illegality in the first place. Mr. DRINAN. Thank you. I yield back the Chair to Mr. Kastenmeier.

Mr. KASTENMEIER. Mr. Bender, did you want to continue?

Mr. BENDER. Yes. Let me pick up with a few sections of my statement, and I will make myself available to the committee for questions. I am looking at page 6 now in the middle of the page.

Interim disclosures by the government in the Ayers case, that is the SDS Conspiracy case in Detroit, reveal the enormity of some of these problems and the difficulty of getting at the truth in the context of a criminal prosecution suppression proceeding.

United States v. Ayers, No. 48104. U.S. District Court, Eastern District of Michigan, Southern Division, was a conspiracy prosecution of the Weathermen faction of the Students for a Democratic Society; the case was dismissed by the court on October 15, 1973.

The Government moved to dismiss this case because of its unwillingness to suffer the revelation of the identity in adversary hearings ordered by the court of an agency that had admittedly conducted some of the illegal surveillance activities.

However, pursuant to an interim order on June 4, 1973 by Hon. Damon J. Keith for disclosure of illegal electronic surveillance, the Government turned over to the defendants 3,000 pages of transcripts of telephone conversations covering eight months of surveillance. And these were surveillances where the government conceded that the defendants had standing and othrwise were entitled to disclosure following the Opinion of the Supreme Court in U.S. v. U.S. District Court. However, the Government asserted that these transcripts represented full compliance with the interim disclosure; namely, those surveillances covered by Keith. Although the judge reserved decision as to whether or not the defendants had standing to receive summary logs of the overhearings made during this time period, in the large carton with the 3,000 pages of transcripts, and we inspected those logs prior to returning them to the government, an inspection of these logs by the defendants indicated that the Government was

either unwilling or unable to comply with the interim disclosure order concerning surveillance even where illegality and standing were conceded. The logs listed 500 overhearings during the 12-day period; in the 500 overhearings 239 parties were listed as "unidentified" by the government. Upon inspection, defendants were able to determine that a number of these unidentified overhearings were of the defendants themselves and at least eight were of their attorneys. In each of these instances, no transcripts of the illegal overhearings were provided by the government to the defendants.

Now, in the ensuing proceeding, we debated with the government the numbers of our projections as to the size of this problem. We estimated that at any time the Government was unable to formally identify for record keeping purposes one-half of the participants. The Government said that our arithmetic was somewhat overblown and it was more like 10 to 20 percent, at which point we said we will concede that it is only 10 to 20 percent, and in a criminal case it makes absolutely no difference. The Government has got to disclose all instances of illegal overhearings pursuant to Alderman v. United States, and it has created a system, a record keeping and disclosure. system, which is designed to do, or at least accomplishes, exactly the opposite.

In the Ahmad case, also in the Ayers case, and I am looking now at page 9 at the bottom, we began to flush out some of the mechanics of how this system fails in its disclosure responsibility.

In the Ahmad or Harrisburg conspiracy case the tentative determination of the participation of Sister McAlister on the calls was surmised by the Government by reference to the telephone numbers that they were called by the subject of the surveillance [T.12], namely the number of the convent where Sister McAlister then resided along with other nuns. However, no effort was made to identify the voice of any person calling into the tapped location during the course of the surveillance or afterward [T.14]. Unless a full name was mentioned in the course of a tapped conversation, the only means of identification was by way of the name of the phone service subscriber to whom the intercepted call was made [T.14]. FBI Agent Smith recognized that often in phone conversations, a full name is not used. So, even in the case where the Government made disclosure, they were unwilling to make the formal assertion of identification. Now, this is not to say that when agents are monitoring a live tape recorder in front of them, and they have earphones on their head, and a microphone with which they can communicate with an agent in the field, that they do not indulge in the luxury of tentative identification. With the agent investigating Sister McAlister in the Harrisburg case, he hears somebody who he thinks is Sister McAlister say "I am going to the airport and meet so and so", and although he cannot say this is Sister Elizabeth McAlister, he does pick up his microphone and direct a field agent to get out to the airport and see if McAlister shows up. But, then, in concluding the summary log, because I do not have the full name or the ability to make a meaningful identification, he just might write down "Liz, last name unknown", or a phonetic spelling of a name, or "unidentified call placed, unidentified person". And he may not even bother

to reflect on the log of his own activity the investigatory lead or the airtel or some other writing that he has used in the surveillance that he has overheard in order to further the criminal process. And then in the ensuing taint hearing where the facts are known only to the government, and the only power the defense lawyer has is to cross-examine the agent as to what he did, and the records are denuded of this kind of reference, then the task is impossible.

Now, I suggest to you once again that in the items we saw in the Dellinger records, which as I indicated earlier I cannot read here because of the protective order in Dellinger v. Mitchell, there is a concerted effort within the FBI to protect the confidential source in the manner I have just suggested. There are specific documents where agents are told to avoid-and I would love to quote these documents here today but to avoid, to use my own words, the lamentable, practice of revealing the existence of illegal sources of internal reporting documents for justice reasons and in the same vein there is also reference made to the practice of characterizing surveillance, many surveillances, under one recording system to minimize the reporting of the extent of the program. There are documents which would indicate an effort to overemphasize the foreign involvement of certain organizations and minimize the domestic activities of the organizations. And these documents are contemporaneous with litigation in the courts concerning the very foreign security power which this committee and its chairman are concerned with and proposing legislation. I suggest to you as strongly as I can to probe the specific practices before you consider legislation. And I have kind of listed the series of questions which I would urge upon you in making those examinations of records and I would like to read those into the record and then close my statement.

And this I think is what this committee should find out.

1. How are agents of the FBI instructed to circulate facts during an investigation which are gleaned from an electronic surveillance source? Testimony in some cases and recently revealed specific documentation in materials covered by protective orders will show elaborate efforts to conceal electronic surveillance sources. This practice makes a showing of taint extremely difficult and insulates illegal activity from even internal Justice Department controls.

2. How are electronic surveillances numerically counted and described to the legislative and judicial branches? These materials will show efforts to conceal the extent of national security electronic surveillances by grouping many surveillances under a specific reporting heading.

3. How has the Justice Department sought to analyze the foreign and/or domestic character of its national security surveillance? These materials will show an attempt to overemphasize the contacts and involvement with persons in foreign countries by the subjects of certain surveillances to support arguments in court of the foreign security character of the electronic surveillances in question.

4. How extensive has national security surveillance been? Disclosed materials would indicate that the program was far more extensive than anything indicated in Department of Justice statistics.

5. What are the constitutional consequences of the national security electronic surveillance program? Materials already disclosed indicate a surveillance program of breathtaking enormity involving hundreds of thousands of overhearings, authorized on fear, innuendo and speculation without regard to the privacy rights and rights of association and free speech of a free people. The program is the consequence of raw executive power, unchecked by this legislature or the judiciary. To legislate against and then to control these abuses a full investigation must be undertaken and specific review procedures established.

I close these remarks by asking you whether these past 2 years, characterized as they were by the constant invocation of the specter of threats to national security for all necessary occasions will foreclose the meaningful pursuit of your task. I would hope that recent history suffices to demonstrate that the shopworn talismanic incantation "national security" can no longer foreclose democratic processes. A good beginning would be full scrutiny of the entire national security electronic surveillance program and the legislation of substantial controls to prevent its ugly reoccurrence.

Mr. KASTENMEIER. Thank you, Mr. Bender, for a very helpful statement. I think as a matter of fact, if anything, the questioning by this committee has indicated its interest particularly in warrantless taps, or that done under the guise of national security, because this seems to be the most murky area. But, I understand you to sug gest that tapping or surveillance conducted in behalf of intelligence gathering, was all right, except in that it might from time to time be used against individuals for prosecutorial purposes. This suggests that you were not unwilling that wiretapping and surveillance be used for intelligence gathering as long as it is not used against individual defendants in criminal proceedings.

Mr. BENDER. I hope I did not give that impression. I am absolutely opposed to intelligence gathering surveillance. As Justice Powell suggested in District Court, intelligence gathering surveillance is the Executive writ, it is the all-sweeping, all-encompassing effort to know what a large group of people are doing. It is as abusive in and of itself as any violation of the fourth amendment, and I see no difference between intelligence surveillance of either domestic or foreign concerns and a program of mass searches of houses and mass interrogations. I do not want to leave that impression with committee at all.

However, what I am trying to suggest is that in advocating intelligence surveillance, this Administration was attempting to hoodwink, I believe, both the legislature and the judiciary and they did not mean by intelligence surveillance what they said they meant. They specifically represented that they meant the program which the Supreme Court rebuked because there were no standards. I think we can demonstrate beyond cavil that what they did mean was a program of gathering of evidence to prosecute when they had no probable cause, no foundation for the tap at all. Now, this is not to say that they did not want the intelligence data as well, that the Government did not want to know everything SDS was doing or everything the Panthers were doing or everything a variety of other

organizations were doing for its intelligence value. But, in the specific documentation which we have seen, the justification is that we want to know in order to be able to prosecute so-and-so for a particular crime. And in the documents where the surveillances are justified for periodic review, there is a process of bragging about the prosecutorial successes as these surveillances, which tend to go on for a long, long time. So, I want to suggest that we abandon investigatory surveillance because it is constitutionally abusive no matter how it is described, because it is not founded upon probable cause. And because it is a ruse for prosecutorial surveillance at all we control it in the most tight and careful manner possible knowing that the program, unless it is controlled, is going to be abused.

Mr. KASTENMEIER. Toward the end of his statement this morning, Mr. Miller characterized the three areas of wiretapping and surveillance as one, the criminal area under title III where warrants are obtained, two, the counterintelligence or foreign intelligence-gathering field for which warrants are not obtained, and three, the field of domestic intelligence. And he suggested that pursuant to the Keith case they were not presently engaging in any wiretapping to obtain domestic intelligence. Presumably under title III they could engage in domestic intelligence wiretapping but he suggested two problem: one, that probable cause in such cases was difficult to establish and, two, they did not want to divulge subsequently the existence of the tap.

And therefore, rather than accept those two problems under title III, they just did not engage in any activity at all in the third field of domestic intelligence. Do you have any comment on that? Do you think that is, in fact, their policy?

Mr. BENDER. Well, I think that their second problem, the problem with nondivulgence, is not a particularly real one because when they prosecute they have to divulge anyhow unless the surveillance be legal. And after the Keith case it is not legal. And I would urge that the suggestion that Mr. Justice Powell that the Congress enact legislation following the Keith case will have to be very carefully reconsidered in the light of the gross misrepresentations as to what intelligence surveillance is in the underlying record in that case.

And I have no hesitancy to tell you that we, as the lawyers in the Keith case, will pursue that issue as vigorously as we know how. Now, as to the probable cause standard, as I understand the fourth amendment, if there is no probable cause, there should not be any surveillance. If there is no probable cause that a crime is about to be committed then there should not be a wiretap unless there can be found a constitutional area where a different standard of probable cause for investigatory surveillance may exist.

Given our recent history with that second kind of probable cause, and I have tried to suggest it is a ruse, I am highly skeptical that such a new standard of probable cause by this Congress or the court could ever be found and I would not want to see any such exception to title III or any other legislation which provides for surveillance on a lesser showing than a showing that a crime is about to be or is being committed under the ruse of investigatory surveillance. I think it would be a terrible mistake and an uncontrollable practice.