evidence in support of this allegation. I have no way of knowing how valuable— necessary-electronic surveillance has been in controlling crime.

Second, the Justice Department argues, HR 9698 would negate any efforts to obtain evidence by investigative procedures that have consistently been approved by the Supreme Court. It is true that the Court has drawn a distinction between electronic surveillance without the consent of any of the parties, requiring a court order and a showing of probable cause, and the monitoring of conversations with the consent of only one party. As recently as United States v. White, 401 U.S. 745 (1971), a closely divided Supreme Court adhered to its old ruling that the use of bugged informers was outside the requirements of the Fourth Amendment. The railroads appear to be that one who confidesor talks to another assumes the risk that his confidence may be disclosed and the risk is no different even if the other person is recording or broadcasting the first person's disclosures. I submit that these cases are bad law. The number of separate opinions in the White case and the lack of a majority opinion are evidence of the lack of consensus in this area. Moreover, if existing law permits the interception of communications without a warrant or any showing of probable cause or even of reasonableness without the prior consent of all the parties to the communication-and the White case and Section 2511 (2) (c) and (d) so indicate there is a clear need for a change in the law. The Federal Communications Commission, in instituting the "beep tone rule" and in prohibiting eavesdropping by radio devices unless all parties to the communication consent, has already recognized this need. The FCC regulations, however, lack effective sanctions-only discontinuation of telephone service or a $500 fine. My bill, however, would make willful interception, disclosure, or use of a wire or oral communication without the prior consent of all parties subject to the existing criminal penalties and civil remedies provided in Title III. As the existing provisions for court ordered interceptions in criminal investigations would still be available, it can hardly be argued as both the Justice and Defense Departments do that the amendment proposed by HR 9698 would seriously hamper crime control activities.

Although HR 9698 would amend only one section of Title III, increasing the types of cases in which a judicial warrant would be required, there are other bills presently before this subcommittee which would make more sweeping changes. Rep. Drinan's bill, for example, HR 9781, would eliminate all provisions of the Act authorizing electronic surveillance and would retain only those sections prohibiting the interception, use, or disclosure of any wire or oral communication without the prior consent of all parties to the communication. H.R. 13825, introduced by the Chairman of this subcommittee and identical to a bill introduced by Senator Nelson, would provide specific controls for the use of electronic surveillance in "national security" cases. Following guidelines suggested by the Supreme Court in the Keith case (United States v. United States District Court, 407 U.S. 297 (1972)), it would prohibit all warrantless wire or oral interceptions (except for one party consensual interceptions and others enumerated in Section 2511 (2)), but would require less than a showing of "probable cause" to obtain a judicial warrant to authorize surveillance of a foreign power or its agents.

Because of my own opposition to Title III of the Omnibus Crime Control and Safe Streets Act, I am convinced that more basic changes are needed than those proposed in my bill. In the area of criminal investigation, for example, the standards set forth in Section 2518, even if strictly adhered to as the Justice Department so painstakingly asserts has been done are hardly adequate to meet the test of "narrowly circumscribed" surveillance required by the Berger and Katz cases. Perhaps electronic surveillance, by its very nature, can never conform to the strict requirements of the Fourth Amendment, even when such surveillance is conducted pursuant to a judicial warrant. As the ACLU has pointed out in its excellent presentation before this subcommittee, "the technology itself stands in the way of any kind of effective control."

It is certainly arguable that even court authorized electronic surveillance, as conducted under Title III, may be proscribed by the Fourth Amendment. There is no doubt, however, that warrantless wiretaps and monitoring conducted by the government in the guise of "national security" present a clear threat to our basic First Amendment rights. Because of the imprimatur of "security," these activities are shielded by a veil of secrecy not only from the individuals subjected to surveillance but from the courts and the Congress as well. And, unless they are known, they cannot be subject to challenge or to

control. It is only in recent years that we have begun to learn of government spying and snooping dating back to the sixties. We may never learn the full extent of this activity. More recently, we have heard sordid accounts of incidents occuring during this Administration-spying activities, wiretapping, and other forms of surveillance directed at law abiding citizens suspected only of engaging in political dissent or viewed as political "enemies"-all undertaken by the federal government in the name of "national security." A 1971 Senate subcommittee report revealed, for example, that during the late 1960's extensive spying was secretly conducted by 1500 agents of the Defense Intelligence Agency on more than 100,000 civilians. Anti-war activists, blacks, and students were particular targets. After disclosure of this illegal political surveillance in 1971, the Pentagon issued strict regulations against spying on civilians. Yet a Senate committee recently learned that the U.S. Army has continued to maintain numerous surveillance operations on civilians in the United States.

The Department of Defense, in its testimony before this subcommittee, unequivocally stated that it does not conduct electronic surveillance of civilians not affiliated with the Department. It cited DOD Directive 5200.27, which expressly forbids such practices "except in narrowly defined circumstances." It did not, however, explain the nature of those circumstances.

The DOD testimony indicated, however, that neither the Omnibus Crime Control Act nor its DOD regulations apply to its activities outside U.S. territory. Its overseas activities, even when directed at United States citizens, are governed by the Status of Forces Agreement and the laws of the host country. There appear to be no constraints on its spying activities, or any explanations deemed necessary for the lack of constraint.

During the 1972 Presidential campaign, army authorities sent intelligence agents to infiltrate a branch of the U.S. Democratic party in Berlin, as well as an offshoot of the American Civil Liberties Union and a group of Protestant missionaries supported by the World Council of Churches. For at least a year, these agents photographed members, acquired lists, opened mail, copied correspondence, and reported on the activities of the Berlin Democratic Club and Concerned Americans in Berlin. An autographed copy of a photograph of George McGovern was solemny regarded as a suspicious document and duly noted. The agents' attempt, apparently, was to link the Berlin Democrats to so-called leftist groups in America and to the East German communists . . just as McGovern supporters in this country were harassed and put on "enemy lists."

Although the United States Army sought to justify the surveillance of these American civilians on "national security" grounds-that is, they were responsible for "dissidence" among American troops-nothing even remotely subversive was ever discovered and no action was taken against any of these civilians. But the danger lies in the fact that these military agents collected reams of data on the personal lives and politics of American citizens and delivered them to an undercover army "countersubversive" intelligence unit. Reports were then forwarded to the chief intelligence officer in Europe who was later promoted to a top intelligence job in Washington.

Senator Lowell Weicker turned the documentation of this spying over to the Senate Armed Services Committee, but very little happened. The Army explained that such spying was legal in Germany. West German officials even cooperated by tapping telephones themselves. Further, they said, it was not political in nature though no one seems to have been keeping records on any chapters of CREEP in Europe.

It is hardly necessary to comment on the intimidation that results from this kind of snooping. Were it allowed to continue unchecked, the democratic process would wither away. Fortunately, vigilant citizens and concerned members of Congress will not allow this to happen.

My bill, H.R. 9815, which is identical to a bill introduced in the other body by Senator Ervin, is specifically directed at this kind of unconstitutional surveillance. The bill would prohibit use of the Armed Forces or of any State militia to conduct investigations into, maintain surveillance over, or record or maintain information regarding the beliefs, associations or political activities of any civilians or civilian organizations. The bill provides criminal penalties for civil or military officers who violate these provisions and also provides civil remedies for damages and for injunctive relief.

It is clear that there is a real need for legislation in this area. U.S. citizens, only because they are situated abroad, are being denied their constitutional rights, not by any foreign nation but by an arm of the U.S. government. This the DOD has admitted. With respect to Defense Department activities in this country, it should be clear by now that we can no longer rely on the military to observe its own regulations. I urge you to give favorable consideration to this bill, not onl to rectify the situation in the Defense Department, but to guarantee to all U.S. citizens their First Amendment rights.

TESTIMONY OF REPRESENTATIVE PATSY T. MINK

Chairman Kastenmeier and distinguished members of the Subcommittee, I appreciate this opportunity to speak in support of legislation to protect our citizens' right to privacy.

I am a co-sponsor of H.R. 9973, the principal sponsor of which is Congressman Long of Maryland. This legislation is the same as his own bill, H.R. 9667, and is one of those being taken up in these hearings.

The purpose of this bill is to require the consent of all persons whose communications are intercepted under certain provisions relating to types of eavesdropping. Specifically, it would amend Title 18 of the United States Code to provide "It shall not be unlawful under this chapter for a person to electronically record or otherwise intercept a wire or oral communication where all parties to the communication have given prior consent to such interception unless such communication . . . (was) for the purpose of committing any criminal or tortious act . . ."

We are seeking to forbid any taping or other listening-in on conversations until all parties involved have been informed of it. Courts would still have the power to authorize wiretaps for investigations of criminal activities or because of urgent national security needs.

The need for this change was made clear by the disclosure of the White House taping system, in which recordings were made of Government officials, members of Congress, foreign diplomats, and White House staff members without their knowledge or consent.

Unfortunately, the development of our laws as construed by various court rulings is that it is now perfectly legal to tape record the conversation of someone else as long as one party knows of and consents to such recording. In other words, I might call another person on the telephone, tape our conversation, and use it for my own purposes and use it without fear of violating the law.

Obviously, this practice poses grave danger to our historic concept of the Right of Privacy. Every American assumes he has a legal, constitutional right to a certain privacy in his conversations whether in his own home, office, or elsewhere. Yet this is not the case, since the law as construed by courts permits interceptions as I have outlined.

The only way we can restore guaranteed privacy, and at the same time permit criminal investigations where authorized by a court, is to enact this change in our laws. If somebody wished to record a conversation for legitimate, non-criminal purposes, such as to keep a historic record, he would need only so advise the other parties and secure their permission.

I believe this legislation is sorely needed to close a deplorable gap in our laws adversely affecting each American's rights. I urge its adoption by the Subcommittee.

CONGRESS OF THE UNITED STATES,

Hon. ROBERT W. KASTEN MEIER,

HOUSE OF REPRESENTATIVES, Washington, D.C., April 10, 1974.

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, Committee on the Judiciary, Washington, D.C.

DEAR BOB: First, you are to be congratulated for scheduling public hearings on pending legislation relating to wiretapping and other forms of electronic surveillance. It is a subject on which Congress has not moved for far too long.

I am forwarding herewith a Statement on this subject matter, specifically 'on my bill, H.R. 11838, to require prior court approval on all wiretap and electronic surveillance orders. I would appreciate it if this Statement could be put into the record of your proceedings on the first day of the hearings. If there is anything which I can do to mobilize colleagues on this matter, please let me know.

Until then, I am,
Sincerely,

JACK KEMP.

STATEMENT OF REPRESENTATIVE JACK KEMP OF NEW YORK

Mr. Chairman, the subject of wiretapping and other forms of electronic surveillance is a matter intertwined with the right to privacy-the right to be let alone, the right to be left alone. It is a right which forms the basisserves so to speak as the common denominator-of such protections as those shielding the individual against unwarranted searches and seizures, snooping investigations and fishing expeditions by authorities, the inspection of personal papers, records, and effects.

Support for this right runs deeply in the spirit of Anglo-American jurisprudence. As Mr. Justice Brandeis observed in his 1928 opinion in Olmstead against United States, the makers of our Federal Constitution recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of man's spiritual nature-the pain, pleasure and satisfaction of life-is to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensitivities. They conferred, over and against the Government itself, a right to be left alone a right to privacy-the most comprehensive of rights and the right most valued by civilized men. From that awareness arose the adoption of our Bill of Rights, containing the essential protections of the individual, giving to the individual the force of law to say to an agent of the Government, "No, you cannot come into my house or into my life, by any means, without my consent or the full requirements of law and due proc

Certainly, on some issues before this House and the Congress, there must be no retreat from our resolve. The insuring of adequate safeguards to protect the individual's right to privacy, in all its myriad of forms, is such an issue. That is why I am so impressed with the Subcommittee moving at this time towards the consideration of legislation to remedy the shortcomings in present law as to wiretapping and electronic surveillance.

THE PROVISIONS OF H.R. 11838

Mr. Chairman, on December 7, 1973, I introduced the measure H.R. 11838 a bill to amend sections 2516 (1) and (2) of title 18 of the United States Code to assure that all wiretaps and other interceptions of communications which are authorized under those sections have prior court approval. The key here is "prior court approval."

The bill is short in length but long in importance, for the obtaining of court approval as an afterthought when one perceives that evidence gathered might have to be introduced in court on one hand and the obtaining of prior court approval in all instances before information is gathered on the other hand is difference between inadequate protection of rights and more adequate protection. This is, therefore, a crucial distinction.

Why is this legislation desirable?

THERE IS A LOOPHOLE IN THE PRESENT LAW

Chapter 119, Wire Interception and Interception of Oral Communications, of title 18 of the United States Code is the applicable Federal law governing the interception and disclosure of wire and oral communications.

In short, this law prohibits such interceptions and disclosures, except in those specifically defined instances in which the Attorney General of the United States, or any Assistant Attorney General specifically designated for such purpose by him, obtains authority, upon application to a Federal Judge

of competent jurisdiction to make an interception. It also authorizes the principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of the State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications.

There is a loophole or escape valve built into the present text in each instance, to wit: The language-"an order authorizing or approving" and "when such interception may provide or has provided"-allows a Federal agency or a State or local prosecutor to first intercept, then thereafter get a retroactive approval. Clearly, the language permits retroactive approval of wiretaps and other interceptions. One is left with an impression that these agencies may, in fact, seek a court approval only if they determine that the evidence gathered might be used in court and therefore ought to be safeguarded by an appearance of having been proprietous and in compliance with due process requirements.

I must state for the record that I have no specific knowledge of particular instances of government wiretaps where subsequent approval, after the fact, was obtained. The Department of Justice has not provided the Congress, to the best of my knowledge, with a disclosure on the ratio between interceptions which are done pursuant to a prior court order and those which are approved retroactively. But, it is not unreasonable to assume, since such retroactive approval is customarily sought when the government wishes to proceed in open court with the disclosure of information obtained through the interception, that there might be some instances, perhaps many, where because information is not to be used in open court, the government does not obtain even retroactive approval-no approval at all-thereby failing to meet the requirements of the law. It is, further, interesting to note that the disclosures made by the government on the extent of interceptions during recent years have been couched in terms of court-approved interceptions.

Mr. Chairman, I do not intend to offer testimony today on the more basic subject of whether interceptions should be authorized at all, or under what particular circumstances. My purpose is to draw to the attention of the Subcommittee the loophole in the present law, for surely, irrespective of what else is decided by the members of this Subcommittee and your parent body, this loophole ought to be plugged.

Only when there is prior approval-requiring full prior disclosure to a member of the Bench, giving him thereby an opportunity to refuse to grant such approval if he deems it unwarranted-are the rights of our citizens more adequately protected against intrusion and interference by government. The history of the Bench and Bar in our country shows clearly that certain restraints flow naturally from an awareness on the part of law enforcement officers that certain procedural requirements must be met in order to successfully conclude an investigation or prosecution. These restraints are one of the most effective guarantees of the rights and liberties of our people, collectively and as individuals.

I respectfully request the Subcommittee to act favorably upon the provisions of the bill which I have introduced. I am aware that its provisions may well be incorporated wholly in a bill of larger scope; that is understandable and it may be desirable. But the point is clear: We must tighten this loophole.

STATEMENT OF DR. EDITH J. LAPIDUS, PROFESSOR OF CONSTITUTIONAL LAW AT QUEENS COLLEGE OF THE CITY UNIVERSITY OF NEW YORK

Mr. Chairman, members of the Committee: My name is Edith J. Lapidus. I am a member of the New York Bar and am admitted to practice before the United States Supreme Court. I teach Constitutional Law at Queens College of the City University of New York and hold a Ph.D. degree in Political Science from the City University. My book, "Eavesdropping on Trial," with a Foreword by Senator Sam J. Ervin Jr., was released by Hayden Book Company Inc. of Rochelle Park, New Jersey, in January 1974. It presents an analysis and evaluation of the law and practice under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 in which Congress, for the first time in the history of the United States, sanctioned wiretapping and electronic surveillance by government officials.