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WIRETAPPING AND ELECTRONIC SURVEILLANCE

WEDNESDAY, APRIL 24, 1974

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE OF THE
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met at 10 a.m., pursuant to call, in room 2141, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman) presiding.

Present: Representatives Kastenmeier (presiding), Danielson, Drinan, Mezvinsky, Railsback, Smith, and Cohen.

Also Present: Bruce A. Lehman, counsel, and Thomas E. Mooney, associate counsel.

Mr. KASTENMEIER. The subcommittee will come to order.

Other members of the subcommittee will be joining us shortly. The Chair would like to make a statement relative to the hearing which we have before us today.

Privacy is an essential element in the American ideal of liberty, a basic right recognized by the fourth amendment to the Constitution. As Justice Brandeis wrote, each individual's right to privacy is "the most comprehensive of rights, and the right most valued by civilized men."

Within the last several years many citizens have begun to fear that this basic right is being steadily eroded by the use of modern electronic technology to eavesdrop on conversations. Unfortunately, increasing numbers of Americans have begun to fear that Government is more interested in intruding into their private lives than in acting to protect their privacy. A basic purpose of these hearings is to examine the trend toward privacy invasion and to determine what should be done to reassert the right of the individual to be free of Government surveillance.

Until passage of the Omnibus Crime Control and Safe Streets Act of 1968, the only Federal statute on wiretapping was section 605 of the Federal Communications Act of 1934, which prohibited interception and divulgence of conversations transmitted by wire. The Department of Justice interpreted section 605 to mean that the law was violated only if an intercepted conversion was divulged to outsiders, and the question was never decided by the Supreme Court. It was not until the 1968 act that Congress enacted a comprehensive statute on wiretapping and electronic surveillance.

(1)

That statute, title III of the Omnibus Crime Control and Safe Streets Act, actually extended official wiretapping by authorizing frequent and prolonged eavesdropping by Federal and State investigators. It also authorized, for the first time, the use of wiretap evidence in criminal trials. In the 6 years since the enactment of title III we have witnessed an intensive, widespread, but perhaps avoidable encroachment on some of our most necessary rights.

These hearings are not the first congressional effort to examine privacy invasion by electronic eavesdropping. Between 1934 and 1967 at least 16 sets of congressional hearings on wiretapping were held. From 1965 to 1971 former Congressman Corneillius Gallagher conducted numerous hearings on privacy invasion as chairman of the Special Subcommittee on Privacy of the House Committee on Government Operations. However, in 1972 the House defeated a resolution sponsored by Congressman Gallagher to establish a Select Committee on Privacy, Human Values, and Democratic Institutions. The then chairman of the Judiciary Committee, Congressman Celler took the position that the entire subject of privacy was within the jurisdiction of this committee even though Congressman Gallagher tried without success to assure Chairman Celler that the proposed select committee would not encroach on the Judiciary Committee's recognized jurisdiction in the area of bugging, wiretapping, and surveillance.

In scheduling these hearings this subcommittee is reasserting the Judiciary Committee's longstanding involvement with the problems of privacy invasion and electronic surveillance.

Of course, we are not alone in our examination of this sensitive subject. Within the last few weeks, two subcommittees of the Senate Judiciary Committee and one subcommittee of the Senate Foreign Relations Committee have begun joint hearings on warrantless wiretapping and electronic surveillance.

In addition, there are two independent commissions which are authorized to consider the problem. Public Law 90–351 established a National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance. Recently, Congressman Railsback of this subcommittee and I were appointed as two of the House Members on this Commission. Congressman Edwards of California and Congressman Steiger of Arizona are the other House Members.

Public Law 91-452 established another Commission, the National Commission on Individual Rights, which also has a mandate to consider wiretapping and electronic surveillance. I am also a member of that Commission. Unfortunately, this Commission cannot function presently as the President has failed to appoint its public members.

Undoubtedly, these two Commissions will serve a useful purpose in undertaking a full scale reappraisal of the problem of privacy invasion by electronic eavesdropping. However, the growing public concern in this area requires that we not wait for the result of the Commission's findings to exercise our oversight in this sensitive area.

Within the last year numerous reports have appeared in the press describing abuses of wiretapping and electronic surveillance on the part of the Federal Government. Only last week this issue of illegal Government wiretapping was raised in a Federal court in Minnesota in prosecutions arising out of the incident at Wounded Knee. Recent testimony before the Senate Judiciary Subcommittee on Constitutional Rights revealed that U.S. military intelligence units had tapped telephones of American citizens living in Europe who were organized to support Senator George McGovern's 1972 campaign for the Presidency. In addition, there have been numerous reports of wiretapping of members of the press, advisors to Presidential candidates and even members of Congress. These reports emphasize the need for immediate Subcommittee consideration of Government eavesdropping activities.

The procedures used within the Department of Justice to approve wiretapping requests have also been questioned. In litigation presently pending before the Supreme Court, the Justice Department has admitted that former Attorney General John Mitchell's executive assistant actually reviewed and signed wiretap requests in spite of the fact that the law requires that such requests be signed by the Attorney General or a designated Assistant Attorney General. This failure by the Attorney General to observe the law could compromise hundreds of prosecutions of organized crime figures who were wiretapped under such procedures.

That reported abuses of wiretapping and electronic surveillance have generated public concern is reflected by the fact that over 30 members of Congress have sponsored legislation which would restrict currently authorized eavesdropping. This legislation is currently pending before this subcommittee.

In view of the public and congressional concern about eavesdropping, the subcommittee has an obligation to find out the facts about this much publicized subject. Hopefully, these hearings will provide some of those facts. I feel very strongly that the all-too-clever techniques of modern electronic eavesdropping require the vigilance of the Congress to protect the right of the individual. This most insidious invasion of privacy demands full recognition and certain action.

We must also recognize the needs of investigative agencies for the best techniques available in the fight against organized crime and in the protection of our national security. I think that most citizens want our law enforcement agencies to be well equipped to perform their investigative responsibilities within the limitations imposed by the Constitution.

We will be hearing from a variety of witnesses representing both those who have been under surveillance and those who have conducted surveillance.

[The bills are as follows:

[H. R. 1597, 93d Cong., 1st sess.) A BILL To amend certain Federal law relating to the interception of wire and oral

communications Be it enacted by the Senate and House of Representative of the United States of America in Congress assembled, That section 2511 of title 18 of the United States Code is amended by adding at the end thereof the following:

"(4) Notwithstanding any other law or provision of law, whoever, acting under color of law. intercepts or discloses any wire or oral communication, with respect to which a judge or justice of the United States or a Senator or Member of Congress is a party, without the written authorization of the President (specifically authorizing the particular interception or disclosure) shall be fined not more than $20,000 or imprisoned not more than ten years, or both,"

(H. R. 7773, 93d Cong., 1st sess.) A BILL To amend title XII of the Organized Crime Control Act of 1970, and for

other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title XII of the Organized Crime Control Act of 1970 (84 Stat. 922, 960) is amended as follows:

(a) The heading of the title is amended to read :

"TITLE XII-NATIONAL COMMISSION ON INDIVIDUAL RIGHTS AND PERSONAL

SECURITY"

(b) Section 1201 is amended by adding “and Personal Security" after the word "Rights”.

(c) Section 1204 is amended to read as follows:

“SEC. 1204. It shall be the duty of the Commission to conduct a comprehensive study and review of Federal court decisions, laws, and practices relating (1) to special grand juries authorized under chapter 216 of title 18, United States Code, dangerous special offender sentencing under section 3575 of title 18, United States Code, bail reform and preventive detention, no-knock search warrants, the accumulation of data on individuals by Federal agencies as authorized by law or acquired by executive action, and (2) the conduct of stop and frisk arrests, searches and seizures, interrogations, appellate review by the prosecution, lack of mutual pretrial criminal discovery, self-incrimination and prosecutor comment on failure to testify, the conduct of lineups, disclosure of informants' identities, fingerprinting and photography, and trial delay, finality and collateral review of Federal and State criminal proceedings. The Commission may also consider other Federal court decisions, laws, and practices which in its opinion may infringe upon the individual rights of the people of the United States to liberty or to personal security. The Commission shall deter. mine which legal rules, laws, and practices are needed, which are effective, and whether they infringe upon the individual rights of the people of the United States to liberty or to personal security.”

(d) Section 1207 is amended to read as follows:

“SEC. 1207. (a) The Commission or any duly authorized subcommittee or member thereof may, for the purpose of carrying out the provisions of this title, hold such hearings, sit and act at such times and places, administer such oaths, and require by subpena or otherwise the attendance and testimony of such witnesses and the production of such books, records, correspondence, memorandums, papers, and documents as the Commission or such subcommittee or member may deem advisable. Any member of the Commission may administer oaths or affirmations to witnesses appearing before the Commission or before such subcommittee or member. Subpenas may be issued under the signature of the Chairman or any duly designated member of the Commission, and may be served by any person designated by the Chairman or such member.

“(b) In the case of contumacy or refusal to obey a subpena issued under subsection (a) by any person who resides, is found, or transacts business within the jurisdiction of any district court of the United State, the district court, at the request of the Chairman of the Commission, shall have jurisdiction to issue to such person an order requiring such person to appear before the Commission or a subcommittee or member thereof, there to produce evidence if so ordered, or there to give testimony touching the matter under inquiry. Any failure of any such person to obey any such order of the court may be punished by the court as a contempt thereof.

“(c) The Commission is an 'agency of the United States' under subsection (1) of section 6001 of title 18, United States Code, for the purpose of granting immunity to witnesses.

(d) Each department, agency, and instrumentality of the executive branch of the Government, including independent agencies, is authorized and directed

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