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892: W 74

WARRANTLESS WIRETAPPING

2-2

HEARINGS

BEFORE THE

SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

NINETY-SECOND CONGRESS

SECOND SESSION

ON

PRACTICES AND PROCEDURES OF THE DEPARTMENT OF
JUSTICE FOR WARRANTLESS WIRETAPPING AND OTHER

ELECTRONIC SURVEILLANCE

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U.S. GOVERNMENT PRINTING OFFICE

93-045

WASHINGTON : 1973

COMMITTEE ON THE JUDICIARY

JAMES O. EASTLAND, Mississippi, Chairman JOHN L. MCCLELLAN, Arkansas

ROMAN L. HRUSKA, Nebraska SAM J. ERVIN, JR., North Carolina

HIRAM L. FONG, Hawaii PHILIP A. HART, Michigan

HUGH SCOTT, Pennsylvania EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina BIRCH BAYH, Indiana

MARLOW W. COOK, Kentucky QUENTIN N. BURDICK, North Dakota CHARLES MCC. MATHIAS, JR., Maryland ROBERT C. BYRD, West Virginia

EDWARD J. GURNEY, Florida JOHN V. TUNNEY, California

SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE

EDWARD M. KENNEDY, Massachusetts, Chairman PHILIP A. HART, Michigan

STROM THURMOND, South Carolina BIRCH BAYH, Indiana

CHARLES MCC. MATHIAS, JR., Maryland
QUENTIN N. BURDICK, North Dakota EDWARD J. GURNEY, Florida
JOHN V. TUNNEY, California

JAMES F. FLUG, Chief Counsel
MICHAEL T. EPSTEIN, Assistant Counsel

HENRY HERLONG, Minority Counsel
CAROLINE J. CROFT, Staff Member

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CONTENTS

11

13

71

6

Press Conferences of-

Mitchell, John N., then Attorney General of the United States, Page

July 14, 1969.

103

Nixon, Richard M., President of the United States-

April 16, 1971..

104

May 1, 1971.

105

June 22, 1972.

7
Press releases of

P
Kleindienst, Richard G., Attorney General of the United States,
June 19, 1972-

6

United States Department of Justice, December 18, 1971.---

106

Newspaper and Television interviews of—

Kleindienst, Richard G., then Deputy Attorney General of the United

States, on “Thirty Minutes with .", June 14, 1971.---

107

Mitchell, John, then Attorney General of the United States on "The

David Frost Show”, April 7, 1971 (excerpt)--

114

Newspaper and Magazine articles-

"Mitchell Upholds Wiretap of 'Dangerous' Radicals," New York

Times, June 12, 1971.

115

“Thirty Years of Wire Tapping,” The Nation, June 14, 1971, by

Athena G. Theoharis.

117

“Kennedy, Justice Dept. Clash Over Wiretaps, 'Bugs' Extent,” The

Providence Sunday Journal, December 19, 1971..

124

“Kennedy Says Wiretap Gap Exists in U.S.," Associated Press,

December 19, 1971.

126

“Kennedy Charges Justice Department Hides Extent of Wiretaps,"

New York Times, December 19, 1971.-

127

"Kennedy Casts Doubts on Nixon's Wiretap Figures,” The Baltimore

Sun, December 19, 1971.-

128

"Wiretap Figures Disputed,” The Boston Globe, December 19, 1971.- 129

"How Much Eavesdropping?”, Washington Evening Star, Decem-

ber 19, 1971.

130

“Wiretap Extent Disputed,” Washington Post, December 19, 1971.- 132

A Gross Invasion," New York Times, December 19, 1971.--

133

“Wiretaps and National Security,” Commentary, January, 1972, by

Allan M. Dershowitz..

134

"Banned Bugs Turned Off," Washington Evening Star, June 20, 1972. 142

“Court Curbs Wiretapping of Radicals,” Washington Post, June 20,
1972.-

144

"High Court Curbs U.S. Wiretapping Aimed at Radicals," New York

Times, June 20, 1972.

145

"Top Court Limits Wiretaps," New York Daily News, June 20, 1972- 147

“Kleindienst Sees a Decline in Wiretaps," New York Times, June 22,
1972.-

148

“The Supreme Court: Untapped,” Newsweek Magazine, July 3, 1972. 149

“New Curb on Bugging,” Time Magazine, July 3, 1972...

151

Other

Article entitled “The National Security Justification for Electronic

Eavesdropping: An Elusive Exception" by Athena G. Theoharis

and Elizabeth Meyer from Wayne Law Review, 1968.

152

Chapter entitled "The FBI and Electronic Surveillance" by Victor

Navasky and Nathan Lewin, from the book Investigating the FBI.. 166

Opinion of the United States Supreme Court in United States y.

United States District Court for the Eastern District of Michigan et al- 183

Report on the Costs and Benefits of Electronic Surveillance, by

Herman Schwartz-

December, 1971 (excerpt).

199

December, 1972 (excerpt)

203

Title 18, United States Code, Sections 2511-2520..

212

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PRACTICES AND PROCEDURES OF THE DEPARTMENT

OF JUSTICE FOR WARRANTLESS WIRETAPPING

THURSDAY, JUNE 29, 1972

4

U.S. SENATE, SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. 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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