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COMMITTEE ON THE JUDICIARY

JAMES O. EASTLAND, Mississippi, Chairman

JOHN L. MCCLELLAN, Arkansas
SAM J. ERVIN, JR., North Carolina
PHILIP A. HART, Michigan

EDWARD M. KENNEDY, Massachusetts
BIRCH BAYH, Indiana

QUENTIN N. BURDICK, North Dakota ROBERT C. BYRD, West Virginia JOHN V. TUNNEY, California

ROMAN L. HRUSKA, Nebraska
HIRAM L. FONG, Hawaii

HUGH SCOTT, Pennsylvania

STROM THURMOND, South Carolina
MARLOW W. COOK, Kentucky

CHARLES MCC. MATHIAS, JR., Maryland
EDWARD J. GURNEY, Florida

SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE EDWARD M. KENNEDY, Massachusetts, Chairman

PHILIP A. HART, Michigan
BIRCH BAYH, Indiana

QUENTIN N. BURDICK, North Dakota
JOHN V. TUNNEY, California

STROM THURMOND, South Carolina CHARLES MCC. MATHIAS, JR., Maryland EDWARD J. GURNEY, Florida

JAMES F. FLUG, Chief Counsel
MICHAEL T. EPSTEIN, Assistant Counsel
HENRY HERLONG, Minority Counsel
CAROLINE J. CROFT, Staff Member

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CONTENTS

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Maroney, Kevin, Deputy Assistant Attorney General for Internal
Security, United States Department of Justice, to the Subcom-
mittee, dated—

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February 23, 1972 (excerpt).

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1972_

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PRACTICES AND PROCEDURES OF THE DEPARTMENT OF JUSTICE FOR WARRANTLESS WIRETAPPING

THURSDAY, JUNE 29, 1972

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.

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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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I cite at length the trend in Lewis Powell's statements because I think he would be the first to say that they set the pattern for the change that is required right now in the Justice Department's approach to wiretapping and bugging of Americans, especially dissenting Americans. Attorney Lewis Powell's 1971 views closely tracked-and cited-those of John Mitchell and his Department. Mr. Justice Powell's 1972 views on behalf of the Supreme Court, and without dissent, are now the law of the land. They must be followed in letter and in spirit by those who have sought to eavesdrop, without limit or review, on our citizens in their homes and offices and gathering places. The time for playing fast and loose with the Bill of Rights has come to an end.

Our goal here today is to relieve all Americans of that "dread of unchecked surveillance power" and that "fear of unauthorized official eavesdropping", by having the Justice Department make clear its commitment to change its ways not only in form but in substance. For unless the Department truly adopts as its own the Supreme Court's heavy emphasis on first and fourth amendment rights, the Keith opinion will become a fraud upon the Nation's citizens, a bare judicial promise of constitutional protection, but a promise that can be broken by the performance of the executive branch.

We are here to see that the constitutional promise is kept, that our right to be let alone, our right to privacy, our right to speak freely in public and in private, our right to have different views, and the other rights which keep our lives free from unwarranted government intrusion, are vindicated rather than evaded, preserved and not avoided, enhanced instead of circumvented.

Attorney General Kleindienst was quoted last weekend as saying that he disagreed with the Supreme Court's holding that his Department must obtain judicial warrants to tap and bug in the interest of domestic security. But fortunately, as I am sure he would agree, his sworn duty is to uphold the constitution as interpreted by the Supreme Court, regardless of his personal preferences. I am confident that he shares the views that nothing undermines respect for our legal system more than lawlessness by lawmen, and that— especially when interference with fundamental freedoms is at stakeofficial lawlessness cannot be tolerated or condoned.

Some facets of the Keith opinion are not yet clear, as we shall see this morning. But certain basic facts are clear:

1. Warrantless tapping and bugging of purely domestic organizations and individuals should have ceased on June 19.

2. Although the Court thinks Congress could set forth different warrant procedures and standards for so-called domestic security eavesdropping, the only statutory basis for issuing any warrants at present is title III of the 1968 law, with all of its limitations and requirements fully applicable.

3. The Court specifically did not decide whether warrantless tapping and bugging is permitted with respect to the activities of foreign powers; nor did it define the degree of collaboration between a domestic group and a foreign power which would turn a domestic group's behavior into foreign unlawful activities which might be subject to different surveillance rules. However, the Court clearly

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