17 February 2002
This is the third part of a series on probes of intelligence agencies and the FBI.
Part 1:
http://cryptome.org/tla-probes.htm
(1974-75)
Part 2:
http://cryptome.org/tla-probes2.htm
(1976)
Part 4:
http://cryptome.org/tla-probes4.htm
(2002-02)
House Establishes Intelligence Committee (1977)
First Authorization for Funding of Intelligence Agencies (1977)
White House Initiative on Electronic Surveillance (1977)
Wiretapping Limits (1977)
Controls Tightened on Use of Wiretaps (1978)
President Carter's Wiretapping Views (1979)
Supreme Court on Entry and Eavesdropping (1979)
CQ Almanac, 1977, pp. 376-378.
More than a vear after the Senate set up a permanent committee to oversee the activities of federal intelligence agencies, the House voted to establish its own panel.
By a 227-171 vote, the House on July 14 approved a resolution (H Res 6581 authorizing the creation of a Permanent Select Committee on Intelligence. House approval came after three days of bitter partisan wrangling, first in the Rules Committee, which drafted the resolution, and then on the floor. (House uote 388, p. 114-H)
The powers and responsibilities of the new panel essentially paralleled those of the Senate Select Committee on Intelligence, an ad hoc panel chaired by Otis G. Pike (D N.Y.), had mcluded establishment of a permanent intelligence committee atnong its recommendations for reform of the U.S. intelligence community.
But that proposal-and the rest of the Pike committee recommendations-vanished without a trace during the controversy surrounding the unauthorized leak of the panel's final report on its two-year investigation of intelligence agency abuses. (1976 Almanac p. 330)
Republican Dissension
Few members disputed the need for a new committee to consolidate intelligence jurisdiction scattered among seven existing House committees. Opposition centered on a provision setting guidelines for limiting access to classified information. The language was considered too lenient by some members and too strict by others. Republicans also faulted the makeup of the proposed committee: nine majority and four minority members, compared with the Senate panel's 9-8 ratio.
After a sometimes acrimonious hearing that lasted a day and a half, the House Rules Committee July 13 reported H Res &58 (H Rept 95-498) by a 10-5 vote. All five Republicans on the committee voted against.
Republican dissatisfaction centered on the issues of members' access to information and the party ratio on the 13-member committee. The leadership wanted the committee to reflect the two-to-one lineup of the full House, thus giving the Democrats nine seats on the new panel. Republicans said the membership should be more evenly divided.
Voting along party lines, the committee turned back a series of amendments offered by Republicans and, by a 7-8 vote, rejected a motion by John B. Anderson (R Ill.) to send the resolution to the House with an "open rule," permitting floor amendments. Instead, the Rules Committee adopted a "closed rule," allowing only an up-or-down vote on H Res 658.
Amendments Rejected
The amendments rejected by the committee were as follows:
This provision had made such information available to the full House Appropriations and International Relations Committees. Since formation of the intelligence panel would further "proliferate" distribution of sensitive materials, Lott said, restrictions elsewhere to prevent leaks were essential. Lott's language would not have affected access by the members of the Armed Services Committee, which also was given access by the 1974 provision.
Party Ratio
Rejecting demands for a more evenly divided membership on the panel, similar to the Senate committee's 9-9 ratio, Rules Committee Chairman James J. Delaney (D N.Y.) maintained that a panel reflecting the political division in the House was appropriate since it would deal with policy matters.
Richard Bolling (D Mo.) argued against exempting H Res 658 from the House rule on access to information. He said the language in the resolution authorizing the intelligence panel to make regulations governing access gave more than adequate protection. Whereas a broad exemption might be unconstitutional, he said, committee regulations would govern access to members variously, depencling on such factors as their security clearance and "need to know," he added.
House-Senate Differences
Major points on which H Res 658 differed from S Res 400, the resolution that established the Senate Select Intelligence Committee in 1976, were:
Restricted Access. The Senate committee, according to S Res 400, "may" make classified information available to other committees and members of the Senate, subject to such secrecy realations as it might set. H Res 658 provided that the House committee "shall" provide the information, subject to its security regulations.
Overriding the President. If the President objected to proposed Senate committee release of classified information, and the Senate, after considering the matter in secret session, referred the question back to the Senate committee, that panel then had the option of releasing the information. In a parallel situation on the House side, the House panel could only report the question back to the House with a new recommendation. It could not release information on its own authority.
Time Limits. When legislation was referred by the Senate Intelligence Committee to a standing Senate committee or when legislation was referred by another Senate panel to the Intelligence Committee, under the terms of S Res 400, the committee acting last had to report the bill within 30 days. The House resolution allowed the Speaker to set the time limit in such cases.
Senate Intelligence ReportIssuing its first annual report May 18, the Senate Intelligence Committee established in May 1976, recommended that the government's intelligence agencies be placed under one director, who would have authority over all relevant agency budgets and projects. Included in a list of recommendations offered by the panel, the proposal downgraded the director of the Central Intelligence Agency to that of responsibility for that organization only. The director presently has authority in theory over all intelligence agencies, but in practice this is limited. President Ford on Feb. 18, 1976, issued an executive order restructuring the federal government's foreign intelligence operations in the wake of Senate and House investigations that year into agency abuses. Ford had strengthened the CIA director's authority over the rest of the intelligence community, but the Senate committee's plan would revise this by statute. No action was taken on the recommendations in 1977. (Background, 1976 Almanac p. 300) |
House debate July 14 echoed the angry exchanges during the committee sessions, and much of the heat was directed at Rules' ban on offering amendments to the resolution.
The resolution was offered on a "take it or leave it basis," protested Minority Leader John J. Rhodes (R Ariz.). Anderson (Ill.) charged that the Democratic leadership's refusal to allow amendments was "launching this committee on a sea of partisan controversy."
O'Neill insisted that "four months of hard deliberative and detailed work went into this piece of legislation." But Lott replied that if it had been worked on for four months, "I want to know where ... tthe Rules Committee) saw it briefly two times maybe for a span of less than a month, which includes the Fourth of July recess."
Committee Membership. The Democrats' insistence on a 9-4 majority on the new committee would "blatantly politicize" the panel, warned Rhodes. He cited the Standards of Offici,al Conduct Committee as a model of bipartisan membership on a panel dealing with sensitive, nonpolitical subjects.
But Bolling retorted that intelligence issues, unlike ethics, involved questions of policy and thus it was "only reasonable for us to follow the mandate of the American people" in determining the party ratio on the committee.
Speaker Thomas P. O'Neill Jr. (D Mass.) complained that Republicans were playing "politics for the sake of politics" with the resolution despite his prior consultation with Rhodes. "Instead of leading his followers, [Rhodes] is following a few of his followers," O'Neill added.
"I am surprised at the Speaker's tirade," countered Rhodes. He insisted that he had never agreed to a 9-4 apportionment of the panel.
Secrecy Debated
Rhodes led conservatives who objected that the resolution did not set specific secrecy rules for the committee, but authorized the panel to establish its own security system. "I believe it is the responsibility of the full House to erect safeguards," fie insisted. But Bolling insisted that the panel could under the resolution set rules that would have the effect of denying information to certain members.
That answer fueled the objections of some liberal Democrats, who warned that the new committee could mark a return to the period before 1975 when oversight of the intelligence community rested with committees that were not disposed to be critical of anything the agencies did. "What happens to me when I find out that there is American involvement secretly in another Angola, and I have to worry about whether I can even inform a fellow colleague of mine, or whether I can take this floor and inform the American people?" demanded Robert N. Giaimo (D Conn.).
But Bolling insisted that unless intelligence agencies could be confident that the new committee would keep secrets, they would simply refuse to provide classified information. That view was echoed by the new committee's likely chairman, Edward P. Boland (D Mass.): "After this body's recent experience with previous select committees on intelligence, we must first prove to the Senate, to the President and to ourselves that we can handle the job."
The 227-171 vote by which the resolution was passed split generally along party lines. Democrats supported the resolution by a 216-43 margin; Republicans opposed it by 11-128. (Vote 388, p. 114-H)
As approved by the House, H Res 658:
Members Appointed
The committee membership was announced July 27 by O'Neill:
Funds Appropriated
The House Aug. 3 approved a resolution (H Res 729) appropriating $302,499 for the expenses and investigations of the intelligence committee during the remainder of 1977.
Related Development
House approval in July of its own intelligence committee paralleling the Senate's went counter to President Carter's call for a joint congressional committee havin.- the same jurisdiction and oversight responsibilities.
In February, Carter announced that he would try and find wavs to reduce the number of people on Capitol Hill who haa access to classified information.
Carter's announcement was in reply to a question asked at his second news conference as President. The question had to do with reports that the CIA had for years made large cash payments to King Hussein of Jordan.
Carter replied that his policy was to avoid commenting on any specific CIA activity. He added, however, that he had been studying the CIA's covert operations, and "I have not found anything illegal or improper." He would notify the public of any impropriety or illegality he found, he said.
The President had sharply reduced the number of people in the executive branch with access to information about CIA operations.
Under existing law, information about intelligence activities, including covert operations, was available to eight congressional committees, four in the Senate and four in the House. In the 95th Congress, not counting the House intelligence committee that was not organized until September. 194 members-36 per cent of the membershipsat on the seven committees.
Carter made a specific proposal pertaining to Congress when he visited the State Department Feb. 24. "I have hopes to have one joint congressional committee with limited membership" that would be authorized to receive classified material, he said.
CQ Almanac, 1977, pp. 379-380.
The Senate on June 22 approved for the first time ever legislation (S 1539) specifically authorizing funds for the operations and programs of the federal intelligence agencies. Senate authorization of the agencies' activities was mandated by Senate Resolution 400, which established the Senate Select Intelligence Committee in 1976.
But only those senators who looked at a secret report prepared by the committee knew how much money was authorized. The bill did not disclose any budget figures for these agencies. which include the Central Intelligence Agency (CIA) and the Defense Intelligence Agency (DIA).
Nevertheless, the bill represented a significant change from past years when intelligence funding was scattered throughout the budgets of numerous agencies. S Res 400 required the committee to approve the annual authorization of the CIA and, jointly with the Armed Services Committee, the authorizations for the other foreign intelligence agencies. (1976 Almanac p. 294)
The new committee voted to recommend disclosure of the total U.S. intelligence budget approved by Congress. It proposed that the amount appropriated for all intelligence agencies be revealed, but not the amount authorized by the intelligence panel. However, the Senate never acted on the recommendation during the session.
Earlier in the year, President Carter had indicated that he had no objections to public disclosure of the total amount spent by the United States on intelligence programs at home and abroad.
The first President to favor disclosure of U.S. spending on intelligence operations, Carter nevertheless opposed giving out additional information, such as the "composition and character of the intelligence budget," said Stansfield Turner, Director of Central Intelligence, during public hearings held by the Senate panel.
Throughout the investigation in 1975 by Senate and House panels on intelligence gathering practices and abuses by government agencies, efforts were made to pry loose the total operating budget of the intelligence community, but these attempts repeatedly were thwarted by the Ford administration, which contended that the information might be helpful to the Soviet Union and other U.S. adversaries.
In October 1975 the House had demonstrated that it agreed with the White House position by voting 147-267 against a proposal to disclose the CIA's operating budget. (Background, 1975 Almanac p. 400)
S 1539 was never considered by the House. The appropriations for the intelligence agencies had already been approved by the House and Senate (hidden in the Defense Department funding bill) before the House Permanent Select Intelligence Committee, established July 14, was organized. (Establishment of House committee, p. 376)
The Senate Intelligence Committee reported S 1539 on May 16 (S Rept 95-214).
Arguing that the intelligence budget had not kept pace with inflation during recent years, the panel supported an increase over previous spending levels. The additional funds also were intended to allow "limited real growth" in intelligence activities so that the agencies could stay abreast of changes in intelligence technology.
But the committee did not go along with all of the agencies' requests. It advocated deferral of some projects and elimination of others to achieve a "reasonable balance between needed intelligence capabilities and prudent cost."
Reductions made by the committee were apparently considerably less than the $204.8-million cut by the House Appropriations Committee. In its report on the 1978 Defense Department appropriations bill (HR 7933-PL 95-111), the House committee commented that it had recommended "substantially higher reductions" in the intelligence budget than had the Senate panel. (Defense appropriations, p. 264)
The committee did make public the budget for the Intelligence Community Staff and the CIA Retirement and Disability Fund.
The Intelligence Community Staff assists the Director of Central Intelligence (DCI) in his responsibilities as overall head of the intelligence apparatus. The committee cut the budget for the staff to $9-million from $10.5million. Almost half of that saving came from a decrease in the personnel ceiling, cut to 170 employees from the 196 requested.
The committee granted the full request of $35.1-million for the CIA Retirement and Disability Fund.
Disclosure Issue
In separate action on May 25, the intelligence committee approved by a one-vote margin, 9-8, a proposal that the Senate disclose the total amount budgeted for foreign intelligence operations in fiscal 1978. The Carter administration did not oppose the move, although CIA Director Adm. Stansfield Turner indicated that he personally preferred that the figure not be made public.
Committee Chairman Daniel K. Inouye (D Hawaii) said that the narrow margin by which the panel had approved disclosure of the total foreign intelligence budget "reflects rather precisely" the sentiment in the full Senate. He added that the committee would probably have gone along if the President had objected.
Inouye emphasized that the figure would not be broken down -- a point on which the administration had insisted -- but "just the one big number." Inouye added that the committee majority felt that disclosure would clear up some "misinformation and misconceptions about our intelligence community."
Some observers had argued that disclosure was necessary because of constitutional provisions requiring public disclosure of money spent by the federal government. But in a letter to the committee, President Carter said that Attorney General Griffin B. Bell did not think disclosure was necessary.
Some intelligence experts and members of Congress had argued that even the total figure could provide valuable information to foreign intelligence agencies and that it would be meaningless to the U,S. public because it would not be broken down.
The Senate passed S 1539 without amendment by voice vote. Consideration of the bill was hastened by the Armed Services Committee's voluntary waiver of its right to consider the defense intelligence portions of the bill after it had been reported by the Intelligence Committee. Armed Services Chairman John C. Stennis (D Miss.) had opposed S Res 400 in 1976 because it deprived his committee of primary jurisdiction over certain intelligence matters.
Birch Bayh (D Ind.), a member of the committee, used the debate as an opportunity to argue for disclosure of the intelligence budget.
Bayh argued that revealing the total intelligence spending without including the budgets for individual agencies would increase public confidence in government, but not compromise national security.
Bayh stressed that the panel's authorization applied to funding only and was not to be considered as approval of the agencies' activities themselves. Bayh indicated the committee was reviewing the myriad of statutes and executive orders authorizing foreign intelligence operations to assess the need for a "new framework of legislative authority."
The Senate Select Intelligence Committee on May 18 released a report of its activities during its first year. The activities of the panel were noted in some detail, but discussion of its oversight role was couched in generalities to avoid disclosure of classified information. The committee said the intelligence agencies had been cooperative in general in providing information.
Highlights of the committee report included:
Intelligence Quality. The panel had under investigation several case studies on the collection, production and quality of U.S. intelligence. Among the cases under review bv the committee were: 1) assessments of Soviet strategic weapons developments, 2) the "Team A-Team B" exercise in 1976 that pitted a team of outside experts against government officials in analyzing Soviet military capabilities and intentions, 3) the oil price increases of 1973-74, 4) the Portuguese revolution of 1973-75 and 5) developments in China.
Alleged Improprieties. The committee received "close to one hundred" allegations of improprieties by intelligence agencies. It said it was focusing most of its time and investigative resources on incidents that were alleged to have occurred since the committee was established.
Allegations about activities in the United States of intelligence agencies from South Korea, Iran, Chile, the Philippines and Nationalist China also were being investigated by the panel. It was probing whether any quid pro quo existed between overseas activities of U.S. agencies and operations in the United States of foreign intelligence agencies.
Rights of Americans. The committee was involved in discussions with the Attorney General to establish a reporting procedure facilitating its oversight of those intelligence operations that could affect the rights of U.S. citizens. Agreement had been reached on the reporting of policy guidelines and was being sought on material relating to specific cases.
The panel called for legislative charters specifying the limits of proper action by the intelligence agencies. "The need for secrecy and for administrative discretion must be weighed against the desire for clear legal standards that the American. people can rely upon to protect their rights."
It argued that such legal clarification was especially essential to cover 1) counterintelligence operations against foreign agents (who may be U.S. citizens), 2) foreign economic intelligence where there were connections between U.S. firm3 and foreign economic activity and 3) enlistment of voluntary services, such as journalists, missionaries and educators, when such actions might erode U.S. institutions.
Intelligence Chief. The committee said it was considering a proposal to significantly increase the control of the Director of Central Intelligence over those foreign intelligence agencies other than the CIA that contributed to formation of "national intelligence "-information that was used by U.S. policyrnakers to formulate national policy.
Theoretically, the director had authority over all foreign intelligence agencies, but as a practical matter his influenceover the Pentagon's intelligence units was slight.
CQ Almanac, 1977, p. 568.
The third administration initiative accorded major White House attention was the introduction of a new electronic surveillance proposal, the Foreign Intelligence Surveillance Act of 1977. The heart of the new bill was the proposal to require a judicial warrant for all national securitv or foreign intelligence wiretaps or "bugs."
Such judge-approved warrantshad long been required for domestic criminal investigations using electronic means of surveillance, but the foreign intelligence-gathering function had been subjected to no such limitation.
The Carter bill also explicitly rejected the "inherent power" claim that previous administrations had used as a basis for widespread national security bugging not sanctioned by the courts. Under this theory, the President was said to possess inherent power to use such investigative techniques.
Although lauded by many liberals and civil liberties advocates as a step in the right direction, the proposal was harshly attacked by others. Some critics claimed that the standards to be used by the judges in granting warrants were so loose as themselves to constitute a danger to the Fourth Amendment right of citizens to be free from unreasonable searches by the government.
The administration proposal was approved by the Senate Judiciary Committee and forwarded to the Senate Intelligence Committee which shared jurisdiction over the bill. It did not move out of subcommittee in the House.
CA Almanac, 1977, pp. 596-601.
The virtually unrestrained authority of the President to emplov electronic surveillance for foreign intelligence purposes would be curtailed by a judicial warrant procedure under legislation that was being considered in the Senate late in 1977.
The Foreign Intelligence Surveillance Act of 1977 (S 1566). approved by the Senate Judiciary Committee Nov. 15 (S Rept 95-604), would eliminate the President's inherent power to conduct foreign intelligence surveillance within the United States. It would require, for the first time, that executive branch officials obtain judicial warrants for such wiretap and microphone surveillance.
The bill, seen as a major improvement over the vague "national security" criteria that dominated foreign intelligence surveillance for some 40 years, won the support of liberals and conservatives on the Judiciary Committee. Nevertheless, civil libertarians late in 1977 were attacking it on a number of fronts. Their principal concern was the bill's noncriminal standard for authorizing wiretaps within the U.S. Under that standard a judge is not required to find probable cause of criminal activity before issuing a warrant for electronic surveillance.
The American Civil Liberties Union (ACLU) said that is a violation of the Fourth Amendment protection against "unreasonable" searches. Civil libertarians contended the protections provided with that standard would probably not be a significant improvement over the FBI's existing secret standards for surveillance and even if they were. that the noncriminal standard would establish a dangerous precedent for future controls on the nation's intelligence agencies. If the intelligence agencies aren't required to have evidence of a crime in order to wiretap, critics argued, it will be impossible to impose a criminal standard for mail openings, break-ins, examination of tax returns and other intrusion investigative techniques.
Provisions of Senate Wiretapping BillAs reported by the Senate Judiciary Committee, the Foreign Intelligence Surveillance Act of 1977 (S 1566) limited the authoritv of the executive branch to conduct electronic surveillance within the United States for foreign intelligence purposes. The bill rejected the executive claim of "inherent power" to wiretap in certain situations, and established a procedure whereby warrants for foreign intelligence surveillance-use of wiretaps or microphone surveillance-within the United States may be granted with the approval of the Attorney General and a federal court judge. The bill contained the following major provisions: Warrants. Allowed a warrant for surveillance of a foreign power or agent of a foreign power. Defined a foreign agent to include: 1) any non-U.S. citizen who is an officer or employee of a foreign power, or who knowingly engages in clandestine activities on behalf of a foreign power which would be harmful to U.S. security, or who knowingly conspires with such a person; 2) any person including a U.S. citizen who knowingly engages in clandestine activities which involve a violation of U.S. criminal statutes, knowingly engages in sabotage or terrorism for a foreign power, knowingly collects or transmits information harmful to the security of the U.S. to a foreign power, or any person who knowingly conspires with. aids or abets these individuals. Judicial Certification Procedures. 1) Authorized the Chief Justice of the United States to designate seven district court judges any one of whom may hear applications for and grant orders approving electronic surveillance. Provided that the Chief Justice appoint three judges from the district or appeals courts to sit as a special "court of appeals" to hear government appeals from denials of applications. Provided that the U.S. may further appeal to the Supreme Court. 2) Required that applications for wiretaps be accompanied by written certification from an executive branch official that the information sought is "foreign intelligence information," and required certification of that fact by the Attorney General. 3) Allowed a judge to approve an application upon a finding that: a) there is probable cause that the target is a foreign power or agent of a foreign power, b) the place at which surveillance is directed is used or about to be used by such target, 0 procedures to minimize the acquisition and retention of nonforeign intelligence information relation to Americans are provided for, d) the executive branch certification was not clearly erroneous. 4) Required that orders for wiretaps of individuals and certain foreign powers include a statement of the means of surveillance to be used. 5) Allowed surveillance for periods ranging up to 90 days (for Americans), up to one year (for aliens), with provision for extensions. Minimization. Provided that information concerning U.S. citizens be used only for foreign intelligence purposes or in connection with the enforcement of the criminal law, and that information obtained on non-U.S. citizens or resident aliens be used only for "lawful purposes. Emergency Surveillance. Allowed the Attorney General to approve emergency surveillance for up to 24 hours without a judge's approval but required immediate notification of a judge concerning such surveillance and the filing of an application for surveillance within 24 hours. Allowed notification of the target of an emergency surveillance by a judge if a warrant for the surveillance was subsequently disapproved. Electronic Surveillance. Defined to include acquisition of information from targeted U.S. persons in the United States sending or receiving wire or radio communications within the U.S. or abroad when a person has a "reasonable expectation" of privacy and a warrant would be required for law enforcement purposes. Reports. Required annual reports to Congress detailing the number of applications for wiretap orders and extensions granted and denied. |
Floor Fights Expected
By the end of 1977 little conservative opposition to S 1566 had developed,
primarily because conservatives seemed reluctant to muster their forces against
a bill the FBI said it could live with. But objections to provisions from
other quarters were almost certain to precipitate a 1978 floor fight on several
issues including:
Search and SeizureThe right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized. Fourth Amendment, U.S. Constitution |
Hearings on various proposals to curb national security wiretapping in the U.S. were held throughout the 1970s. The new bill (S 1566), introduced by Sen. Edward M. Kennedy (D Mass.), was a modified version of legislation introduced in 1976 (S 3197) at the request of the Ford administration and Attorney General Edward H. Levi. That bill, which retained an inherent power exception for the President for national security purposes, became embroiled in controversy and never made it to the Senate floor. But S 3197 represented Congress' first serious effort to come to grips with intelligence agency abuses reported by the Senate Select Committee on Intelligence in 1975 and 1976. (Background, 1976 Almanac pp. 303, 415)
Congress has proceeded cautiously in dealing with intelligence agency controls. While the Church committee proposed charters for the intelligence agencies and legislation to control use of mail openings, break-ins, tax returns and other investigative techniques both in the U.S. and abroad, congressional committees decided on a more limited approach.
Kennedy's wiretap bill, pending before the Senate Intelligence Committee at the end of 1977, dealt with only one segment of the intelligence agency controls proposed by the Church committee. Its application would be primarily to the FBI and National Security Agency, the two principal agencies conducting foreign intelligence surveillance-spying and collection of information-in the United States. Controls on these activities overseas (particularly by the CIA) were to be handled in separate bills. (Domestic criminal surveillance was already covered by the Safe Streets Act of 1968.)
According to Kennedy. S 1W as reported by the Judiciary Committee represented a delicate balance between national security interests and the constitutional rights of individuals. He acknowledged civil libertarian objections that the bill did not go far enough in protecting individual rights, but insisted that the conservative makeup of the committee would not have allowed for a tougher bill.
Electronic Surveillance: A Brief HistoryThe history of statutes, court rulings, and various government orders pertaining to electronic surveillance left the public and intelligence agencies without clear guidance about the extent to which foreign intelligence electronic surveillance may be used.
The Justice Department conducted such surveillance under secret guidelines
that were said to be similar to the provisions of S 3197, which died at the
end of the 94th Congress. The following is a brief history leading up to
the state of the law at the end of 1977.
|
The major debate over the Foreign Intelligence Surveillance Act was the bill's noncriminal standard to permit a wiretap or bug.
According to Morton Halperin, director of the Project on National Security and Civil Liberties and himself the subject of an illegal 21-month tap by the Nixon administration, "The fundamental issue is whether the government has the right to conduct any form of surveillance of an American citizen whose conduct is not believed to be in violation of the law."
In testimony before the Judiciary Subcommittee on Criminal Laws and Procedures, Attorney General Griffin B. Bell said that "as a matter of principle" no U.S. person should be made the target of electronic surveillance unless there is probable cause to believe he has violated the law. But Bell defended the use of the noncriminal standard until such time as his agency can rewrite the espionage laws to cover situations that call for wiretaps that he says might not be covered by current law or S 1566.
Justice Department officials and other supporters of S 1566 as reported argued that there are certain situations-such as foreign espionage to obtain trade secrets or information about industrial processes-in which national security interests may require electronic surveillance even though there is no evidence that a crime has been or is being committed.
The civil libertarians' case for a criminal standard rests largely on the Fourth Amendment requirement that "no warrants shall issue but upon probable cause" that a crime has been or is being committed.
Addressing this issue, Bell argued that there are "numerous searches which the Supreme Court found constitutional both with and without a warrant where there is no probable cause to believe a crime has been committed." Bell teferred specifically to administrative. customs and stop-and-frisk searches. The Keith case (box, p. 599) was most frequently cited to support this argument.
Civil libertarians responded that there is a vast difference between a customs search. which is voluntary to the extent that an individual who leaves the country knows he will confront it, an administrative search. wherein a warrant mav be issued to inspect a business or dwelling for such things as housing code violations. and wiretapping. In addition, they argued, administrative searches relate to specific crimes, while S 1566 allows a search by means of electronic surveillance without evidence of a crime.
Justice Department View
In the final analysis, the Justice Department case for the noncriminal standard hinged on what it viewed as a fundamental difference between intelligence investigations and criminal investigations. It argued that because the former usually are aimed primarily at collecting information and convincing spies to serve the U.S. rather than at prosecution, it should not be saddled with a criminal standard. It acknowledged the difficulty of showing "probable cause" that a crime is being committed, but argued that because of the difficulty of ascertaining beforehand what information is obtainable by surveillance the standards for obtaining a warrant should be looser.
The Justice Department also insisted that the noncriminal standard in S 1566 was narrowly drawn to target only individuals who would be suspected of working against U.S. interests. Kennedy insisted that the bill as reported came close to requiring a criminal standard without stating one.
But the ACLU and other opponents of the bill argued on principle that no matter how tightly drawn, a noncriminal standard would open a Pandora's box leading to loosely defined noncriminal guidelines for intelligence operations in other areas, including agency charters. "If the FBI is given an express authority to wiretap Americans not engaged in crime," argued John Shattuck, Washington director of the ACLU, "it will certainly assert a similar authority to conduct other investigations without evidence of crime."
The committee report on S 1566 tacitly acknowledged this danger: "The bill does not impliedly authorize departure from the standard of criminality in other aspects of national security investigations or intelligence collection directed at Americans without the safeguards of judicial review and probable cause."
Because S 1566 allowed the government to bring a criminal prosecution on the basis of evidence obtained from a foreign intelligence wiretap, and because the standards for granting wiretap authority were significantly less stringent than the criminal standard under Title III of the Safe Streets Act. critics of the bill also feared it would be used to circumvent the criminal statutes.
Conspiracies and Foreign Agents
The danger of the noncriminal standard from the civil liberties point of view was most clearly shown, critics said, in the four specific areas where warr'ants for surveillance could be issued (two categories of aliens, one of Americans and a fourth covering persons conspiring with persons in the other three categories).
Critics of S 1566 argued that: 1) The bill's definitions of "foreign agent" and "conspiracy" as well as the lack of any definition in the bill of "clandestine intelligence activities" would allow the government to conduct surveillance of broad categories of individuals, including political dissidents. and 2) the bill makes an artificial distinction between Americans and aliens that is not warranted under the Fourth Amendment
The conspiracy language. critics contended, could allow surveillance of individuals who simply associate or help persons legitimately under surveillance even if the former don't know the nature of the activity they are alleged to be abetting.
The "clandestine intelligence activities" distinction, which applied to both Americans and aliens, was not defined in the bill although the committee report strongly suggested that a person would have to commit a crime for the standard to apply. Opponents of the bill wanted the criminal language included in the bill itself or the clandestine activities language deleted.
Defenders of the conspiracv language argued it was narrowly delimited by the requirement that a person engage in clandestine activities "knowingly" or that he conspire "knowing" that a person he is aiding is involved in such activities.
The Justice Department argued that Fourth Amendment protections could not be extended to aliens because of the nature of foreign spy operations, particularly those of the Soviet Union. Because it would be impolitic to write a bill specifically for the Soviet KGB, however, the bill covers all aliens. The Justice Department argued that the Soviet Union used the student exchange program, foreign visitors and particularly Soviet seamen as full-time intelligence officers or for one-time intelligence missions. The department argued that it needs more flexibility to wiretap these people because of the -reater likelihood that an alien will be a spy, because these individuals are only in the U.S. for a limited period of time, and because only a small percentage may be identified in advance as agents of a foreign power or engaged in clandestine intelligence activities.
Civil libertarians, again arguing from the Fourth Amendment, insisted that the Constitution and Supreme Court decisions provided no basis for distinguishing aliens from Americans for the purpose of surveillance.
The executive branch warrant application procedures in S 1566 were designed to be checked bv the federal judiciarv under a detailed certification process. The combined warrant and certification procedures required written authorization for a tap by: 1) a federal officer in the executive branch, 2) the Attorney General or Deputy Attorney General, and 3) a federal court judge. (In the event a judge denies a warrant, the government has the right to appeal to a "court of appeals" consisting of three judges appointed by the Chief Justice of the United States.)
Before requesting a warrant, a federal officer must certify in writing that "foreign intelligence information" is sought. The Attorney General must then determine that requirements of the warrant application have been met.
In issuing an order for a warrant the judge must find that the application contained the required certifications and that on the basis of the facts submitted there is "probable cause to believe" the target is a foreign power or agent of a foreign power. The judge must also certify that the application specifies that the facilities at which the surveillance is directed are being used or about to be used by the target, and that the minimization procedures (see belotc) contained in the application are adequate. There was no requirement that the judge find "probable cause" that the information sought will be obtained.
The underlying problem with the certification process, a,nd one that went to the heart of the minimization issue, was, in its simplest terms, one of human nature. If the Attorney General of the United States goes to a judge with a warrant application and says the national security requires surveillance of a specific target, it was thought unlikelv a judge, who in all likehood is not trained in national securitv issues. would -say no. Judicial Conference statistics on criminal wiretap warrants approved by state and federal judges-where presumably the stakes are not nearly as high as in national security surveillance-supported the trepidation of civil libertarians in this regard. The figures showed that between Jan. 1. 1976, and Dec. 31. 1976. 686 wiretaps were authorized and two were denied.
Minimization
In addition to questioning who mav be the target of electronic surveillance under S 1566 and the conditions for such surveillance. critics of the bill were dissatisfied with the procedures for minimizing the acquisition, retention and dissemination of information on innocent victims of wiretapping. (Because the minimization procedures did not apply to aliens. the debate focused largely on protections afforded U.S. citizens, although it was suggested that minimization be extended to aliens.)
Insofar as the object of foreign intelligence surveillance is frequently imprecise, enormous amounts of irrelevant information will of necessity be accumulated: and because legitimate targets frequently converse with nontargets, the collection of information on innocent individuals is unavoidable. Thus. accepting the fact that the rights of innocent persons will be violated, the question is how to minimize the impact of such invasions of privacy.
The minimization procedures in S 1566 conformed to the bill's warrant procedures. That is. information on U.S. citizens may be acquired. retained or disseminated if it relates to the national defense or securitv, the conduct of foreign affairs or to protect against sabotage, terrorism or clandestine intelligence activities. The intent of the bill was to limit use of information obtained about U.S. citizens for foreign intelligence purposes or in connection with enforcement of the criminal law.
If a telephone surveillance warrant is obtained for collecting foreign intelligence information concerning the clandestine activities of target X under S 1566, agents are supposed to make efforts not to listen in on the telephone conversations of X's spouse. Because it is not always possible to avoid listening in on the conversations of innocent subjects of an authorized surveillance. the bill required steps be taken to minimize the retention and dissemination of information obtained from such conversations.
The principal concern of civil libertarians was that the indexing protection for Americans applied only to information relating "solely to the conduct of foreign affairs." Thus if X's spouse were overheard talking about something other than foreign affairs. such as a political demonstration, the conversation could presumably be indexed under the spouse's name.
CQ Almanac, 1978, pp. 186-188.
Congress gave its final approval Oct. 12 to the first major legislative effort to control electronic surveillance conducted in the United States for national security purposes. The House vote was 226-176, clearing the bill for the president (PL 95-511).
The Senate had approved the conference report on the bill, the Foreign Intelligence Surveillance Act, Oct. 9 on a voice vote.
The bill (S 1566) required a warrant for all but one category of foreign intelligence surveillances conducted in the United States and required evidence of criminal activity before a warrant could be issued for surveillance of a U.S. citizen. President Carter signed the bill into law Oct. 25.
Where under existing law only the executive branch handled national security wiretapping and "bugging," S 1566 would involve the judicial and legislative branches as well. The bill sent a message to the White House that Congress no longer recognized executive branch "inherent power" to violate the privacy of Americans in the name of national security.
But where the bill provided a stiff criminal standard for surveillance of Americans, liberals were unsuccessful in attempting to extend these Fourth Amendment protections to foreign visitors to the United States. And despite objections from liberal sponsors of the bill, an exemption from the warrant requirement was included for certain topsecret National Security Agency surveillances, the precise nature and number of which remained a mystery.
S 1566 had its genesis in the Nixon and Ford administrations when congressional committees disclosed widespread intelligence agency abuses of the rights of U.S. citizens. Summarizing the Senate committee's findings, Frank Church, D-Idaho, said: "[T]hrough the uncontrolled or illegal use of intrusive techniques -- ranging from simple theft to sophisticated electronic surveillance -- the government has collected, and then used improperly, huge amounts of information about the private lives, political beliefs and associations of numerous Americans." S 1566 allowed President Carter to fulfill, at least in part, his campaign promise to stop such activities.
The compromise bill appeared to have won the support of groups representing the frequently divergent interests of national security and civil liberties. All of the nation's intelligence agencies were on record in support of the final version of the bill as was the American Civil Liberties Union.
"From a civil liberties standpoint, the conference bill is - with the exception of the NSA warrant exemption - the best of both (House and Senatel bills," said Jerry Berman, legislative counsel of the ACLU.
The ACLU viewed the criminal standard and warrant requirements as a major precedent for requiring similar safeguards in intelligence agency charters. The charters, which were to be debated in the next Congress, were expected to propose limits to which these agencies can use other investigative techniques such as break-ins, mail openings and reviews of tax returns.
As approved by House and Senate conferees, S 1566 amended title 18 of the U.S. Code to authorize applications for a court order approving the use of electronic surveillance to obtain foreign intelligence information. The bill contained the following major provisions:
Targets
S 1566 provided a criminal standard for electronic surveillance of "U.S. persons" (see definition below) believed to be engaged in intelligence operations for foreign powers and a non-criminal standard for non-U.S. persons.
The bill allowed court-ordered electronic surveillance if there was "probable cause to believe" the target was a "foreign power" or an "agent of a foreign power." The criminal standard for U.S. persons was less stringent in cases of spying, sabotage and terrorism than the "probable cause" standard provided for other covert activities (see definition of "agent of a foreign power" below).
The following major provisions dealing with targets of surveillance:
Courts
S 1566 provided for federal judicial certification of all electronic surveillance
for foreign intelligence purposes in the United States. The role of the judiciary
was drastically limited, however, for certain warrantless NSA surveillances.
Major court provisions in S 1566 included the following:
Warrant Applications
S 1566 sought to prevent indiscriminate use of electronic surveillances through detailed warrant application and authorization procedures requiring executive and judicial branch officials to state in writing the reasons for requesting or granting each warrant.
Applications for warrants under S 1566 required the approval of the attorney general. In most cases applications included the following information, although less complete warrant applications were required for certain categories of foreign powers, primarily those that would not include U.S. persons:
1) the identity of the federal officer requesting the warrant;2) the identity of the target, if known, or a description of the target;
3) a statement of the reasons the target is believed to be a foreign power or agent of a foreign power and that the premise targeted is used by the foreign power or agent of a foreign power;
4) a statement of proposed minimization procedures;
5) a description of the information sought and the type of communications targeted;
6) a certification by the assistant to the president for national security affairs or an executive branch official or officials designated by the president from among executive officers employed in the area of national security or defense and appointed by the president with the advice and consent of the Senate;
7) a statement by the certifying officer that the information sought is foreign intelligence information, that the surveillance is to obtain that information and that it can't reasonably be obtained by normal investigative techniques;
8) a statement of the method of surveillance and whether physical entry is required;
9) a statement of facts relating to previous warrant applications directed at the same target;
10) a statement of the period of time for which surveillance is requested.
Warrant Approval
In approving orders for electronic surveillance under S 1566 a judge:
Warrant Exemption
S 1566 provided an exemption from the warrant requirement for certain NSA surveillances directed at "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers," and the acquisition of technical intelligence, other than the spoken communications of individuals. from property or premises under the open and exclusive control of a foreign power.
The bill provided that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." It further provided that orders for such surveillances, conducted for periods of up to one year, be certified by the attorney general in writing. The certification would be filed under seal with the seven-judge court and could be opened only in a limited number of circumstances.
Warrantless Surveillance in Emergencies
S 1566 allowed the attorney general to approve emergency surveillance for
up to 24 hours without a judge's approval in extraordinary circumstances,
provided that:
Minimization
The use of information obtained through electronic surveillance under S 1566
was limited by provisions designed to protect innocent U.S. citizens who
are subjects of surveillance, while at the same time protecting national
defense and security interests. Provisions of this section:
Reports and Oversight
S 1566 set forth procedures for reporting to Congress on the application
of the act. The bill provided for:
Semiannual reports by the attorney general to House and Senate intelligence committees concerning all electronic surveillance under the act.
Reports by the intelligence committees to the full House and Senate on or before one year after the effective date of the act, concerning the implementation of the act. The reports must include an analysis and recommendations concerning whether the act should be amended, repealed or permitted to continue in effect without amendment.
Penalties
S 1566:
Miscellaneous
The provisions of the bill were to become effective upon enactment, except that electronic surveillance approved by the attorney general was not to be deemed unlawful because the procedures of the act were not followed if the surveillance was terminated or a court order obtained within 90 days following the designation of the first judge.
S 1566 allowed the president, through the attorney general, to authorize electronic surveillance without a court order for up to 15 days following a declaration of war by Congress.
The Senate Intelligence Committee March 14, by a 9-0 vote, approved the Foreign Intelligence Surveillance Act of 1978 (S 1566, S Rept 95-701).
A similar version had been approved by the Senate Judiciary Committee on Nov. 15, 1977 (S Rept 95-604). (Judiciary bill background, 1977 Almanac p. 596)
The Intelligence Committee bill required the government to obtain a judicial warrant for electronic surveillance conducted within the United States for foreign intelligence purposes.
Birch Bavh, D-Ind., chairman of the Intelligence Committee, said the criminal activity requirement "was the most difficult and important issue to be worked out" by the committee.
The version of the bill reported by the Senate Judiciary Committee did not include a criminal standard. The sponsor, Edward M. Kennedy, D-Mass., agreed to a noncriminal standard because he thought most Judiciary members would not support a criminal standard unless it had Justice Department backing. The department, which supported a non-criminal standard in the Judiciary Committee, said it could accept the criminal standard in the Intelligence version.
The criminal standard included in the Intelligence Committee bill generally allowed surveillance of a U.S. citizen or resident alien if a court finds probable cause that the person knowingly engages in spying or other "clandestine" activities that "involve or may involve a violation of the criminal statutes of the United States."
Since the criminal standard in S 1566 allowed monitoring conversations of persons who "may" violate the law, it was less stringent than the laws covering domestic criminal wiretaps (such as those used by the FBI against mobsters), which require probable cause that a law has been or is being violated.
Under the Intelligence Committee bill, only persons who are acting as "agents of a foreign power" engaged in "clandestine intelligence activities" were subjected to surveillance. Like the Judiciary bill, the Intelligence Committee bill did not define "clandestine intelligence activities." But in the definition of a foreign agent, the Intelligence bill differentiated two classes of clandestine activities: 1) spying, sabotage and terrorism; and 2) other, more nebulous clandestine activities.
It was the second category that civil libertarians always had feared could allow the greatest abuses. Addressing this concern, the Intelligence bill required that to obtain a warrant to wiretap for activities falling into the second class evidence must be shown that the activities "involve or are about to involve" a violation of the law, rather than that they simply "may involve" a violation of the law.
Safeguards
Conspiracy language that civil libertarians had objected to in the Judiciary Committee bill was clarified to require that an individual know the person he "aids or abets" is engaged in clandestine intelligence activities.
An amendment offered by Sen. Joseph R. Biden, D Del., provided added safeguards to the conspiracy section to prevent surveillance of U.S. citizens who are engaged solely in exercising their rights of freedom of speech. The amendment provided that "no United States person may be considered an agent of a foreign power solely on the basis of activities protected by the First Amendment to the Constitution."
Both the Judiciary and Intelligence Committee bills provided safeguards for U.S. citizens beyond those provided for aliens. However, foreign visitors to the United States were given increased protection in the Intelligence bill through a tightened definition of a foreign agent.
Under the new language, an alien could be wiretapped if a judge found that: 1) the person is working for a foreign country that engages in clandestine activities contrary to the interests of the United States (the definition assumes that some countries do not engage in such activities) and 2) the circumstances under which the person is in the United States suggest that he or she is likely to be engaging in such activities.
While the Judiciary bill would have lumped many tourists in with spies, the Intelligence bill attempted to make it more difficult to eavesdrop electronically on innocent foreign visitors to the United States.
In another significant change, the Intelligence Committee bill defined as "foreign agents" groups composed substantially of U.S. citizens if they are "directed and controlled by a foreign government." The bill extended to such groups certain protections from surveillance afforded all U.S. citizens. However, the language would appear to allow surveillance of such groups as the Communist Party of the United States, which was ostensibly controlled from Moscow, without evidence that the group was engaging in clandestine activities.
The Senate committee bill created a new court comprised of seven district judges appointed by the chief justice to review applications for electronic surveillance in the United States and to grant or deny orders. The bill allowed the president to authorize the attorney general to approve applications to federal judges for foreign intelligence electronic surveillance.
The bill sought to prevent indiscriminate use of electronic surveillance through detailed warrant application and authorization procedures requiring executive and judicial branch officials to state in writing the reasons for granting each warrant. Under extraordinary circumstances, S 1566 allowed the attorney general to approve emergency surveillance for up to 24 hours without a judge's approval.
The use of information obtained through electronic surveillance under S 1566 was limited by provisions designed to protect innocent U.S. citizens who were subjects of surveillance while at the same time protecting national defense and security interests.
S 1566 set forth procedures for reporting to Congress on the application of the act.
The Senate passed S 1566 April 20, by a 95-1 vote. The lone "nay" vote was cast by Sen. Bill Scott, R-Va. (Vote 128, p. 2-3-S)
The bill was passed with only limited changes from the version reported by the Senate Intelligence Committee.
Seven floor amendments to S 1566 were agreed to by voice votes:
1) An amendment clarifying the intent of the bill that information obtained under the bill's emergency surveillance provisions (allowing surveillance for up to 24 hours without a court order) may be used if the court subsequently approves the surveillance. By Birch Bayh, D-Ind.2) An amendment acknowledging that congressional committees other than the Senate Intelligence Committee may have a legitimate need for information about surveillance conducted under the bill to carry out their activities. By Bayh.
3) An amendment clarifying the bill's intent that a judge may review intelligence agency compliance with the minimization procedures at any time. By Bayh and James Abourezk, D-S.D.
4) An amendment modifying the language relating to the standard for surveillance of persons engaged in sabotage or terrorism for or on behalf of a foreign power. By Edward M. Kennedy, D-Mass.
The amendment allowed surveillance of persons who knowingly engage in sabotage or terrorism, "or activities in furtherance thereof," for or on behalf of a foreign power. According to Bayh, the term "in furtherance" of sabotage or terrorism would cover acts "supportive of acts of serious violence." Bayh cited as examples the purchase or importation into the U.S. of explosives, planning for assassinations and financing or training for such activities. "The 'in furtherance' provision was also adopted in order to permit electronic surveillance at some point before the danger sought to be prevented - for example, a kidnapping, bombing, or a hijacking - actually occurs," Bayh said.
5) An amendment clarifying the intent of the Judiciary Committee - which had approved the bill in 1978 - that the identity of the target of surveillance must be specified in the warrant application if known by the government. By Kennedy.
6) An amendment clarifying the intent of the Judiciary Committee that the "target" of an illegal surveillance may move to supress the contents of any communication acquired by such surveillance in court. By Kennedy.
7) An amendment eliminating the requirement that future amendments to the Foreign Intelligence Surveillance Act proposed by the Senate Select Committee on Intelligence be expedited for consideration in each house. The requirement was considered unnecessary because the bill's criminal standard posed less of a threat to the privacy of U.S. citizens than did an earlier version of the bill which lacked the criminal standard. By Kennedy.
The House Intelligence Committee June 8 reported legislation requiring warrants for wiretaps in national security cases (HR 7308 - H Rept 95-1283).
On June 30, a House Judiciary subcommittee voted 4-3 to table the bill, thereby preventing consideration by the full Judiciary Committee and avoiding delay in getting the bill to the House floor.
Minority Views
HR 7308 was approved by the House Intelligence Committee on an 8-2 vote. The committee's four Republican members filed dissenting views with the report. The four were Robert McClory of Illinois, Bob Wilson of California, John M. Ashbrook of Ohio and J. Kenneth Robinson of Virginia. "[T]he committee bill represents the very kind of interference with executive authority that frustrates effective foreign policy and national security actions by a responsible chief executive," they said.
The four argued that HR 7308 would: 1) allow judges to interfere with foreign affairs and "political" decisions that should be made by the president, 2) impose warrant requirements that are not required by the Fourth Amendment and 3) threaten national security by making it more difficult to collect intelligence and more difficult to keep intelligence secrets. The four argued that "pressures from administration leaders" prevented intelligence personnel from forcefully opposing HR 7308.
Supporters responded that the restrictions were needed to prevent the kinds of abuses that had been uncovered in recent years; the authorization procedures provided safeguards to prevent a single judge from arbitrarily rejecting a warrant application; intelligence agencies wouldn't support the bills if they were a threat to national security and there would be no delays in getting information because the bill provided for "emergency surveillances" without warrants when the need arises.
Counterproposal
The House Republican Policy Committee came out against HR 7308 July 20, issuing a statement that essentially reiterated the arguments of the four dissenting members of the Intelligence Committee and supported a Republican counterproposal that would be offered on the House floor. The policy committee called the bill "another example of congressional overkill and overreaction in the name of reform of the nation's intelligence community."
The House passed HR 7308 Sept. 7, by a vote of 246128. (Vote 648, p. 184-H)
Passage came after the House reversed a vote taken Sept. 6 that would have limited the bill's new warrant requirements to surveillance of Americans.
As passed by the House, the bill was similar in its major provisions to the Senate-passed legislation. However, the House bill allowed the government to intercept without a warrant communications it knew were solely between nonU.S. persons.
Debate over HR 7308 pitted members who believed executive orders were adequate to protect individuals from unjustified invasions of privacy against those who argued that more stringent safeguards and greater accountability by those responsible for surveillance were necessary.
Proponents of the bill succeeded in bringing the judicial branch into the warrant process, despite efforts by opponents to retain intelligence gathering largely in the executive branch, with congressional oversight as a safeguard.
Sponsors of HR 7308, led by Morgan F. Murphy, DIll., chairman of the Legislation Subcommittee of the House Intelligence Committee, and Robert W. Kastenmeier, D-Wis., chairman of the Judiciary Subcommittee on Courts and Civil Liberties, pursued a floor strategy that called for rejection of any substantive amendments. Sponsors argued that the bill represented a delicate balancing of national security and civil liberties interests and that reaching agreement with the Senate relied on not upsetting the compromise.
McClory Substitute
Opponents saw nothing delicate about the compromise, but rather viewed it as a sellout of national security to civil liberties interests. Robert McClory, R-Ill., who led the opposition, said the measure "goes precisely against the constitutional authority which is reposed in the president."
He said the bill was "a compromise made with regard to our national security intelligence-gathering capability ... a compromise with the ACLU ... a compromise made with those who are looking out not for the intelligencegathering capability but who, in many instances, would like to have this capability eliminated entirely."
McClory, who offered a substitute bill that would have completely gutted HR 7308, pursued an approach of taking the bill apart piece by piece, amendment by amendment.
That strategy, which ultimately proved unsuccessful, largely set the tone for the debate. Since sponsors were arguing that the bill represented the best of all worlds, they offered no amendments of their own and spent the two days of debate defending the bill against attacks by McClory and others.
McClory's substitute bill was not offered until the final hours of debate and was defeated, 128-249. (Vote 645, p. 184-H)
The amendment would have eliminated the bill's key warrant requirement, and the requirement that the government produce evidence of criminal activity or intent before snooping on an American. It would have allowed surveillance of U.S. persons if certified by the president, the attorney general and an executive branch official confirmed by the Senate.
McClory argued that his substitute would retain accountability within the executive branch and avoid the risk of national security leaks that would arise from having federal courts hear warrant requests.
The overwhelming vote against the McClory substitute appeared to result largely from what was viewed as its failure to provide any significant new protections to U.S. citizens. McClory temporarily succeeded Sept. 6 in eliminating the warrant requirement for non-U.S. persons on an amendment adopted 178-176. (Vote 640, p. 182-H)
But while most House members were less concerned about warrantless taps against foreigners, intensive lobbying by the White House, leadership and intelligence agencies succeeded in convincing a majority in a subsequent vote that warrantless surveillance of foreigners could infringe on the Fourth Amendment rights of U.S. citizens to be secure from illegal searches.
When McClorv's amendment eliminating the warrant requirement for foreigners was reconsidered Sept. 7, it was defeated, 176-200. (Vote 646, p. 184-H)
Special Court Dropped
The earlier vote on McClory's amendment had, however, resulted in adoption of another significant weakening amendment. Since most foreign intelligence surveillance is directed against foreigners, not U.S. citizens, and since warrants had been eliminated under the first vote on the McClory amendment, Allen E. Ertel, D-Pa., argued there was no need for the "special court" the bill would create to hear government warrant requests.
The House was persuaded by Ertel's logic and voted 224-103 to eliminate the special court provision, leaving the responsibility for hearing warrant requests in the federal district courts. (Vote 641, p. 182-H)
Sponsors believed a special court was necessary to assure that intelligence warrant applications would not be scattered in district courts all over the country, increasing the possibility of leaks. It was all but certain the special court provision, which was included in the Senate bill, would be agreed on in conference.
After passing HR 7308, the House tabled it and passed S 1566 with the language of the House bill substituted for that of the Senate bill.
Amendments Adopted
During floor consideration of HR 7308, the House adopted the following
amendments:
Amendments Rejected
Among amendments or motions rejected:
After passing HR 7308, the House tabled it and passed S 1566 with the House bill substituted for the Senate version.
Conferees reached a compromise agreement (H Rept 95-1720) on S 1566 Oct. 4 after resolving five major differences between House and Senate versions of the bill. The most significant of these involved NSA surveillances.
NSA Exemption
An exemption for the NSA included in the House bill (HR 7308) confronted Senate conferees with an issue that struck at one of the underlying principles of their proposal -- that there should be no warrantless electronic surveillances in the United States. The agreed-on compromise was characterized by one Senate aide as "an immense concession" on the part of the Senate.
Opposing the House provision, Edward M. Kennedy, D-Mass., a principal Senate sponsor of the bill, argued that 1) the exemption would place a "very very special burden" on an attorney general to know when an NSA surveillance would be legal, because it was not clear if an American would be the object of surveillance, and 2) that the exemption could grow into a means of circumventing the purpose of the bill. Kennedy wanted to know at whom exempted surveillances would be directed.
Edward P. Boland, D-Mass., chairman of the House Intelligence Committee, assured conferees that the House did not intend to allow surveillance of lines of communications carrying the conversations of U.S. persons. Morgan F. Murphy, D-Ill., said NSA chief B. R. Inman was concerned primarily with not having to disclose the "means" of surveillance in a warrant application.
And Boland warned that "weakening this provision, we would run into problems taking it [the bill] back to the House" for final approval.
The compromise, which remained far from selfexplanatory, provided that the president, through the attorney general, could authorize warrantless surveillance without a court order for up to a year providing that the attorney general certified that the surveillance was directed at: 1) communications "exclusively between or among foreign powers" or 2) the "acquisition of technical intelligence" and not spoken communications emanating from property controlled by a foreign power.
The attorney general was further required to certify that there would be no substantial likelihood that the surveillance would acquire communications to which a U.S. person was a party and would have to report to congressional intelligence committees on NSA compliance with minimization procedures designed to prevent acquisition or dissemination of information falling outside the legal purview of the bill.
While the compromise provided that a certification of an NSA surveillance would be filed with a court, to protect the secret nature of the surveillance the certification would be kept under seal unless: 1) a district court raised a question as to the legality of the surveillance or, 2) the surveillance picked up communications of U.S. persons, in which case the contents could not be used and would have to be destroyed within 24 hours unless a court order were obtained in that. period. In processing the court order, a judge could examine the original certification to see if it was legal.
Robert McClory, R-Ill., the leading opponent of the conference agreement. called this compromise "a charade of judicial involvement."
Special Court
The Senate bill contained a provision creating a special court with seven judges designated by the Chief Justice to hear applications for and to grant orders approving electronic surveillance. The bill also provided for a three-judge appeals court to review applications denied by the special court.
The special court had been knocked out of the House bill during floor debate, despite arguments that it was supported by the intelligence agencies.
Instead, the House bill provided that federal district courts throughout the country hear warrant requests. The sponsor of the House provision, Allen E. Ertel, D-Pa., sought to retain it in conference, insisting that the House had overwhelmingly voted not to create a special court.
But the House vote was based largely on the fact that it had previously eliminated the warrant requirement (later restored) for surveillances against foreigners, making the court largely unnecessary.
And Ertel's defense fell apart when he suggested that national security secrets would be safer held in several courts rather than at a single place, a proposition contradicted by each of the intelligence agencies and, conferees suggested, by common sense.
Conferees agreed to a compromise that eliminated the Senate's special court but created a new and distinct court constituted ofseven district court judges from seven differ. ent judicial circuits appointed by the Chief Justice.
The compromise provided that the seven judges sit in Washington, D.C., on a rotating basis with at least two serving at any one time. Unlike the Senate bill, which would have had the judges handling only warrant applications. the compromise required the judges to handle normal judicial responsibilities as well.
Appeals of warrants denied by the court could be made to a three-judge panel of judges selected by the Chief Justice from the U.S. district courts or courts of appeals.
Foreign Powers
Conferees agreed to drop a provision in the House bill that sponsors of S 1566 said would allow U.S. intelligence agencies to wiretap members of foreign political parties visiting the United States.
An amendment adopted during House floor debate had changed the definition of a "foreign power" to include a "member" of a foreign power. The modified language applied to members of a foreign power engaged in international terrorist activities or in the preparation of such activities and expanded the scope of surveillance of socalled foreign powers to include domestic terrorist groups whose activities transcend national boundaries.
Inherent Power
A House floor amendment, sponsored by M. Caldwell Butler, R-Va., provided that S 1566 would be the exclusive "StatUtrorv" means bv which electronic surveillance mav be conducted for foreign- intelligence gathering in the United States. -
The single word "statutory" caused considerable concern on the part of sponsors of the bill, who argued that it would undermine a basic purpose of the bill - to circumscribe executive authoritv to conduct electronic surveillance - and could invite abuses based on claims of "inherent" or non-statutory powers.
McClory defended the inclusion of the word. contending that the president's "inherent constitutional powers' could not be eliminated by legislation.
Opponents of the provision insisted that if the president had "inherent constitutional powers" it was not Congress responsibility to affirm them. Robert W. Kastenmeier, D-Wis., argued that "there should be no admission of constitutional inherent power. If the president has it, let him assert it."
Kennedy argued that inclusion of the provision would present a "basic stumbling block" to Senate acceptance of the bill. "There is no suggestion [in the Senate debate] that we are making a final and ultimate decision of the range of [executive] authority," Kennedy said. "Let the Supreme Court decide the issue."
Conferees agreed to drop the "statutory" language.
War Powers
Conferees also changed a House provision that would have allowed the president to conduct foreign intelligence surveillance without a court order during wartime for up to one year.
Senate conferees insisted that the wartime exemption was far too lenient and that the president needed authority to act onlv until Congress could change the law. Conferees agreed to provide warrantless surveillance by the president for up to 15 days.
Final Action
The Senate approved the conference report by voice vote Oct. 9. The House approved the measure Oct. 12, by a vote of 226-176, thus clearing S 1566 for the president. (Vote 792, p. 226-H)
CQ Almanac, 1979, pp. 20-E, 21-E.
Following is the text of President Carter's message to Congress April 2 detailing his views on the recommendations of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance:
TO THE CONGRESS OF THE UNITED STATES:
In accordance with Section 6(b) of the Federal Advisory Committee Act (PL 92-463), I am pleased to report to the Congress my views concerning the recommendations contained in the "Report of the National Commission For The Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance."
The Commission was charged by the Congress to study and evaluate the effectiveness of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (PL 90-351; 18 U.S.C. Sec. 2510-2520) which governs the use of electronic surveillance of wire and oral communications. except in matters involving foreign intelligence and counterintelligence.
From my viewpoint, the most significant findings of the Commission in carrying out this Congressional mandate are that the provisions of Title III are an indispensable aid to law enforcement. particularly in obtaining evidence of offenses committed by organized criminals: that the procedural requirements of Title III have effectively minimized the invasion of individual privacy in electronic surveillance investigations by law enforcement officers; and that Title III has reduced the incidence of illegal interceptions through its controls on the manufacture, sale. and advertising of wiretapping devices and its criminal sanctions for their use.
It is particularly reassuring to note the Commission's finding that the carefully designed Title III controls and procedures have effectively minimized the invasion of individual privacy in electronic surveillance investigations by law enforcement officers, and that there were no cases among the many studied by the Commission in which law enforcement authorities sought a Title III court order for an apparently corrupt purpose. From the very inception of its use in criminal cases, the Department of Justice has developed a highly centralized review system for the approval of Title III authorization requests as well as detailed instructions governing execution of court orders designed to protect the substantive rights of both innocent persons and those under investigation. In this connection I am pleased to note the Commission's finding that Federal officials responsible for administering wiretap application review procedures have shown a commendable concern for adhering to the requirements of Title III.
We must always bear in mind that Title III both permits law enforcement officials to fight crime while it protects citizens against unjustified invasions of privacy. It is clearly a criminal statute designed both to prohibit private citizens from conducting illegal interceptions and to regulate governmental conduct by prohibiting law enforcement officials from violating or disregarding specific procedures for conducting wiretaps.
The Commission has made a number of findings and recornmendations which it believes will both improve the effectiveness of the use of court -authorized electronic surveillance in criminal investigations and will also strengthen enforcement of Title III strictures against illegal electronic surveillance. In general, I support the objectives of most of these proposals. I am, however, strongly opposed to a few and believe others to be unnecessary.
Penalties
I support the Commission's recommendation that misdemeanor and civil penalties should be included in Title III for the prosecution and punishment of nonprofessional electronic eavesdroppers. At present the only sanctions applicable to the nonprofessional who enages in electronic surveillance is the felony provision of 18 U.S.C.
In many instances it is simply too severe a sanction for he offense committed and has resulted in considerable judicial distaste for prosecutions brought under Section 2511 against nonprofessionals. Such persons frequently indicate a desire not to contest such charges, yet still proceed with a contested trial in the absence of the alternative of pleading guilty to a misdemeanor.
Disclosure
The Commission's recommendation that Title III should be amended to explicitly allow the disclosure of illegal interceptions when relevant in a prosecution for illegal interceptions is sound. I also agree with the Commission that judges should retain the discretion to deny admission of the evidence where relevance is outweighed by undue loss of privacy to the victim.
While it is often possible to pursue such a prosecution without playing any of the illegal tapes, situations occasionally arise where a portion of such a tape is critical to the Government's case. A violator should not escape punishment by hiding behind the exclusionary rule embodied in 18 U.S.C. Sec. 2515, which appears on its face to allow him to move to have such evidence excluded from his trial.
Court Order
In addition, I support those Commission proposals recommending that a court order for electronic surveillance expressly authorize entry upon a private place or premises to install an eavesdropping device if such entry is necessary to execute the warrant and that the Congress undertake studies of encroachments on individual privacy by new forms of the art, such as computer technology.
Similiarly, periodic comprehensive studies and reviews of the operations of Title III would help to determine their continuing effectiveness in law enforcement and in stemming illegal surveillance. Congressional studies also are needed to determine whether some form of notice should be required to assure that customers whose conversations and actions are monitored in the ordinary course of a business, have given their implied consent based upon some reasonable public understanding of the need for such monitoring.
Carter Opposed
On the other hand, I am strenuously opposed to those proposals of the Commission which recommend that Title III be amended to authorize the Attorney General to designate by name, any United States Attorney or any Federal Strike Force Chief to authorize applications for court-ordered wiretapping, and that the Department of Justice consider some decentralization and streamlining of procedures for the review and approval of such applications by greater delegation of screening requests and decision-making responsibility to United States Attorneys or Federal Strike Force Chiefs.
The statute (18 U.S.C. See. 2516) permits the Attorney General to delegate application authorization to any Assistant Attornev General and the Attorney General has delegated this authority to specified Assistant Attorneys General. As the legislative history of this statute indicates. this provision centralizes in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques.
It thus avoids the possibility that divergent practices might develop and insures that if abuses occur the lines of responsibility will lead to an identifiable person subject to the political process. Any further delegation of this authority would greatly attenuate this centralized control and responsibility which the Congress determined was essential to its use. Further delegation of such authority to the field level would also likely resuit in a greater number of application requests and court orders.
While under existing procedures application requests are currently reviewed by United States Attorneys and Federal Strike Force Chiefs in the field, the final review and approval authority must remain the responsibility of the Assistant Attorney General designated by the Attorney General to approve such applications.
The Commission has recommended that the Congress consider expanding the list of Federal crimes for which electronic surveillance orders may be obtained to include such crimes as customs offenses, manufacture, sale, and interstate shipment of illegal firearms, and fencing of stolen goods affecting interstate commerce. In view of the expression of Congressional concern respecting the limitation of Federal criminal jurisdiction which was demonstrated by the extensive debate during formulation of this provision (18 U.S.C. Sec. 2516) on the floor of the Congress, I believe that a more up-to-date examination of the experiences of the Treasury and Justice Departments in investigating these crimes should be made before the recommendation of the Commission is either endorsed or rejected. I have asked the Attorney General to consult with the Secretary of Treasury on this matter.
Finally, although I support the substance of certain other of the Commission's important proposals, I do not believe that any remedial legislation in this area is necessary since the essence of these recommendations has been implemented by administrative controls adopted by the Department of Justice as a result of its experience with Title III or in response to court decisions interpreting the statute. Recommendations in this area include amending Title III to require an additional showing of facts in order to obtain an extension of a Title III court order and that the explanation of exhaustion of alternative investigative techniques include consideration of the case under investigation insofar as practicable.
Exhaustive Compilation
The Commission's final Report and its five volumes of supporting materials constitute the most exhaustive compilation of information on the subject of wiretapping and electronic surveillance ever assembled. The record of the Commission stands as an enduring monument to the difficult and conscientious work of its distinguished members and dedicated staff.
While its conclusions may be subject to differing degrees of public acceptance, there can be no doubt that the Commission has rendered outstanding service to the American public by its thorough and sensitive exposition of the conflicting demands of law enforcement and individual privacy which inhere in the use of court - authorizea electronic eavesdropping.
The Commission's Report has reaffirmed my belief that the Federal Government has used this extraordinarily effective investigative technique in the investigation of serious crimes in a highly responsible and circumscribed manner, and that so used, it has preserved and will continue to preserve the delicate balance that must be maintained between the needs of law enforcement and the demands of personal privacy.
JIMMY CARTER
The White House, April 2, 1979.
CQ Almanac, 1979, p. 30-A.
Since 1967 the Supreme Court has held that the Fourth Amendment governs the government's use of wiretaps and electronic surveillance devices.
In 1968 Congress included statutory authorization for such surveillance in the Crime Control and Safe Streets Act of that year, requiring the government to obtain a warrant - similar to a search warrant -- for each instance of wiretapping or "bugging." (Congress and the Nation Vol. II, p. 326)
While wiretaps can be installed on telephone lines outside the place where the tapped telephone is located, "bugs" usually must be installed inside the dwelling or office under surveillance. Agents thus are often required to break into those places to install and remove the "bugs."
Lawrence Dalia, whose office was entered secretly by agents who planted a "bug" and thereby obtained incriminating evidence against him, challenged that entry as a violation of his Fourth Amendment rights and as unauthorized by the 1968 law. (Dalia v. United States)
The Supreme Court in April 1979 rejected Dalia's arguments. Such covert entry, declared the court, was neither unconstitutional nor illegal. Justice Powell wrote the opinion.
The court was unanimous in declaring that "[t1he Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment." But it divided 6-3 on the question whether Congress, in passing the 1968 Act, had authorized such entry.
The majority found that "Congress clearly understood that it was conferring power upon the courts to authorize covert entries" as part of the process of installing electronic surveillance equipment. Justices Brennan, Marshall and Stevens dissented on this point. Justice Stevens spoke for the threesome, criticizing the majority for converting congressional "silence into thunder" by its interpretation of the 1968 law.
And the court divided 5-4 on an even more specific point, as the majority held that covert entry need not be specifically authorized by the warrant approving the surveillance. Powell wrote that to require this would be to extend the warrant requirement of the Fourth Amendment to an extreme. Justice Stewart joined the three dissenting justices on the earlier point in disagreeing with this view.
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