Senator CASE. All right, I see your point and this makes it appear that that section says a lot more than it says. I don't mean that anybody is dissembling in that connection, but this protection is much less than a protection against all electronic surveillance.

Attorney General LEVI. Well, there is another area which the public has discussed at various times, but which I really can't discuss very much, which this bill does not cover.

Senator CASE. Well, I guess we have at least raised the question, and you have deferred your answer until you have had a chance to think about it. You haven't, at least, ruled it out entirely.

Attorney General LEVI. Well, Senator, actually I have thought about it. I just think it is a mistake to take matters which really are not covered by this legislation and try to deal with them in this legislation. That is really

Senator CASE. Well, that is what we are trying to do, is find out what is covered by this legislation.

Attorney General LEVI. Well, one way to do it is to note that it has to come under the definition of electronic surveillance. If it doesn't come under that, if it goes beyond that, then we say, well, it is outside

the scope.

Senator CASE. Well, if I may, then, electronic surveillance is defined by the bill as meaning, "(i) the acquisition by *** surveillance device, of the contents of a wire communication to or from a person in the United States without the consent of any party thereto, where it occurs in the United States where the communication is being transmitted by wire." That means that all telegrams to or from a person in the United States are covered under the definition of electronic surveillance.

Senator BAYH. Aren't we really talking about the thrust of the whole NSA program?

Attorney General LEVI. We are talking about that portion of the NSA program which is not covered here, and which as I say, I really don't want to discuss in any detail.

Senator BAYH. We discussed it at some length yesterday in executive session.

Senator CASE. I wish you would make that point again, Mr. Attorney General.

Attorney General LEVI. The point I was trying to make is that there is a kind of sweeping surveillance which General Allen described in public testimony.

Senator BAYH. Mr. Attorney General, if this has been described in public testimony, then fine.

Attorney General LEVI. Well, only part of it. That has been referred to. And that is why it is a little difficult for me to do much responding. All I can do is refer to the fact that it was referred to. I know you had an executive session. A great deal of that is not covered by the definition.

Senator CASE. Well, is it your understanding that this bill, take section 2, that in order for something to come within the definition of electronic surveillance, there has to be a combination of (i) or (ii), or a combination of both paragraphs (i) and (ii)?

Attorney General LEVI. No. It is "or", (i), or (ii) or (iii).

Senator CASE. So why isn't any telegram

Attorney General LEVI. Well, I might easily say, Senator, if there is a wire involved, a wire that is tapped in the United States, it is

covered.

Senator CASE. OK,

Mr. Attorney General, I think I would not be justified in pursuing this further with you because of the convenience of other members of the Committee and other witnesses as well, and your own at this time. So I won't try to pursue it any further, but I do think you might, if you would consider the possibility of some kind of provision in this legislation which would cover the point that I tried to make before. Thank you, Mr. Chairman.

Senator BAYH. I appreciate the cooperation of my colleague,

Mr. Attorney General, we appreciate your cooperation and we look forward to the product of our collective staff during the recess to see if we can't tighten this up where there are concerns so we can meet the dual purposes that we are trying to pursue here.

Thank you very much.

I am going to ask Congressman Drinan to come forward. I am going to have to run and vote, Congressman, but I'll be right back. [A brief recess was taken.]

Senator BAYH. The next witness is Father Robert Drinan.

I apologize to all of the witnesses and to all of you who waited this morning. But I had to go to the floor to attend to other responsibilities and I just could not escape sooner. So I apologize to all of you. Father Drinan, would you please proceed.

TESTIMONY OF HON. ROBERT F. DRINAN, A U.S. REPRESENTATIVE FROM THE FOURTH DISTRICT OF THE STATE OF MASSACHUSETTS

Mr. DRINAN. Thank you very much, Mr. Chairman. No apology is needed. I understand the very heavy schedule that the Senate and the House have this week.

I am very pleased to appear here, and if I may, Senator, I would like to have my statement in its entirety inserted into the record at this point.

Senator BAYH. Without objection, so ordered.

[The prepared statement of Representative Drinan follows:]

PREPARED STATEMENT OF CONGRESSMAN ROBERT F. DRINAN

Mr. Chairman and members of the Committee, I am pleased to appear before you regarding a matter of utmost importance to the national security: the Foreign Intelligence Surveillance Act of 1976 (S. 3197). If this bill becomes law in its present form, it will indeed pose a very serious threat to the security of the nation. In my judgment this proposal is offensive to the Fourth Amendment, and allows unwarranted intrusions into the privacy of all persons within the jurisdiction of the United States.

When this bill was first introduced in the Congress last March, I was happy to see, at first glance, that the Administration had finally accepted the idea that court orders must be obtained to secure foreign intelligence information through electronic surveillance. For the past several years, the Department of Justice and the White House have steadfastly opposed any legislation which would require court approval before engaging in such surveillance in so-called "national security" cases. Upon further examination, however, I have concluded that the bill still gives the Executive Branch too much power to use wiretaps and other electronic devices to obtain foreign intelligence information.

I continue to believe that any electronic surveillance, whether approved by a court or not, violates the Fourth Amendment because such interceptions of private conversations can never satisfy its particularity requirement. It should be recalled that, to obtain a warrant for such surveillance under the Fourth Amendment, the applicant must submit a sworn statement, "particularly describing the place to be searched, and the persons or things to be seized." Invariably an application for a bug or a tap cannot be that specific; it cannot describe with particularity all the persons to be overheard or all the conversations to be recorded.

I also question the value of the information obtained from such surveillance. It is instructive to examine the annual reports of the Director of the Administrative Office of the United States Courts prepared under Title III of the 1968 Act. The reports show that, in 1973 for example, Federal agents listened to 112,314 conversations involving about 5,500 individuals. Less than half of these intercepts contained any relevant or allegedly incriminating information. The operations cost the taxpayers over $1.5 million. Furthermore these statistics do not include the data on warrantless surveillance, which need not be reported under the 1968 Act. But we should remember that Title III surveillance at least is directed at criminal conduct. Before any tap or bug can be authorized, the judge must find, among other things, "probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense" enumerated in Title III. S. 3197 has no such limitation. It is, pure and simple, an authorization to obtain information unrelated to crime or criminal conduct. This is a fundamental defect in the bill. Senator Tunney has said it represents the first time in American history that Congress would permit intrusions into the lives of aliens and citizens alike for activities having nothing to do with unlawful conduct.

Thus the underlying premise of the bill must be called into question: Is the authority sought in this proposal really needed? Has the Department of Justice or any of the bill's proponents presented hard evidence of the value of intelligence surveillance? For too long we have assumed the necessity of the intelligence gathering function through electronic surveillance. The extensive congressional hearing record the impeachment proceedings in the House, the inquiries of the Church Committee, and hopefully the examination of S. 3197 by this Committee demonstrates the very tenuous base upon which that assumption rests. I understand this Committee intends to examine that question very carefully in the course of its deliberations. I commend you for undertaking that most critical examination. I should add, however, that the Administration has given the House Judiciary Subcommittee, of which I am a member, virtually no hard evidence of the need for this bill. Its presentation amounts to little more than generalities couched in terms of protecting the nation from foreign attack. That will not do. The congressional record to which I earlier referred is replete with examples of Presidents and Attorneys General using national security as a pretext for snooping into the lawful activities of political opponents or persons perceived to pose a threat to their political security.

On April 24, 1974, Morton Halperin, who worked for several years in the White House and the Defense Department on national security matters, testified before a House Judiciary Subcommittee. He took a very dim view of the value of intelligence gathered by electronic surveillance. "In my judgment," he noted, "such surveillance has extremely limited value and can in no sense be called vital to the security of the United States." Mr. Halperin based that view on his personal experience with such data and on his knowledge that "the American government has many other sources of information of significantly greater value."

The value of gathering foreign intelligence information in this fashion is diminished even further when the international implications of the matter are considered. In 1972 the Vienna Convention on Diplomatic Relations, ratified by the Senate in 1965, came into force in the United States. The Convention requires that the premises of a diplomatic mission and its personnel, including their private residences, be "inviolable" (see Articles 22, 24, 27, 29, and 30). În effect this treaty prohibits electronic surveillance of foreign emissaries and the premises they occupy. It also authorizes any signatory to apply its provisions "restrictively" if its missions in another nation are being tapped or bugged. Despite the existence of this Convention, S. 3197 does not mention its provisions nor seek a reconciliation with the terms of the treaty.

At the hearing before the House Judiciary Subcommittee, Attorney General Levi testified that the Foreign Intelligence Surveillance Act of 1976 is not inconsistent with the Convention. He based that opinion on a legal memorandum prepared by the Office of Legal Counsel in the Justice Department. Mr. Levi has

refused to provide the Judiciary Subcommittee with copies of the memo, but has offered to allow each member to read it in camera. I have read that document and have found it unpersuasive. I urge this Subcommittee to explore carefully the implications of the Vienna Convention and the Justice Department memorandum in the context of this bill.

That the bill (S. 3197) authorizes surveillance of non-criminal conduct and that no justification has been demonstrated for the extraordinary power are ample reasons to oppose it. But I have other objections which I would like briefly to explore. To be sure, the Senate Judiciary Committee has made several commendable changes. For example, it has provided criminal and civil remedies for violation of the new Chapter 120 of Title 18 (which this bill would enact), thus making its provisions mandatory. And it has repealed Section 2511 (3), the broad expression of presidential power which has been used to authorize warrantless surveillance. In so doing, it has narrowed the reach of Section 2528 of this bill, which deals with the critical question of presidential authority to tap or bug without a court order.

While the changes approved by the Judiciary Committee move in the proper direction of restricting unbridled presidential authority to engage in unrestrained surveillance, the limitations do not go far enough. I make bold to suggest that Section 2528, even as revised by the Judiciary Committee, be deleted from the bill. The President should be restricted to that electronic surveillance expressly and specifically authorized by Congress. If in fact the President's power to conduct warrantless surveillance in so-called "national security" cases arises from Article II of the Constitution, then there is nothing we can do to limit it. Thus, at best, the section is meaningless. If on the other hand, such power is concurrent with congressional authority then Section 2528 is an express authorization for warrantless surveillance by the President. I do not think Congress should approve that kind of power. We should recall that such authority has been used to intercept international communications of American citizens, conversations of citizens traveling or residing abroad, and exchanges between citizens and agents of foreign governments, even if the conversation is merely a call to a local embassy for tourist information. I hesitate to mention once again that such presidential power was also used to authorize break-ins of the kind for which Mr. Helms has escaped liability.

Turning to the definitional section of the bill, the definitions of "foreign intelligence information" and "foreign power" are much too broad. For example, "foreign intelligence information" includes any information "deemed essential.. to the conduct of the foreign affairs of the United States." That definition has virtually no limits. There are many topics of conversation which every Secretary of State would deem essential to the conduct of foreign affairs.

The definition of "foreign power" is also overly expansive. It includes, among others, foreign governments, factions of a foreign government, foreign political parties, and foreign military forces. This means that a conversation between an American citizen and an officer or employee of a foreign political party is potentially a subject for surveillance. The reach of that definition is far too expansive.

Furthermore, the application for a court order does not require that the Government specify the name of the person who is the subject of the surveillance. It requires only a "characterization of the person". [Section 2524 (a) (3).] Thus the Government may withhold from the judge the name or names of the persons sought to be covered. Additionally, the bill allows the judge to continue that concealment in the court order, which only requires the judge to specify "a characterization of the persons targeted by the electronic surveillance. [Section 2525 (b) (1) (i).]

Furthermore, the bill contains only vague and inadequate provisions relating to "minimization", the overhearing of conversations unrelated to "foreign intelligence information." The proposal merely requires the Government to advise the judge of the steps it will take to minimize such intrusions. Experience under present law demonstrates the inadequacy of such provisions. The statute should specify the necessary measures to be imposed to minimize unnecessary invasions of privacy. At a minimum, the Attorney General should be authorized to promulgate minimization regulations, applicable in all cases.

But the most serious deficiency in the minimization area is that the bill does not limit the use of conversations overheard unrelated to the purpose of the surveillance. Section 2526 (b) of the bill states: "The minimization procedures required under this chapter shall not preclude the retention and disclosure of information which is not foreign intelligence information acquired incidentally

which is evidence of a crime." When government agents obtain evidence of crime through electronic surveillance not intended for that purpose and totally unrelated to alleged criminal activity, they should not be allowed to use it for prosecutorial purposes. Such "fruit of the forbidden tree” should not be available for use at trial or for other purposes.

In this same vein, the bill makes no provision for notifying innocent persons whose conversations have been recorded merely because, for example, they called the embassy of a foreign country for travel information. Any time these "foreign intelligence" taps result in the interception of conversation unrelated to the subject of the surveillance, the innocent victim should be notified, or the records destroyed, or both. In fact the bill does not mandate any destruction of data or recordings which are worthless or unrelated to the purpose of the surveillance. In this context, the bill should provide for a public advocate to protect the rights of innocent parties. Since S. 3197 allows ex parte applications and allows ex parte extensions of existing bugs or taps, some mechanism is necessary to protect the rights of third parties who are unwittingly caught in the Government's dragnet surveillance. If such an office were established, I would have greater confidence that the privacy of citizens would be secured more fully.

A provision for a public advocate takes on added importance when the "renewal” features of this bill are examined. The Government may seek an unlimited number of 90 day extensions for any surveillance authorized under the bill. Thus the intrusion could go on for years. The bill also authorizes the Attorney General to approve emergency taps when a court order cannot be obtained in the period of time necessary. He must then submit the normal application to the judge within 24 hours.

If the judge denies the application, the bill gives the court the discretion to notify the innocent victims of the initial 24 hour surveillance. But the Government, at an ex parte proceeding, may request that such notice be postponed for 30 days. Thereafter, again after an ex parte proceeding, the court is prohibited from serving such notice if the Government has made a further showing of "good cause". This exception makes a mockery of the limited notice rule in emergency surveillance situations.

Finally S. 3197 requires employees of communications companies, landlords, custodians, and others to provide whatever assistance is necessary for the Government agents to effectuate the surveillance. [Section 2525 (b)(2)(ii).] I vigorously oppose any such provision that requires innocent workers to participate in this "dirty business" of surveillance. If such persons want to provide assistance on a voluntary basis, that is up to them individually. But this bill would require their involuntary participation. That is totally offensive, in my judgment, in a democratic society based on respect for individual rights.

In short, Mr. Chairman, S. 3197 is an attempt to give the American people the impression that adequate steps are now being taken to protect their privacy in communications that may involve alleged foreign intelligence information. But upon close examination, the bill is quite deficient. It does very little, even after amendment by the Judiciary Committee, to control the discretion of the Executive Branch to engage in this kind of electronic surveillance. Unsupported appeals to "national security" should not determine whether this bill becomes public law. "The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions," as the District Judge in the Pentagon Papers case cogently observed. And an integral part of our free institutions is the security of the people from intrusions by government agents into their privacy. I urge this Committee, in the strongest words I can, to reject this cosmetic proposal.

Mr. DRINAN. I will not go back over the material that the Committee heard yesterday because I have here and read very diligently last night the entire proceedings of the day before yesterday when the basic elements of this bill were set forth.

Mr. Chairman, in my judgment this proposal is offensive to the fourth amendment and allows unwarranted intrusions into the privacy of all persons in the United States.

I think we should go back to the fourth amendment and actually read the words that the applicant must submit a sworn statement, "particularly describing the place to be searched and the persons or things to be seized." In my judgment an application for a wiretap simply cannot be that specific.