The underlying premise of the bill must be called into question. Is the authority sought in this proposal really needed? As a member of the Kastenmeier subcommittee of the House Judiciary Committee, we had the honor of having Mr. Edward Levi, the Attorney General, testify. In my judgment, he failed to produce any specific facts that would justify the Department of Justice or the administration requesting this unprecedented power. The presentation that he gave amounted to little more than generalities couched in terms of protecting the Nation from foreign attack. May I make just three or four points, and then I want to stress a particular treaty which I think is very important. For example, on the definitional aspects of this bill, the term "foreign power" is overly broad. Second, the application for a court order does not require that the Government specify the name of the person who is the subject of surveillance. Furthermore, Mr. Chairman, I am very disturbed at the absence of any provision to notify innocent persons whose conversations have been recorded merely because they may have been calling the embassy of a foreign nation. In addition, S. 3197 has a provision which is totally contrary, I think, to all of the instincts that we have. This bill would require employees of communication companies, landlords, custodians, and others to provide whatever assistance is necessary for the Government agents to effectuate these surveillances. I am entirely opposed to any such provision that requires innocent workers to participate in the dirty business of surveillance. If such persons want to provide assistance on a voluntary basis, that is entirely up to them. Mr. Chairman, that is a point that, as far as I read the proceedings of Tuesday, was not discussed. Let me come to a point that has not yet arisen in the hearings that I am delighted this Committee is conducting. The value of gathering foreign intelligence information in the fashion proposed by the administration 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." In at least five sections of the treaty that word "inviolable," or variations thereof, are used. In effect, this treaty prohibits electronic surveillance of foreign emissaries or embassies 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, Mr. Chairman, 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 this opinion on a legal memorandum prepared by the Office of Legal Counsel in the Justice Department. When I pressed Mr. Levi for a copy of this memo, he first refused to provide the Judiciary Subcommittee with copies; then he allowed members to read it in camera. Mr. Chairman, I read that document in camera yesterday. A member of the Attorney General's staff came and sat in my office while I read it. I found it very unpersuasive. Why it should be secret, I do not know. But I am bound by the conditions that I cannot disclose the secret parts. I would urge this subcommittee to examine very carefully everything in that memo. Subpena it, if necessary, and read it, so that you may explore the implications of the Vienna Convention and the Justice memorandum which states that S. 3197 is not in any way in contravention of the Vienna Convention. Let me just finish, Mr. Chairman, by stating this. I believe that S. 3197 is an attempt to give the American people the impression that adequate steps are now being taken to protect their privacy and communications that may involve alleged foreign intelligence information. But on close examination which your Committee has done, the bill is seriously deficient. It does very little, even after all of the amendments of the Senate Judiciary Committee, to control the discretion of the executive branch to engage in this type of electronic surveillance. The reservation which it makes for the alleged inherent power of the President allows the National Security Agency, for example, to continue its dragnet 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," a quotation which I take from the opinion of the district court judge in the Pentagon Papers case. An integral part of our free institutions is the security of the people from intrusions by Government agencies into their privacy. I urge this Committee, in the strongest words that I can, to reject this cosmetic proposal urged upon us by the administration and the Attorney General. I thank you for your attention. Senator BAYH. Čongressman Drinan, I appreciate your taking the time to let us have your thoughts. You have been interested in this area for a long, long time. I have just one question for you because I know you are as busy over on your side as we are here. We have some proponents of this legislation who have been longtime civil libertarians. Their basic argument is that if this bill were passed in its present form, conditions relative to the acquisition of warrants for surveillance would be under greater restrictions and the situation, as far as those who are concerned about our civil rights are concerned, would be better after the passage of this legislation than the situation as it now exists. I take it from what you have said briefly that you do not concur with this view. Mr. DRINAN. You are quite right, Mr. Chairman. As an editorial in the Boston Globe said in its caption yesterday, this is "Wiretapping the Innocent," and if I may, Mr. Chairman, I would like to submit this editorial from the Boston Globe to the record at this point. [The article referred to follows:] WIRETAPPING THE INNOCENT Sen. Edward M. Kennedy has overvalued the need of government to impose on its citizens in endorsing the wiretap bill before the Senate. The bill permits the White House to wiretap American citizens who are not suspected of any crime. To obtain a warrant for a wiretap of conversations to and from abroad, the government would have to show only that the citizen might be engaged in "clandestine intelligence activity"—a formidable-sounding phrase that the bill never defines and that the Justice Department says includes lawful political activity. Moreover, even though the warrant would be obtained under less strict requirements than those for a criminal warrant, any evidence obtained during the wiretap could be used in a criminal prosecution. The bill thus authorizes a broader government "fishing expedition" than would be allowed even against a known member of organized crime. And Federal crimes related to foreign policy are so numerous and so vaguely defined that even government officials unknowingly break the law. Supporters of the bill rightly argue that it is at worst comparable to current law as interpreted by the courts, and in several sections it offers substantial progress. Presidents would be required to obtain warrants for wiretaps of conversations abroad, and they would be forbidden to wiretap domestic conversations except under normal criminal procedures. The rules for securing warrants would require the executive branch to persuade a judge of probable "clandestine intelligence activity"-although courts are inclined to accept the government's contentions having refused only 13 of 4863 wiretaps sought under the Omnibus Crime Control Act. And as part of the warrant procedure Justice Department and White House officials would have to attest, under civil and criminal liability, that the taps would be used only for specified legitimate purposes. All of these changes are substantial protections for the privacy and free speech rights of citizens, and they are a real improvement over the unchecked, warrantless wiretapping practiced by the past several administrations. But Congress should not put itself on record, for the first time in history, as favoring broad wiretapping powers over citizens not suspected of crimes. To be acceptable the bill should be amended to include, at minimum, a narrow and specific definition of "clandestine intelligence activity," with no loophole like an "and such other activities as may "clause. Sen. Kennedy has suggested a less workable alternative amendment, requiring the President and Congress to create a criminal definition of "clandestine intelligence activity" within two years after passing the bill. The definition would likely be a catchall that might not be useful in obtaining convictions but that would extend wiretapping of citizens not really involved in crimes. Mr. DRINAN. Many worthy people knowledgeable in civil liberties have said that this would at least give some protection. I think they miss the essential point that never in the history of American law has this Congress ever allowed a wiretap for the purpose of acquiring information alone. This is an entirely new departure unprecedented in our history. Always we have had probable cause for crime or suspected crime, and that has been permitted. But to suggest that since the Federal Government now, for at least 30 or 40 years, has presumably been tapping the phones of all diplomats and other aliens suspected of doing drastic things, to say that because that has gone on we must now involve the Federal judiciary to give it a certain blessing, it seems to me, is a pernicious form of logic. Senator BAYH. Thank you very much. Mr. DRINAN. Thank you very much, Mr. Chairman. I would like to put into the record at this time a letter from our colleague, Senator Gaylord Nelson; a letter to Chairman Inouye from Aryeh Neier, executive director of the ACLU; a Statement by Women Strike for Peace; and a letter, again sent to Senator Inouye, from Edward F. Snyder, executive secretary of the Friends Committee on National Legislation. [The information referred to follows:] LETTER TO SENATOR BIRCH BAYH FROM SENATOR GAYLORD NELSON Re S. 3197, the Foreign Intelligence Surveillance Act. SENATOR BIRCH BAYH, Chairman, Subcommittee on the Rights of Americans, Senate Select Committee on Intelligence Activities, Washington, D.C. DEAR SENATOR BAYH: In testimony submitted to the Subcommittee on Criminal Laws and Procedures on March 30, I directed most of my comments to the two major issues posed by S. 3197: (1) the serious flaws in section 2528, dealing with the question of "inherent" presidential power and (2) the difficult legal and political question of whether foreign intelligence wiretaps should be permitted to occur in any circumstances other than after a judicial finding that there was probable cause to believe that the proposed target was involved in criminal activity. Since that time, significant improvements have been made in the presidential power section, and the "probable cause" issue is being fully ventilated by Congress, scholars and the press. Because your subcommittee has decided to hold hearings on S. 3197, I would like to call your attention to several other issues, which have received comparatively little examination. 1. Section 2524 sets forth what must be in the government's application for a court order. Section 2524(a) (8) requires that the application include "a statement of the facts concerning all previous applications known to the Attorney General that have been made to any judge under this chapter ***" The phrase "known to the Attorney General" may be innocuous. However, in the past, the FBI and the Justice Department have limited the number of people who have known about the Bureau's electronic surveillance efforts in order that Justice Department lawyers could truthfully deny in court that electronic surveillance had been conducted in certain cases. We should not create the possibility of a situation where the Attorney General could say that he had no knowledge of previous applications under this chapter, if in fact, such applications had been made. The statute makes it clear that the Attorney General is supposed to personally approve all wiretaps under the act; (Section 2524(a)) consequently, it would not change the meaning of the bill to delete the words "known to the Attorney General," and it would prevent the possibility of future abuse. 2. Section 2527 sets forth the requirements that the Attorney General report annually to the Administrative Office of the United States Courts and Congress on the number of foreign intelligence wiretaps sought; the number approved; the number in progress; the duration of the taps, etc. These statistics alone will be of little, if any use, to Congress in its oversight function. S. Res. 400, which established this committee, notes that it is "the purpose of this resolution to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States." It should be made very clear that Section 2527 in no way forecloses the Intelligence Committee from conducting thorough oversight of the operation of this legislation. As the statute is presently written, the Attorney General could argue that Section 2527 represents the extent of what he must supply to Congress, and that this specific statute must take precedence over the more general language of S. Res. 400. The draft language of the Judiciary Committee report comments that "these statistics may also provide a basis for further inquiry by appropriate committees of the Congress," but this tepid statement is not sufficiently explicit to guarantee the kind of rigorous oversight which Congress should be contemplating. 3. Section 2523 provides that seven federal district court judges designated by the Chief Justice of the United States shall have jurisdiction to hear applications for electronic surveillance under this chapter. This proposal has received a substantial amount of criticism from those who object on principle to the involvement of the Chief Justice and those who believe that this process would inevitably lead to "handpicking" of judges likely to be sympathetic to government arguments that foreign intelligence wiretaps are needed. Representative Kastenmeier's subcommittee is giving careful consideration to alternative ways of selecting judges, and hopefully, your committee will do the same. Even if you conclude that the basic approach for selecting judges is sound, provisions should be made to assure that the Executive will not be able to make every application for a warrant or court order to the judge who establishes the most sympathetic "track record." Admittedly, in cases of "ordinary crime," the government has wide latitude in choosing a judge to approach for a search warrant. However, the nature of this legislation militates against giving the government a completely free hand. "Ordinary crime" cases often end in a criminal prosecution, in which the target of surveillance can test its constitutionality of the surveillance and the sufficiency of the warrant application through a suppression motion. In electronic surveillance for foreign intelligence information, most surveillances will not result in criminal prosecution; in those that do, the criminal defendant may be denied access to the application and order on grounds of national security, leaving the judge to make an ex parte determination of the lawfulness of the "tap." [Section 2526(c)] Taken together, these facts point to the need to restrict the executive's freedom of choice among the judges who have jurisdiction under the statute. It would seem desirable to require that applications be made to the eligible judges in some sequential order, barring "emergency" situations in which applications might have to be made to whichever judge was available within the 24 hour time period. [Section 2525(d)] 4. In my prior testimony on S. 3197, I expressed concern that the definition of "foreign intelligence information" (Section 2521(b)(3)) was "disturbingly broad" and that this overbreadth could lead the government to acquire and retain conversations which should be constitutionally protected. Because this point has received little attention so far, it seems important enough to raise again. Foreign intelligence information, is defined to include "information with respect to foreign powers or territories, which because of its importance is deemed essential to the security or national defense of the Nation or to the conduct of the foreign affairs of the United States." [Section 2521(3) (ii)] The Church Committee investigations disclosed that from 1966 to 1968, the FBI provided President Johnson with bi-weekly reports on conversations by or about anti-war Senators and Congressmen overheard by bureau agents wiretapping foreign embassies. According to the Washington Post, this information was apparently regarded as the "political by-product" of national security wiretaps; no pretense was made that the information itself was "essential to the national security." But with the definition of "foreign intelligence information" as presently written, these views could easily be classified as information important "to the President for his conduct of foreign affairs." Proponents of this section would argue that the definition is not overly broad because (1) it requires that the information be "essential "to the conduct of foreign affairs, and (2) that it be information "with respect to foreign powers or territories." However, the standard for retaining conversations overheard is less stringent than the definition of "foreign intelligence information"; information can be retained if it relates to the conduct of foreign affairs of the United States. [Section 2525(4)] It is all too easy to envision a situation in which a court order is obtained for an electronic surveillance of a foreign embassy, and the conversations of Congressmen about foreign policy views are overheard and retained because they "relate to the conduct of foreign affairs." My suggested solution is to delete the phrase "conduct of foreign affairs of the United States" from the definition of "foreign intelligence information." An alternative approach to the same objective would be a flat prohibition on the retention of conversations of Americans overheard who are not "agents of a foreign power" or conspiring with or aiding and abetting such agents. I commend you for making S. 3197 the first substantive business of the new intelligence committee. This vital legislation can be improved by continued close scrutiny and amendment; the result will be a measure which more strongly protects precious first and fourth amendment rights. Sincerely, GAYLORD NELSON, U.S. Senator. LETTER TO SENATOR DANIEL INOUYE FROM ARYEH NEIER, EXECUTIVE DIRector, AMERICAN CIVIL LIBERTIES UNION Senator DANIEL K. INOUYE, 442 Russell Senate Office Building, Washington, D.C. JUNE 17, 1976. DEAR SENATOR INOUYE: I am writing to suggest that you, as chairman of the Senate Select Committee on Intelligence, exercise your powers under Section 3(b) of S. Res 400 to request referral of S. 3197, the national security wiretap bill, to |