It seems to us that what is described as some protection in this bill, the warrant procedure, is the weakest possible protection. It is hard to imagine a way of drafting this legislation so as to more effectively nullify the one thing that is suggested as a reason to enact it.

On the other side, there is an overwhelming reason not to enact legislation of this sort. The overwhelming reason is that for the first time the Congress of the United States would be establishing a middle ground between activity that is criminal and activity that is subject to constitutional protection.

The Congress of the United States would be saying that American citizens may be participants in activity which has never been made illegal by the Congress of the United States; nevertheless that activity cannot be safeguarded from the prying eyes and the prying ears of law enforcement agencies.

If this kind of prying is legitimized, it is hard to imagine what kind of prying would not be legitimized. Of all forms of surveillance, it is difficult to think of any that is more intrusive into peoples' lives, that is more sweeping in what it gathers about people and the intimate details of their lives which are exposed, than wiretapping. Mail opening would be of very little concern if the far more intrusive surveillance that is involved in wiretapping is legitimized. It is proposed that our laws create a grey area that involves activity that is not unlawful. If it were unlawful, one would not need this legislation at all. This legislation is, as the Attorney General has told us, intended to authorize the gathering of intelligence in the absence of an effort to bring criminal prosecution. Criminal prosecution is only an occasional serendipitous consequence of the gathering of such intelligence information. Yet, we are told that this activity, which is not criminal, is not constitutionally protected activity; that the Government has a right to set off this amorphous area as subject to surveillance, even though it is not made criminal or not directly made unlawful by the Congress of the United States.

Senator BAYH. And yet, to use information gathered under that guise for subsequent criminal prosecution.

Mr. NEIER. They may, but that is not the intention.
Senator BAYH. But that compounds the problem.

Mr. NEIER. Yes, it does. It makes possible fishing expeditions for intelligence-gathering purposes which then may be used for criminal prosecutions. It overcomes the more difficult problem of obtaining a warrant for the actual purpose of bringing a criminal prosecution. Moreover, where there is a criminal prosecution, the surveillance permitted by this legislation is very extensive. This legislation allows an open-ended surveillance of that person, not just the surveillance that may be necessary for the actual purpose of bringing a criminal prosecution.

The Attorney General talks about guidelines for minimization. It is hard to imagine what could possibly be done in minimizing the information that is collected. The intelligence services have always told us that a little bit of information here and a little bit of information there is what they use to piece together some larger mosaic which tells them what is going on. Under those circumstances, if one is to believe what the intelligence agencies have always said about the way

in which they proceed, minimization seems to run exactly contrary to their professed purposes.

The Attorney General on several occasions told us that the persons who are to be the targets of this surveillance have to be part of the official network of a foreign government. Yet, the Attorney General's definitions as provided in this legislation go far beyond people who would be part of the official network of a foreign government.

I am not proposing to you that you try to cure the wrongs in this bill by fixing the legislation or providing tighter definitions. It seems to us the entire thrust of the legislation is wrong. The entire thrust of the legislation is to create this amorphous area of activity that is not criminal but is still a target for surveillance.

Any future administration, the present administration, whoever, is free to expand or contract what is covered in that grey area in accordance with their own taste. The Federal courts in their warrant procedures would be virtually reduced to rubber-stamping the activities of the executive branch of the Government. They would be limited to determining only whether the person who is the target is an agent of a foreign power or is knowingly assisting an agent of a foreign power. Again, the definition of agent of a foreign power is by no means limited to the actual agents of the official aspects of foreign governments.

Given the very large defects that we see in this legislation, we believe that the Congress of the United States should refuse to adopt this legislation. The legislation also has a disclaimer clause which is apparently intended to protect the activities of the National Security Agency. From the way in which the Attorney General kept referring to things that he was not free to talk about, I could not help wondering what other surveillance activities were also not being revealed in the course of this legislation.

The legislation legitimizes those activities in a fashion never undertaken before. It says that those are going forward but that the Congress should not be specifically authorizing any particular activities of an agency such as the National Security Agency. The legislation does this in obscure references never actually naming the National Security Agency itself. One is only supposed to infer that somehow its activities are being shielded from further scrutiny and further specific authorization or limitation by the language of this legislation.

Given these defects and even with any effort to give greater specificity to the categories that are involved, even with efforts to narrow the range of surveillance, we think it would be an enormous mistake to adopt this legislation. We think it would be a travesty to do so as the first item of business by Congress after the extraordinary disclosures of the surveillance activities undertaken by the intelligence agencies over the last year and a half. The Congress should not be responding to those abuses by putting its own stamp of approval on future abuses. That seems to us an impossible result, or a result you should think impossible in response to what we have learned in the last year and a half.

Thank you, Mr. Chairman.

Senator BAYH. Thank you, Mr. Neier. We make note of the fact that Ms. Hope Eastman, associate director of the ACLU, is accompanying you.

I would ask that we proceed with the panel forum. Let's ask Professor Schwartz to join us, if he would, at this time.

Ms. EASTMAN. Do you want us to move over?

Mr. SCHWARTZ. Mr. Heymann has requested that he be allowed to go next. I will follow him, then.

Senator BAYH. That is fine. In fact, if you would all like to come up to the table and support one another, that would be acceptable. I feel rather embarrassed at the way this has become drawn out today, deeply embarrassed. As I noted, I was delayed over on the floor. STATEMENT OF PROF. PHILIP HEYMANN, HARVARD LAW SCHOOL, CAMBRIDGE, MASS.

Mr. HEYMANN. Mr. Chairman, Philip Lacovara asked me to make his apologies and to explain that he had a long-set appointment for 2 p.m. He wants this statement submitted for the record. He would have been the fourth member of the panel. He wanted me to express his willingness to appear at any time you please for questions, if you have them, or to respond to questions in writing. He was very sorry to have to go, but felt that he had to do so.

Senator BAYH. Well, I certainly do not believe he owes us his apologies; it is the other way around. I look forward to reading his testimony and would like to discuss this matter with him in person later on. He certainly has been in a unique position to help this Committee reach some final conclusions.

[The prepared statement of Mr. Philip Lacovara follows:]

PREPARED STATEMENT OF PHILIP A. LACOVARA

Mr. Chairman, I am pleased to accept the committee's invitation to appear this morning to offer some comments on the proposed Foreign Intelligence Surveillance Act of 1976, which Senator Kennedy has introduced at the request of the President and which the Judiciary has already approved in a slightly amended version.

In formulating my comments, I draw upon the experience I have had dealing with national security and electronic surveillance issues in government positions, especially as Deputy Solicitor General with responsibility for the government's criminal and internal security cases before the Supreme Court, and as Counsel to Watergate Special Prosecutors Archibald Cox and Leon Jaworski. In a paper I delivered in January 1976 at the Symposium on Presidential Power sponsored by Duke University, I have set forth at some length my analysis of the Constitutional issues and questions of public policy raised by the use of electronic surveillance to gather foreign intelligence. This paper will be published shortly in the journal "Law and Contemporary Problems" and I request that it be included as part of the Committee's record. I will not attempt to cover in detail this morning the points made in that paper.

In my judgment this bill reflects three basic premises with which I firmly agree. First, modern techniques of electronic surveillance offer important tools in the collection of foreign intelligence. Second, the Constitution leaves room for the collection of foreign intelligence through electronic surveillance even when the target is not engaged in a crime. Third, the creation of a realistic system of judicial supervision of this kind of intelligence practice is vital to the legitimacy and propriety of foreign intelligence electronic surveillance.

I have no major Constitutional problems with the bill as currently drafted, and I support its enactment.

I am including as an appendix to my prepared statement this morning what can be considered a checklist of the principal issues of public policy and Constitutional law that must be addressed in considering a system of electronic surveillance to gather foreign intelligence. The provisions of S. 3197 respond to most of the issues that I have enumerated, and in my opinion most of the judgments reflected in the proposed legislation are reasonable accommodations of the governmental

and individual interests at stake. In the balance of my statement, I would like to review some of the salient features of S. 3197, pointing out where the basic judgmental questions are addressed and noting any reservations or objections I may have about these judgments or about the failure to deal with specific issues.

LIMITED SCOPE OF COVERAGE

At the outset, the Committee should understand what this bill would do and what it would not do. It is directed only at electronic surveillance, not at surreptitious entries to photograph or seize data-so-called black bag jobs—and it also has a relatively restricted geographical focus. Under the definitions in proposed Section 2521, the tapping of any wire communication (telephone, telegraph, telex, etc.) is covered only if either the sender or receiver is in the United States and if the interception takes place in the United States. I leave to the experts whether present or foreseeable technology will allow the interception of wire communications wholly within the United States from a point outside the United States; if so, they would not be covered. More clearly not covered are international wire communications since it is relatively simple, I understand, to intercept these communications at a point outside the United States. The bill therefore seems designed to leave outside its coverage the interception of international wire communications-even of a purely private or commercial nature-as long as the interception takes place off-shore or abroad.

Similarly, radio communications are covered only if both the sender and intended recipients are within the United States and only if made "with a constitutionally protected right of privacy." Quite obviously, therefore, the bill would have no application whatsoever to international radio traffic, even of a private or commercial nature. And even within the United States radio transmissions would not be subject to this bill if they were not made "with a constitutionally protected right of privacy."

This phrase "constitutionally protected right of privacy"-has been substituted by the Judiciary Committee for the phrase originally included in the bill"reasonable expectation of privacy." I understand that no substantive change was intended. That latter phrase is the one the Supreme Court used in holding, for the first time nine years ago, that the Fourth Amendment's protection against unreasonable searches and seizures applies to electronic surveillance not involving physical trespass. See Katz v. United States, 389 U.S. 347 (1967). This standard is applied in practice on the domestic scene by requiring warrants for virtually all non-consensual uses of electronic surveillance in criminal investigations. Those warrants are governed by Title III of the Organized Crime Control Act of 1968, 18 U.S.C. §§ 2510, et seq. The danger that a law enforcement officer may erroneously make the judgment that a "reasonable expectation of privacy" is not present and therefore that no warrant need be obtained is monitored in practice by the "exclusionary rule," which bars the admission into evidence of any information improperly seized by a warrantless surveillance. Where foreign intelligence gathering is involved, however, a criminal prosecution is not the likely object, and thus there is little anticipation or judicial review after the event. Accordingly, a provision making the restrictions of this bill inapplicable where a government official decides there is no "reasonable expectation of privacy" or no "constitutionally protected right of privacy" leaves this judgment to the virtually unfettered and unreviewed discretion of government agents. It would be much more prudent to define expressly the class of interceptions, if any, that should be excluded from coverage.

The definitional section also covers the installation of devices to be planted in the United States to monitor conversations. This of course refers to so-called "bugs" which can be planted in any office or home-indeed in any room in one's home. There is no restriction on such use. Moreover, here again the bill is made inapplicable to the planting of "bugs" under circumstances in which a person has no "constitutionally protected right of privacy." The absence of any judicial supervision or interpretation of this concept makes it a questionable exception, even though it, in terms, simply reflects the Constitutional line between communications covered by the Fourth Amendment and those that are not. Under one man's interpretation, this exception might apply only to conversations held on a public street, but under another interpretation it could apply to conversations in a train station, hotel lobby, baseball game, and so forth. With the phenomenal increase in technological skill making it possible to pick up human conversations at great distances, it is very difficult to know whether a person walking along a

street or having lunch in a restaurant could conduct a conversation that intelligence agents would regard as covered by a "constitutionally protected right of privacy." It might be more prudent and more helpful for Congress to attempt at least an illustrative enumeration of the kinds of interceptions not meant to be covered.

Finally on this opening point, I note that the bill has no apparent application to American citizens or American corporations (or anyone else) outside the United States. Although the extra-territorial effect of the Fourth Amendment is uncertain, it may be worth the attention of Congress to consider whether or not the same restrictions, different restrictions, or no restrictions should be applicable to the gathering of "foreign intelligence" abroad when American citizens are the targets.

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POTENTIAL TARGETS OF ELECTRONICS SURVEILLANCE

The definitional section also limits the targets of permissible electronic surveillance under this bill. Basically, the targets fall into two categories. The first includes "foreign powers"-defined to be foreign governments, political parties, military forces, or their controlled enterprises. The second major class covers 'agents of a foreign power"-defined to include two distinguishable groups of people: (a) either any officer or employee of a foreign power except resident aliens or United States citizens, and (b) any person, including a resident alien or American citizen, who is engaged in or is knowingly assisting in clandestine intelligence activities, sabotage, or terrorist activities pursuant to the direction of a foreign power. This focus is, in my judgment, quite appropriate and, although it makes any employee of a foreign government subject to electronic surveillance for intelligence purposes, I cannot question the reasonableness of such a sweep.

NATURE OF ACCESSIBLE INFORMATION

Limiting the potential scope of the coverage of the bill is its definition of "foreign intelligence information." As defined, the object of such a survelliance must be either information deemed necessary to our military security, or to the ability of the United States to protect itself against the intelligence activities of foreign powers, or information about foreign powers or territories considered essential to the "conduct of foreign affairs." The precise contours of these limitations are not clear. In the modern interdependent world, it is possible to justify the collection of virtually any information about a foreign power as "essential" to the conduct of "foreign affairs." Admittedly, therefore, this is an open-ended concept. But in light of the restrictions on the possible targets from whom the information can be garnered by electronic surveillance, I would be prepared to leave the application of this standard, as the bill does, to the political and diplomatic judgment of the Executive.

CONSIDERATION OF APPLICATIONS WITHIN EXECUTIVE BRANCH

Sections 2522 and 2524 outline in very broad terms the processing of a possible electronic surveillance within the Executive Branch. Section 2522 provides that the Attorney General may approve applications to designated federal judges if the President has given written authorization empowering the Attorney General to approve such applications. Nothing more is said in this section or elsewhere in the bill about the internal review procedures that should take place before it is determined that an electronic surveillance is appropriate. In fact, Section 2524 states that each application "must" be approved by the Attorney General if he finds that certain conditions are met. Although I believe the draftsmen probably meant only to make his approval a precondition to the submission of an application to a judge, the language now appears to leave the Attorney General no discretion not to submit a requested application if the minimum conditions are met. I question whether this is desirable.

The bill also is deficient in failing to provide any statutory description of the kind of documentation that should be prepared and maintained reflecting the analysis and deliberations within the Executive Branch. On the basis of my experience with the Watergate affair, I suggest it would be quite an effective additional guarantee of proper government conduct for Congress to require explicitly that certain records must be made and kept by the Executive Branch in connection with each proposed foreign intelligence electronic surveillance.