foreign visitors alike to the possibility of criminal prosecution or political harassment as the result of searches undertaken without the slightest reason to believe that a crime has been, or is about to be, committed.

Perhaps the most shocking aspect of the bill is its corruption of Fourth Amendment standards. On its face, S. 3197 appears to require a judicial finding of "probble cause." but upon closer reading it makes a mockery of that duty. No crime need be alleged; the surveillance would be for intelligence purposes only. Courts would be permitted to decide whether there is probable cause to believe that the target of the proposed surveillance is a foregn agent or foreign power, and that the facilities or place to be monitored are, or are about to be, used by a foreign power. But, the crucial decision of whether the interception was really needed for legitimate intelligence or counterintelligence purposes would be left to the President's Assistant for National Security Affairs or other national security executives like the Secretary of Defense, the Secretary of State, the Director of Central Intelligence or the Attorney General.

Under a novel certification procedure, the nation's spy chiefs (or their designees) would simply declare that the proposed tap or bug was needed-to protect the country against attack, assure the security or defense of the nation, promote the conduct of foreign affairs, or counter the intelligence activities of foreign nations. Judges would not be allowed to question that judgment. In short, the bill would create a "funny warrant" delegating an essential element of the judiciary's power to the unreviewable discretion of the men who have succeeded John Mitchell, Richard Kleindienst and Richard Helms. Judges would be reduced to bestowing empty blessings on the unchecked exercise of Executive will.

In addition, the bill appears to be grounded on the extraordinary idea that nonresident aliens are not "people" within the meaning of the Fourth Amendment. Reviving a theory used by Attorney General Palmer to justify his infamous "Red Raids" of 1919 and 1920, Attorney General Levi told Senator Church's Select Committee on Intelligence Activities last December that the only "people" protected by the Constitution from unreasonable searches and seizures are: "We, the people" who, in the words of the Preamble, "do ordain and establish this Constitution for the United States of America."

These people, Levi insisted, included only citizens and resident aliens. How resident aliens, who cannot vote, can be regarded as "ordainers" under the Preamble and therefore "people" under the Fourth Amendment, he did not say. Nor did the Attorney General explain why foreign visitors are now considered "persons" entitled to due process and equal protection under the Fifth and Fourteenth Amendments, if they are not also "people" entitled to be free from unreasonable searches and seizures under the Fourth. Ignoring these obvious anomalies, Levi has revived a nativist view of the Constitution which, if accepted by the Supreme Court, would tranform hundreds of thousands of foreign visitors each year into Fourth Amendment outlaws, subject to whatever invasions of their privacy might be deemed appropriate by transient, often anti-foreign majorities of Congress.

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This crabbed view of the Fourth Amendment can be found in the wiretap bill's sweeping definition of an "agent of a foreign power" as anyone "who is not a permanent resident alien or citizen of the United States and who is an ployee of a foreign power." A "foreign power" is defined not only as "foreign governments" and "military forces" but "factions, parties, or agencies or instrumentalities of such entities, or organizations composed of such entities . . . or foreign-based terrorist groups."

The scope of this definition is truly breathtaking. Fourth Amendment protection againt unreasonable national security wiretapping would be denied not only to suspected spies (whose agencies curiously are omitted from the list) but to doctors from Sweden, professors from France, railroad engineers from Great Britain, politicians from Canada, and UNICEF workers from Australia. Indeed, given the millions of people that socialism has put on foreign government payrolls, about the only foreign visitors clearly exempted under the bill are apolitical foreign businessmen, like the executives of multinational corporations whose dealings in strategic commodities have caused consternation in our intelligence agencies.

Were surveillance under the bill limited to cases of espionage or sabotage, the sweep of the foreign agent definition would be of little consequence. The bill, however, has nothing to do with those crimes, which can be investigated under the 1968 wiretap act. What Levi wants is authority to use wiretaps and bugs to investigate wholly lawful statements and activities. The primary purpose of his bill is not even to counter the lawful snooping of Russian spies (although it would also serve that purpose). It is to facilitate spying by the FBI and the ČIA on the

communications of foreign visitors in search of information on the politics and economics of foreign lands, regardless of whether those lands are hostile to the United States. Targets could include one's cousin from Brussels who imports oil for the city, a brother-in-law from Israel who sits in the legislature, or an uncle from Dublin who raises money in Ireland for the IRA. Moreover, since the bill empowers courts to issue warrants compelling landlords, custodians, or "other specified persons" to assist with the surveillance, Americans could be forced to help the government spy on their own guests from abroad.

If the Levi-Palmer theory of the Fourth Amendment were upheld by the Supreme Court in a test of this bill, the FBI would have constitutional grounds for asserting that foreign visitors have no rights its agents are bound to respect. Visiting the United States could become as annoying as touring Communist countries, where clandestine searches of hotel rooms and luggage are a common

occurrence.

The theory is too preposterous to be maintained. Should the bill ever be challenged in court, the Justice Department is likely to take a seemingly more moderate position, to concede Fourth Amendment rights to foreigners in theory and eviscerate those rights by definition. For example, it could insist that the warrant procedures of S. 3197 are “reasonable" when applied to foreigners, even though they would be unconstitutional if applied to citizens, because foreigners are more likely than citizens to engage in espionage, and because espionage might, in certain circumstances, pose greater danger to the public interest than the ordinary felonies of patriots.

Given the reluctance of the Supreme Court to come out and say clearly that the Fourth Amendment applies to government taps and bugs, whatever their purpose, the ploy might work, even though the bill has nothing to do with the traditional crimes of espionage or sabotage. Federal government officials are disposed to grant aliens the same rights as citizens, and the Justices of the Supreme Court are no exception. For years they have upheld the constitutionality of legislation denying aliens the rights to free speech, free association and fair hearings enjoyed by citizens.

Aliens charged with espionage have fared no better with Fourth Amendment claims. Warrantless wiretaps were upheld in the case of Igor Ivanov, a Soviet national_convicted in 1970 of spying on the Strategic Air Command. The Third Circuit Court of Appeals ruled that "in the circumstances of this case prior judicial authorization was not required," and held that Ivanov's Fourth Amendment rights were adequately protected by an after-the-fact review of the "reasonableness" of the wiretapping by a trial court that knew of the evidence that had been obtained. The Court of Appeals acknowledged that its decision amounted to a "relaxation of Fourth Amendment requirements" and that similar wiretaps in the case of a domestic political organization or ordinary criminal would have been illegal, but the Supreme Court refused review.

In 1960, the Warren Court went even further in order to uphold the abduction of Rudolph Abel, the Soviet master spy, who was spirited out of his studio in Brooklyn, New York, and flown to Brownsville, Texas, where he was held prisoner for two weeks by the CIA. The law which permitted Abel's arrest under an administrative warrant issued by the Immigration Service (because he was suspected of entering the country illegally) was accepted as constitutional, even though the arrest of a citizen under similar circumstances and without prior judicial authorization would not then have been tolerated.

Thus, while it remains to be seen whether the Supreme Court will extend its current double standard from cases involving spies and immigrants to a broad law permitting political and economic eavesdropping on law-abiding foreign visitors, the prospects are not auspicious.

The Levi-Kennedy bill threatens more than the rights of visitors; it would limit the rights of citizens as well. The Supreme Court has ruled, as a matter of Fourth Amendment law, that evidence obtained from warrantless government taps and bugs must be excluded from judicial proceedings; nothing less will cure the constitutional violation. The proposed law would deny this protection to citizens as well as aliens, provided that the executive branch had been able to persuade a judge that there was probable cause to believe that the person to be monitored was engaged in "clandestine intelligence activities. . . pursuant to the direction of a foreign power." Once the judge accepts a "funny warrant," authenticates the certificate of need, and accepts the government's promises to minimize its eavesdropping on innocent third parties, all evidence of any criminal activity "incidentally" overheard can be used against the target in court. Moreover, the government would not have to reveal to the defendant where it got the information, as it now must do in ordinary criminal cases.

On its face, this provision appears to be aimed at an especially dangerous class of criminals: atom spies, saboteurs and skyjackers. In fact, that is not its purpose; federal law already permits the government to monitor them. This bill calls for something new. By using the term "clandestine intelligence activities" instead of espionage, sabotage or murder, the government seeks the power to use wiretaps and bugs to investigate wholly noncriminal conduct including lawful inquiries into public record information bearing on American economic and military capabilities.

The provision is a memorial to a Nazi agent named Heine who put together an extensive profile on our aircraft industry on the eve of World War II by posing as a student/journalist and using wholly nonclassified data. Under the espionage laws then and now in force he could not be convicted of any crime.

The law Attorney General Levi proposes would permit electronic surveillance of Mr. Heine without probable cause to believe that he was about to commit any crime. It would also go much further, because nothing in it says that the person acting "pursuant to the direction of a foreign power" must be a witting participant in "clandestine intelligence activities." All the government would need to show would be that there was probable cause to believe that an unquestionably loyal American was engaged in research, advertising, lobbying or legal work for a foreign government, party, faction (whatever that is), or international organization, and that the work being done arguably served the secret intelligence purposes of that "foreign power." And, since judges would not be permitted to question the government's certificate of need or review the information gleaned from the wiretap, they would be unable to protect American citizens from the misuse of national security wiretapping for partisan political purposes.

Similarly, the bill would permit electronic surveillance of any person—including an American with no links whatever to a foreign power-who "assists . . . a person who, pursuant to the direction of a foreign power, is engaged in clan

destine intelligence activities, sabotage, or terrorist activities.. ." Again, witting service is not required. Lawful assistance to a person secretly engaged in wholly lawful information-gathering activities for a foreign government would expose one to wiretapping or bugging and the concomitant danger of criminal prosecution for wholly unrelated activities which might, for one reason or another, be considered criminal. Given the specious justifications still being offered by Nixon administration officials for their taps on newsmen and ex-National Security Council aides, and the harassing use of criminal and noncriminal wiretap information by the FBI in its vendetta against Martin Luther King, it is not difficult to see how this provision could be misused.

Finally, the same provision would endanger the privacy of anyone who, wittingly or unwittingly, "assists" any person engaged in undefined "terrorist activities" anywhere on the globe "pursuant to the direction of a foreign power.' Ethnic Americans with ties to strife-torn countries would be particularly vulnerable, because the bill is written broadly enough to permit monitoring of money raisers for Palestinian charities, persons who support relatives on the revolutionary side of a foreign war, or publishers who print the manifestoes of foreign revolutionaries.

The bill's ultimate mockery of the Constitution and the courts, however, lies not in its subversion of the Fourth Amendment but in its failure to reject executive claims to an inherent constitutional power to conduct surveillances, whatever Congress provides by law.

The bill seems to require that intelligence agencies obtain judicial warrants before undertaking any wiretaps or bugs, but that is not the case. A disclaimer at the end of the bill releases the executive branch from even that small restraint. It would put the Congress on record as actually acknowledging "the constitutional power of the President to order electronic surveillance... [for national security intelligence purposes]" and disclaiming any intent to restrict that power.

No Congress has ever gone so far. The disclaimer is not merely a disclaimer; it would actually give the executive branch the power, subject only to whatever restraints the Supreme Court might impose, to evade the bill from the outset, or to defy a federal judge and go ahead with a surveillance he has refused to approve. It is probable that the bill's sponsors on Capitol Hill do not intend the many abuses that could arise from it, but laws touching on fundamental rights should be drafted with precision and should not lend themselves to easy manipulation. It is not enough to say that we now have an Attorney General of unquestionable integrity, or that the intelligence bureaucracy has learned its lesson. If the history of electronic surveillance over the past forty years teaches us anything, it is that officials of high integrity have adopted specious interpretations of the law, and that secret agencies should never be trusted.

Liberal proponents of the bill argue that it deserves support despite its obvious constitutional defects because it contains useful procedures to protect the privacy of third persons, and because the current Supreme Court, if left to its own devices, might rule that judicial warrants are not required when the target of the eavesdropping is a suspected foreign agent. In today's climate, they argue reformers must take what they can get. The important goal should be to establish the principle of judicial warrants-even "funny warrants"-in national security cases, vindication of the rest of the Fourth Amendment can come in later years. The bill may demean the courts and defraud the public, but that is the price which must be paid for a marginal advance for liberty in an atmosphere hostile to reform of the intelligence agencies.

If they are right, that is a tragic commentary on the state of liberty on the eve of our Bicentennial.

[From The Nation, May 29, 1976]

BURMA: THE LONG SLEEP

(By David J. Finkelstein 1)

My first visit to Burma, in 1964, consisted of the maximum allowable twentyfour-hour stopover in Rangoon. At that time an increasingly anti-foreign government under Ne Win's despotic grip was in the process of "Burmanizing" the country by expropriating businesses owned primarily by Indian, Pakistani and Chinese residents. After being stripped of all their possessions, including their wedding rings, those fortunate enough to have foreign passports were thrown out

1 David Finkelstein is a lawyer and a program officer at the Ford Foundation, specializing in Asian affairs. This article reflects only his personal views.

of the country. Those born in Burma, who had no such passports, could do nothing but remain, ostensibly with no means of livelihood. I stayed the night at the vacant, gloomy and fast deteriorating Strand Hotel (where in the "old days" a string ensemble used to serenade dinner guests), disappointed at not being able to follow Bob Hope and Dorothy Lamour up the fabled Road to Mandalay, and listened as a lonely old Anglo-Burman clerk lamented that the "Burmese road to socialism" was a path to isolation and stagnation. And, indeed, so it seems to have been.

The Burmese Government points with pride to the fact that, unlike Indochina, Burma has avoided the ugly aspects of foreign intervention. But in doing so, it seems to have brought itself to the brink of economic disaster. In desperate need of foreign currency, the government has relaxed its visa restrictions to the extent that foreigners are now allowed a maximum of one week's stay in Burma. There are thus a few more guests at the Strand these days, including several Texas oil tycoons, complete with paunches, cigars and ten-gallon hats. Along with less visible Japanese oilmen, they are involved in offshore prospecting. (Burma, the largest country in Southeast Asia after Indonesia, is just about the size of Texas.) The hotel is now so run-down that rats compete with guests, at least in the dining room, but since Burma stands out as one of the most remarkable countries in Asia-warm and humorous people, exquisite craftsmanship, fascinating manifestations of Buddhism, archaeological treasures to match the now inaccessible Angkor Wat, etc.—the traveler willing to overlook this and other inconveniences is more than rewarded for his pains.

During my recent one-week stay, I was able to meet with some Burmese officials, including several from the Ministry of Planning and Finance-a curious agency from a country so seemingly devoid of planning and financing. To avoid having to file the detailed reports required by a stifling bureaucracy, Burmese officials prefer not to talk with foreigners, even foreign embassy personnel, in their government offices, and they are understandably guarded in their conversations even when meeting on the outside. By and large, however, the Burmese seem to be quite candid and critical in private conversations with strangers, and those of Chinese ancestry are particularly forthcoming when conversations can be carried on in Chinese. Not that the government tolerates criticism and dissent. Recently, for example, a labor leader complained that his workers could not live on 3 cents a day, and for this he was immediately sentenced to six years in prison. But the Burmese dictatorship is so hopelessly incompetent that even in repression it is to some extent inept.

The black market operates efficiently in Burma; everything else appears stagnant. Rangoon, the drab capital with a population of 2 million, is illustrative. Its almost deserted "international" airport is as dilapidated as Boston's South Station evidence perhaps that the gap between capitalism and socialism is indeed narrowing. The Union of Burma Airways owns a few ramshackle buses which, though they sometimes transport passengers from Rangoon to the airport, don't seem to have a mandate to work the other way around. So a traveler must take his pick of "taxis"-World War II vintage jeeps, each accompanied by three hustlers, an example, no doubt, of underemployment in a country where dentists work as typists and chemists as clerks. The youngest of the three hustlers, aged about 10, cranks the jeep to start it, since batteries are impossible to come by unless one has access to smugglers or to the military. The other two, after helping the passenger into the cramped vehicle, climb aboard themselves. One serves as driver, the other as chief engineer, for the fifteen-minute ride on virtually trafficless streets to the refuse-littered center of town is interrupted by several breakdowns requiring on-the-spot repairs. The ride costs about 25 kyat, the equivalent of $4 at the official rate or $1 on the black market.

STATEMENT OF CHARLES SCHEINER, CO-CHAIRPERSON, WESTCHESTER PEOPLE'S ACTION COALITION, JUNE 26, 1976

My name is Charles Scheiner and I am submitting this statement on behalf of the Westchester People's Action Coalition Inc. (WESPAC, of which I am Cochairperson), the New York Coalition to Defeat Senate Bill One, and the Westchester Coalition to Defeat S. 1. WESPAC is a broad-based political action coalition, consisting of a number of organizations and over a thousand individuals in Westchester County, N. Y. It is located at 100 Mamaroneck Avenue, White Plains, New York 10601. The New York and Westchester Coalitions to Defeat S. 1 were formed in 1975 in order to begin to provide grass-roots opposition to the passage of this repressive proposed criminal code. I am an active member of the New York Coalition and Coordinator of the Westchester Coalition.