Senator BAKER. Well, I don't know what the Supreme Court is going to rule about Presidential authority absent the statutory authority.

Senator MATHIAS. And I think this is probably one of the things that until the Supreme Court has acted, none of us are going to know the final action.

I am of the thought that assuming the warrant was lawful at the start, whatever its purpose, that whatever rights were available would be preserved.

Senator BAKER. Including the Brady.

Senator MATHIAS. I think so.

Senator BAKER. I would think so, too, and I would hope that the Committee and its staff would look into that because Brady has become such a cornerstone of the defendant's rights that that ought to be considered in relation to the procedures outlined in this bill.

Senator MATHIAS. I would hope the Committee, that while you have to be concerned about all aspects of any legislation having impact, that it did not overemphasize this point, however, because it seems to me that as a practical matter, criminal prosecution is not going to be the objective of this kind of an investigation.

Senator BAKER. No; but it is going to be the marvelously concentrating effect on a defendant's mind if it results.

Senator MATHIAS. But it may well be that the Government will not have any desire whatever to bring any of this into any courtroom at any time, so that I think the incidence of problems of this sort are likely to be very, very minimal because it has the effect, say if you are going to prosecute some relatively minor criminal infraction, of exposing a major counterespionage effort, and it is simply not in the interests of the Government to do it.

Senator BAKER. Mr. Chairman, I agree with the Senator. I think his appraisal and his ordering of the importance of the activities is accurate, but I think we ought to give careful attention to whether, if at all, we have diminished the available remedies and rights of a potential defendant by the passage of this.

Senator MATHIAS. Absolutely, and as I say, my intuition is that you don't diminish this.

Senator BAKER. I agree with that, and I certainly think that is the objective.

Senator MATHIAS. I think one of the basic things that this Committee can do is to look at the question of standards under which a warrant can issue and to broaden the standards and to provide for these other interests of the Government in addition to the question of criminal violations, and as I have pointed out in my full statement which the Committee has, I think this can relieve a lot of these problems.

Mr. Chairman, if there are no further questions, I will leave you with the words of that great late Marylander, Mr. H. L. Mencken, who, with his usual prescience, looked ahead, saw the opportunities available to this Committee when he said that conscience is the inner voice that warns us somebody may be looking.

Thank you very much.

Senator BAYH. And listening.
Thank you, Senator Mathias.

The next witness is Senator Mondale, waiting patiently. I know how busy everybody is. I regret the fact that we haven't been able to keep quite on schedule, but it is a great concern to all of us that the Senator from Minnesota bring his great background and experience before us, and I appreciate his being here.

[The prepared statement of Senator Mondale follows:]

PREPARED STATEMENT OF HON. WALTER F. MONDALE

A U.S. SENATOR FROM THE STATE OF MINNESOTA

Mr. Chairman: I'm pleased to be able to appear before this subcommittee today. As a former member of the previous investigative Select Committee, it gives me great satisfaction that there is a permanent Senate Select Committee on Intelligence Activities and that one of its first acts was to create this Subcommittee on Intelligence and the Rights of American Citizens. Please forgive me if I also view this Subcommittee as a sort of lineal descendent of my own Subcommittee, which dwelt at great length on the problem of intelligence activities and the rights of Americans.

It's also an honor to appear before this Subcommittee to address the proposed wiretap legislation. This is precisely the kind of issue that necessitated the creation of a new and permanent Intelligence Committee. The bill, itself, should be seen as one of a set of legislative actions that must be taken to create a statutory charter for our intelligence agencies so as to bring them within the framework of the rule of law. The action you take will set precedents for all the charter legislation to follow.

First, I want to compliment the Judiciary Committee and Senator Kennedy, in particular, for their excellent work on this legislation. Credit is due to Attorney General Levi for his efforts to try to work out a consensual solution on an issue which has, for too long, been an object of confrontation between the Congress and the Executive. Wiretap legislation involves extremely complicated issues which require balancing the needs of public order and security against the requirements and imperatives of our Constitution.

This bill, for the first time, seeks to bring under the rule of law the collection through electronic surveillance of foreign intelligence within the United States. Since electronic surveillance involves just about the most intrusive form of collection, this bill will, in effect, establish the standards and procedures for all other types of surveillance-informers, mail opening, et cetera, at least until there is additional explicit charter legislation. That is one reason why this bill deserves this Committee's most careful consideration. In concept and detail, it will be the forerunner of all charter legislation that may follow.

In concept, this bill focuses on enabling our Government to inform itself of the activities, intentions and policies of other Governments and their agents rather than on law enforcement. The bill seeks to establish a procedure whereby there will be, for the first time, a warrant procedure and judicial review of the use of electronic surveillance for these purposes. This is an important advantage over the present situation where the Executive acts at will. But the bill sets another precedent that I find disturbing. It would permit the most intrusive tapping and bugging against Americans who are not violating any law. I am referring to the provision which defines "agent of a foreign power," and which, in effect, would permit electronic surveillance of Americans allegedly engaged in undefined "clandestine intelligence activities" but not violating law.

I don't quarrel with the necessity of protecting our nation against hostile intelligence activities by foreign powers. We must be able to do that. I have no difficulty with the idea that electronic surveillance is a legitimate investigative technique against those who would conduct terrorism, sabotage, or assist in carrying out attacks or other hostile actions against the United States. These either are crimes or should be crimes.

But when it comes to authorizing bugs and taps on American citizens who are not engaged in crimes, we must proceed with utmost caution. We must bear in mind James Madison's observations on the eve of Congress' adoption of the infamous Alien and Sedition Acts. He wrote to Thomas Jefferson: "Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended from abroad."

My specific concern about this Bill is based upon the experience of the Select Committee. It came to the conclusion that no American should be targeted for electronic surveillance except upon a judicial finding of probable criminal activity.

Our conclusion was based on the Select Committee's examination of the full range of FBI intelligence activities and some of its most closely held files. This convinced us of the wisdom of Attorney General Harlan Fisk Stone's policy of limiting domestic intelligence agencies to investigating essentially only "such conduct as is forbidden by the laws of the United States." He explained his reasons for this policy as follows:

"There is always the possibility that a secret police may become a menace to free government and free institutions, because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood . . . The Bureau of Investigation is not concerned with political or other opinions of individuals. It is concerned only with their conduct and then only with such conduct as is forbidden by the laws of the United States. When a police system passes beyond these limits, it is dangerous to the proper administration of justice and to human liberty, which it should be our first concern to cherish."

It was a wise policy: The common denominator of virtually all the abuses we uncovered was that domestic intelligence activities which depart from this standard pose grave risks of undermining the democratic process and harming the interests of individual Americans. Americans must be assured that their Government operates under the rule of law, and that if they conform their behavior to the law, they will not run the risk of being targeted for electronic surveillance and other intrusive investigative techniques.

One argument for permitting electronic surveillance for actions not now covered by law is based on the fact that our espionage laws are out of date. I am in full support of the concept of modernizing our espionage laws. That was one of the recommendations of the Select Committee.

Attorney General Levi, in arguing against establishing the criminal standard for foreign intelligence wiretaps against Americans cited three examples of situations where the Federal Government would need to be able to conduct electronic surveillance, but which do not now fall under the criminal law. These were as follows:

The clandestine collection of information by an agent of a foreign power concerning important industrial processes essential to the national security, e.g., computer technology.

The conduct of espionage or other clandestine intelligence activities by one foreign country against another inside the United States.

Third, Mr. Levi cited certain terrorist activities undertaken by a foreignbased terrorist group against State Governments, i.e., burning down a State Capitol building.

I am struck by these examples, because I believe that every one of them could be covered by the criminal law should we wish to do so. Indeed, some of them are, at least in part, covered by existing statute. For example, anyone who is clandestinely acquiring computer technology and exporting it abroad to a Communist country would stand in violation of two laws: First, the Foreign Agents Registration Act and, second, the Export Administration Act. I mention these because these are laws governing the activities of American citizens acting on behalf of foreign powers, and they should not be ignored.

Now I recognize the problem of trying to bring our espionage laws up-to-date, and the desirability of prompt action on this Bill. However, I am concerned by what I understand to be the Attorney General's position which seems to be that, even if we had the time to modernize these laws, he would not want to make crimes of all of the cases for which he would wish to be able to approve electronic surveillance of Americans. He has explained that any such law might be too broad.

I can sympathize with that. I understand and I think we all can appreciatehow, in translating a concept to a law, we can sometimes go too far and adversely and unintentionally affect our Constitutional rights. Indeed, this wiretap legislation is an example of precisely that problem. We don't want to make this problem worse, but we cannot ignore it either.

It has been argued that the warrant procedure is a sufficient safeguard. Now I strongly agree that this represents an important step forward. But as significant as this step is, I do not believe that we can be satisfied that judicial review will provide an adequate remedy to the abuses which we uncovered in the course of the Senate Select Committee's investigation of domestic intelligence activities. For the question remains what standard will the judges apply in considering whether an American is engaged in "clandestine intelligence activity" so that a proposed electronic surveillance is legitimate. I believe it's extremely important that his Committee carefully consider how to deal with the extremely difficult problem of defining this terin. For it is not simply a question of making language

more clear; it is a question of establishing a standard, a threshold beyond which American citizens must be put on notice that their Government is free to compromise their otherwise inalienable rights under the First and Fourth Amendments of the Constitution.

Now the recommendations of the old Select Committee used the term "clandestine intelligence activity"-at the specific request of the Department of Justice. But we explicitly recognized that this term must be defined and that this definition was a crucial one. We anticipated that this would take time and careful deliberation but were unwilling, in the meantime, to accept such an undefined standard for electronic surveillance and other intrusive measures.

And it should be borne in mind that establishing this vague standard will not simply authorize electronic surveillance; it also opens the door to a wide range of other techniques that may not fit the standard. The legislation obviously assumes that the FBI conducts intelligence investigations, including intrusive techniques such as informants, which will culminate in requests for wiretaps pursuant to S. 3197. Therefore the bill would authorize-by implication-the placing of an informant within the Southern Christian Leadership Conference to spy on Dr. King, to see if indeed he was an agent controlled by a foreign power. It would appear to permit black bag jobs, surreptitious entries, so as to be able to place microphones. It might be construed as permitting a mail cover. There is a whole range of activities leading up to the most intrusive electronic surveillance which, presumably, would have an even less rigorous standard than that established by this bill.

This, of course, is one of the problems of trying to deal with wiretap legislation in isolation. In the course of the Select Committee's deliberations, we recognized that this domestic intelligence is a seamless web: that one form of investigative technique blends into another. That the justification for one kind of intrusion into the privacy of Americans begets another. That rationales for one type of surveillance become justifications for yet another. That the standards keep broadening, that the scope of the activity continues to grow; that the number of people involved continues to increase, unless you have the hard and fast standard of the criminal law.

Let's examine the definitions in the Bill. It would permit wiretapping of Americans involved in "clandestine intelligence activities. . under the direction of a foreign power," or who are aiding and abetting such a person. And, it would do so in order to collect information which is essential to the security, national defense or the conduct of the foreign affairs of the United States. If we have learned anything from the experience of the last ten years, it is that the last phrase is almost infinitely elastic. For example, it would clearly authorize one of the abuses we found during the Kennedy Administration-of tapping phones on Capitol Hill in regard to the activities of the Sugar Lobby.

In shaping adequate definitions, we have to recognize that the world is becoming more interdependent. Activities of Governments within the United States, and the activities of our Government in other countries, involves the activities of private citizens. Such activities fall into the category of affecting the foreign relations. Whether an activity is confidential, or clandestine, can be difficult to say. And there are no guideposts in this legislation.

The problem becomes even more complicated if we consider the fact that this legislation would define an American "under the direction of a foreign power" to include Americans working for or aiding and abetting foreign enterprises tied to their Governments. I recognize that this is aimed at certain Soviet State enterprises; and that is a perfectly legitimate objective. But an increasing number of countries have government-run enterprises. What about Algeria? What about Iran? Numerous countries around the world have quasi-governmental commercial enterprises owned in whole or in part by Governments.

Under this arrangement, would the Attorney General be free to request a wiretap on Clark Clifford, or Richard Kleindienst? Both of them work for Sonatrach, Algerian's state-run oil company. Only a week-and-a-half ago, Parade Magazine had on its cover several prominent Americans, including ex-Senator Fulbright, former Secretary of State and Attorney General William Rogers-all of whom were, it claimed, working for foreign governments in one capacity or another. What would this legislation do about activities carried out by these gentlemen if they were confidential in character?

I don't know the answers to those questions. And I'm afraid that if I were elevated to the bench, and were appointed to review wiretaps under this bill, I still wouldn't know the answers to this question. The bill, as it stands, simply does not provide adequate guidance in this regard.

Now some further refinement may come when the Committee issues its Report. I would strongly urge this committee to carefully consider that report before issuing its own.

Let me conclude by saying that what disturbs me most of all as I look at the legislation is that I'm not at all certain that the abuses of the past won't easily be repeated. I recognize that there is a warrant procedure which imposes some safeguard. And I appreciate that a fair reading of the Bill might give less cause for concern. But this bill should not just authorize wiretaps; it should prevent abuse. We must safeguard going beyond a fair reading of its intent. In the absence of a real standard—not a flexible one like national security, not an undefined one like clandestine intelligence activities, or information related to the conduct of foreign policy-I could see the King case being repeated, I can see Operation CHAOS, the penetration of legitimate protest movements, the black bag jobs and the whole unhappy story that we spent the last-year-and-a-half uncovering. I recognize that it would be convenient, it would be helpful, it might even be considered necessary for the Government to acquire information in areas that have no relationship to the criminal law. But I would recall the warning of William Pitt, made 200 years ago:

"Necessity is the plea for every infringement of human liberty; it is the argument of tyrants; it is the creed of slaves."

Let's give the criminal law a chance. Let's not establish a precedent that may be impossible to reverse.

Recognizing the procedural safeguards that would be provided by the new legislation I, nonetheless, strongly urge that there be a modification of the present language of the proposed bill. In my view, the way to make probable criminal activity the standard for wiretapping, yet cover the kinds of concerns that were reflected by the Administration before the Committee, would be as follows: permit wiretapping in cases involving clandestine intelligence activity which are violations of law and, for a period of two years, additional clandestine intelligence activities publicly spelled out by the Attorney General. Both, of course, would require a judicial warrant.

Without some such incentive to seek a modernization of existing law, I believe the Executive Branch will be content with the discretionary authority which would be contained in the present draft of S. 3197. A formulation along the lines that I have proposed would fully protect the flexibility of the Executive Branch to investigate certain kinds of clandestine intelligence activity but would require that they define such activity and make such a definition public. It would also create the greatest possible incentives for the Executive Branch to come forward with proposed statutes to deal with the matter.

TESTIMONY OF HON. WALTER F. MONDALE, A U.S. SENATOR FROM THE STATE OF MINNESOTA

Senator MONDALE. Thank you very much, Mr. Chairman and members of the committee. I am very pleased to be here and very pleased to see the permanent Committee on Intelligence in operation, to deal with perhaps the most important issue that affects Americans, namely, their liberties and their rights and their security. I consider the creation of this committee to be one of the most important things Congress has ever accomplished, and our hopes and trust rest with this committee to draw that terribly difficult line between security and liberties, a dispute that has dogged this Nation from the beginning and one which, thank God, on every occasion we came down on the side of liberty, and in so doing, secured this Nation's future.

Mr. Chairman, I have a longer statement, and I don't propose to read it all, but I would like to begin with a few observations if I might. First of all, I believe it is crucial that the committee recognize that this first issue that you face in the form of this bill may be the most important issue you face possibly in many years. It is full of many opportunities and it is full of many dangers.