by the President. That committee held hearings on the bill and is about to file a report with the Senate. Under the provisions of S. Res. 400, which created this Committee, this bill is the first piece of legislation which has been referred to us.

In that regard, this Committee intends to vigorously exercise its oversight function and carefully examine the bill and all of its provisions. While the bill was voted out of the Judiciary Committee by an 11 to 1 vote, and enjoys bipartisan support, it does contain several controversial provisions. This subcommittee intends to look carefully at those provisions, examining all of the evidence in support of and against the various provisions of this bill.

I am pleased that today we are able to begin the first of 3 days of hearings that this subcommittee will hold on the wiretap bill. Tomorrow's testimony will be taken in executive session in order to probe the value and worth of electronic surveillance in the foreign intelligence area. We also have the benefit of the testimony before the House and the Senate Judiciary Committees, as well as all of the documentary data which has been received by these other committees.

With that, Mr. Chairman, I look forward to hearing the testimony of Senator Kennedy.

Senator BAKER. Mr. Chairman, could I say a word before we proceed? I am going to have to leave the hearing to attend the confirmation hearings of the Commerce Committee nominee and I am late now.

I want to say three quick things if I could. One, I commend you and the ranking member of the subcommittee for having these hearings. Two, it is an important bill, but I think it is equally important that we move on it promptly. I hope in our first legislative endeavor that we move promptly and do not procrastinate.

The third thing I would like to say, Mr. Chairman, is that we are in our early phases of development of our Committee, and I notice around the room we have much personal staff here as well as transition staff. I also note tomorrow's hearing is in executive session. It would be my intention, Mr. Chairman, that only those fully cleared and only committee staff, not personal staff, be permitted to attend the executive session tomorrow.

Thank you, Mr. Chairman.

Senator BAYH. Senator Hathaway.

Senator HATHAWAY. Thank you very much, Sentor Bayh. I will just take a minute. I just want to take an opportunity to commend the Committee Chairman, Senator Inouye, and the Vice Chairman, Senator Baker, for their leadership in establishing this Subcommittee on the Rights of Americans. If we have learned nothing else from the revelations of the past several months, we have certainly discovered how vigilant we must all be in order to insure that some of the intelligence abuses of the past do not recur.

I feel very privileged to have been asked to serve on the subcommittee and look forward to doing all that I can to support and maintain an intelligence system which is second to none, and which is sensitive to the fundamental liberties of the American people.

Senator Kennedy, I want to join my colleagues in welcoming you here today. Your leadership with respect to S. 3197 has brought us to an historical crossroad in an issue which has troubled the American

people for many years. At long last, the subject of wiretapping and bugging will be entirely the subject of judicial as well as Congressional scrutiny, and warrants will be required to seize any of the people's conversations, just as they have always been required for seizure of their property and possessions.

I notice from your statements at the Judiciary hearings that there were certain provisions of the bill, Senator Kennedy, which you were not fully satisfied with, such as the absence of a definition for clandestine intelligence activities in the inherent power clause. I hope during the course of your testimony that you will bring us up to date as to just what your feelings are on those provisions, and any other reservations you might have about the bill.

Thank you very much, Mr. Chairman.

Senator BAYH. Does the Senator from New Jersey have anything? Senator CASE. Thank you.

I think that the introductory phase has been very well covered and I am not going to enlarge on it. I do want to say this for myself. I have found that I had plenty to do this year without the addition of this particular assignment, but I was pressed both by our ranking minority member and by the chairman of the subcommittee to come on this subcommittee. I am glad to do it and make the necessary effort because of the importance of these matters. The resolution of the dilemmas that exist in this area is one of our most important subjects this year, and I am sure that it is worth everybody's effort to give attention to.

Senator BAYH. The Senator from Delaware.

Senator BIDEN. Thank you, Mr. Chairman. I am anxious to hear what the Senator from Massachusetts has to say, so I won't delay the proceedings by saying anything myself.

Senator BAYH. We appreciate the distinguished Senator from Massachusetts being here. As one who has had the opportunity to work with him on the Judiciary Committee, and as one who is very sensitive to the rights of Americans and to the protection of these rights from invasion; and inasmuch as there is some criticism directed at this bill, I think he is in a unique position to defend them and explain them, and describe for this Committee the delicate negotiations in which he has participated. Thus, I think it is appropriate that he be our leadoff witness.

Senator Kennedy.

TESTIMONY OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

Senator KENNEDY. Thank you, Mr. Chairman, and members of the committee.

I have a brief opening statement which I would like to review in its entirety, and then I would like to respond to the questions or expand on any of those particular aspects of it which are of interest to the Committee. I am very much aware, as I am sure all of us in the Senate are, of the schedule that we are faced with over on the floor, and rollcall votes, and a full witness agenda. So I will try and be brief, but also be complete in the areas of concern to this Committee.

I want to thank you, Mr. Chairman, for the opportunity to address this Committee on a matter of vital concern to all of us, the subject of

foreign intelligence electronic surveillance. The Senate has just recently recognized the need for a permanent standing committee to exercise oversight responsibilities with respect to our Nation's intelligence agencies. The abuses of recent history sanctioned in the name of national security and documented in detail by the Church committee, highlight the need for more effective congressional oversight. You have the major responsibility of seeing to it that history does not repeat itself, that civil liberties and rights of our citizens are not bargained away in the name of national security. I wholeheartedly endorse your efforts and offer you my support.

Mr. Chairman, today this Committee begins hearings on the Foreign Intelligence Surveillance Act of 1976, a bill I introduced in March. with broad, bipartisan support. The bill, S. 3197, is endorsed and has the support of the administration in general. Attorney General Levi in particular has been most cooperative and helpful in the drafting of this legislation. The bill constitutes a major step forward in bringing needed safeguards to the unregulated area of foreign intelligence surveillance. The legislation is designed to strike a balance between the protection of national security and the protection of our human liberties and rights. It is a recognition, long overdue, that the rule of law must prevail in the area of foreign intelligence surveillance.

No one has to tell you, Mr. Chairman, of the dismal record of the Congress in failing to deal with the issue of electronic surveillance. For the last 5 years I, and others in the Senate have labored unsuccessfully to place some meaningful statutory restrictions on the so-called inherent power of the Executive to engage in such survelilance. There has been legislation introduced by the Senator from Maryland, Senator Mathias, and Senator Nelson of Wisconsin, probably two of the most active and interested members of the Senate in this area. We have, the three of us, tried to work very closely, both in legislation which we have introduced in the past, which has never gotten anywhere, and also in the fashioning of this legislation.

Five sets of Senate hearings have been conducted in as many years. Bills have been introduced only to die a slow death in committee; speeches have been made, only to fall on deaf ears; inquiries made of the executive branch have been ignored or have been answered in a half-hearted way. The sad fact is that despite over 5 years of effort by a small group of Senators, Congress has failed to enact a statute controlling foreign intelligence electronic surveillance.

This bill achieves a major breakthrough in the debate. It would, for the first time, substitute carefully prescribed accountability and oversight for the arbitrariness of the past. It would require that all surveillance be subject to a judicial warrant requirement. For an American citizen to be surveilled, there must be probable cause that he is an agent of a foreign power, a citizen acting pursuant to the direction of a foreign power, and engaging in sabotage, terrorism, or clandestine intelligence activities. The bill would require that, before such surveillance could occur, a named executive branch official certify in writing and under oath that such surveillance is necessary to obtain foreign intelligence information.

This is the kind of accountability which has heretofore not existed, and I think that this is an important aspect. It would for the first time expressly limit whatever inherent power the President may have to engage in surveillance in the United States, and that also is an

extremely important aspect of it. It is the first time that there has been willingness by the Executive, as stated by the Attorney General as spokesman, to indicate that the limitations on any power which may exist.

It would provide civil and criminal sanctions to those who violate its provisions: Up to 5 years in jail for violation, and heavy penalties as well, in terms of any kind of an abuse of this particular power that should be by any executive authority, and it would require that all extraneous information obtained as a result of the surveillance be minimized.

As important as any individual provision in the bill is the fact that at long last, legislation placing foreign electronic surveillance under legal controls has a reasonable chance of becoming law. On June 15th, the Senate Judiciary Committee overwhelmingly approved this legislation and sent it to the Senate floor. As you know, Mr. Chairman, it was the first time in over 8 years that any comprehensive electronics legislation has been favorably reported out of the Senate Judiciary Committee.

I am not unaware of the concerns expressed by some about various provisions of the bill. I and others in the Senate have shared these very concerns over the years. However, many of the criticisms voiced when the bill was first introduced have been corrected by amendment. Thus, for example, the definition of foreign power has been further narrowed; the certification procedure has been tightened by requiring that the person certifying the surveillance swear that the purpose of the surveillance is to obtain foreign intelligence information. Before information can be used in a subsequent trial, the trial court must again find that all statutory procedures have been met, and provide the defendant with access to portions of the material obtained. So if the Justice Department makes a decision, it is going to make all the information available to the defendant, spell out in careful detail the provisions that have been followed. If, as a result of the information, it is so sensitive, then the case will not be brought; but if it is going to be brought, all the information will be made available to the potential defendant.

An entirely new disclaimer has been substituted which limits any arguably inherent power that the President-and I direct this particular part of the testimony to the Senator from Maine and his inquiry an entirely new disclaimer has been substituted which limits any arguably inherent power that the President may have to two situations designed in the bill. One, national security surveillance overseas, that would be, as this Committee understands, microwave communications and others; or any unprecedented, potentially harmful situations not contemplated by the Congress.

Now, we have framed that in such a way as to reach the outer limits in terms of any imaginable situation where it could be justified, and the bill is then specific to require that if the executive makes the determination that those circumstances are the case, they have to notify the Congress. I don't know, how do you get unprecedented, potentially harmful situations not contemplated by the Congress, and if they can meet that particular criteria, that it is so far removed or out of sight in terms of the possibilities; they still have to notify the Congress that they are going ahead, to move and fill the other requirements of the legislation.

Civil damage and criminal penalty sections have also been added. The definition of foreign intelligence information has been strengthened to require that the information sought is deemed necessary to the safety of the country and does not just relate to such safety. And any person acting pursuant to the direction of a foreign power must be a knowing actor.

With the continued cooperation of the administration, I am sure that further improvements can be made on the Senate floor, in the House and in the House-Senate Conference. For example, the definition of clandestine intelligence activity and whether such activity should encompass any type of noncriminal activity remains a troublesome point. I mentioned that to the Senator from Maine. I have indicated and I know the Senator from Maryland will be here later, and I hope he will be questioned about it--but I have indicated that I would be glad to propose that any activity be criminal activity of some kind. I think it is unrealistic to think that we could do it, and I think it would be a great mistake to hold this legislation up to the point of depending upon action by the Congress in that area.

We can imagine the Attorney General-and I am sure the general spokesman can point out some of the areas which may leave some concern: Terrorist group plans to burn down a State capitol. That doesn't violate any kind of Federal law, and yet it would be the kind of area that might be so included. Intelligence activities, what the Russians are saying to the Czechs, and an American involved, in that particular situation where the law might not be violated.

But we have defined that in our report very, very closely and very tightly, and I have indicated that we would be glad to work-I would, certainly, and I think I speak for other members of the committee that support this-to try to introduce legislation which would further define its criminal activity. I don't think it should be in this particular circumstance. I think the Attorney General ought to be questioned closely on that area, but we have outlined, at least in building our record, the very narrow and precise area which may not be a violation of the law but which could fall within that area. I draw your attention and the staff's attention to that, and we would be glad to review the development of those particular provisions. Mr. Chairman, there are those who argue that this bill is regressive and should be defeated. I disagree. Legislation can hardly be labeled regressive which for the first time places strict statutory controls on foreign intelligence electronic surveillance. The judicial warrant and executive certification procedures guarantee the type of external and internal controls which I and others have long advocated. Those who would defeat the bill because they are not satisfied with its warrant procedure ignore the fact that today there is no warrant requirement at all, there is no requirement at all, and that the courts currently have no role to play whatever in this area, and that the executive whim is presently the only controlling factor. That is the nature of the situation that we are facing today.

The fact of the matter is that for too long the American people have lacked any legal safeguards to protect them against the abuses of foreign intelligence electronic surveillance. Executive opposition has always led to congressional inaction. Until this year efforts at providing any safeguards were exercises in futility.