Now, finally, Mr. Chairman, the intelligence community does not favor this legislation. The intelligence agencies are suspicious of the warrant and certification procedures, and fear that such requirements will inhibit their surveillance capability. They prefer the old way of doing business, electronic surveillance by presidential fiat. And certain civil liberties groups did not like the legislation either. They view S. 3197 as an open invitation for the Government to engage in wiretaps and bugging. They remain steadfast in their opposition to all electronic surveillance.

Mr. Chairman, the Senate Judiciary Committee did not fashion this legislation to please either the intelligence community or the civil liberties groups. Rather, this bill is designed to strike a balance, and a careful balance that will protect the security of the United States without infringing on the constitutionality of protected liberties and rights of the American people. One should view this bill for what it is, a major effort by the Congress, long overdue, to place foreign intelligence electronic surveillance under the rule of law. This bill achieves that goal, and I urge its enactment.

Senator BAYH. Senator Kennedy, I appreciate your special effort in being here, and I know that you are very busy. You pointed out that there are differing opinions as to whether this bill really provides additional protections or an open door. Without getting into that debate, because I am certain that you are convinced in your convictions that it is providing safeguards, and that the goal of at least one member of this subcommittee is to do everything we can to provide safeguards; I would like to ask you to explain more fully two or three areas that I think are particularly sensitive.

Unless there are objections, I suggest we proceed on the normal 10 minute rule that the Chairman suggested, and you might keep a watch on the subcommittee chairman because he might forget his own watch.

There are two or three matters that really concern me that I understand are going to be clarified in the report language, if indeed there has been report language completed. It has not yet been made available to this subcommittee. That makes me rather nervous. Even if it is report language, there are some areas that are sensitive enough that I would ask the Senator to give particular attention to them to see if we couldn't include them in the specific language of the bill. Or perhaps the Senator might explain why report language is resorted to instead of specific language in delicate areas, such as the definition of clandestine activities which are not of an illegal nature.

How does the Senator from Massachusetts view these activities himself? He points out certain sorts of things that clearly could be law violations, like blowing up a State capitol. The way I understand the thrust of this is that there is a feeling in the intelligence community that certain other types of activities which fall short of that would still be encompassed in the definition of clandestine activities. Senator KENNEDY. Well, first of all, let me just say, Mr. Chairman, it is an area which I am glad that this Committee is interested and concerned about. It should be. It is an area which we have tried to work on in a way to fashion a situation to insure that we are narrowing any possibility rather than opening up any potential area of difficulty.

As I say, we would be glad to-I would, I am sure the other members who support this would be glad to work with you and the members of this Committee in terms of the definition.

We have attempted, and I think you are quite right that wanting to evaluate either the report language, it is not report language as report language, and not legislative or statutory language. We have every intention, and I would welcome the opportunity to have your participation in fashioning the legislative history to insure and insist that this definition be as carefully drawn and be as precise as we can possibly make it.

In the fashioning of the language, we recognized at the outset that there are some activities which will not be criminal in nature, that would be so included. Then as I have indicated, in working with the Justice Department and exercising this particular issue, we think that that has been very well defined at least in terms of agreed language and the Justice Department will review that in detail, and we have spelled it out in the report, and that report will be made available. I think your choice is whether you are going to refine this in a way that you are going to say that it will only include criminal activity. I for one feel that in any future Congress, even in this Congress, that I would introduce legislation to include any of those potential areas to be criminal activity. We are going to have to fashion hearings on it. We are going to have to examine those particular areas, but that seems to me to make the most sense. I do think that through statutory language, or in the report and legislative history, we can fashion such a definition here which is narrowing and confining and not broadening and expanding. It is an area in which I expressed concern to the President when he asked to meet with the members of the Judiciary Committee, as well as in the disclaimer area. It has been an area that we have worked on. We'll be glad to work with you. I am satisfied, quite frankly, in those negotiations, in the record that has been made, and my understanding is that we have worked out a satisfactory definition, both from the statutory and what we intend to include in the report. And you should have our report language, and as I say, we would be more than glad to work with you to try and ensure that we are defining it and narrowing rather than expanding it. Senator BAYH. Well, I don't want to nitpick and I certainly don't want to procrastinate as the Senator from Tennessee admonished us, but I think if we are talking about something which is important for us to be as specific as humanly possible. The Senator from Massachusetts pointed out that there are criminal fines involved, the first time is a unique adventure, an important adventure in describing the kind of crime and the width and breadth of it.

The same is true of the "knowingly aids and abets." Perhaps the way to approach this, at least temporarily, is to describe what is not covered. For example, I think it would not be a ridiculous interpretation to suggest that a citizen of this country who approaches a Member of Congress, pursuant perhaps to the request of an embassy regarding funds in a foreign aid bill might be covered. Although that is certainly an innocent act, and is well within the rights of an individual as far as political activity is concerned, that citizen might be covered. I think we make absolutely certain that that person is not inadvertently covered.

Senator KENNEDY. Well, the language is, "and pursuant to the direction of a foreign power, must knowingly act."

Senator BAYH. Well, let's look at just one troubled spot on which there are mixed feelings. Suppose either an Arab or an Israeli embassy requests a citizen of this country to petition his or her Congressman. That person knowingly does what might be a perfectly harmless gesture, but it is at the direction and to the assistance and indeed at the initiation of the embassy.

Senator KENNEDY. I think you will find, Senator, that the specific language in this could not even at its further extension possibly reach any of that. I haven't got the excerpts of the counterpart here, but I would be glad to read those particular provisions.

Senator BAYH. Well, we don't need to pursue this.

Senator KENNEDY. Well, I think you would find that. But I think it is well to exercise any of those specific clauses against any kind of possible situation. The former 1968 Executive order on this in terms of the definition in meeting those three kinds of requirements is very, very strict. That has been the basis of the adoption for the definition here, and it seems to me that there may be ways of strengthening it. Senator BAYH. Well, let's just look. I wanted to alert my colleague that that is an area that I am concerned about.

You mentioned how information that is brought to light pursuant to a search for foreign intelligence but results in bringing a criminal prosecution is handled, and that that is made available to the defendant. But is it not accurate that the legality of that tack will warrant initially procuring the information, that that information need not necessarily be made available to the defendant.

Senator KENNEDY. Well, the Senator would be correct. It would have to meet the other statutory provisions. No particular issue could be tested. It would have to meet the statutory provisions in terms that are laid out in the language and the information would have to be made available, then there would be compliance.

Senator BAYH. Well, I hope we can direct our attention to that particular decision which is made in camera, absent the defendant. Perhaps there are other safeguards that we could put in there. As I recall, the court may order evidence disclosed to the person against whom it is made, contingent upon the other provisions that the Senator referred to. I just think it is absolutely important that we tighten this up as much as we can.

One other area. If we are to have an oversight role, which I am sure the Senator from Massachusetts is as concerned about as I, should we try to find a way in which we can really have an oversight role that is meaningful? This bill prescribes report be made to Congress, but that only the number of taps which have been utilized. That is the only information made available. Is it unreasonable to suggest that other information be made available so that we can have a meaningful oversight task?

Senator KENNEDY. No, I think the Senator is quite correct. Also, as you know, Senator, over the period of the last 2 years there was a combination of different committees that had a series of hearings, the Muskie subcommittee of the Foreign Relations Committee, Senator Ervin's Committee on Privacy, as well as ours, in this whole area, and all we could get at were the particular numbers. We didn't know

when the numbers were going on, what period of time, the interpretation of the numbers, and obviously this Committee ought to be familiar with the nature and the direction, the purpose, of all of those matters. And I think that is explicit in the resolution that was passed, and I think it would be very, very helpful and an additional kind of safeguard, besides the safeguards which we have tried to put in to the bill. As you know, in terms of the Executive that is going to sign off on this provision, that takes the advice and consent of the Senate. We will have a very good opportunity to examine this individual, determine their own kind of view and their understanding of these various kinds of provisions; so that anyone that is going to, at the President's behest, signoff is going to be extremely sensitized. I think we will have an opportunity on public record to get a very keen awareness of their understanding of these words, where they lead to, what the delimitations are. We will be on notice. We will have a chance to and certainly that ought to be a matter of great interest to the members of this Committee, and the Senate will have an opportunity to vote on that individual.

Senator BAYH. We'd also like to have the opportunity of the assistance, besides the Senator from Massachusetts, we have been asking questions of the previous Attorney General who shared his frustration at actually finding out what is happening in this sensitive area. I hope we give a bit more attention to that.

I think my time has expired.

Our distinguished ranking minority member, Senator Garn. Senator GARN. Thank you very much, Mr. Chairman.

Senator Kennedy, I certainly agree with the general thrust of this bill and I do hope it passes. I am sure we can report it out so that it can be acted on on the Senate floor.

I commend you for introducing it.

Having said that, I do have some areas of concern and some questions. One of them is the area that Senator Bayh just started on, that and section 2527 where it only requires reports. Looking at our mandate as a new Committee under Senate Resolution 400, the specific purpose of having the Committee created was to stop abuses of the past in the intelligence area, and I feel it is our absolutely most important function. So already in our brief existence we have been struggling to write our own rules, to decide what kind of regulations and guidelines we will impose on the intelligence areas.

It seems to me that in this very important area of electronic surveillance, where this bill places controls for the first time, I have a little hard time, as you expressed, understanding the absolute opposition to the bill. The President at his whim can order it. It seems to me this is a very great step forward, to place some controls on it.

But to get back to my point, it seems to me that if we are to function in all areas of oversight that Senate Resolution 400 mandates that we do, this is an extremely important area where just mere numbers would not be of any meaning to us at all. We have already been privy to the most sensitive information about our national security. We will continue to be privileged to that very sensitive information, probably more than any other committee of the Congress. So I do feel very strongly about what Senator Bayh started

talking about, that this is an area where we ought to have some substantive reports on what they are doing. Is the information valid? Is it not? Is it helpful? Is it proper? And if it is not, why are we doing it? If it is not, how can we help improve it to actually gain information through electronic surveillance that will not only protect the rights of American citizens, but at the same time give us the possibility of obtaining good intelligence that will help the security of this country?

So it is an area that I don't think I need to pursue much further, but I do think that this is the committee that ought to have that oversight responsibility, and I would hope that this subcommittee can work on that and possibly you could help us in strengthening that particular provision.

Do you have any comments?

Senator KENNEDY. Well, I think these are questions that really could be targeted with the Justice Department in terms of-I think for the reasons you have outlined. It seems to me that your requests are entirely reasonable and completely consistent with my understanding of the resolution that was passed. And I think it would be an area which could be fashioned in such a way as to give you the most complete information, and I certainly support it.

I think that is a useful suggestion, and I would agree that the only value that we have in detecting the numbers is determining whether, sort of going up or going down. But beyond that the Congress had very little, we had very little information. As a matter of fact, we were denied it by the FBI. But I would agree with you that that is a worthwhile area.

Senator GARN. Well, even under the tightening of this law, there can still be some areas where, vague areas where some people express concern about this bill. The numbers wouldn't tell you about the quality, and that is really what I am getting at: how do we as an oversight Committee get at the quality? Are they going through the warrant process, getting permission, still getting some very shoddy information that may be of no use, and at the same time, infringing on people's rights? So it is an area I think we need to work on on the bill.

Senator KENNEDY. That's right.

Senator GARN. Another area that I wonder about is if you could outline for me why it is necessary to have a specific disclaimer on the inherent power of the President in the bill. I know there was some concern that this may be a loophole in the particular bill. Could you amplify that for me?

Senator KENNEDY. Well, Senator, there is a matter of very considerable concern by moving into this area by the Congress, legislating in it, whether we are recognizing the inherent power of the President in the areas in which we are not moving into. If we define in terms of the definition of the statute, that we feel that we have got certain power in this area, as the Congress and as the Attorney General has stated that we do, it is an open constitutional issue as to the extent and the limitations of executive power to go beyond that. And that is the constitutional issue that has been rather gray. It hasn't been really clearly defined.

So there are many even distinguished constitutionalists who think that that area of executive power, inherent power, moving into that