of the words "national security" involving Americans which is the abuse to be corrected, and the provisions of this Bill appear well suited to this purpose. In the area of collecting foreign intelligence from foreigners by electronic surveillance, placing restrictions on the President's constitutional power with no benefits to the rights of Americans is a disservice to the country and to some degree a weakening of the ability of the Executive Branch to carry out its defense and foreign affairs · The clandestine collection of intelligence is

responsibilities.

a matter which the judiciary historically has held to be reserved solely to the Executive. In Totten v. United States, 92 U.S.R. 105, 1872, a former Union spy attempted to collect additional pay by filing suit. The Supreme Court held that no such suit could be maintained since secrecy in the clandestine procurement of information is of the essence, and therefore "public policy forbids the maintenance of any suit the trial of which will inevitably lead to the disclosure of matters which the law regards as confidential..." In other words, the Court said it had no jurisdiction over intelligence activities. Totten has been cited and relied upon repeatedly in court opinions (and in recent years). In United States v. Brown, 484 F2d 418 (1973), the Fifth Circuit Court of Appeals stated, "Restrictions upon the President's power which are appropriate in cases of domestic security become artificial in the context of the international sphere." In that same casc, the Court goes on to say that its holding "...is buttressed by a thread which runs through the Federalist Papers:

that the President must take care to safeguard the nation from possible foreign encroachment, whether in its existence as a nation or in its intercourse with other nations."

Furthermore, involving the courts in this process carries substantial risks of compromise of highly sensitive intelligence sources and methods. It is axiomatic that the more people who have access to sensitive information, the greater the risk of unauthorized disclosure. Speaking of disclosing classified

documents, even though in an in-camera proceeding, the U.S. Court of Appeals for the Fourth Circuit said, "It is not to slight judges, lawyers or anyone else to suggest that any such disclosure carries with it serious risk that highly sensitive information may be compromised. In our own chambers, we are ill equipped to provide the kind of security highly sensitive information should have."--Knopf v. Colby, 509 F.2d 1362 (1975).

Contuing for the moment our review of the judiciary: attempting to rule on foreign intelligence activities involving only foreigners, one must ask, What expertise, body of experience and knowledge of intelligence requirements would judges rely on to approve or disapprove a request of the Executive Branch to conduct an electronic surveillance operation? There are extremely complex inter-agency relationships involving consumers, collectors and analysts of intelligence information which determine requirements for collection. The entire picture of this process and the substantive intelligence information involved simply cannot be capsuled in an application for a judicial warrant. In many cases, the need for information is premised on ongoing political

negotiations with other nations which are not the province of the judiciary. The U.S. Supreme Court spoke to such issues in the well-known Chicago and Southern Air Lines and Waterman Steamship Corporation case, 333 U.S. 103 (1948). "But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial.... They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." In short, can the courts make worthwhile value judgments? The answer is that they can't. A court approval in this sensitive area would merely be window dressing and a disapproval would be an improper intrusion into the sole province of the Executive. The same court said, "It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret."

My next point concerns the definition of electronic surveillance contained in the proposed new section 2521 (b)(6)(D). This could cover monitoring devices of all types such as cameras, television and even binoculars. By definition, the words "other than from a wire or radio communication" renders this type of acquisition non-germane to an electronic surveillance bill and the legal issues are quite different.

This subsection should be

dropped and if there is a problem it should be studied elsewhere.

We also have trouble with the use of the word "essential" in the proposed section 2521 (b)(5)(B) insofar as it is applicable to foreign targets. We see no reason to apply so rigid a standard as opposed to, for example, "relevant" when dealing with foreigners. There is, in our opinion, no logical reason to so restrict foreign intelligence collection. What is merely "relevant" when seeking information can be extremely important when collected and analyzed.

In order not to prolong this presentation with a number of other suggestions, I would like to say that we have other suggestions for changes that coincide with the detailed recommendations made by Deputy Under Secretary of Defense for Policy, Daniel J. Murphy before this Committee on January 10, 1978. We endorse those recommendations.

In summary, we urge that non-existent problems not be solved by inhibiting the collection of foreign intelligence and creating serious risks of compromise of intelligence sources and methods with grave harm to the national effort.

Thank you.

I shall be glad to attempt to answer any

questions.

[Views of Hon. Robert McClory appearing in the Washington Post on Apr. 19, 1978]

AN UNREASONABLE BILL ON REASONABLE SEARCHES

The writer, a representative from Illinois, is the ranking Republican on the Judiciary Committee and the Intelligence Committee's legislation subcommittee.

I read with interest The Post's April 14 editorial regarding a bill to regulate national security electronic surveillance. However, the editorial confused a number of key issues, and by that confusion came to a less than proper conclusion.

It is true that past administrations have "insisted that there is a constitutional difference between searches for intelligence data and for evidence of a crime," and therefore no warrant is required to authorize the former. But one must go on to note that three U.S. courts of appeals-the only ones to have directly ruled on this issue-have confirmed that a warrant is not a prerequisite to the gathering of foreign intelligence. The fourth amendment does not itself require a warrant in all cases. rather, it insures "the right of the people to be secure against unreasonable searches and seizures." The issue then becomes what is reasonable in the foreign-intelligence arena.

*

When the executive branch is truly acting to gather foreign intelligence, even without a warrant it is acting within fourth amendment proscriptions because it is doing something that is constitutionally reasonable. The fourth amendment was adopted as a reaction to the wide-open, general searches allowed under the British writs of assistance and general warrants. Those writs, which were first issued to enforce import restrictions, were ultimately used by the British government to repress political dissent of Englishmen in the colonies.

The fourth amendment, adopted soon after our Constitution was ratified, was framed to prevent the new central government from acting in an overbearing fashion to quell domestic political activities. It was never contemplated that that restriction would be used to inhibit executive branch actions in the international sphere. As Judge Albert V. Bryan Jr. stated in his recent opinion in the Humphrey/ Truong espionage case, to require a warrant for foreign-intelligence electronic surveillance "would frustrate the president's ability to conduct affairs in a manner that best protects the security of our Government."

Because our Government needs accurate information to protect our country from the hostile acts of foreign powers, it is necessary to engage in electronic surveillance of the agents of such powers. That is true if the agents are foreigners, as well as in the rare situation that an American citizen is working clandestinely for a foreign power. It would be inappropriate to go beyond the fourth amendment mandate by requiring a judicial role in such matters, for the issues involved are not susceptible to right-or-wrong, judicial-type reasoning.

Decisions in this area demand complex trade-offs and difficult balancing of priorities. Again quoting Judge Bryan, "It is not at all certain that a judicial officer, even an extremely well-informed one, would be in a position to evaluate the threat posed by certain actions undertaken on behalf of or in collaboration with a foreign state." As envisioned by the Framers of our Constitution, the legislative and executive were to be the political branches, subject to the electorate from time to time. On the other hand, the Framers insulated the judicial branch from political considerations by granting judges life tenure. The former two are to formulate policies, while the courts are assigned the task of resolving cases and controversies by making reference to those policies. That structure should be abided by-and with particular good reason-in the area of national security. As Justice Jackson wrote for the Supreme Court in Chicago Southern v. Waterman Steamship Company, the issues involved "are delicate [and] complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil."

TAKING EXCEPTION

Finally, it should be seen that by shifting from the president to the judiciary the responsibility to authorize foreign-intelligence electronic surveillance, the courts become a buffer to executive accountability. If an intelligence agency wants to use electronic surveillance for an improper purpose, an application can be made to a court for authorization. The worst that can happen during the secret proceding is that the application will be denied. But, it appears inevitable that some judgesperhaps by granting too much deference to the intelligence community-might give approval to abusive actions. No matter how clear the mistake might appear upon a more detailed analysis, no executive branch official could be called to task for the abuse. Anyone questioned need only make use of the court order as a shield.