are concerned. Let me say a few things briefly about three other

areas.

First, the methods authorized for the collection of information. I am not considering the wiretapping provision because I take it that is separate legislation. I want to just say three things about methods. These apply where information is desired that is not publicly available, and there is a list in section 215 of the techniques available: examination of tax records, physical surveillance-which means tailing, eavesdropping, use of covert human sources-which means informers, mail covers, requests for educational, employment, telephone records, and so forth.

Now, where there is no violation of law involved or no need for the administration of a law it seems to me clear that those intrusive methods violate first amendment rights, and although the courts haven't gone this far, I would say fourth amendment rights. It is one thing where there is a violation of law or some legitimate reason, but where that cannot be shown, the use of those techniques, examining telephone records, tailing persons, and so forth, is simply an infringement of constitutional rights. This seems clear to me.

Next, informers, which are authorized by section 215. There are two limitations: that they can only collect information and that they can't influence policy. But those limitations are self-contradictory. You cannot have an informer who doesn't influence policy. An informer within an organization is a member and votes, and the very voting constitutes influence on policy. But most informers can't limit themselves to that. They have to produce. And so they become officers or top officials. And first thing you know, they are directing policy. It is impossible to have informers in organizations as a practical matter and not have them influence policy. It seems to me that if informers are to be used at all, they should be allowed only under a warrant procedure.

And, finally, and this I want to particularly stress, about methods. There is an authorization in section 243 to engage in illegal methods. I find that absolutely unparalleled in congressional legislation. I simply do not know of any Federal or State legislation which authorizes executive officials to engage in violation of the law. It is true, there are limitations. The illegality can't involve violence, you can't violate the provisions of this bill, which I assume means the wiretapping provisions, and it must be necessary to protect against espionage and so on. But the fact is that it is a violation of the rule of law, and it is a violation of the due process clause to authorize anyone to engage in activity that constitutes a violation of law.

Now, the next area I want to touch on briefly is preventive action. Section 111(a) authorizes any activity undertaken to counter espionage, other clandestine intelligence collection, and so forth, and to counter efforts of foreign governments to protect their own intelligence systems. Combine that with section 243 which allows violation of law.

Now, that is preventive action, and that authorizes the FBI and the other intelligence agencies to do a good deal of what they did, what the FBI did under the COINTEL program. You can convey false information, not about individuals, but false information

about organizations. You can engage in forgery. You can persuade employers to dismiss employees. You can discredit people. You can engage in all sorts of activities of that sort, which are not authorized by law. And I say that that would legalize a great deal of the COINTEL program and the Huston plan, and that it violates the first amendment and due process.

Finally, as to the area of controls, I find it difficult to think about controls until one has limited the substantive provisions somewhat more. I think the bill here is more effective than in the other respects that I have mentioned. But I do think it suffers from serious deficiencies. As I point out, in the oversight provisions, it authorizes mainly reports and so forth. It never says at any point that the oversight board or the Attorney General should make an inspection, should affirmatively go out and look to see what the agencies are doing, examine files at random, and so forth. It simply provides for the oversight agencies to wait and have information. come to them, and then they can investigate. It seems to me much more than that is needed.

The criminal penalties are limited to the search-and-seizure and the human experimentation provisions. They should be broadened. And I think there should be added to the right of civil suits an injunction procedure.

So that is my conclusion. As to the data collection, I think the bill is far too broad. As to the methods, I think they both authorize intrusive methods and legalize illegal methods. Preventive action seems to me to violate the due process clause. There is nothing in the bill except a pale section 241 which prohibits abusive practices. My feeling is that this bill, like S. 1 and S. 1437, the Reform of the Federal Criminal Code, was drafted in the Government, by the Government. There ought to be some way of bringing into the drafting process a citizen participation so that the rights of the citizen as well as the rights of the Government can be considered in this type of legislation.

Thank you.

The CHAIRMAN. Thank you, Professor Emerson. You are very familiar with the legislative process, and what you are doing now is a citizen participation in the process, and we are going to have a number of citizens that both agree and disagree with you, and with the draft, which is a point of departure.

I just before yielding to Professor Bork here, are you satisfied with the law as it is now?

Mr. EMERSON. No, no, Senator. I think that the law, or rather the absence of law is a serious situation. I think there should be legislative policy expressed in legislation, and that the situation at present where there is no clearcut statutory authority and no clear limitations except as one can derive from the constitutional remedies in the courts, is an intolerable situation.

I agree that legislation is necessary.

The CHAIRMAN. Thank you.

Professor Bork?

[The prepared statement of Professor Bork follows:]

PREPARED Statement of Robert H. Bork, Kent Professor of Law, Yale Law SCHOOL

Mr. Chairman, I am pleased to be here at the invitation of the Committee to discuss certain constitutional questions in connection with S. 2525, the National Intelligence Reorganization and Reform Act of 1978.

S. 2525 is an heroic effort to cope by law with certain problems that have arisen and much that it attempts seems to me a useful response. It is good that the bill authorizes important intelligence activities and good that it responds to certain abuses of the past and attempts to prevent their recurrence.

I should like to express doubts about three aspects of S. 2525, however. These doubts are partly of a policy nature, but they also rise to the magnitude of constitutional doubts. The three aspects in question are: first, the attempt to control the details of intelligence operations; second, the introduction of judges and a warrant procedure into the conduct of foreign intelligence surveillance, electronic and otherwise; and, third, the amount of reporting to groups outside the intelligence community.

The detailed control of intelligence activities seems to me both unwise and, in all probability, unconstitutional in that it invades presidential powers under Article II of the Constitution. Title I, for example, contains in Section 132 rather extensive restrictions on the categories of persons who may be used in intelligence activities, and, in Section 135, extensive prohibitions against particular forms of special activities. Similar attempts at detailed control of activities occur in Titles II and III. For example, Section 213 of Title II limits the collection of foreign intelligence concerning a United States person believed to be engaged in espionage or other clandestine intelligence activity to occasions when there is or may be a violation of the U.S. criminal code. That severely limits foreign intelligence. It may be important to know who is engaged in gathering information on behalf of a foreign power even though there is no indication that a violation of criminal law is likely to occur. It may be important that we know what foreign intelligence networks exist. The criminal law proviso sounds innocuous to some people but it is not and is an unjustifiable hindrance to sound intelligence practice.

Šimilarly, Section 241 (pp. 120-21) sounds attractive but is misguided. It provides that no intelligence activity may be directed against any United States person solely because of exercise of any right protected by the Constitution. But suppose the person is advocating the violent overthrow of the United States government or genocide, the extermination of Americans belonging to a particular racial or ethnic group, and, further, that the advocate is not a solitary crank but belongs to an organized group, one perhaps with links to a foreign power. Such advocacy is now his constitutional right, though it once was not. Does the fact that we must let such a person speak mean that we may not keep that person and his group under any form of surveillance, however mild?

These are well-intentioned but overly rigid attempts to safeguard First and Fourth Amendment rights. As we all know, the application of the First and Fourth Amendments, like all the great provisions of the Constitution, depends heavily upon particular circumstances and the weighing of particular facts and interests involved. Flat rules announced in advance are not sufficiently sensitive to these problems. Others have pointed out that detailed judgments made now may be wholly inappropriate in a world that changes rapidly and unpredictably. Mr. Clark Clifford, for one, testified before this Committee and gave objections to such an attempt to control specifics that seem to me absolutely correct on policy grounds. I will not repeat them here.

But there seems to me a constitutional issue that arises out of those policy considerations that may not have been canvassed in testimony before you. The issue arises under Article II of the Constitution and concerns the propriety or legality of Congress legislating in such detail about the conduct of American intelligence activities by the President. I am talking less about constitutional law in the hard and fast sense of known rules applied by courts-although some of the issues I am raising might well be litigated in suits under the provisions of the proposed statute-than I am speaking of constitutional values that ought to be respected in the framing of legislation.

The conduct of intelligence activities is basically a function of the executive branch of our government and comes within the constitutional powers of the President. It draws upon both the President's role as commander in chief and upon his role as leader in the conduct of foreign affairs. This is not to say that the Constitution excludes Congress from these areas. It has a role to play not only in intelligence operations but in the declaration and conduct of wars and in the conduct of foreign policy. I do mean to say that the constitutional roles of the President and

the Congress are very different, and that the difference flows largely from their differing institutional capabilities.

Congress was intentionally designed by the Framers of the Constitution as a deliberate assembly. Its very numbers and necessary methods of proceeding render it incapable of swift, decisive, and unanticipated response to the emergencies that the nation must face. The Framers, it must be remembered, acted against a history of legislative supremacy under the Articles of Confederation, and they found that experience extremely unsatisfactory. Their reaction was to create a strong presidency. The President was to lead in those areas that required managerial rather than legislative decisions.

I would like to offer an analogy which suggests the constitutional impropriety of some aspects of S. 2525. The analogy is to the respective roles of the President and the Congress in the declaration and conduct of war. Congress clearly has the constitutional power to declare war or refuse to declare war. It also clearly has the power to appropriate funds for armed conflict or to refuse to do so. Congress has, in fact, the raw constitutional power to disband the armed forces altogether and to leave the President as a Commander-in-Chief in name only, without a single platoon to manuever.

Yet-and this is the crucial point-Congress does not lawfully obtain tactical control of the armed forces because of its enormous legislative powers, including the power to say whether there shall be any armed forces.

Congress in 1941 declared war against Germany, Italy, and Japan, and it appropriated funds and conscripted men to fight the global conflict it contemplated. So much was it undoubted constitutional right. The war could not have been prosecuted by the President otherwise, no matter how important he might think entry into the war was to our national security. But let me take one step down from those overall decisions and ask how far Congress' power extends. Suppose that Congress, learning that President Roosevelt and General Marshall had decided to concentrate first on the European theater, had assumed the power by statutory enactment to direct that England and the Soviet Union be left unaided against Germany and Italy and that our entire force be directed against Japan. If Congress acted because it considered this course strategically sounder than that chosen by the President, can there be much doubt that this statute would have been an unconstitutional invasion of the President's prerogatives as Commander-in-Chief?

But I need not argue that case because S. 2525 is a much more detailed regulation of intelligence tactics. Let me, therefore, move the analogical case down a notch. Could Congress, within its constitutional powers, have ordered the Doolittle raid on Tokyo, directed that France be invaded from the south rather than through Normandy, or directed that the airborne troops at Bastogne surrender during the Battle of the Bulge? The answer, I believe, is plainly that Congress could not constitutionally have done those things. These are matters within the President's power as Commander-in-Chief and Congress' final say on the question of war or peace does not comprehend judgments on strategy or tactics.

These hypothetical cases are analogous to what is before us today because the conduct of intelligence in the modern age, given the close interdependence of nations and a technology that can bring war to any nation within a matter of minutes, presents many of the same requirements as the conduct of war-the need for central direction, rapid action, flexibility of judgment, secrecy, and the control of individual decisions according to a general strategic response to a hostile environment. But S. 2525 plunges Congress into tactical decisions about intelligence, decisions made in advance without knowledge of circumstances, and in this, I believe, the bill trenches impermissibly upon the role of the President.

This is a constitutional issue that ought to concern Congress and not be left for resolution by the courts. Some of these prohibitions and restrictions can hardly be litigated and yet may do permanent damage to our intelligence capabilities and to our national security. Even though the tactical controls may be unconstitutional, future presidents may have the greatest practical and political difficulty in making that point and repairing the damage.

There can be no dispute that constitutional rights must be preserved, and there can be no dispute that the intelligence agencies must not be allowed to slip out of control. But there are ways of doing that that are substantially less threatening to constitutional values and to national security than the enactment of complex and detailed legislation.

One way is the establishment of a strong tradition of the ways in which it is permissible or impermissible for an intelligence agency to behave. Such a tradition, a common understanding, leaves room for adjustment to all of the circumstances, needs, and crises of the future which rigid statutory rules cannot begin to antici

27-462 0 - 78 -- 30

pate. We have made a strong start in establishing just such a tradition through the investigation, discussion, and public airing of past behavior of the intelligence agencies. No one, I think, can maintain that the agencies have not been greatly affected by what they have been through or that their behavior has not been greatly altered. Some would say that their behavior has been altered more than is required by the Constitution and more than is good for our national security. It is not true that we need a statute for every instance of misconduct in the past. It must not be overlooked that past abuses were uncovered and rectified without the detailed controls this bill would provide. And now the internal controls in the executive branch are much stronger.

To reinforce the tradition we are establishing, the executive branch has been developing and enforcing guidelines of its own. I am familiar with some of these because I participated in their development under Attorney General Levi. These seemed to me, as they did to the Attorney General, fully responsive to First and Fourth Amendment concerns. My own work was primarily in connection with foreign intelligence electronic surveillance, but the point is a more general one. The guidelines took the approach of stating the cause necessary to institute a surveillance or investigation, locating responsibility in identified officers for decisions about surveillance and investigations, requiring that decisions be reviewed by named officers at periodic intervals to see that the justifications remained in force, minimizing surveillances to what was actually required by the case, closely limiting the persons who could have access to the information developed and the use that could be made of the information. That approach seems to me both to preserve constitutional rights and to be about the best that can be done in this complex and changing field.

It would seem wise, before legislating detailed controls of dubious constitutionality, to determine how well American intelligence has been carried on under the guidelines already in place.

I will be quite brief about the warrant requirements introduced by Title III, partly because some of them have already been enacted by the Senate and partly because I have already made my argument in print about the idea of introducing judges into the intelligence process. The constitutional problem here arises both from Article II and Article III of the Constitution. The Article II problem exists because presidents have publicly claimed and exercised the power to engage in warrantless electronic surveillances in the foreign intelligence field as far back as Franklin Roosevelt. Congress has known of the practice and the Supreme Court has been informed of it. Two courts of appeals have held that the power exists. Congress may, therefore, have no power to require warrants in this area.

An Article III problem exists because there is no one to litigate with the government a warrant sought and issued in secrecy, and hence there would appear to be no case for controversy to give the federal courts jurisdiction. Warrants obtained for purposes of criminal prosecution do become known and subject to litigation if the prosecution goes forward, and, under current statutory law, the existence of electronic surveillance pursuant to warrant may be disclosed to the party targeted even if no prosecution occurs. That person may then litigate the warrant in a suit for damages. I think Title III of S. 2525 is void under Article III, and I would hope that the courts, though they would not be allowed adversary argument on the point under this bill, would agree.

It may be that the inclusion of the crime criterion in the definition of an "agent of a foreign power" (p. 137) is thought to mitigate the Article III problem. It could do so only by converting Title III primarily to a criminal investigation statute and that would severely limit the operation of foreign intelligence. I think future presidents should regard that as an unconstitutional abridgement of their Article II powers.

I will merely mention my other points rather than explain them at length. Title III would add little protection not already afforded by executive branch guidelines, but it would significantly increase the chances of leaks of important information and technologies, probably complicate intelligence gathering, either provide no protection because the judicial scrutiny was pro forma or draw the judges fully into the intelligence enterprise, and diminsh the accountability of everyone concerned with electronic surveillance.

The reporting requirements of the bill seem to spread American intelligence information so broadly as to ensure leaks and diplomatic complications. It would be better if Congress could establish a single joint oversight committee so that information could be more closely held.