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3250 U.S. Treaties and Other International Agreements

[23 UST

2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by suoh State of its instrument of ratification or accession.

Artiole 52

The Secretary-General of the United Nations shall inform all States
belonging to any of the four categories mentioned in Article 48:

(a) of signatures to the present Convention and of the deposit of
instruments of ratification or accession, in accordance with
Articles 48, 49 and 50;

(b) of the date on which the present Convention will enter into force,
in accordance with Article 51.

Article 53

The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States belonging to any of the four categories mentioned in Article 48.

IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorised thereto by their respective Governments, have signed the present Convention.

DONE AT VIENNA, this eighteenth day of April one thousand nine hundred and sixty-one.

TIAS 7502

Mr. WIGGINS. On the same page, section II, dealing with records of telephone calls and the like, I want to know if that is intended to circumscribe the subpena power of the Congress of the United States?

Mr. MATHIAS. No, it would not be intended.

Mr. WIGGINS. It does by its literal term, because it indicates that no officer, agency, or employee of the United States, or any department or agency thereof, which is apparently broad enough to include the Congress.

Mr. MATHIAS. Well, I think if there is any question, we would certainly welcome an amendment on that point.

Mr. WIGGINS. At least it is not your intent to do so?

Mr. MATHIAS. Well, I think if there is any question, we would certainly welcome an amendment on that point.

Mr. WIGGINS. At least it is not your intent to do so?

Mr. MATHIAS. Certainly it would not be our intent. I do not think we could do it, if we wanted to. The subpena power is a constitutional power.

Mr. WIGGINS. On the next page, you indicate some exceptions; namely, the issuance or serving of an arrest warrant, searches pursuant to a lawful arrest, searches made pursuant to the invitation of the occupant, and the like.

Is it your intent to incorporate the common law with respect to those areas? As you know, hundreds and hundreds of cases have flushed out the meaning or limits of a proper search pursuant to an arrest or the like.

Is it your intent to incorporate those cases?

Mr. MATHIAS. I would say yes, in a general way. What we are trying to do in this, as you would readily recognize, is to avoid the rigidity that you have expressed concern about and provide that there are cases in which there has to be some flexibility.

Mr. WIGGINS. One final question, and then I will catch you, perhaps, on the second round.

You provide for reports to the Congress, both in the case of wiretap intercept and in the case of mail intercepts. The reports are to be confidential and maintained as secret, but the report must include in each case a full transcript of the proceedings before the judge who issued the warrant.

Now, let us hypothetically assume a national security case in which the judge must issue a warrant. I take it that some person in the executive branch must present to the judge, upon oath or affirmation, information justifying a search.

It is possible for me to assume that the justification might include very sensitive material in order to justify the search. That would be a part of the proceedings in the court."

That information thereafter is to be transmitted to the Congress of the United States. Do you perceive or foresee the possible breaching national security interests by that procedure?

Mr. MATHIAS. I think there is a problem. I think you have to look the problem squarely in the face. There are many court proceedings that are held in some degree of confidentiality. There are many matters before the Congress that are classified.

I think that we are capable of handling such material. I think that it is a very serious responsibility and one that we simply have to shoulder.

I think the day is past when Members of Congress can do as some of our predecessors did and say, do not tell me. I do not want to know. I do not think we have that right. I think we have to know. I believe this is one of the areas where we have to know.

Now, the importance of it goes to Father Drinan's objection to the whole judicial process. If you do not have some provision of this sort, exactly what he has suggested will occur. The judges will say if you think it is all right, I will give you the warrant: do not tell me any more. Here is your warrant.

I think this guarantees a new relationship in which judges are going to have to examine their own consciences and the law.

Mr. WIGGINS. Well, I do not wish to take more time than I am entitled, Mr. Chairman, but I would like to just bounce an idea off of you, Senator. We have approximately 500 district court judges in the United States, any one of whom would presumably be authorized to issue a warrant. I am not sure how many magistrates we have, but the issuance of the warrant has been an authority which we have recognized in magistrates as well.

The point is that there are a large number of persons who are authorized to issue warrants. In national security cases, what do you think of the idea of requiring that those warrants be issued by designated judges, designated by title, in order to minimize the risk, and perhaps develop a uniform system of judging these matters?

Mr. MATHIAS. I would not preclude that at all. It is something that we ought to think about, and it could be a very constructive suggestion that a judge be designated to become expert in these matters.

This is, of course, one of the objections to going to judges in intelligence cases. They do not know anything about foreign policy; they do not know anything about defense policy.

Well, judges can be experts in many fields. They could become expert in this field and could be designated for this particular service.

Mr. WIGGINS. Thank you, Senator.

Mr. KASTEN METER. The gentleman from New York, Mr. Badillo.
Mr. BADILLO. Thank you, Mr. Chairman.

When I was preparing for this hearing, Mr. Chairman, I read the transcripts of the hearings last year, and it seemed to me that the situation was almost exactly what it is today. At that time, the Senate and the House were considering the appointment of special committees to deal with this problem.

And I appreciate what the chairman has indicated, that the impeachment hearings delayed any action, but I am very much concerned that we take action this time. And it is for this reason that I have joined in cosponsoring the bill that Senator Mathias and Congressman Mosher have introduced.

I do wonder about some of the exact language, Senator. For example, on page 4, section 2236, I will point out that "whoever being an officer, agent, or employee willfully searches a private dwelling or procures or inspects the records or opens the mail will receive a penalty." but in section 4, which has to do with wiretapping, the wording is the same as that of the existing law, that it is not just a person who searches himself. but also procures another person to do it.

In other words, if the President of the United States says to someone to tap the wires of Senator Mathias, he can be held guilty

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of a crime. But, if he says we will intercept the mail of Senator Mathias, then only the person who actually opens the mail will be liable.

Why should not the individual who gives the instruction as well as the one who carries out the instruction be held liable in each case? Mr. MATHIAS. First of all, Congressman, let me say that I do not think either Congressman Mosher or I consider ourselves infallible draftsmen. We hope that the committee will be able to improve the bill.

To be perfectly honest with you, I have not thought very deeply on this particular distinction, except in regard to the physical acts involved in entering a dwelling. For example, if you go and break into the Watergate offices of the Democratic National Committee without a warrant, the most limited intelligence knows that you are doing something seriously wrong.

If you are a telephone lineman applying a device to a telephone, it seems to me that you may or you may not understand the full degree of your culpability. It is the person who directs that to be done that you seriously want to reach.

I think that you might broaden the coverage in both of those sections and cast a wider net, and that might be a useful thing to do. But I believe that was the philosophy.

Mr. BADILLO. Well, I thought that was what you had in mind, but the way it reads, you would not, in subdivisions 1, 2, and 3, you would only get at the one who actually carries out the act, rather than the one who directs the act, and I think this is what we want to do.

Mr. MATHIAS. It might be a useful addition to broaden the coverage, as I say, in each case, and then you would have the comprehensive responsibility.

Mr. BADILLO. Thank you. Now, with respect to the question of receiving reports within 30 days or 60 days or 90 days, we will have the right in the Judiciary Committees to receive reports with respect to wiretapping, with respect to mail, but we will not have the right with respect to subdivision 2, which has to do with requests for telephone calls, bank, credit, medical, or other private transactions, or with respect to subdivision 1.

Do you have any objection if we have the right in all four cases?

Mr. MATHIAS. I would have no objection. The theory that we proceeded on there was that such warrants are more analogous to normal practice today, where a subpena duces tecem is issued and papers are subpenaed. This happens every day and there might be such a volume of it that it would become an impractical way of overseeing the act; whereas, the serious violations, the ones that have caused the most trouble, are the surveillance activities.

Again, there would be no reason not to have it, if, in fact, we could mechanically deal with it.

Mr. BADILLO. Well, if we want to have adequate oversight, we should know to what extent the telephone calls are being monitored or credit cards or bank records are being monitored. We might not have the staff to be able to cover it, but at least we have the right to investigate.

We could, on a spot-check basis, determine whether or not the procedures are being carried out properly.

Mr. MATHIAS. Precisely.

Mr. BADILLO. Now, with respect to the question of what reports we do receive, the itemization on page 6 or 7 does not include the affidavit which stated the grounds for probable cause.

Was it intended to include it and, if not, is there any reason why it should not be included?

Mr. MATHIAS. Well, I think that would be included as a part of the

Mr. BADILLO. I am talking about the first one, the first 30 days.
Mr. MATHIAS. You are looking on page-

Mr. BADILLO. I am looking on page 6, subsection A, 2519 (a), within 30 days, and talking about the first one, within 30 days. We do get the fact that an order was applied for and other information, but I am not clear whether you intended to say we could also get the affidavit. Mr. MATHIAS. Page 7, line 14, refers to a complete transcript of the proceedings.

Mr. BADILLO. But that is in 60 days. I am talking about 30 days.
Mr. MATHIAS. Well, if you get it in 30-60 days, I see.

Mr. BADILLO. Is there any reason we could not get it in the first 30 days?

Mr. MATHIAS. I see no problem in 30 days, if that would be considered useful.

Mr. BADILLO. No, I understand from Father Drinan and some of the Members who have had a chance to examine these documents, especially the one with 60 days, where it has the complete transcript, that what we actually receive is just a document that says this was done, but there is no information by which it might be possible to judge whether there is any basis for the probable cause. In other words, if my telephone or your telephone was tapped, under a probable cause that we were trying to deal with some foreign country, and 30 or 60 days go by, should there not be some indication of whether or not that allegation of probable cause has been justified in some way?

In other words, how can we have oversight, is what I am getting? That is what I am getting at. How can we have oversight if we do not have a way of finding out whether there is any basis for the suspicion in the first place?

There should be some point at which-there should be some conclusion that the suspicions are absolutely unjustified.

Mr. MATHIAS. The reports, of course, would set up the nature of the suspicion in the application for the warrants.

Mr. BADILLO. How would we evaluate that suspicion?

Mr. MATHIAS. That would be clear. That there be a 90-day report after the order, and within 60 days after the termination of such interception, there should be a report to the committees in the House and Senate, and to the administrative officer of the court of the disposition of the interception, as well as the identity of those who physically participated in it.

From the disposition, it seems to me, the committee could deduce what had occurred. If a prosecution follows, it is perfectly clear what happens.

If, in fact, there are a large number that just trail off into limbo, it seems to me that is where the oversight responsibility of this committee

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