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contains language about coming to Miami and demonstrating, and having fun in the sun, basically. Nevertheless, it is retyped into the FBI file and then stamped confidential as if something in there was not otherwise available.
Then we see, skipping over two pages from that, an Army intelligence spiderweb on an organization in Germany involving American citizens who are all supposedly relating to each other in a conspiratorial fashion, and being in contact with various "foreign leftist" organizations. These include the U.S. Democratic Party, which I am not sure how appropriately is way over on the far left of the exhibit, which in turn is connected with something called the Concerned Americans in Berlin, which is an organization that campaigned for Senator McGovern in 1972, and was at that time known as the Americans in Berlin for McGovern.
And then a newspaper, Forward, which apparently the McGovern group had contact with, and then in the lower left-hand corner, the Lawyer's Military Defense Committee, which is a group of American lawyers sponsored by the ACLU, which is listed but not circled. It is sort of off the grass on the left side.
Various underground publications and various American leftist organizations are also listed here.
Now, to put this spiderweb together, obviously a lot of judgment had to be exercised by quite a few people, because this is an attempt to pull together diverse elements of Army surveillance of Americans in Germany. And the judgments that are made, I submit, are almost downright embarrassing. I mean, the names of people who are involved here are either attorneys, or in some instances, they are private citizens living in Germany, and in no case are they people who have ever been charged with any crime of any kind, but their investigation appears to have been initiated because they were first campaigning for Senator McGovern and because they had friendship and contact with GI's living in Germany.
Now, the organization, the Concerned Americans in Berlin, which appears in this graph, is the subject of a great deal of file information which is set forth at the end of this exhibit, and I would just like to highlight to you two quotations from these files on the Concerned Americans in Berlin, which I think, better than anything I could have said, demonstrates the absurdity of the judgments that are being made about whether to conduct surveillance. At the end, toward the end of a long report, which apparently was prepared by undercover agents who had had contact with the group, on page 4 we find a subcategory C, "Constitution."
"CAB is reported to have adopted the Bill of Rights from the U.S. Constitution as its own constitution. No further information concerning this action has been reported."
And then we find in the summary at the end of page 5, No. 7 "CAB presents a considerably smaller picture, but much the same as the more outspoken Democratic oriented politicians in the United States."
Well, I would think that that might be a source of some concern to members of your subcommittee, at least.
That concludes our testimony. Thank you.
Mr. KASTEN MEIER. Thank you very much. I have some questions of my own, but before I ask any questions, I would like to yield to some of the other members who have not had a chance to ask questions and may have other schedule problems.
The gentleman from Illinois, Mr. Railsback.
Mr. RAILSBACK. Thank you for your testimony, and I thought it was very well prepared.
Let me ask you this. There are going to be arguments, I think, that the President has a constitutional right to, under the Ivanov and other cases of surveillance for national security causes without having to show probable cause. What is your answer to that?
Mr. FRIEDMAN. Well, Judge Gesell, in an opinion here in the District of Columbia, was met with that same kind of argument when John Ehrlichman said the President has the right to crash into Dr. Felding's office to gather intelligence information; and as a matter of fact, the chief reliance of Mr. Ehrlichman was on the Ivanov and Butenko cases in the third circuit, which talked about wiretapping, and Judge Gesell made very clear that the general power to protect the Nation, to execute the laws of the United States does not carry with it the power to violate a specific provision of the Constitution.
You are dealing with very general power, Executive power, and you have specific prohibitions.
Mr. RAILSBACK. We are talking now about foreign cases, not domestic?
Mr. FRIEDMAN. I am talking about wiretapping within the domestic United States of even a foreign intelligence agent. That is to say, if we are talking about the President's power within the United States, I mean I suppose CIA agents in the Soviet Union have some powers, which are much broader powers than a CIA agent in the United States has. I think that is clear.
Mr. RAILSBACK. I think that when you read that case, that the court is also trying to resolve, what they call a clash between the President and the Congress, and it seems to me that that has not been-really been resolved, so I am kind of inclined to agree with what you are saying.
Mr. FRIEDMAN. We know Congress passed the War Powers Act, and now the power of the President to act as the Commander in Chief is very broad. But, Congress can certainly specify the way in which that power is triggered.
That is to say, when does a war begin, when can he send the troops out into the field to begin with, and it is certainly equally clear that to the extent that the President has inherent power to protect the Nation, that a prohibition in the Constitution and an exercise of congressional oversight as to when that power should be triggered, under what circumstances that power should be triggered, would pass muster. Again, we are dealing in an area where Congress has said nothing, and the courts are very free to say, well, the power is as broad as is necessary when Congress has not acted.
Mr. RAILSBACK. Thank you.
Mr. SHATTUCK. Congressman, if I could just add two sentences to that; I think the Supreme Court has spoken, although indirectly, to
this issue in the Youngstown Sheet and Tube case, the steel seizure case, in which it said that where an inherent power is asserted and yet there is no specific constitutional provision to support it, asserted by the President, that that power does not override any exercise of congressional power which might remove it. If there is an express power in the Constitution given to the President to do certain things, then Congress is powerless, but to the extent that there is no express power, it is up to the Congress to act if it deems necessary to do so. Mr. RAILSBACK. Or where it is ambiguous?
Mr. SHATTUCK. Or where it is ambiguous, yes.
Mr. KASTEN MEIER. The gentleman from California, Mr. Danielson. Mr. DANIELSON. I think we have a long way to go here. Alluding back to your recent comments about Mr. Ehrlichman's argument before Judge Gesell, the conduct complained of there was in itself a violation of criminal law, as I recall it, burglary. Some of the surveillancetype activity that you have referred to here this morning falls short of violating a criminal law, the conduct proscribed by law.
I am thinking of the surveillance of a person. At what level do you contend that a law enforcement agency has the duty or power to commence an investigation? Obviously at a low threshold there is going to be a time when some conduct, some association, some activity, some circumstance would cause a reasonable minded investigator, if there is such a thing, to feel that there may be a violation of the law here. Now, that would then invoke the commencement of an investigation, and surveillance and inquiry. At what level would you say that that comes in?
Mr. FRIEDMAN. Well, the Supreme Court in the Terry case, which is the stop-and-frisk case, said that when you are asking about an intrusion into a man's fourth amendment rights, or his right to be free from Government activity, you have to measure the level of intrusion against the right of the individual to be free from Government surveillance.
Now, in the Terry case, they said you do not need probable cause to put down a person who is engaged in suspicious activity to find out if he has a gun. A founded suspicion is enough.
Mr. DANIELSON. Well, and even there the conduct of the investigating officers are somewhat greater than that which I just described, because you have physically stopped someone. In effect, you have arrested them, whether you want to call it that or not.
Mr. FRIEDMAN. Exactly.
Mr. DANIELSON. And you have got a search, a surveillance, an inquiry concerning somebody which falls short even of stopping and patting down.
Mr. FRIEDMAN. I agree. In other words, if someone just quietly shadows somebody else, I suppose the level of suspicion is even less than the Terry suspicion, but something else is necessary.
Mr. DANIELSON. I would think so.
Mr. FRIEDMAN. Something has to trigger it, and as you go up the ladder, as you look at the man's bank record, as you look into his conversations, the threshold before the Government can-Government can act increases.
Mr. DANIELSON. As the level of the Government's inquiry intensifies by invasion of privacy, such as stopping and patting down. Now, I
am old-fashioned enough to call that an arrest. It is usually cured by releasing a person, but it is an arrest.
Examining a bank record is a search of sorts. But, I am just talking about doing what I would say any reasonable investigator would do; that is, a law enforcement official, to follow someone, to see where he goes, where he came from, to ascertain his license number or et cetera, the same thing that newspaper reporters do frequently when they are trying to find out what is going on.
At what level is that justified in a Government agency that is charged with the responsibility of enforcing the laws of the Nation or of the State?
Mr. FRIEDMAN. I would say, suppose again-to go back to the Congressman Rooney situation he just said, look, I have helped—at least the allegation has been that he helped the FBI, and he wants the FBI to follow Mr. Lowenstein around during the campaign.
Mr. DANIELSON. I would not think that you could justify that under any circumstances.
Mr. FRIEDMAN. I do not think so either.
Mr. DANIELSON. And I am certain that is below the level of whoever the Congressman was that was using the FBI, and the FBI was permitting itself to be used, neither of which is proper conduct.
Mr. FRIEDMAN. I agree. It depends on what the individual is, is his first amendment right at issue, which it was in the election situation, and is there any suspicion that a crime has been committed, and those are the kinds of questions I think you have to ask.
Mr. DANIELSON. Well, suppose you are assigned to the U.S. Capitol Building, and you are a member of a law enforcement agency, there are circumstances in existence which indicate that there might conceivably be some violence and you see a person come into the rotunda and the person has a bulge on his right hip right where you would carry a gun if you carried a gun. And do you think that would be enough reason to at least follow the person at least to see where he was going perhaps?
Mr. FRIEDMAN. Yes.
Mr. DANIELSON. To see if brushing against somebody, it might push the coat back far enough so that you could take a look, that that would be legitimate suspicion you feel?
Mr. FRIEDMAN. I think so.
Mr. DANIELSON. I do not want to go into this real long, because we are short on time, but my first statement was I think we have a long way to go here. I think we are trying to draw a line or establish a threshold at which properly the Government agent can commence his inquiry, his investigation, call it whatever you like, surveillance. It is all the same.
And thereafter, assuming that more facts are developed, or ascertained, you can either go farther with it or close the case out, as the case may be. And that really is what we are going to be groping for along here. I see nothing inherently wrong with surveillance if the surveillance relates to a proscribed activity or potentially a violation of the law.
I do not want to have a bunch of busybodies to follow me around when I am not violating any law or intending to, but there comes a
level when you are entitled to commence, and I do not think we have resolved that very much.
Thank you very much.
Mr. KASTENMEIER. The gentleman from California, Mr. Wiggins. Mr. WIGGINS. Thank you, Mr. Chairman.
I want to compliment my colleague from California for putting his finger directly on the problem. That is, the difficult cure which Congress has to decide is under what circumstances is it appropriate for the Government to intrude on the privacy of an individual.
Now, the question as to legislative standard, the standard is couched in deliberately vague terms of probable cause, or, in another context, reasonable cause. Now, I am troubled about the use of two different words to begin with, and I want to ask you if probable cause, as is used in title III, means any more or less than reasonable cause for the issuance of a warrant, which is contained in section 2236 of title 18.
Do those two concepts, "reasonable cause" or "probable cause," mean different things to you?
Mr. FRIEDMAN. Well, I heard Senator Mathias indicate that he thought he was searching for a probable cause level. I mean, probable cause is well defined in the arrest cases, in the search and seizure cases, as that level of activity which makes it probable that a crime has been committed, and that person committed the crime.
We have some new standards, I mean founded suspicion, which is a test found in the Terry case and the Supreme Court in Terry and in Camara, which is the administrative search case, has indicated that it will engage in a kind of balancing test where the level that may trigger a Government intrusion or inquiry has to be measured against the invasion of the personal right involved. And that was what we were just talking about, that that level may be different.
The FBI may follow a Congressman around, they may be able to follow someone around with a bulge in his pocket, but to follow a Congressman is something where there is no founded suspicion or any suspicion that would justify that kind of conclusion, so we are stuck with the balancing test no matter what we do. And again, I think we have to measure the level of the intrusion, the level of the invasion against the loss of personal right under those circumstances.
I do not know how to draft an appropriate test in every case. Mr. WIGGINS. Yes; I do not know either, but it is going to have a vague standard, that is for certain. But, I suspect, without having researched the question, that reasonable cause for the issuance of a warrant is probably something less than probable cause; that is, a search warrant, than probable cause to issue an arrest warrant and to make an arrest, because the warrant may be directed to a person who is admittedly not involved in any criminal activity.
For example, a bank presumably may be free from criminal activity, but may possess information from which probable cause could be deduced for a subsequent arrest, if they ever get that information. Obviously, if you must have probable cause to begin with, you do not need the information to proceed directly against the individual involved.
Let me give you a hypothetical case here. Let us suppose in the course of an organized crime investigation the investigators come upon an individual who has a rather expansive lifestyle, suggesting