from all objective factors that he is a man of some substance and wealth. Now, I am going to assume that it is not illegal or improper for there to be an interchange of information between the FBI and the IRS, but let us suppose that interchange results in a finding that that man has not paid any income taxes. I do not think you could certainly say that he has committed a crime, the willful failure to pay his taxes simply on the fact of his wealth and failure to pay income taxes, but you at least have a suspicious circumstance, I think, which would justify further inquiry. Maybe as a result of a mail cover or at least some sort of an inquiry with the Post Office Department, which I will presume to be lawful, it was discovered that the man receives envelopes monthly, which appear to be bank statements on their exterior surface, and I can understand the FBI now wanting to take a look at that man's bank records, given the fact of his lifestyle and given the fact he has not paid any income taxes. Well, now, if the FBI must establish probable cause that a crime has been committed, it may find itself short of being able to establish that. If it must establish alternatively probable cause that a crime may be committed, I think that it is something short of that. What it has is a reasonable suspicion, and I would hate to circumscribe the authority of the FBI in those circumstances to make a showing for a warrant. Now, I want judicial intervention for a warrant based on reasonable circumstances to have access to that man's bank records, in order to either clear him or condemn him, as the case may be. I do not know if you disagree with that position or not. If you do, then I can understand that the rigid standards of probable cause that a crime has been committed may well interfere with the investigation which I would take to be wholly appropriate. Mr. DANIELSON. Would the gentleman yield? Mr. WIGGINS. Yes, sir. Mr. DANIELSON. I think we are getting into the area of where this committee is going to have to work out something. I respectfully submit that there is a difference between a probable cause for an arrest and a probable cause which justifies an arrest. You have to have pretty overwhelming evidence before you reach that point, and even lesser sum of evidence should be necessary, as my colleague has pointed out, to be probable cause for a search. And again, you may search premises that do not even belong to and are not under the control of the suspect. You might have a fence situation, or somebody who innocently picked up some stolen property, but here at least you can locate it and then probably unravel the ball of string and get back up to the thief. But, even before you go to the magistrate and file an affidavit seeking a search warrant, let alone an arrest warrant, you have to have conducted enough investigation to give you the facts to put into that affidavit so that the egg is coming before the hen here again. And I think our real problem, and I think we should do this reasonably, is to find out what is the minimum, what is the absolute threshold at which an investigating agency has a right to commence this inquiry. Then following its nose, you are going to come to a point where you either cancel out, or you go another step forward. And you may 57-282-76-pt. 1-14 go several steps until you get around to do some searching, for example, and you are going to have to go beyond that before you get around to the arrest stage. But I am convinced you gentlemen are not telling us here, although your presentation has been pretty much an attack on our system, which is probably a richly deserved one, but I do not think you are telling us that you are opposed to Government enforcement agencies investigating crime. I do not think you are arguing that people who violate our laws should be above the law. If you have, you have lost that battle right in this room. But, I think you can give us a lot of help in helping us to ascertain, and then to define that level which justifies the agency in commencing an inquiry, in doing some physical surveillance. I am not talking about wiretapping now. I use physical to distinguish the methods by which you conduct inquiries. There has got to be a level under which you can begin using physical surveillance, and it is not nearly as high as the probable cause that we usually talk about in criminal law. It is the gentleman's time, and I yield back. Mr. WIGGINS. Well, I appreciate that because I believe the gentleman to be correct, and I do not obviously have a standard in mind at this moment. But it is a problem to which we should address ourselves, and I think in doing so we should not discard the possibility that we should spin off so-called political cases from other cases, because of separate first amendment values and attempts to deal largely with everything in your file as a separate category of cases, apart from normal criminal investigating cases, once we have one standard, it is going to be obviously inappropriate in some cases, whereas it may seem singularly appropriate in another. Whether that classification of a political versus nonpolitical is one that makes sense is something that I cannot tell you or represent to my colleagues, but I do know I have a different reaction to political cases than I do to tax fraud cases that I might have described on the other hand. And I suppose you do, too. Mr. SHATTUCK. Congressman, I think we would almost agree with everything that has been said on this subject. The point that we are trying to make here—and I hope that we have not overly dramatized the political cases, although I think it is necessary to do that in order to demonstrate the entire range of the problem-Congress has got to decide, we think, that the discretion of the investigative authority must be curtailed. The question is, whose discretion should be exercised at each step of the way, and we submit that the threshold at which the investigator must go to a neutral magistrate, be he a judge or someone else, perhaps even his superior if the investigation is a very low level one, and get a second judgment, and have the discretionary standard applied by an outside force is the area that we are most concerned about. At the moment, however, the discretionary judgment in almost all of the investigative techniques that we have been addressing is left entirely to that of the investigator. And I think if an agreement can be reached with respect to the curtailment of that discretion, then the inquiry can commence into what standards the outsider should apply in determining what constitutes probable cause for, say, the search of bank records. Mr. FRIEDMAN. To just answer your question, it is a lot easier than even you described, because that tax investigation, the IRS has administrative summons and can come in below each of the threshold points we have been talking about. That is to say, they can gather information relating to the preparation or need to prepare taxes. Mr. WIGGINS. Well, let me tell you, and I am not telling you anything, Professor, but the fourth amendment does not distinguish IRS and the Attorney General's office. If we are dealing in constitutional values, then that distinction evaporates. Mr. FRIEDMAN. I agree, but there is existing a forum that would cover the kind of bank records you have, and the tax laws have the lowest threshold of all, with respect to the need to produce documents, so that judgment has been made by Congress before. That will require very little before we will allow the IRS to come in. Mr. WIGGINS. Apparently that meets constitutional standards. Mr. FRIEDMAN. Yes; it does. Mr. KASTEN MEIER. The qentleman from Massachusetts, Mr. Drinan. Mr. DRINAN. I simply want to thank Mr. Shattuck and Professor Friedman, and I hope they will be in touch with us regularly, and I want to thank them not merely for informing this committee last April and today, but also for all of the extraordinary work they are doing on behalf of plaintiffs, some of whose documents are here. Thank you very much. Mr. KASTENMEIER. The gentleman from New York, Mr. Badillo. Mr. BADILLO. I also want to thank you. I appreciate the way in which you have broken up your exhibits, and I agree with most of what you have said. But, I am going to ask just one question which creates a problem, especially in view of some of the things that have been happening in New York City. Your recommendation on page 2, or your suggestion that there be a ban against the conduct of any form of surveillance over persons because, or in order to determine, the nature of their political views and activities, what do you do in the case of the Puerto Rican or the alleged Puerto Rican terrorist groups where there have been some notes which indicate that the reason for that is because of the failure of Puerto Rico to achieve independence? If it is concluded that, in fact, we may have involved a political movement for independence, there are any number of splinter groups, some of which believe in independence through normal political activity and others which do not, and what would the impact of the ability of the FBI to conduct an investigation if there was a total ban against determining the nature of the political activities of an organization be? Mr. SHATTUCK. We should probably both answer that separately, because we may have different positions. But it seems to me, insofar as a crime is concerned, under the determinations that have been made by Congress and by State legislatures in the criminal laws, any political justification that might be used to defend against criminal charges should not act as an inhibition against bringing those charges, or investigating whether they should be brought. But you are concerned about the threshold question, at which you start. Mr. BADILLO. When do you investigate the political views to find out how they propose to carry out their objectives, if there are any number of organizations who want to carry out their objectives in different ways. Mr. SHATTUCK. Well, criminal conspiracies can be conducted with political overtones, but I think that the demonstration that would have to be made by the investigative agency, in order to get the information it was seeking, would have to be similar to the demonstration it would have to make to a magistrate if it were an organized crime case. There would have to be some showing that there was criminal activity flowing from the other, lawful activity of a particular group, and I think that any lesser standard than that invites the kind of abuse of discretion that we see in many of these cases. Mr. BADILLO. Yes; but the point is in that case it would not be against a total ban, as you indicated here, but where there is a probable cause, it would be permitted, is that not so? Mr. SHATTUCK. That is right. Mr. KASTEN MEIER. If there are no further questions, on behalf of the committee I would like to express our gratitude to you both for the very lengthy but extraordinary helpful presentation. This is the beginning of a series of hearings today, which I anticipate will lead to legislation within the subcommittee, and we may have reason to again ask for your assistance at some point. And so I conclude today by expressing our thanks to you both. Having concluded with today's witnesses, the subcommittee is adjourned. [Whereupon, at 1:25 p.m., the hearing was recessed, subject to the call of the Chair.] SURVEILLANCE TUESDAY, FEBRUARY 18, 1975 U.S. HOUSE OF REPRESENTATIVES, AND THE ADMINISTRATION OF JUSTICE The subcommittee met, pursuant to notice, at 10:10 a.m., in room 2141, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee] presiding. Present: Representatives Kastenmeier, Drinan, and Pattison. Also present: Bruce A. Lehman, counsel; Timothy A. Boggs, professional staff member; and Thomas E. Mooney, associate counsel. Mr. KASTENMEIER. The subcommittee will come to order. This morning the subcommittee will continue its hearing on the issue of surveillance techniques, concentrating today on the practices of the Nation's major telephone company, American Telephone & Telegraph. We are very pleased to have three witnesses before the subcommittee: Mr. H. W. William Caming, attorney for security matters for A.T. & T., Mr. Earl Connor, staff supervisor for security of the Cheasapeake & Potomac Telephone Co., an operating company of A.T. & T., and Mr. John E. Mack of Bell Laboratories. Mr. Caming, of course, testified before this subcommittee last spring regarding company policy on wiretapping and electronic surveillance. At that time, Mr. Caming stated, "I wish to stress the singular importance the Bell System has always placed upon preserving the privacy of telephone communications." Since that time, however, there have been a number of serious allegations raised regarding the Bell System's commitment to the preservation of privacy and its practices in the area of surveillance. First: It has been revealed that the Bell System randomly recorded over 30 million phone calls between 1965 and 1970 in order to develop a procedure to apprehend fraudulent callers. Second: A former executive of the Southwestern Bell Telephone Co. has charged that employees of that company commonly exchanged wiretap information with Federal and State law enforcement personnel without a court order as required by title III of the Omnibus Crime Control and Safe Streets Act of 1968. Third: There was evidence presented during this committee's recent impeachment proceedings indicating that Bell System staff directly assisted in effecting 17 wiretaps against newsmen and White House staff. |