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have made the very initial stages of those kinds of contacts criminal activity, so that it seems to me criminal activity covers the range of national security concerns and is in intelligence gathering already, and that we really would be talking about, I think, an area that is de minimus and ought not to permit us to jeopardize the right of American citizens to try to chase.
Now, I know that other persons hold different points of view with respect to that, but that is my view.
Mr. KASTEN MEIER. Well, it would certainly cover counter-intelligence gathering in the sense of intelligence gathering by foreign powers within this country because the Government could seek a warrant in such cases. Whether otherwise unconditional intelligence gathering could take place through use of these techniques I would question, but apparently if they could establish a nexus between the need to do so and criminal activity, violations of law, that might be the case.
I do not know to what extent you participated in the formulation of H.R. 214, or having seen it in its general form happen to be in general agreement with it and subscribed to it as a cosponsor. But as I understand it, it is intended to be a comprehensive document in terms of forbidding general activities which are complained about in a number of areas. It does not, however, I note, ban so-called mail covers. It bans the opening of mail.
Mr. BIESTER. No, Mr. Chairman, it does not ban mail covers, and in my judgment it should. And if there were an amendment I would hope that the committee might include in markup it would be to touch on that subject, because mail covers can be just as obnoxious as the mail opening it seems to me.
Mr. KASTENMEIER. Well, the reason I asked the question is not necessarily to go through a litany of what it covers and what it does not cover, but whether it is your understanding the intention was to cover comprehensively all similar acts which are complained of in terms of breech of privacy of American citizens for which there is no legal restraint other than capriciousness of the executive officer, and most of this being hidden or unknown activity, and would bring it to account. Is that basically what it does?
Mr. BIESTER. I cannot speak for other cosponsors, but in my view, from my discussions with some of them that was the purpose, is the purpose, and you have touched on one gap. And I think that gap should be closed. But our purpose is a comprehensive protection of the American people's individual rights in this field.
Mr. KASTEN MEIER. Others complain about the use of agents for the purpose of infiltrating groups, and I believe that this too constitutes invasion of privacy. But, their characterization of that perhaps might be more difficult or, indeed, surveillance by means of physical surveillance, by means of shadows of individuals might also be considered objectionable.
Mr. BIESTER. Would fall within the same concern.
Mr. KASTENMEIER. I have several other questions, but to enable my colleagues to participate in the questioning at an early point, I am now going to yield to the gentleman from California, Mr. Danielson.
Mr. DANIELSON. Thank you, Mr. Chairman.
You have made your point very clearly. I think I understand it.
What you are truly talking about is the abuse of peoples, of the American citizens or the American nationals right to be free from unreasonable searches and seizures. I share that concern. I want to voice probably a few comments here because I have another committee that I am going to have to go to, and it will be quicker than questions and answers, though I do not mean to cut you off if you have a comment.
I share the concern very fully, but I also have another concern. We have lived in recent years in a context in which there has been an abuse of many of our constitutional rights, an abuse of power, and I am not being partisan when I say this. It went back before Mr. Nixon's administration. But it is a fact, it is an illness that has affected our national political structure. Yet I feel that we are in danger here of indulging in what I call reactive legislation, and perhaps swinging the pendulum too far. For example, there have been comments that we should not allow infiltration of groups. Let me ask only a rhetorical question. How on earth do you expect a law enforcement agency to become acquainted with the proposed activities of a burglary ring, how they propose to dispose of their products and the like if they are forbidden from infiltrating that group? We would be tying the hands of society to the point where they could not investigate. If you have a used car theft ring, and there are many of them, you cannot examine a public or private business transaction without a court order. How can you go into a garage and find out where they have alterations made to a motor vehicle, and how are you ever going to find out how these stolen vehicles passed in interstate commerce if you cannot look at business records, and they are private records?
Have we asked the courts, do they want to become such activists in our investigative process on the very cases they are going to have to try impartially? Do you have to go to a judge every time you are going to follow a thief down the street to find out where he disposes of his ill-gotten property? I submit you do not have to.
While I think we must be careful to protect everybody's constitutional rights, we must do this all the way. The people have a constitutional right to see to it that the laws are enforced also, and it is a legitimate police function to try to investigate those who are committing crimes. I am not talking about national security you may have noticed, if the bill covers both sides of this. I am as much interested in the bank robbers, in the narcotics industry, and it is very nearly that, and in other forms of vice, in the use of usurious money lending operations, I am as much interested in them as almost anything else, and we cannot in my opinion tie the hands of law enforcement to the point where society cannot protect itself.
Now, I have not asked the courts, but I think I will. I have a habit of doing that, do they want to become so deeply involved in our executive and administrative procedures. Do the courts want to pass upon whether or not an FBI agent can follow a car thief, and then they are going to have to later sit down and judge that car thief's case. I submit that they will not.
My last little comment, and then I will have to beg forgiveness, I have got to go to another meeting, I feel that a large share of the blame here is our own. The Congress has failed miserably in exercising its oversight function. If the normal law enforcement procedures had
been followed, as they should have been followed during the last 10 or 15 years, we would not have come to this situation we now find ourselves in. And one reason why they have come to this pretty pass is because of the fact that that the Congress has not exercised oversight. I feel that we should exercise a strong, vigorous, penetrating oversight on every one of the agencies. The FBI should come into this committee once a year and justify its budget, and justify its activities rather than having an open-ended authorization, and simply running over to the Subcommittee of the Appropriations Committee to where they become apparently some kind of a sacred cow and get any kind of an appropriation they want. Well, that is not much of a question, Mr. Chairman, but I think I have told you what I have got on my mind. We may agree in substantial part or we may disagree to some extent, but that is my attitude on it, and now with your permission, I am going to run off to another meeting.
Mr. KASTENMEIER. Good luck.
Mr. DANIELSON. Thank you.
Mr. KASTENMEIER. Do you want to comment?
Mr. BIESTER. If I could. And I understand
Mr. DANIELSON. I will wait a little here and listen to you.
Mr. BIESTER. First of all, I agree with much of what you said, particularly in the area of oversight. If there is one area where we have failed miserably, it is in the area of oversight.
With respect to whether the courts wish to become involved in questions of this kind, they are increasingly involved in questions of this kind, the purity of evidence, the purity of searches and the appropriateness of arrest, so that in at least my neck of the woods we have almost two trials now. First of all, the trial on the questions of evidence and then the trial in the question of the merits.
Mr. DANIELSON. If I may interrupt though, that trial on the question of the evidence comes after the arrest and after the charge and when the case is pending before the court, not when it is in an administrative posture, before there has been an arrest, a warrant, an indictment or information, or any other sort of judicial proceeding.
Mr. BIESTER. That is correct. But in terms of the time of the court, in terms of the time involved, it might have been salutary in some instances for a better judgment to have been made at the outset than during the course of a lengthy hearing there.
Mr. DANIELSON. I must respond to that that it is my own concept that the judicial department should not step in until you have a judicial proceeding. When you have got a strictly administrative, executive department proceeding, the judicial department does not yet step in. On national security as opposed to what I am going to call common crime you have got a different situation. I do not believe you are allowed to wiretap under any circumstances, but they seem to allow it if there is a court order, and if they want to be party to that unconstitutional act I cannot stop them.
Mr. BIESTER. I guess the last point that I would make is if a peace officer, or if an agent of the Federal Government does not have probable cause, then he should not be fishing in any businessman's records. You have got to have some cause for going into that garage which the
gentleman referred to, and it ought to be of sufficient quality to satisfy at least a magistrate with respect to it.
Mr. KASTENMEIER. Now I would like to yield to the gentleman from Illinois, Mr. Railsback.
Mr. RAILSBACK. We are glad to have you back, and we knew you could not stay away very long.
Mr. BIESTER. You see what happens.
Mr. RAILSBACK. Right. Do you think that there is merit in having a judge in a circuit or a district court specially trained to handle these applications in national security cases?
Mr. BIESTER. Well, I am of two points of view with respect to that, Mr. Railsback. The first is that there is an obvious efficiency if one such judge were assigned to that particular class of cases and decisions, and he could develop an expertise, or she could develop an expertise that would be very useful in that respect. If we did that, however, I would like to see such a judge rotated periodically because I would not wish the judge in the course of developing expertise to also develop a state of mind
Mr. RAILSBACK. Biases, yes.
Mr. BIESTER. Which might reflect itself in an unfortunate bias. Mr. RAILSBACK. How about the need for emergency provisions that would permit surveillance without obtaining a court order, but would require, for example, the obtaining of an order within 48 hours?
Mr. BIESTER. As long as the time limit were very short, I would have personally no objection to that. But I think the time limit would have to be very short, and I am not sure that 48 hours is a short enough period of time.
Mr. RAILSBACK. What about proscriptions for overseas surveillance or interception of wire or oral communications?
Mr. BIESTER. That is a very difficult question.
Mr. RAILSBACK. Like the Joe Kraft case.
Mr. BIESTER. Right. That is a very difficult question. It is my personal view, and this is a purely personal view and does not reflect necessarily the opinion of any other cosponsors, it is my personal view that there is a quality of association and relationship among the American citizens abroad who might be tapped, and American agents abroad who might do the tapping. With respect to let us say that enclave of persons, it is my belief that the prohibition should apply.
Now, the question then arises how in heaven's name is a court order feasible or possible under such circumstances. I do not have a practical answer to that. It seems to me that the will and talent of this subcommittee is not beneath arriving at some method for achieving that. But I can see a different set of circumstances there and different practical problems, and I honestly do not have a clear-cut answer to you. But it is something that I have recognized, and now as to that enclave finding some way in which the Federal agents involved can get some kind of independent judgment with respect to that, that is something I think you should pursue.
Mr. RAILSBACK. Do you believe there should perhaps be a different standard of proof in national security cases other than probable cause? Mr. BIESTER. I personally do not because I think every time we invent a new standard we escape the usefulness of usually a well-recog
nized loss, a particular legal term which lawyers and the courts and other persons can be more readily guided by.
Mr. RAILSBACK. Thank you for your continuing interest, and I think you have been most helpful just as we knew you would be. Thank you. Mr. BIESTER. Thank you.
Mr. KASTEN MEIER. The gentleman from New York, Mr. Pattison. Mr. PATTISON. I am just concerned about the area of personal surveillance as opposed to electronic bugging and the problems, the practical police problems that follow in that kind of problem, and I am interested in your comments on that.
Mr. BIESTER. Well, I think the gentleman from Illinois in a sense raised the same kind of question. There is a practical problem there. There may be an emergency situation in which it is simply impossible for a peace officer to get a court order immediately when he is engaged in surveillance or initiates personal surveillance. It is my own view that a very limited period of time in such emergency situation, clearly defined in the legislation, ought to be a practical answer to that. The gentleman from Illinois suggested 48 hours. I think that is a fairly long period of time. I think for my purposes it is too long a period of time. Perhaps 24 hours would be better. But the important thing is that we ought not to let the emergency become a standard and a mechanism by which the strictures of the legislation are avoided.
Mr. PATTISON. I am also a little bit concerned about preventive surveillance. In other words, when you are standing there in a shopping center, for instance, with no particular person in mind, but watching for somebody who picks up a package of balogna or something, certainly you do not need a court order in order to do that.
Mr. BIESTER. Certainly you would not, and in fact, in the bill on page 5 an attempt is made, beginning with line 3, to reaffirm the standard rules with respect to arrests and searches pursuant to arrests and the like. But they do not necessarily cover the point that you have raised, and it is my view, and I come to page 5 simply just to demonstrate that it is the concern of the cosponsors not to distort the norms of current police procedure with respect to arrests and general surveillance of a shopping area or some such thing.
Now, many police officers would tell you that there is a kind of a sixth sense which is acquired by those who work in the field over a span of time that can almost sense out the moment just before a crime is about to take place. Again, we are not getting into that area with this legislation.
Mr. PATTISON. I just have one other question. Would you not think that in the area of consent to wiretapping, where we permit that when the person himself who is going to be wiretapped does consent, aside from the problems of the other caller, would you not think that if that is in this bill that that kind of consent would routinely be extracted from almost every employee?
Mr. BIESTER. That is a very good question, and it is a heavy concern of mine with respect to this section of the bill. I fully understand the need for some mechanism by which a man can protect himself. By the same token, again it offers, just the emergency situation does, an opportunity for abuse. There comes a point I guess at which you cannot write a perfect piece of legislation, and you cannot perfectly predict all of