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The term "surveillance" includes bugging, wiretapping, and all other forms of electronic surveillance, opening of mail, entering of dwellings, and the inspection or procurement of the records of telephone, bank, credit, medical or other private transactions.
Mr. Chairman, the questions at stake in consideration of this legislation go to the very core of the democratic process. This issue forces us to contend with perhaps the most basic question faced by a free society: Where do we draw the line between the rights of the individual and the legitimate and necessary functions of society as embodied in the Government?
The specific rights addressed by this bill are contained in the fourth amendment to the Constitution of the United States which proclaims the right of the people to be "secure in their persons, houses, papers, and effects against unreasonable searches and seizures. . . ." Security is not only an abstract legal proposition. If it is to have meaning it must be a sure perception of one's condition.
Such a basic question of rights and balance is seldom easy to answer in this complex age. It is particularly difficult to answer in the context of national security considerations. It is precisely those considerations I would like to address this morning. I do so as one deeply interested in the matter, reflected through my service over three terms on the Judiciary Committee, my present service on the Committee on Foreign Affairs, and my service during the 93rd Congress on the Subcommittee on National Security of that committee.
Clearly all those in positions of public responsibility must approach this question with a weighty concern for the dangers inherent in the prevailing international political system, and the peculiar obligations which our position within that system imposes on the Government of the United States. Few would dispute the need for the Government to deal with many sensitive matters in secrecy. Few would dispute the need for the Government to preserve international trust in the confidentiality of diplomatic discussions.
But equally clear must be the need to deal with such legitimate national security concerns within our constitutional framework-to subject governmental surveillance to proper and reasonable standards of procedure, and to minimize the scope for individual caprice or abuse of power.
With regard to national security, what balance do we properly strike? Where, indeed, do we draw the kind of line which protects both the individual and society at large?
I would contend that under existing procedure, the rights of the individual under the fourth amendment are inadequately protected.
The law presently allows surveillance to be undertaken on the authority of the President-with such authority usually executed by the Attorney General— when national security is considered to be at stake.
It seems clear to me that such a procedure-involving individual interpretation of such a broad and ambiguous term as "national security" does indeed allow for abuse of power.
H.R. 214 would rectify that situation by linking all surveillance-including that undertaken on grounds of national security-to a court order based on probable cause that a crime had been or was about to be committed.
In the case of national security, such an order would have to be linked to suspected sabotage, espionage, treason, or similar crimes.
In other words, wiretapping or other forms of surveillance undertaken strictly for intelligence gathering purposes unrelated to suspected criminality would be effectively eliminated.
Is this an unreasonable restraint on executive power? Would such a requirement hamper the proper stewardship of our national safety? Would it indeed swing the judicial pendulum dangerously in the direction of individual rights at the expense of societal security?
I think not. Such a requirement is inherently reasonable and proper, and would not have to subject our society to risk.
I am supported in this belief by the Honorable William D. Ruckelshaus, former Deputy Attorney General and former Acting Director of the Federal Bureau of Investigation. Hardly a man oblivious to legitimate national security considerations, Mr. Ruckelshaus last year stated before joint hearings of the SenateCommittees on the Judiciary and Foreign Relations that he sees "no reason why all wiretaps should not be subject to court warrant."
To restrict wiretaps and other forms of surveillance to instances approved by a Federal court, simply means the Government must establish to the satisfaction
of an independent arbiter that a reasonable suspicion exists as to the commission of a crime affecting the national security of the United States.
Some would contend that Federal magistrates lack the necessary expertise in international or security affairs to make such judgments. I'm inclined to believe, however, that officials of the Federal judiciary are indeed capable of assessing the quality of evidence presented to establish probable cause, and are indeed capable of judging the relative importance of the Government's arguments versus the constitutional rights of any individual in question.
As Mr. Ruckelshaus pointed out in his previously cited testimony, "Courts almost never turn down legitimate requests for wiretaps in criminal cases and would be even less likely to do so in the area of national security."
H.R. 214 would thus not bar necessary national security surveillance; it would simply subject the need for that surveillance to prior assessment by the judicial branch.
Such a prior assessment simply, but significantly, removes national security surveillance from the realm of possibly arbitrary, capricious action.
I would suggest that the committee might profitably consider various ways to reduce the number of Federal judges authorized to hear requests for national security surveillance as a means of ensuring stricter consistency of rulings.
We hardly need remind ourselves that for a number of years and under administrations of both political parties, national security has all too often been a facade for partisan or selfish individual motives. It does little good to recite specific abuses by individuals. We must concern ourselves with correcting institutional flaws. Congress must very properly seek to place a reasonable restraint on the use of power to ensure that all valid factors are given due consideration. The requirement of a court order is-in my opinion-an altogether reasonable restraint. It subjects surveillance to an orderly and objective procedure capable of weighing relative values involved.
Prior judicial assessment of surveillance, combined with continuing congressional oversight-which is strengthened by H.R. 214-involves all three branches of Government in meeting the shared constitutional obligations to protect individual rights as well as to guard the national well-being. I would contend that only through such continued involvement of all three branches can we reasonably expect to strike the necessary balance between individual and societal concerns.
Let me briefly address one other important aspect of this question. Does elimination of wiretapping and other surveillance for intelligence gathering unrelated to suspected criminal activity preclude a needed and valuable source of national security information?
Again, on balance, I think not. Recent experience with wiretapping and surveillance for information gathering purposes seems to indicate that such procedures have been used mainly to stop internal organizational leaks, or to gain information useable only in a domestic political context, rather than for legitimate national security or defense needs.
The use of such surveillance-divorced from suspected criminality and unrestrained by any check-imperils our constitutional system, and thus undermines the very national security it is ostensibly designed to protect.
I should point out that H.R. 214 does allow for information gathering surveillance with the consent of the individual in question. It is conceivable that a situation could arise, in which a high-ranking official involved in sensitive negotiations, could be reasonably suspect of being a security risk, simply because of present or prior family, business, or political associations. Such an official might then want to undergo surveillance simply as a means of establishing his or her reliability.
Mr. Chairman, as a lawyer and a former member of this committee, I fully appreciate the very difficult task which you and the other very distinguished members of the committee face. I am fully confident, however, that from the collective wisdom of this committee will emerge the kind of legislation which does indeed rise to this difficult challenge, and which does indeed strike an appropriate balance between individual rights and societal needs. H.R. 214, backed by distinguished members of both parties, goes a long way toward striking that kind of balance. I know it will be given very careful consideration.
Thank you, Mr. Chairman, and other members of the committee, for allowing me to appear before you this morning.
Mr. KASTENMEIER. Next, the Chair would like to call the Honorable Barry Goldwater, Jr., Congressman from California. We welcome you to the committee.
TESTIMONY OF HON. BARRY M. GOLDWATER, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. GOLDWATER. Thank you, Mr. Chairman.
Mr. Chairman, and members of the committee, I am pleased to have the opportunity to appear before you in support of H.R. 2604, the Bill of Rights Procedures Act of 1975. I am a cosponsor of this legislation, as I was in the previous Congress.
I would like to state that I feel this is an important piece of legislation and my colleague in the House, Representative Charles Mosher, is to be congratulated for being its author and chief proponent. My support for the bill stems from my deep and sincere belief that the inalienable rights and liberties enumerated in the Bill of Rights, particularly those of the 1st, 4th, and 14th amendments relating to freedom of speech and association, security in one's property and possessions, and the right to due process, have been eroded by the trend toward the use of surveillance as a primary law enforcement tool and investigative aid.
Further, these rights have been dealt serious injury by the arbitrary way in which administrative authority in the executive branch has been extended to include authority to surveil.
Mr. Chairman, I wish to address myself to four points concerning this legislation, and I would ask unanimous consent to submit my entire statement and only paraphrase those four points.
Mr. KASTENMEIER. Without objection, your statement will be made a part of the record.
[The prepared statement of Hon. Barry M. Goldwater, Jr., follows:]
STATEMENT OF HON. BARRY M. GOLDWATER, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Chairman, and Members of the Committee, I am pleased to have the opportunity to appear before you in support of H.R. 2604, the “Bill of Rights Procedures Act of 1975." I am a co-sponsor of this legislation, as I was in the preceding Congress. This is an important piece of legislation and my colleague in the House, Representative Charles Mosher, is to be congratulated for being its author and chief proponent. My support for the bill stems from my deep and sincere belief that the inalienable rights and liberties enumerated in the Bill of Rights, particularly those of the First, Fourth and Fourteenth Amendments relating to freedom of speech and association, security in one's property and possessions, and the right to due process, have been eroded by the trend toward the use of surveillance as a primary law enforcement tool and investigative aid. Further, these rights have been dealt serious injury by the arbitrary way in which adminstrative authority in the Executive branch has been extended to include authority to surveil.
This trend has received its confirmation recently in the Watergate break-in and in the illegal surveillance conducted by the so-called "plumbers" unit. The urgency of the situation arises from the knowledge that these recent events do not stand alone. They are not an aberration. To varying, and often lesser degrees, we know of events like them going back thirty years. However, I know the Chairman is well aware of the history of the problem for he has demonstrated his interest by the opening of hearings on this subject so early in the new Congressional session. Consequently, I wish to address four points relevant to the bill now before the committee.
First, Watergate and related problems have clearly demonstrated that there is too much vaguely defined administrative authority within the Executive branch of government in the area of surveillance. An ever-vigilant Congress could never hope to check and balance the exercising of the discretionary authority that currently exists. Further, the operational authority is so widely dispersed as to work against the voluntary curtailment or standardization of criterion for undertaking administratively authorized surveillance. The current situation encourages abuse, although well intentioned, by constitutionally questionable application. H.R. 2604 addresses and remedies this problem by eliminating the administrative authority which can currently authorize surveillance by requiring an application for a court order and the demonstration of probable cause prior to undertaking any lawful surveillance. This is the most important element of the legislation and by itself goes a long way to redressing the imbalance that exists.
Second, by defining the term "surveillance" the legislation takes a giant step toward eliminating the confusion that has been brought on by recent court decisions and administrative interpretations. The law enforcement community would be happy to get the situation clarified, for no dedicated law enforcement officer wants to "blow" a legitimate case through technical error. And, the current situation is ripe for such mistakes. There is no doubt in my mind that much of the abuse and injury testified to before this and other Congressional inquiries has been encouraged by the "gray area" between legitimate surveillance and unconstitutional intrusion into a person's privacy. I recognize that for the purists the definitions are incomplete. But, I would remind them that the authors and most of the co-sponsors, myself included, regard this legislation as initial and, in that spirit, experimental. The legislation is aiming at closing loopholes and clarifying the law. We are dealing with a most difficult area. We are attempting to correctly balance the basic Constitutional rights of our citizens with the necessary investigative requirements of legitimate law enforcement and investigative activity. Each of us recognizes that it is a fine line between liberty and license. We have had a recent example of what license can mean to our nation. I doubt anyone wants to return to it or to experience another variety. Thus, while there may be some technical problems regarding exact wording, I believe the provisions relating to court orders and definitions set a proper and balanced direction that should be preserved.
Next, Mr. Chairman, this legislation carefully and deliberately avoids requiring that a court order be obtained for each individual act of surveillance. I strongly believe that that element be retained. I can conceive of no worse situation for our citizenry or the law enforcement community than one which would require such a strict procedure. By relating, as I believe this legislation does, the surveillance authority to the showing of probable cause there is a built-in, natural limitation applied to the extent of the authority. To do more would be to adopt a legalistic and unrealistic approach.
Finally, I wish to speak to the "reports" sections found on pages 6-10 of H.R. 2604. These provisions will go a long way toward insuring knowledgeable Congressional oversight. These provisions should provide the Judiciary Committee and the Congress with a much clearer picture of the relationship between surveillance activity and crime prevention and successful prosecution. The accountability placed on the federal agent in the probable cause and court order sections is balanced by the check and balance quality of these provisions. I believe these are essential provisions. Without them the courts are under no higher compulsion to judge the law enforcement petitions on their merits. These provisions will help eliminate "shopping" for a friendly court. They should prevent overuse and unreasonable refusal of surveillance. However, Mr. Chairman, there are certain risks in these provisions as well. These sections require the providing of the names, addresses, etc. of all the principals involved in the surveillance. If I read them correctly, even the name and address of the recipient of opened mail would be part of the notice report filed with the Congress. Without strong penalties and requirements for confidentiality, these provisions could cause a case to be blown, an informant to be revealed, and the morale of the law enforcement community to be broken. I fully appreciate the intent of the notice requirements. But, I believe these provisions will run a great risk of being harmful_and_counterproductive unless a strong set of confidentiality provisions are added. I know this is a difficult area and that it is a difficult task to strike a healthy balance. However, I also know that this Committee is up to the task.
This is important landmark legislation, Mr. Chairman. It is constructive and needed. I urge this Committee to make it a reality and I thank you for the opportunity to express my support for it.
REPUBLICAN RESEARCH COMMITTEE,
DEAR TASK FORCE MEMBER: We are submitting for your approval the recommendations of the Task Force on Privacy. Please make any changes you find feasible. If we do not hear from you by 12:00 Noon, Monday, August 5th, then we will assume you are in concurrence with our recommendations.
The Task Force is extremely grateful for the assistance rendered by all Task Force offices in this endeavor.
Once the recommendations have been approved by our Task Force, then they will be forwarded to the Research Committee for approval and then to the Policy Committee. Hopefully, toward the end of next week, we will have a press conference in this connection.
Should you have questions, please contact Joe Overton, X54461. RIGHT TO PRIVACY-RECOMMENDATIONS OF THE HOUSE REPUBLICAN TASK FORCE ON PRIVACY
The House Republican Task Force on Privacy believes that the right to privacy is an issue of paramount concern to the nation, the public and the Congress. Recently publicized incidents of abuses and misuses of personal information have only begun to focus attention on this long-neglected area. Public awareness must be heightened and the legislative process geared up to address the full range of problems posed by the issue.
Modern technology has greatly increased the quantity and detail of personal information collection, maintenance, storage, utilization and dissemination. The individual has been physically by-passed in the modern information process. An atmosphere exists in which the individual, in exchange for the benefit or service he obtains, is assumed to waive any and all interest and control over the information collected about him. On the technical and managerial levels, the basic criteria in many decisions relating to personal information practices are considerations of technological feasibility, cost-benefit and convenience. The right of privacy has been made subservient to concerns for expediency, utility and pragmatism.
The trend in personal information practices shows no signs of abating. Twice as many computer systems and seven times as many terminals-particularly remote terminals-will be in use by 1984 as are in use today. And, with each federal service program that is initiated or expanded, there is a geometrically proportionate increase in the quantity and detail of personal information sought by the Bureaucracy. The theory is that the broader the information base, the more efficient and successful the administration of the program.
Such a situation demands the attention of Congress and of the American public. The computer does not by definition mean injury to individuals. Its presence has greatly contributed to the validity and dynamism of both the American economy and the ability of government to serve the people. Under present procedures, however, the American citizen does not have a clearly defined right to find out what information is being collected about him, to see such information, to correct errors contained in it, or to seek legal redress for its misuse. Simply put, the citizen must continue to give out large quantities of information about himself, but