cated matter. I will be glad to send you some comment later about it if you wish. But I am a little reluctant to try to toss off an indepth view on something as serious as this.

Mr. BADILLO. Well, except that this is the heart of the bills we are discussing. The question before us is whether a penalty shall be provided, because otherwise we are not really accomplishing anything if we merely say as Vice President Rockefeller suggested, do not do it again, fellows.

Mr. Chairman, do you have a question?

Mr. KASTENMEIER. Well, I was going to suggest that if, indeed, Mr. Rusk desires at a later date to communicate his thoughts to the committee on these questions, we would be most pleased to hear from him.

Mr. RUSK. Thank you.

Mr. BADILLO. And also I would like your thoughts on whether the penalty should extend to a hired agent because the bill merely says any officer, agent, or employee of the United States who opens any foreign or domestic mail, or who intercepts any wire communication. But as you know, and as you pointed out, many times the person is hired and is not technically an officer of the United States, so that the question is if somebody hires an informer or some other agent to do this, whether that person ought to be subject to a penalty. That is the crucial issue in these bills.

Mr. RUSK. What about receiving such information from anybody who has used these mails whether you are in Government or whether you are a member of the news media, is that going to be a crime?

Mr. BADILLO. Well, I think that this is one of the questions, because in some other situations we have been told, and I think you yourself have testified you read material and you really did not know who obtained it, and many people said they did not want to know who obtained it, but that is another way of closing your eyes to reality. I think if the person should have known or should have inquired as to whether the material was illegally obtained, he should be held responsible too. And I would appreciate your thoughts on that subject. Thank you, Mr. Chairman.

Mr. KASTENMEIER. The Chair observes there is a vote on, and the committee is required to recess for perhaps 12 or 15 minutes for a vote on the floor. And Mr. Pattison of New York has not had an opportunity to ask the Secretary questions. Would you be able to remain, sir? Mr. RUSK. Yes. I have no problem.

Mr. KASTENMEIER. Thank you. And I would also say the same to Mr. Kelley and the other witnesses. The committee will stand in recess for 15 minutes.

[Short recess.]

Mr. KASTENMEIER. The committee will resume its hearings.

The committee, upon its recess, was hearing testimony from the Honorable Dean Rusk, and at this point I will now yield to the gentleman from New York, Mr. Pattison.

Mr. PATTISON. Mr. Secretary. I would like to follow up on some of the questions that have been asked, and particularly the concern that was expressed by Mr. Wiggins. I take it that we can agree that warrants for wiretapping and other surveillance make sense for citizens

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and those people who are under the protection of the laws of the United States, whether they be citizens or not?

Mr. RUSK. That is my view.

Mr. PATTISON. I suppose that we can also agree that the warrant system is really just a procedure, and even under a warrant system that we will have invasions of privacy? In other words, judges will grant warrants improvidently?

Mr. RUSK. That is possible, and I personally do not see any way in which the Congress can prevent that.

Mr. PATTISON. As all procedures

Mr. RUSK. There are always those possibilities.

Mr. PATTISON. You try to do as good a job you can by setting procedural standards?

Mr. RUSK. That is correct, sir.

Mr. PATTISON. And I also take it your primary objection to having warrants required in the case of people who are not entitled to protection of our laws is that, as a matter of fact, in many cases the standard that is formally required for a warrant; that is, probable cause that a crime is or is about to be committed, would be an impossible standard to fulfill because, indeed, many times you do not have any idea that a crime is going to be committed? You simply want to get some intelligence relating to some noncriminal activity, but which is important to the national security of the United States?

Mr. RUSK. Or to protect yourself against espionage on the part of those who are sent here for that purpose.

Mr. PATTISON. And who would not be committing a crime either? In other words, let us take the case

Mr. RUSK. Well; it might be committing a crime, but would not be subject to the normal criminal law because of certain immunities. Mr. PATTISON. OK. Either way. But let us take a case where it was, as Mr. Wiggins was saying, pure intelligence.

Mr. RUSK. Right.

Mr. PATTISON. You do not even suspect that a crime is going to be committed, so that therefore

Mr. RUSK. That is correct.

Mr. PATTISON [continuing]. You would be incapable of showing probable cause that a crime is or might be committed.

Mr. RUSK. That is correct.

Mr. PATTISON. What would your reaction be for a requirement for a warrant in those cases where you are talking about people who are not under the protection of the laws, but which would have a different standard? Now, I am not sure what that standard would be, but it seems to me that to perceive what you are trying to do is simply a separate decisionmaking process to get it out of one person's hands, to get it into some sort of review procedure so that in a number of cases you can at least have some protection that the one person who was interested both in the result and in the means does not have all of the power. In other words, let us, for want of a better word, suppose you could get a warrant from a judge in those cases where it is important to get the information, and that is, the judge would have to review what you are saying. In other words, you would have to convince the judge that it was important not that a crime was going to be committed, but it was important.

Mr. RUSK. I can imagine that theoretically, Mr. Pattison. As a matter of principle, I would not object to it. I am not experienced in legislative drafting, but I should think it might be rather difficult to frame such legislation.

Mr. PATTISON. I would agree with you. I am trying to get the principle.

Mr. Rusk. It might be possible for a discreet oversight committee with full access to all of the information to assist, say, the Attorney General, the President, develop the kinds of guidelines and supervision that would go a long way toward meeting the difficulty that

you see.

Mr. PATTISON. In other words, what I am trying to get to is all warrant procedures are simply a means of review of executive discretion, and it may be that probable cause that a crime is going to be committed is not an appropriate standard to apply in all reviews. I think you are saying that in cases where you have people who are not entitled to protection of our laws, probable cause is not an appropriate standard. But that does not necessarily mean to say that, therefore, you could have no procedure at all in those cases, or that perhaps the procedure which would have a different standard, which would not be probable cause that a crime has been or is about to be committed? Mr. RUSK. Yes. And I thank you, sir, for helping me understand. now a little bit more what Mr. Wiggins had in mind, because there are some intelligence targets or purposes that do not really strictly get involved in the criminal law as such or with offenses as normally understood. As I say, I think it might be theoretically possible. But for example, if you knew through unchallengeable information that there are certain persons in this country who are here for the purpose of penetrating certain aspects of our nuclear establishment, you might want to have them under some sort of continuing surveillance of some sort. Well, I do not know whether you ought to ask judges to give you a blank check for, say, a year or two at a time, that kind of thing. That makes me a little bit nervous.

Mr. PATTISON. But is not the object to separate or to add another voice in the decisionmaking process?

Mr. RUSK. I think that can be done, sir, and I think we ought to start with the suggestion that has been made, and which I fully agree with, and that is that to the extent possible, the Attorney General be removed from the partisan political context. Traditionally, and not always exactly, the Secretaries of State, Treasury, and Defense are supposed to remain somewhat outside of partisan political combat. I would think it would be most important of all that the chief law officer of the Government be similarly removed.

Now, this cuts into both parties because both of them have used political people in that office from time to time. I would like to see that politically insulated from the political process.

Mr. PATTISON. But we really could not legislate that very well, could we? I suppose we could have an independent

Mr. RUSK. No; but you could make it very uncomfortable for those who try to make it the other way, because the Congress has an enormous capacity to make things uncomfortable.

Mr. PATTISON. That raises another point. That point is there is sort of an assumption there that if the Attorney General were, in fact, an

independent person, not politically connected, that he would, or that you could competently put these decisions in his hands.

Mr. RUSK. But in consultation with the right kind of oversight committee. That does not bother me at all.

Mr. PATTISON. In other words, you do not object to the idea of a warrant where you have to go to someplace and follow some kind of procedure. What you would object to primarily is using those criminal standards of probable cause that a crime is about to be committed? Mr. Rusk. That is correct.

Mr. PATTISON. In the case of noncitizens who are not under our laws. Mr. RUSK. Particularly in the two fields of espionage and counterespionage and political terrorism.

Mr. PATTISON. Thank you, Mr. Chairman. I have no further ques tions.

Mr. KASTENMEIER. Actually, Mr. Secretary, there are, I guess, more or less three options here. One is to proceed to do nothing with the present law. Another is to provide for some other procedure in cases of national security. And another presumably is to ban the use of wiretapping, as H.R. 214 does, completely. And you would be totally op posed to that?

Mr. Rusk. I would be opposed, Mr. Chairman, to a total ban of electronic techniques.

Mr. KASTENMEIER. To clarify a colloquy that went on before, as to a distinction between the protection of U.S. citizens and other aliens under the protection of the United States, certain foreign citizens who are here on diplomatic missions or otherwise have a legal status quite different from persons or people under our Constitution, is that not correct? That is to say, under international law, under comity, or under agreement, or under our own national law, they would not qualify as persons?

Mr. RUSK. I think there is an important distinction, Mr. Chairman. Diplomatic immunity does not constitute a license to disobey the law or commit crimes. The procedures by which you deal with it are radically different because diplomatic immunity, and this we have an interest in worldwide ourselves on the basis of reciprocity, or retaliation and considerations of that sort, diplomatic immunity simply provides different procedures to deal with obnoxious violations on the part of diplomatic personnel.

Mr. KASTEN MEIER. Well, that concludes the questions I have. And to the extent that in the future, after having thought about other aspects, you care to communicate with this committee, we would invite and solicit your opinion.

On behalf of the committee, I would like to express our appreciation for your coming today as a private citizen to help us with this rather difficult group of questions on which we seek some counsel and wisdom. Thank you very much.

Mr. RUSK. Thank you, Mr. Chairman.

Mr. KASTENMEIER. Next, the Chair would like to call two witnesses. the Honorable Clarence Kelley, Director of the Federal Bureau of Investigation, a distinguished public servant, and in place of the original representative of the Justice Department, the Honorable John C. Keeney, Assistant Attorney General of the Criminal Division, we have with us this morning, Mr. Kevin T. Maroney.

Gentlemen, may I invite you to come forward and take your places at the witness table. And may I extend the oath to you as I have all of the other witnesses preceding.

Mr. Maroney, and Mr. Kelley, would you raise your right hand. Do you swear that the information you are about to tell the committee is the whole truth and nothing but the truth?

Mr. KELLEY. I do.

Mr. MARONEY. I do.

Mr. KASTENMEIER. Gentlemen, Mr. Kelley, which of you would like to proceed first? You both have statements. Mr. Maroney?

TESTIMONY OF KEVIN T. MARONEY, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE

Mr. MARONEY. Mr. Chairman and members of the committee, I appreciate this opportunity to present for your consideration the views of the Department of Justice on H.R. 214 and H.R. 141.

Although there is some similarity between the two bills, they are really quite dissimilar. I want to discuss H.R. 214 first and then I will discuss H.R. 141.

H.R. 214 appears to be designed basically to achieve three general purposes. First, it would require court orders to permit law enforcement activities which have been carried on heretofore without such orders. Second, it would subject Federal law enforcement agents to criminal penalties for failing to obtain court orders as required. And finally, it would call for the making of certain new reports to the Committees on the Judiciary of the Senate and House of Representatives concerning intercepted communications and authorizations to open mail.

H.R. 214 can be divided into three general parts. In order, these parts concern: (1) searches without warrant; (2) interceptions of wire and oral communications; and (3) reporting to the Congress on intercepted communications and mail openings. For purposes of a clearer presentation I shall discuss each of these parts of H.R. 214 separately. Searches without warrant-section 3 of the bill. Section 3 of H.R. 214 would amend 18 U.S.C. 2236 to enlarge its scope and to punish Federal agents for wrongfully conducting any of several kinds of searches and for wrongfully intercepting or attempting to intercept wire or oral communications. The indirect effect of this would be to require law enforcement agents to obtain court orders for many activities that have been carried on to date without such orders.

As background, let me point out the state of existing law regarding warrantless searches of property. At present, the victim of a warrantless search of property by Federal agents has two remedies. He can sue the offending agents civilly and seek to recover damages under the principles enunciated in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Or he can call the matter to the attention of Federal officials for possible prosecution under 18 U.S.C. 2236. This statute, which has been in effect since 1948, is applicable only when Federal agents invade a private dwelling without a warrant, or when they search any other building or property without a warrant or reasonable cause, and with malice. Initial violations of 18 U.S.C.