questions. I will tell you what I feel at this point. It is based in large part upon what you have told us and Secretary Rusk has told us.

I think, first of all, the problem that we are confronted with is now beginning to emerge, at least to the point where everyone can see it. The idea that the President, and the Attorney General acting for him, can approve surveillance in intelligence cases ideally is just great, and it did serve us, I suppose, during most of our history. We are all aware of the events of recent years which have shown that that has gotten out of control, and now there is a great disaffection and distrust in our land, and we have to review whether or not the approval of the Attorney General and the President is sufficient or whether we have to add to that.

Somehow we all naively seem to feel that if we do not know how to do it in the Congress, and if the executive department messes it up, then we should have a judge do it. The first fallacy is that assumes that a judge is better qualified than a member of the executive department or a member of the legislative department to do the job. I have no evidence that a judge is better qualified to pass on the desirability of an electronic surveillance security case than does anyone else. Commonsense says that people who deal in intelligence matters, in the international relations, who are aware of techniques and practices used in those activities are probably better qualified to pass judgment as to the need for surveillance than would be a person whose constitutional responsibility is to remain impartial and to sit as a judge of one of our courts.

I just glanced at article III of the Constitution, and I am again reminded that the judicial power of the United States shall extend to all cases in law and equity and to controversies. None of these matters are cases in law or in equity, nor are they just controversies. And I respectfully submit they are not within the judicial power of the U.S. courts.

It is also naively submitted in one of these statements perhaps, perhaps one of the bills that we should report to the administrative officer of the court periodically. I submit that that would be really nothing. It would be a burden on the courts. The administrative officer of the court is sort of a chief clerk of the court, and what he wants to be doing with electronic surveillances is beyond my knowledge.

No, I prefer to restrict the functions of the courts to that which they are supposed to do; namely, to try cases and controversies and remain impartial. They may eventually have to pass upon a controversy that arises out of this kind of activity, and they should not be involved in it in a preliminary stage.

Now, I think there are a couple of sections in these bills which are surplusage. The statement that we are not limiting the power of the President or not adding anything to his powers under the Constitution, as far as I am concerned, is an idle act since we can neither add to nor subtract from the President's powers by legislation.

Now we get down to the nut of it, and as I think you are telling us, I recognize the distinction between criminal investigation and prosecutions on the one hand and intelligence gathering and use on the other hand. In the first case we are trying to gather evidence for the purpose of using it later in a prosecution if that should be the

proper end. In intelligence we rarely have a prosecution, very rarely. I have seen no statistics, but the prosecutions in our courts for espionage, and sabotage and related activities are a tiny fraction of the investigations that have gone on. We investigate intelligence in order to obtain knowledge, and to be certain that others who are not entitled to it are not obtaining the knowledge that they are not supposed to have, and which would jeopardize our internal security and foreign security.

Now, in the criminal law case I think we already have rather good safeguards. We need probable cause for warrants, warrants for search, warrants to arrest. We have a mass of precedence to give us guidance. But we have got one problem that is growing out of this distrust of the executive department, and that is now instead of getting a warrant at the time you want to make an arrest, or getting a warrant when it is time to make a search and seizure, the pressure seems to be, and I am going to call it naive because I think there is no malintent here, the pressure seems to be to get a warrant before you ever start your investigation.

I have done a lot of investigating in my life, and I respectfully submit that there is no point, there is no way to get a warrant until you at least have some evidence. You have to have a starting point. And if this Congress were to require a warrant before you commenced your investigation, you might as well all lie down and let the criminal world take over. It is just the hen and the egg situation. You have got to get a starting point before you get to the sophisticated stage of the warrant.

So as far as I am concerned, any legislation that this committee puts together will receive my support or not receive my support depending upon whether we have a practical treatment of that very real problem.

And lastly, a different rule applies in intelligence cases. I would like to have them relate to the Attorney General and to the President. I think ideally they should. But as I said before, the people have been burned. We all have. We are gun-shy. We are worried and properly should be. Experience has shown us that that is not necessarily enough. Perhaps we need to put together some other kind of a body. I am not going to call it a court, but some kind of body to supplement the President and the Attorney General, and to lend his blessing, or his denial to opportunities to use this type of surveillance. I do not care if it is a full-time job or not, sir. It would have to be a full-time occupation. I mean, I think the person selected should be of the very highest creditability, and that is about all they ought to do, and they ought to be ready, available 24 hours a day.

My last point here is how we are going to do that. I do not know. I do not know if we should do it. I wish we could have total faith in the Attorneys General and the Presidents that I would like to have, but I do not want the pendulum to swing too far, and in an effort to prevent the abuses we have seen in the last few years require that we destroy our own ability to protect ourselves against those who would break our domestic laws, and those who wish us no good in international relations. That is my position on this thing, and I will yield back the balance of my time.

Mr. KASTEN MEIER. The gentleman from New York, Mr. Pattison.
Mr. PATTISON. Thank you, Mr. Chairman.

I must say I was rather stunned by the overwhelming nature of the testimony. I almost felt that it was an all-out attack on the fourth amendment to the Constitution. I think that we should keep in mind what we are here for, and it was well said, I think, by a quote from the Federalist papers which was quoted by the former FBI Director, Assistant Director Mr. Sullivan. And I think it is worth quoting, because, I think, it sets the context of what we are trying to solve here. And he quotes from the Federalist papers:

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the government, and then in the next place oblige it to control itself.

Now, that is our problem. We are not here to attack the fourth amendment. We are trying to work out a system that is sensible for all of us so that we can govern the people who are doing the governing. One of your statements was particularly troubling to me, and it appears on page 10. You say, "Again, I fail to see why law enforcement in the legitimate exercise of its authority must labor under far greater restrictions in this respect than are imposed on the public at large." Now, are you really serious about that? Do you really want to know why the Government is under certain restrictions and the people are not under those restrictions? I think that is very basic to our whole constitutional system in this country. I would like to have an enlargement from you, if I could, on that statement. I am just absolutely shocked by that statement.

Mr. KELLEY. The provisions set out apply to law enforcement, but they do not apply to private people, and it just appears that this is a matter which could logically be extended to us, as Mr. Danielson said, to protect the people by virtue of a proper investigation leading toward the uncovering of criminal activities, or activities in the security field. After all, Mr. Congressman, we are in the field of trying to reduce crime and protect the people without invading privacy, without violating the law and using reasonable efforts to do everything short of this type of thing, we want to have all of the capabilities we can have. We are not desirous of this order to have a short cut. We are not wanting to shove off and get on to short cuts. We just want to do the job the best that we can to be implemented by the most viable systems that we can. That is the only thing I can answer to you. We just feel that we need this in order to do a proper job.

Mr. PATTISON. I understand, sir, but my problem is when you make a statement that law enforcement is under certain restraints and you cannot understand why they should be under restraints that are less than private individuals, you fail to understand that our whole Constitution restrains government. That is what it is all about. It does not restrain private individuals, but it restrains the power of government, and that statement just seems to me to show a fundamental misunderstanding of that basic part of our system. Perhaps you did not mean to say that. But it stuns me to have the chief law enforcement officer, or one of the chief law enforcement officers of this Nation saying that. And the Constitution does not say I cannot deprive somebody of free speech, it says that the Government cannot deprive people of free speech. Private individuals can do that.

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Mr. MARONEY. Well, if I may, Congressman?

Mr. PATTISON. Yes.

Mr. MARONEY. As I understand Mr. Kelley's thrust of his position on that point, as was the thrust of ours, that these bills would unduly impede the investigative agency in appropriate conduct of an investigation, of a criminal investigation.

Mr. PATTISON. I got that from your statement. This part of the statement goes way beyond that. That is what I was getting at.

Mr. MARONEY. I think though, at least I think it should be read in the context of what went before, and that is that the bill would unreasonably impede the investigative process. I certainly do not think there is any indication to express a view that law enforcement is not subject to legal checks. It is. There are all kinds of restraints. Mr. PATTISON. Thank you. I just have one other comment. On page 3 and then again on page 14 you have some statements about something that I am not aware of. The third paragraph on page 3 says, "This country has been designated by the intelligence services of Communist-type and bloc countries as a prime target." It goes on to say, "The intensity of their operations against us may be gaged by the steady increase of intelligence officers assigned to the United States." Then on page 14, it says in the second to last paragraph, the penultimate paragraph, "Given the alarming crime rate today and the increasing threat of foreign subversion, this price is far beyond reason." Is there something, some new developments along those lines, the designation of us as a prime target, is there some documentation, or is that simply a statement of what perhaps we perceive to be the case?

Mr. KELLEY. Mr. Congressman, I do not have the information that I have given out in speeches and analyses and so forth, but there is an increase in this activity by virtue of the enlargement of the assignment of people to the diplomatic corps, consulars offices, tourist and visitors, many of whom we feel are intelligence gathering in reality. Mr. PATTISON. Well, then, there is not something else that I should know about, or anything that I do not get from the newspapers? I mean, there is not any new development or evidence that you can tell us about that is different from what our normal perception has been about the efforts of foreign countries to gather intelligence from us and subvert us?

Mr. KELLEY. There is an emphasis apparently upon intelligence gathering, and I will be happy, if it is satisfactory, to send you the material that we have on that.

Mr. PATTISON. Fine. I would appreciate that.

One other question. On page 9, you talked about an explosion case, and you say, "It was only through our review of telephone toll records, obtained by subpena, that we were able to tie in a number of other suspects." When you obtain a subpena, what do you do? What do you do, just issue a subpena yourself?

Mr. KELLEY. No. No. We go to the court for that.
Mr. PATTISON. You go to court?

Mr. KELLEY. Yes.

Mr. PATTISON. What do you have to show?

Mr. KELLEY. A grand jury in this case.

Mr. PATTISON. You go to a grand jury and the grand jury issues the subpena?

Mr. KELLEY. Yes, sir.

Mr. MARONEY. The U.S. attorney.

Mr. KELLEY. Well, the U.S. attorney handles the grand jury, and through him they actually issue it.

Mr. PATTISON. So in that case, that would seem that the problem of a warrant would not be much of a problem in going before a judge? You have to have some grand juries doing some investigation, you have to have some kind of reason for issuing a subpena? You just do not issue them?

Mr. KELLEY. Just illustrative of the value of reviewing those records

Mr. PATTISON. I understand what you were trying to do is you were trying to review some background records, but you had to follow a procedure to do it?

Mr. KELLEY. Yes, sir.

Mr. PATTISON. Something other than just internally yourself? Mr. KELLEY. Yes. That is right.

Mr. PATTISON. So some procedures like that do not hinder you? Mr. KELLEY. That is right. We have less than probable cause, then

Mr. PATTISON. I understand that. I understand you have less than probable cause, but that is not to say that you do not have to have a procedure in order to issue a subpena and to obtain evidence. I mean, you do not sneak into a bank in the middle of the night and look at somebody's records. You have to get in there, get in the door and show some piece of paper to somebody with some authority behind it, is that not correct?

Mr. KELLEY. That is right.

Mr. PATTISON. And you have to go to somebody, somebody else other than your own personnel, somebody has to review your decision to investigate, whether it is a grand jury or somebody else, is that not correct?

Mr. MARONEY. As a practical matter, Congressman, I think the U.S. attorney would cause the subpena to be issued. He would advise the grand jury of the issuance of the subpena in connection with their pending investigation. Now, the grand jury could, of course, direct that he withdraw the subpena or say they do not want the records or some such thing as that.

Mr. DANIELSON. Would the gentleman yield?

Mr. PATTISON. Yes.

Mr. DANIELSON. I do not think the gentleman means that at a bank, for example, that the agent would go to the bank in the dead of the night and rifle through the canceled checks?

Mr. PATTISON. No. I say that is exactly what they do not do.

Mr. DANIELSON. You go to the bank and you tell the vice president that I am Joe Smith and I would like to see George Danielson's checks or some such thing.

Mr. PATTISON. At which point the bank says not a chance unless you show me some piece of paper.

Mr. DANIELSON. Maybe they do now, but they never used to.