Surveillance

"(3) the costs of any successful action, including

reasonable attorneys' fees.

"(b) Any person, group, or organization that has been

4 the subject of any investigation, surveillance, or record5 keeping in violation of subsection (a) of this section may 6 bring a civil action against the United States for such equi7 table relief as the court determines appropriate to enjoin and 8 redress such violation.

9 "§ 2692. Special class actions; illegal surveillance

"Any person, group, or organization that has been the

11 subject of any investigation, surveillance, or recordkeeping 12 in violation of subsection (a) of section 2691 of this chapter, 13 may bring a class action against the United States on behalf 14 of himself and others similarly situated for such equitable 15 relief as the court determines appropriate to enjoin and re16 dress such violations.

17 "§ 2693. Venue; jurisdictional amount

"(a) A person may bring a civil action under this 19 chapter in any district court of the United States for the 20 district in which the violation occurs, or in any district court of the United States for the district in which such per

son resides or conducts business, or has his principal place

23 of business, or in the District Court of the United States for 21 the District of Columbia.

"(b) Any Federal court in which a civil action under

1 this chapter is brought pursuant to subsection (a) shall have

2 jurisdiction over such action regardless of the pecuniary 3 amount in controversy."

6 item:

"172. Illegal surveillance_

2691".

(d) Section 1343 of title 28, United States Code, is 8 amended by redesignating paragraph (4) as paragraph (5) 9 and by insertiing immediately after paragraph (3) the fol10 lowing new paragraph:

"(4) To recover damages or to secure equitable

or other relief under chapter 172 of this title;"

SEC. 4. The civil actions provided by the amendments

to title 28, United States Code, made by this Act shall apply only with respect to violations of subsection 2691

(a) of title 28, United States Code, as added by this Act,

arising on or after the date of enactment of this Act.

DEFINITIONS

SEC. 4. As used in this Act the term:

(a) "civil officer of the United States" means any

civilian employee of the United States;

(b) "investigations" means any oral or written in

quiry directed to any person, organization, or agency of the Government;

57-282 O 76 pt. 1 5

tion, overt or covert infiltration, overt or covert observa

tion, photography, and the use of informants;

(d) "records" means records resulting from any investigation or surveillance conducted by any governmental agency of the United States or any State or local government;

(e) "private affairs" means the financial, medical, sexual, marital, or familial affairs of an individual.

Mr. KASTENMEIER. Because of the steep decline of public confidence in Government, reinforced by repeated disclosures of alleged illegitimate Government spying, it is essential that the subcommittee exercise vigorous oversight and actively consider legislation which will limit what Justice Holmes characterized as "this dirty business." Today's hearing is only the first in a series which will consider all aspects of surveillance. In the future we will investigate specific legislative proposals designed to eliminate those abuses.

The various bills presently pending before the subcommittee outline the broad scope of the problem and suggest a number of possible solutions. They range from proposals to ban any investigation of American citizens for other than limited criminal law enforcement or job application purposes to a bill which bans all military surveillance of civilians. Other legislation would require court orders for one-party consensual wiretapping or for national security electronic eavesdropping. The specific proposal which today's witnesses will address would prohibit intelligence gathering and surveillance by wiretapping, mail opening, inspection of bank, telephone, credit, and other personal records without a court order based on probable cause that criminal activity is involved.

This hearing will consist of two parts. First, we will hear testimony from the chief sponsors of one of the bills which is broadest in scope. At later hearings we will hear from sponsors of other proposals. The second part will consist of testimony from two attorneys who have been involved in a wide variety of litigation dealing with almost every aspect of surveillance. These witnesses will provide the subcommittee with specific examples of past abuses of a wide variety of Government surveillance.

The subcommittee is mindful of the activities of other bodies such as the National Wiretapping Commission on which Congressman Railsback and I serve. However, since the Commission has abdicated its responsibilities to investigate national security warrantless wiretapping, this urgent task falls to us. While the Senate has created a Select Committee on Intelligence and the House is considering similar action, legislative responsibility with regard to controlling surveillance and privacy invasion remains within this subcommittee.

At this point I would like to observe that there will be no oath administered to the witnesses this morning. But it has been suggested because of the nature of the testimony at times in the past, which through later revelations appear not to accord with the facts or with truth, some testimony may have been less than wholly accurate or truthful, that oaths be administered to witnesses. This is a matter which the subcommittee will take under advisement and will resolve in the future. But the mere fact that witnesses this morning are not put under oath does not foreclose that possibility at some time in the future.

I am pleased to welcome the committee this morning including a new member, Congressman Wiggins of California. Mr. Cohen was a former member of this committee from Maine and was interested in this question last year and has generously taken of his time to sit with us. on this question. And Congressman Badillo of New York is a new member of our subcommittee who is with us this morning.

At this point I would like to welcome our friend and our colleague from Ohio, Mr. Mosher, who has taken the lead in the House and has

aggregated, as I understand, a bipartisan bill with 62 sponsors. I am told 31 Members are of the minority and 31 members are of the majority, which is about as bipartisan as you can get, and whose bill certainly represents a very broad attack on the question which the committee is directly concerned. And accompanying Congressman Mosher is an old friend of this committee-one who served on the Judiciary Committee with very great distinction-and now, of course, is the Senior Senator from the State of Maryland, Senator Charles Mac Mathias. I welcome you both, and will call on Congressman Mosher to make any opening statement he may care to make.

TESTIMONY OF THE HONORABLE CHARLES A. MOSHER, A REPRESENTATIVE IN CONGRESS FROM THE 13TH CONGRESSIONAL DISTRICT OF THE STATE OF OHIO

Mr. MOSHER. Thank you, Mr. Chairman, and gentlemen of the committee.

I confess to being somewhat intimidated by this situation this morning. All of you are distinguished attorneys, all of you on this committee are very much accustomed to TV. I am strictly a layman, a smalltown country-editor type who has no experience of being exposed to TV, so I am intimidated. However, I have attempted to compensate for my lack of legal competence by bringing with me my attorney. At my left is Senator Mathias, an old friend and colleague, and certainly one of the most distinguished members of the House when he was with us here. And as you have just mentioned, he was a very important member of the House Judiciary Committee when he served in the House.

I wanted to make it plain that Senator Mathias is the originator of the legislation to which we jointly will speak this morning. He and his associates in the Senate perfected this legislation. It was called to my attention by an attorney, William Wickens, who is a constituent of mine and who was a staff man on the Senate side at the time this legislation was being prepared. When he called this Mathias bill to my attention I was so impressed by the entire timely and important nature of it that I talked to Senator Mathias and asked permission to introduce it on this side. And I feel very privileged to be here this morning as a lead witness testifying in favor of our legislation.

And, Mr. Chairman, let me say both of us appreciate very much that you are giving this such an early hearing, an indication that your committee will give serious consideration to our bill, and certainly we will welcome your wisdom, your analysis and hopefully your approval of our legislation.

Now, before turning this over to Senator Mathias, let me say this: I mentioned being a smalltown country-editor type, and perhaps it is that background, working with individual citizens at the grass roots, at the curbstone, that background of concern for people in their dayto-day and hour-to-hour living, perhaps it is that background which moves me to feel so intensely the imperative need, in fact, I think the absolute right for the individual American citizen to feel secure in the confident knowledge that his or her privacy is not being invaded

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Surveillance: Hearings Before the Subcommittee on Courts, Civil Liberties ...