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I do not see how I am going to be helped by your laws. And I have followed this intensely since 1968, and annually I have written something on what the reports do not tell us. So in all candor, I just do not see how this is going to clean up the Department of Justice.
Mr. MATHIAS. I would suggest that there be periodic hearings by the committees of the Senate and the House looking at these reports, as I suggested earlier, doing some spot checking on individual cases, developing within the executive branch and judicial branch the concept that the Congress is going to discharge its oversight responsibility. I think we have been negligent in this in the past. Perhaps when the existing law was adopted, if when we had gotten the 6 months reports we had done something with them, perhaps there woud be a different philosophy. But I think we have now got to take a new departure.
Mr. DRINAN. Well Senator, I have spoken with Federal judges about this matter, and I have intimated to them in generous, gracious language that they have been pretty sloppy in the administration of this, and they say we call it as we see it. Some man comes in from the Department of Justice, and I am going to deny him the right to wiretap when he and his superiors say it is necessary? There is no evidence on the other side, so they are just trapped in the whole situation, and we can have oversight on them, but nothing is going to change. Mr. MOSHER. Mr. Chairman ?
Mr. DRINAN. Yes.
Mr. MOSHER. Bob, going back to your original question, and your reference to the penalties, am I not correct that the penalty would provide in here of up to $10,000, which is a considerable increase over the present penalty?
Mr. DRINAN. Yes. I meant, Congressman, the damages. Right now a person damaged can recover $100 a day, and I would like to have that more proportionate to the other.
Mr. MOSHER. OK.
Mr. DRINAN. If that will work, but there is no case yet where anybody has ever received $100 a day.
I yield back. Thank you very much.
Mr. KASTENMEIER. May I also observe that we talk about the Justice Department, but this affects all agencies of Government, presumably the Central Intelligence Agency, the Department of Defense, and the Internal Revenue Service as well as the Justice Department?
Mr. MATHIAS. That is right. And in answer to Father Drinan's question about what more does he get under this bill, you get the protections covering the whole range of Government activities, activities that you and I may not know fully about.
Mr. DRINAN. Which is already illegal.
Mr. MATHIAS. But which may be happening.
Mr. KASTENMEIER. I yield to the gentleman from California, Mr. Wiggins.
Mr. WIGGINS. Thank you, Mr. Chairman. I welcome our former colleague to the committee. Your absence has been felt in recent years, and I certainly as an individual want to acknowledge your enormous contribution to this committee and to the Congress.
I want to talk conceptually first, and then get into the details of the legislation. It seems to me that there are at least two optional
courses of action. One is to rely on the fourth amendment without more, and to permit abuses of that amendment to be circumscribed by case action, and by decisions ultimately of the U.S. Supreme Court. The other is for the Congress to legislate in the field and attempt to regularize the process, and in the course of doing that to establish what is permissible and what is not. Why did you select this latter option rather than simply to rely on the good judgment of the Court in prohibiting excesses?
Mr. MOSHER. Charles, again I will turn to my legal adviser, but my own answer to that question would be what seems to a layman abuse that is so obvious that the legislative branch needs to consider the possibility, it has an absolute obligation to consider the possibility, of trying to curb and implement the fourth amendment by legislation. Mr. MATHIAS. If I could amplify that just for a second, it seems to me that:
No. 1: You have the record that we are not doing very well with this problem on a case-by-case basis.
No. 2: I think you have the responsibility of the Congress to define its view of this problem. I do not think we in the Congress can simply leave it to the judges and to the Attorneys General, or Secretaries of Defense, or whoever happens to be the active agents in the case. We cannot simply leave it to them to define the Constitution, and then live with their definition, and perhaps go down on the floor and make some speeches complaining every now and then. We have the responsibility to give our definition of the Constitution in
Mr. WIGGINS. I respect that point of view. It has the virtue of involving this branch of Government in a most important subject. But, it has the vice of interjecting rigidity into the system, the judicial branch. It does have a great deal of flexibility in dealing with precise circumstances of a given case. I am not sure I share your view that the judiciary has been less than aggressive in protecting fourth amendment rights. Katz, Berger, and the so-called Keith and other cases indicate the aggressiveness and sensitivity of the judicial branch to this problem.
So much for that conceptual problem, and I will mull it around myself.
Mr. MATHIAS. Of course, one of the problems is that many of the cases, the ones that worry Congressman Mosher and myself, never get to the attention of the judicial branch. We are trying to involve them, and make sure they do get into the act. So in a sense we are in your corner. We are trying to give the judges a chance to participate in each case and not be excluded from so many as they
Mr. WIGGINS. In the Constitution in various places the word "person" is used, "citizen” is used and in one case, two cases "people" is used. Your prepared statement did not carefully use those terms, I think, because you indicated in places in your prepared statement you are attempting to protect the rights of citizens.
I would like to know if the thrust of this legislation is broader than that, if you intend to reach persons as well as citizens?
Mr. MATHIAS. Yes, the answer is "Yes." You can go back to the Embassy example.
Mr. WIGGINS. Yes. Your legislation does not admit of special circumstances directed toward noncitizens, is that correct?
Mr. MATHIAS. Not within the borders of the United States.
Mr. WIGGINS. Yes. I would like you to turn to the bill itself, starting on page 4, if you have it before you. Do you have a copy of the bill, Senator?
Section 2236, commencing on line 4, page 4, in the first subdivision indicates that warrants issued without probable cause, and I want to know your understanding, "without reasonable cause" are the words, your understanding of "reasonable cause" to believe what?
Senator MATHIAS. That there has been a violation of law or that there is about to be a violation of law. And, of course, a severe threat to national security would be a violation of law, I think, in almost every case.
Mr. WIGGINS. Well, I am sure, and you are focusing now on my concern as to whether or not wiretaps and searches in general must be directed to an offense, and if it is your intent to prohibit investigative searches without reference to a particular offense.
Mr. MATHIAS. I would like to tie it to an offense.
Mr. WIGGINS. All right. Then would you like to prohibit investigative searches that are not tied to a specific offense?
Mr. MATHIAS. That is right. But, again, I think your concern does relate to security problems.
Mr. WIGGINS. Yes; it does.
Mr. MATHIAS. And almost every problem that would relate to national security, espionage, for example, is a violation of law. And it would be readily susceptible to being related to
Mr. WIGGINS. Well, let us just take a hypothetical case. If the United States felt there was a certain tension between its interest and that of country X, under no circumstances, under your bill, would a tap be permitted in the Embassy of country X simply to determine whether or not they are attempting to engage in espionage activities, or any activities detrimental to the United States?
Mr. MATHIAS. If there was reason to believe that they were engaged in such activities, and those activities are prohibited by our law, they could be reached by a warrant.
Mr. WIGGINS. What if the search was simply for the purpose of intercepting and ultimately breaking their intelligence codes? It is certainly an offense for them to have such an intelligence system.
Mr. MATHIAS. That would be violating a treaty.
Mr. WIGGINS. Which one? What one?
Mr. MATHIAS. Just an inquiry of that sort is clearly prohibited by treaty.
Mr. WIGGINS. It is impermissible for us to, under the treaty, to attempt to break the code of a foreign power?
Mr. MATHIAS. Yes; it is.
Mr. WIGGINS. I am surprised to hear that, because that has been considered to be one of the great successes of our country in the past. Are they in violation of law?
Mr. MATHIAS. Treaties are the law of the land.
Mr. WIGGINS. They are indeed. So, I will look into that a little bit. later.
[Subsequently, Senator Mathias submitted the Vienna Convention on Diplomatic Relations, which follows:]
57-282 O 76 pt. 1 6