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TESTIMONY OF HON. EDWARD G. BIESTER, JR., A REPRESENTA

TIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA Mr. BIESTER. Thank you, Mr. Chairman, and thank you for your generous remarks.

And I am reminded while we are dwelling in the world of yesterday that when

you and I were on the full committee, and we were considering wiretapping legislation, an issue arose as to the extent to which the strictures then being proscribed for wiretapping should also be proscribed for limitation upon the President's power in national security cases. And it was Senator Mathias, then Congressman Mathias, who fought as vigorously as anyone to try to see to it we did not make a distinction in those instances. It would seem to me that the events which have transpired since then have borne out the presager of his concern. We have permitted the whole concept of national security to require an aura of impregnability in terms of the use of that rationale against the security of individual Americans.

Mr. Chairman and members of the committee, I appreciate this opportunity to appear before you today to speak on behalf of H.R. 217, the Bill of Rights Procedures Act, introduced in the House by the distinguished gentleman from Ohio, Mr. Mosher, and in the Senate by its author, the distinguished Senator from Maryland, Mr. Mathias, I just referred to.

As you indicated, Mr. Chairman, the Bill of Rights Procedures Act would require any Federal agent to obtain a court order before he or she could conduct any form of surveillance on a private citizen. The Government would be required to demonstrate probable cause that a crime had been or was about to be committed before a warrant for surveillance could be issued.

The term "surveillance” is defined in the bill to include 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.

The questions at stake in consideration of this legislation go to the very core, it seems to me, 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.” It seems to me, Mr. Chairman, security is not only an abstract legal proposition. If it is to have meaning it must be a sure perception of one's condition. I think that goes to the heart of the reason why this legislation is necessary. It is necessary not only to make quite clear the prohibition upon functionaries of the Federal Government with respect to what they may or may not do, but it goes to the heart of the question in terms of the way in which individual American citizens perceive the extent of their rights. And when they know that we have made it unlawful for Federal officials or Federal agents to engage in activities; which would derogate from their personal security, we revitalize their internal perception of being secure in their persons, in their homes, in their mails, in their telephone, and in their communications. That is the important part of this act, not only to guarantee those rights, but to enable a discouraged public to revitalize their appreciation and their sense of protection of those rights, the safety of those rights, the security of those rights.

Now, a basic question such as this, a question of rights and balance is seldom easy to answer in any age, and particularly in our own complex age. It is particularly difficult to answer in the context of national security considerations, or it has been made to seem so. 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 services over three terms on this very distinguished Judiciary Committee, my present service on the Committee on Foreign Affairs, and my service during the 93d 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 currently 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. And I need not remind members of this committee of the extent to which that can mature.

H.R. 214 would rectify that situation by linking all surveillanceincluding 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.

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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 absolutely 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 Senate Committees 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. And it seems to me, members of the committee, and Mr. Chairman, that in the intellectual process that one might go through to satisfy an independent arbiter of those circumstances inheres the process of testing in one's own mind, one's own objectivity with respect to the need for the surveillance one requests. It seems to me that if the only guide is oneself, if the only setter of standards is oneself, the opportunity for gradual erosion of high standards and high criteria for surveillance, the erosion process, it seems to me, is inevitable because it simply becomes easy always to draw the line further down the standard and further down the criteria rather than in strengthening those standards or in strengthening those criteria.

Some would contend that Federal magistrates lack the necessary expertise in international or security affairs to make such judgments. I would not make that kind of statement. I do not believe that to be the case. I am 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. And it seems to me again that if we permit ourselves to be deluded by the notion that Federal magistrates lack the necessary expertise to make judgments in the national security field we are again ascribing to the phrase national security, a certain mystical power, a certain arcane quality which jeopardizes a free society and which is authoritarian in nature.

Ås 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 insuring stricter consistency of rulings, if that is a question which vexes the subcommittee in the course of markup.

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 insure 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. 214involves all three branches of Government in meeting the shared constitutional well-being and preserve the national security. 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 usable only in a domestic 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 would like to interpolate at that point in my prepared testimony, Mr. Chairman, to underscore again the observation I made earlier which is that in striking of the balance we must strike here it would be a sad tragedy for our

system to become so concerned over the matter of national security as to permit the individual security, which is the hallmark of our particular contribution to civilization, to be debased in the process.

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. In that sense I would suspect that such a process is all right. I have concern, however, about the difficulty of permitting one party in a circumstance who might very well be an informant to permit by his license surveillance of a host of other persons if such were done without some very regular court supervision. It seems to me that is a potential loophole through which a number of abuses might flow.

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. I appreciate particularly the attendance of Mr. Railsback, even though he was 15 minutes late to the session. That is better than usual, Tom.

Mr. RAILSBACK. Thank you.

Mr. KASTEN MEIER. I thank my colleague for his testimony. I am interested in the part of your testimony placing heavy emphasis on the impact of the bill that you have cosponsored on “national security". I suspect we would want to have the testimony of others with regard to the question that you pose and answer which is, does the elimination of wiretapping and other surveillance for intelligence gathering unrelated to suspected criminal activity preclude a needed and valuable source of national security information. You answer that, "On balance, I think not."

What other sources, or devices or techniques for intelligence gathering might the security apparatus of this country rely upon if not those proscribed by this legislation? Presumably intelligence gathering will go on, but in a different form, is that not so?

Mr. Biester. Yes. I think that the testimony that various committees will hear in the course of the next several months concerning the activities of the Central Intelligence Agency, and which other committees will hear in terms of oversight of the FBI and other such institutions, I think will discover that at least in the instance of the CIA that 95 percent, or 98 percent of its work in intelligence gathering is done by simply the passive act of reviewing journals, reviewing professional journals, engineering journals, political journals, newspapers in varions countries, reports that are quite open and come from open sources. The intelligence gathering that is done by the most surreptitious and covert means is really a very tiny fragment of that.

Now, that does not mean that that tiny fragment is not important and significant, because undoubtedly in many instances it is. I would not want to permit the impression that because its volume is low that the significance is equally low.

Now, as to intelligence gathering in the United States where that intelligence gathering is done to protect the national security of the United States, it is my assumption it is done with respect to protecting the Government of the United States from the commission of a crime by an external agent or persons working for external powers. The solicitation on the part of an external agent of an American citizen is in my understanding a crime. The offer on the part of an American citizen to an external power is, in my understanding of the law, a crime. So that process is regarded by most societies as so sensitive and deleterious on the well being of the society that most countries

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