surreptitiously by any cavalier, capricious or even viscious, unwarranted activity of Government officials or agents, not being invaded by any arbitrary, arrogant misuse of governmental authority. All of us are acutely aware, as, Mr. Chairman, you have just indicated, of a variety of recent events which indicate the serious abuse of Government authority in the form of unwarranted acts of surveillance, the arrogant invasion of the individual citizen's privacy, and all of us are now aware of the chilling effect, the anxieties, the resentments, the cynicism, disbelief or confusion of belief concerning Government, the wave of fear and anger in many citizens toward Government. All of us here on the Hill see indications of this almost every day in the mail we receive and the conversations we have with our constituents, and I am completely convinced that each of us as individuals needs and deserves the strongest possible guarantees as stipulated by law, the strongest possible guarantees against any form of arbitrary surveillance by Government.

So in our legislation, H.R. 214, which we call the Bill of Rights Procedures Act, we attempt to implement that very strong conviction. Rather simply and very directly our bill attempts to prohibit absolutely the conduct of any form of surveillance on any American citizen by any agent of the Federal Government for any reason whatsoever. We would provide that broad, sweeping, complete prohibition, that guarantee of privacy unless a court order is first obtained. That is the essence of the legislation we ask you to approve.

Now, as you indicated, Mr. Chairman, when I introduced this legislation in the 93d Congress more than 50 Members, a completely bipartisan group, cosponsored it. Already in this Congress more than 62 have cosponsored it. In fact, as you just suggested by coincidence today there are 62 cosponsors, 31 Republicans and 31 Democrats.

At my urging, the House Republican Task Force on Privacy, chaired by Barry Goldwater, Jr., in the last Congress carefully considered this legislation and approved it, officially approved it as a group. And now most members of that task force are cosponsoring it. However, I again do not want to give the impression that just because Mr. Mathias and I are Republicans, or that the House Republican Task Force on Privacy endorses it, I do not want to give the impression that this is a partisan effort in any way. It is, in fact, a remarkably bipartisan effort with agreement across the full spectrum of political thinking in the House from the more conservative Members to the more liberal Members.

Now, Mr. Chairman, I would like to step aside for my much more erudite legal spokesman, Senator Mathias, and I feel very privileged to be associated with him. I repeat, he is the real originator of this legislation. He and I have prepared jointly a statement which I do not intend to read into the record, and I am not sure whether he does. But unless he does intend to read it fully into the record, Mr. Chairman, I ask that our joint statement as prepared be inserted in the committee record.

Mr. KASTENMEIER. Without objection.

Mr. MOSHER. Thank you. Mr. Chairman.

Mr. KASTEN MEIER. The joint statement will be received and made a part of the record.

[The joint statement of Hon. Charles McC. Mathias and Hon. Charles A. Mosher follows:]

JOINT STATEMENT BY

SENATOR CHARLES MCC. MATHIAS AND CONGRESSMAN CHARLES A. MOSHER

Mr. Chairman, members of the Subcommittee, we are most grateful to you for the early date you have selected for these hearings. We consider the issue of government surveillance to be of paramount importance to the American people. We hope that the Bill of Rights Procedures Act, which we are cosponsoring, may make an important contribution in this area and we thank you for giving us this opportunity to testify on it.

A little less than a year ago we first began developing the Bill of Rights Procedures Act. We did so in response to our growing alarms over government abuses, both real and potential, of the American citizen's rights to privacy.

The first versions of our bill were introduced in the Senate and the House last spring. Since then several technical changes have been made in the legislation. In this Congress, the Bill of Rights Procedures Act (BRPA) was first introduced on January 14 and is identified as HR 214 in the House of Representatives.

Response to our proposed legislation has been very enthusiastic, especially here in the House. Last year, a total of 53 Representatives joined as cosponsors of the bill. These Members represent a remarkably diverse, bipartisan coalition . . . Republicans, Democrats, liberals, conservatives, members of all relevant committees, from every geographic region of the United States. With the 94th Congress less than a month old, more than 50 Members already have signed up as cosponsors of this legislation in the House.

What has caused this enthusiastic response? Why are so many Members willing to cosponsor such wide-ranging legislation that has not yet undergone hearings? Mr. Chairman, we submit that there is a growing concensus in support of providing absolute safeguards against invasions of privacy by the Federal Government. Citizens must be assured that they can, in fact, enjoy the rights to privacy that are supposedly guaranteed by the Constitution.

Our bill addresses this problem directly by prohibiting any agent of the federal government from conducting any form of surveillance on an American citizen— for any reason-unless a court order is first obtained. At this point we would like to enter into the record a summary of our proposed legislation :

SUMMARY OF BILL OF RIGHTS PROCEDURES ACT

The key provision of the proposed Bill of Rights Procedures Act is that it would require any federal agent to obtain a court order before he or she may conduct any form of surveillance on a private citizen. Probable cause would have to be demonstrated before the court order could be issued, and the warrant must be specific in its particulars.

The term "surveillance" includes bugging, wiretapping and all other forms of electronic eavesdropping, opening of mail, entering of dwellings, and the inspection or procurement of the records of telephone, bank, credit, medical or other private transactions. Court orders would be required in virtually every instance, thus clarifying the law and closing many loopholes in present statutes. The only exceptions made are in the cases of the serving of an arrest warrant, the "hot pursuit" of a criminal, or when the consent of the subject individual has been obtained.

A penalty of up to $10,000 and/or a year imprisonment is provided for any government official, employee, or agent who willfully violates or causes the violation of this legislation. The bill requires that within thirty days after application has been made for a court order, the applicant must file a report with: the Administrative Office of the U.S. Courts and with the Committees on the Judiciary of the House and Senate. Followup reports on approved surveillance activities would also be required.

The Bill of Rights Procedures Act is intended primarily to reinforce the protections provided by the Fourth Amendment to the Constitution. That section assures "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." And I think this legislation is also directly relevant to the First Amendment (freedom of speech, assembly, etc.) and the Fourteenth Amendment (equal protection).

As you can see, this proposal is very comprehensive. We intend to leave no opportunity for misunderstanding.

It is our firm belief that discretionary authority in the area of government surveillance should be removed entirely from the Executive Branch. It should not be the prerogative of the Executive to determine whose rights should be infringed upon and whose should not.

We feel that the Constitution correctly indicates that the Courts are the only proper place for decisions of this sort to be made.

Much confusion exists today in the minds of law enforcement officers as to what exactly are the statutory limitations on surveillance activities. What types of surveillance require prior court orders? What types are solely at the discretion of the Executive? What exceptions are allowed? Again, we reiterate that we propose to end this ambiguity by requiring that a federal agent must have a court order in hand before undertaking any surveillance of any individual citizen.

Mr. Chairman, we wish that this legislation was not needed. But the fact is that it is clearly needed.

In the very recent past we have all seen the newspaper stories documenting a variety of federal excesses in the area of surveillance. These include, but are by no means limited to: military intelligence activities at the 1968 Democratic National Convention, FBI surveillance on various civil rights leaders and on participants at the 1964 Democratic Convention, wiretapping by the ill-fated White House "Plumbers" unit, compilation of thousands of files at the CIA related to domestic security, and the maintenance of FBI files on Members of Congress. Most dramatic of all, of course, is the so-called Huston plan that was revealed in the course of the Senate's Watergate investigations.

We believe that our proposed legislation will prevent similar abuses of citizens' rights from occurring in the future. It would do so by making it unmistakably clear that all such activities, without express approval of the courts, are illegal and that all individuals involved will be personally liable for their actions.

However, our reasons for introducing this legislation go beyond the actual prevention of specific surveillance activities. We also are concerned with the public's perception of the protections offered against improper surveillance.

American citizens today, in many instances, are becoming virtually paranoid about government surveillance. Who is to say what adverse consequences already have resulted from the "chilling effect?" There is the demonstrated tendency of individuals to withdraw from political activity and the exercise of other Bill of Rights-guaranteed rights when they believe they are being monitored by the government. Actual surveillance need not even take place, because the mere threat of it may be all that is necessary to intimidate a citizen.

Despite the fact that we deliberately have kept the Bill of Righs Procedures Act in a low public profile, we have received support and encouragement in our efforts from a number of groups. The American Civil Liberties Union has commented favorably upon the bill, although they have indicated that they may suggest some very specific modifications. The same is true of the Harvard Civil Rights Civil Liberties Research Committee. Also a number of lawyers active in the legal end of the news media have expressed their interest.

Perhaps of particular interest to this subcommittee might be the report of the House Republican Task Force on Privacy, a group of 13 GOP Members of the House, chaired by Congressman Barry Goldwater, Jr. In a report issued last August, the Task Force stated:

"The Task Force is deeply disturbed by the increasing incidence of unregulated, clandestine government surveillance based solely on administrative or executive authority . . . The various abuses of discretionary authority in the conduct of surveillance provide ample evidence that current safeguards do not work. Procedures allowing the executive branch to determine whether a surveillance activity is proper or not poses certain conflict of interest questions." The Task Force report went on to outline the need for legislation along the same lines as those followed by the BRPA. Last year, in fact, nine of the 13 Task Force members joined as cosponsors of our proposed legislation and eight already have done so again this year.

But we want to make it clear that this is not in any way a partisan bill nor is it a partisan issue which we address. Our list of cosponsors is a bipartisan list.

And it is certainly clear that right-to-privacy legislation enjoys a very broad base of public support. A Harris Poll released on September 5, 1974.

shows that an overwhelming majority of Americans support strict judicial oversight of government surveillance activities. The poll found, "By 80 to 12 percent (Americans) claim the right not to be spied upon by any kind of electronic surveillance except with a court order." 77 percent claim the right "not to have one's mail opened by the government except by specific court order." And so on.

Again, we wish to thank the chairman and members of this subcommittee for the interest they have shown in the Bill of Rights Procedures Act and for the speed with which you have opened these hearings. On behalf of our cosponsors, we hope that you will provide the opportunity for other supporters of this legislation to submit statements for the record.

It is our understanding that this subcommittee is planning to hold additional hearings and that you will then hear from a number of expert witnesses. Therefore, we have refrained from assailing you with statistics and case studies on this opening day of your investigation.

If you do have any specific questions, however, we will be pleased to try to answer them, and we are also willing to suggest to you or your staff the names of various individuals who might be placed on your witness list.

Mr. KASTEN MEIER. Senator Mathias.

TESTIMONY OF HON. CHARLES MCC. MATHIAS, A U.S. SENATOR FROM THE STATE OF MARYLAND

Mr. MATHIAS. Thank you very much, Mr. Chairman. I appreciate this opportunity for a homecoming in the Judiciary Committee and the privilege of appearing here with Congressman Mosher who has done such a yeoman's job on advancing this particular bill.

He refers to me as the legal member of this team. I think he has done so well already that as a lawyer I do not want to confuse the committee with any legal jargon when he has stated the proposition very succinctly.

I would say just a personal word. It is a pleasure for me to be back here. I spent many years with this committee, and it induces a considerable sense of humility to reflect on how the record of the committee, the luster of the committee increased rapidly and dramatically very shortly after I left it.

Perhaps since my colleague has touted me as the legal member of the team we ought to review very briefly the provisions of the Bill of Rights Procedures Act.

The key provision is, of course, that it would require any Federal agent on any kind of an errand to obtain a court order before he or she can conduct any form of surveillance on a private citizen. No exceptions. Probable cause would have to be demonstrated before the court order could be issued, and the warrant must be specific in its particulars.

The term "surveillance" includes bugging, wiretapping, and all other forms of electronic eavesdropping, opening of mail, entering of dwellings, and the inspection or procurement of the records of telephone, bank, credit, medical, or other private transactions. Court orders would be required in virtually every instance, thus clarifying the law and closing many loopholes in present statutes. The only exceptions made are in the cases of the serving of an arrest warrant, the "hot pursuit" of a criminal, or when the consent of the subject individual has been obtained.

A penalty of up to $10,000 and/or a year imprisonment is provided for any Government official, employee, or agent who willfully violates or causes the violation of this legislation. The bill requires that, within

30 days after application has been made for a court order, the applicant must file a report with the Administrative Office of the U.S. Courts and the Committees on the Judiciary of the House and Senate. This is a very key provision to which I would like to return.

Followup reports on approved surveillance activities would also be required.

The Bill of Rights Procedures Act is intended primarily to reinforce the protections provided by the fourth amendment to the Constitution. That section assures "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." I think this legislation is also directly relevant to the first amendment-freedom of speech, assembly, et cetera—and the 14th amendment equal protection.

There will be many people who will object to this legislation and object to this as being impractical in the kind of complex world in which we live. There are those who say the Government has a right to bug embassies here in Washington, and they do not want to go to court in order to bug an embassy. Why not? Why not? I see no reason for any exceptions to the Constitution.

Now, other nations are confronted with similar questions. Mr. Roy Jenkins, the Home Secretary of Great Britain, was in Washington recently, and I had an opportunity to discuss with him the prevailing practice there-industrial nation with complex defense problems, complex domestic security problems, and certainly very difficult problems at this moment. He said, and I do not want to quote him, I am not authorized to quote him directly, but I don't think he would object to my saying that he was very strongly of the view that the same person should not be the prosecutor of the case and the originator of the wiretap. There is just a basic invitation to abuse in that situation which is, of course, the situation that prevails in this country today. There should be two parties, at least two parties, who review each other's activities, and then there should be a clear line of accountability. That is exactly what this bill provides. It provides that the Attorney General, or an official of the Justice Department acting on his behalf, would originate a request, that request would then be reviewed by a court, and then, as I said, I wanted to return to the question of reporting to the Congress.

The committees of the Congress, this committee and the committee in the Senate, would get a report that a tap had been placed. That means that there is a clear line of accountability. We know who has acted, who requested the wiretap, who ratified the request, and when the tap went on. A report is made to the Congress as to the disposition of the case.

Let me say I would not envision that the report would involve giving this committee or the Senate committee a transcript of what was learned via the wiretap or other search. It would be the mere fact that the tap occurred, that it was put into place, that it existed for a period of time and that it was then disconnected. I think that would provide a broad range of information to responsible public officials so the Constitution could be enforced, so that the guarantees of the Constitution could be honored. But I do not think it would unduly interfere with the necessary enforcement of the law, police work.