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The other day I had an occasion to be talking with the chief police official of another country, which I suppose has perhaps the most difficult police problems of any country in the world, and I talked to him about this concept. He said it is absolutely the only way to do it. It would be unthinkable to work any other system, that there was a division of responsibility between the person who was going to prosecute the case, the police activity and the person who was going to issue the wiretap. I said would you, as a police officer, find this unduly burdensome. And he said, absolutely not. He said, in fact, it is the only way it ought to be done in order to live with yourself. These are just some examples of the fact that other peoples in other systems can live with this kind of protection, and I think with the tradition of the U.S. Constitution, we must find a way to give at least this protection to the American people.
Mr. KASTENMEIER. Thank you, Senator Mathias. I appreciate both witnesses' testimony and congratulate you both on your really extraordinary efforts in building up support for the concept embodied in H.R. 214.
To gain some fuller perspective of what it covers and what it does not cover, it covers wiretapping, electronic surveillance, it covers opening mail, it covers surreptitious entry of homes. It does not cover physical surveillance; that is, the so-called shadowing or tailing of an American citizen by a Government agent, I take it? Is that correct?
Mr. Mathias. It would cover surreptitious entry. We have not spelled out shadowing as an area, but it would cover surreptitious entry.
Mr. KASTENMEIER. The reason I raise this is because the bill appears to be quite comprehensive in bringing certain practices under control, certain practices that presently are not subject to warrants, and I am wondering in that context what it includes and what it does not include in the general area of Government agent versus the individual.
Mr. MATHIAS. We have attempted, Mr. Chairman, to be as comprehensive as we could. It may be that Congressman Mosher and I and others who have worked on the bill may have overlooked some area that we should consider, and I hope this committee will rectify any omissions that we may have made. But we have gone pretty far. In fact, one of the points that is covered is in conflict with a recent act of Congress which has been wrongfully interpreted by the Treasury Department to give the Secretary of the Treasury the right to look at every bank check which is written in the United States by any housewife for her weekly groceries. Well now, I think that the impact of this bill would
Mr. KASTENMEIER. It would be enormous, yes. I would cover that. Mr. MATHIAS. I think it would cover that kind of transaction.
Mr. KASTENMEIER. In terms of mail, your bill requires a warrant for opening mail, but does not carry within its purview what is generally known as systematic inspection of an individual's mail short of opening, the practice known as a mail cover. That would not be covered, Itake it, by your bill?
Mr. MATHIAS. The bill, its terms, would not cover that practice. Of course, there are going to be some things that people in power, people with official positions can do to people who are not in official positions that I think are beyond definition. We could sit here all year and never be able to think of all the ways in which officialdom has found to pry into the lives of private citizens. But I think this bill points out the flagrant abuses, it sets up the undoubted protection of the Constitution, and I hope it emanates a spirit which would motivate everyone who is in a position of authority to act more carefully than they have in the past in a lot of the petty practices that have been so annoying to citizens.
Mr. KASTENMEIER. Your bill virtually would eliminate wiretapping without a court order issued upon probable cause. How do you answer critics who feel that the national security requires wiretapping and other forms of surveillance for purely intelligence gathering purposes, and this just about eliminates the use of any of these techniques for intelligence gathering obviously not based on probable cause of investigating a crime?
Mr. MATHIAS. I suspect that a great deal of the activities that take place in this area would either qualify for a warrant under probable cause, or if it is of lesser value could be dispensed with. I suspect that what is beyond the reach of a warrant is not of major significance in the operation of the Government. Regarding the interests of national security, we are meeting this afternoon in the Senate for the first time on the new Select Committee to Investigate Intelligence Problems. Maybe we can overlap, to some extent, in that consideration, some of the issues that arise in connection with this bill.
Mr. KASTENMEIER. And incidentally, we wish you and Senator Church and the select committee well in your new assignment.
At this point, I would like to yield to my friend from Illinois, Congressman Railsback.
Mr. RAILSBACK. Thank you, Mr. Chairman, and I want to welcome my two friends and also to congratulate you for your leadership.
I have this question which I think I will address to either one of Kyou. It is certain to be argued that the President has the constitutional right to gather information in order to protect our national security. Is it your contention that we can enact legislation pursuant to the fourth amendment which would preempt the President's obligation in national security cases?
Mr. MOSHER. Congressman Railsback, as a layman, I recognize this is a profoundly important constitutional question, and I am going to certainly yield to my own attorney here on that subject. But the question you raise typifies, it seems to me, an increasing problem we have in this country where rights, very important, fundamental rights seem to be in conflict and do need adjustment and interpretation. I think it happens all of the time. It is also throughout our national history, this sort of thing has happened, but with the increasing complexity of life today I think we face these all of the time, so I am not going to attempt to answer your question, but I hope Mr. Mathias can.
Mr. Mathias. It is a difficult question and one that I do not think we can take lightly. But I think that if you do not answer the question, and I think the Congress has got to provide an answer, if you do not answer that question we are right back with the Huston plan. That is the nuts and bolts of it. If you are going to say that the President has inherent powers in the field of national security which he very clear, is
can apply at his discretion, no matter how conscientious a President may be, no matter how faithful to his constitutional oath, he is going to be invading the rights of citizens in violation of the fourth amendment. It seems to me that the fourth amendment here is
very specific and without exceptions. The President can act within the fourth amendment. We are not saying that there should be no wiretapping: We are not saying there should be no surveillance. We are saying that it should be done in accordance with the protections provided by the Constitution.
Mr. RAILSBACK. There have been some cases that have really upheld the President's right of surveillance as far as foreign intelligence and so forth, and as I understand your answer, you are saying in this case there are two conflicting constitutional rights, and it is proper for Congress to determine statutorily that one must give way to the other, one is of overriding importance; that is, the fourth amendment?
Senator MATHIAS. I am not so sure. Maybe Congressman Mosher would like to comment on that. I am not sure where you find all of this inherent power of the President to deal.
Mr. RAILSBACK. It is in the Ivanov case which has been alluded to
Mr. MATHIAS. When I say you, I mean I am not sure where the judges find all of this inherent power of the President. You know, the President has the power to repeal invasion and assert other specific national security responsibilities. But a lot has been read into the powers of the Presidency over the cold war period, and I think that we have got to recognize what has happened in a relatively short span of time to the powers of the Presidency, and we have to look at them. I do not think we should strip the President of the powers he constitutionally should have and that the safety of the country requires he should have, but I do think we have a responsibility to the Constitution not to let the events of a relatively narrow period of history erode what are really timeless principles.
Mr. RAILSBACK. Thank you.
Mr. Mosher. Mr. Railsback, I suggest, and I guess this is only a footnote to what the Senator has said, I suggest the Presidents, and particularly recent Presidents in this century have assumed powers which have not been adequately challenged, and particularly have not been adequately challenged by the legislative branch, and that I strongly feel, I hope that the legislative branch has implicit authority to curb that assumption of authority.
Mr. RAILSBACK. Thank you.
Mr. KASTENMEIER. If the Chair may interject on the point raised by the gentleman from Illinois, there will be reference in Jater testimony to a case involving a Detroit attorney in which the Attorney General stated that surveillance of this attorney was deemed necessary to protect the Nation against actual or potential attack or other drastic acts or to obtain inteìligence information deemed essential to the security of the United States. It is rather overriding and intimidating language to use. The problem seems to be that it is used very often without the sort of justification which reasonable people concerned with the defense of their country might think this intends. But we will obviously have to look at that question much more carefully.
Mr. Mathias. The very existence of this kind of power leads to the abuse of it. I can hardly believe that tapping Joe Kraft's phone fits into the definition which is implied by that language.
Mr. KASTENMEIER. I would like to yield to the gentleman from Massachusetts, Mr. Drinan.
Mr. DRINAN. Thank you, Mr. Chairman, and Senator Mathias and our colleague. I am afraid that I feel that this may open new loopholes, frankly, in the law as it now exists. Taking the example of Mr. Joe Kraft, I am certain that if the Department of Justice had gone to a Federal court and had given reasons, that the Federal judge would have given them a warrant. We have most of the protections that your bill gives us now, Senator. We have in 18 U.S.C. section 2519 all of the information at the Administrative Office of the U.S. Courts, and the juggernaut transferred to the House committee. I find this without any value.
In my experience, 30 days after the issuance the judge has to send this to the administrative office, the fact of the order and so on, and then we get that information on an annual basis, or semiannual basis, but it is worthless because they are not telling us what is there. Furthermore, I am afraid you are unwittingly eroding the right of people to privacy of their letters.
Let me cite the U.S. Supreme Court itself almost a century ago, 1877: No law of the Congress can place in the hands of officials connected with the Postal Service any authority to invade the secrecy of letters or such sealed packages in the mails.
And then it says there before that also that:
Sealed packages of this kind in the mails are as fully guaranteed from examination and inspection as if they were retained by the parties who forward them.
Mr. MATHIAS. Just another sign of how the Postal Service has deteriorated.
Mr. DRINAN. All right. But I really do not feel that you are going to solve this problem, that the fact of the matter is that Federal judges virtually never deny requests, and if they do deny a request, they do not tell us the reason for it. And as a result, I find little in your
bill I am able to commend.
Furthermore, what about upping the damages in section 2520. Anybody now who is intercepted can get $100 a day. You incorporate this, and I suppose you have not deleted 18 U.S.C. 2520, as far as I know. Would you like to raise the damages? You raise the penalty.
Mr. Mathias. If this committee in its judgment would like to increase it, I would not quarrel with you in the least.
Mr. DRINAN. What would you think the House Judiciary Committee should do when we get all of these documents, and also the Senate Judiciary Committee? They will be pouring into us, and they are available now, to repeat, on a 6-month or monthly basis, whenever you want them, and what are we supposed to do with them? They do not have any content to them. You say we do not get a transcript, but only the mere fact of the placing of a tap.
Mr. MATHIAS. I think what you have to consider is the relationship of Congress to the executive branch and to the judicial branch. What happens today is a ministerial act. Perhaps we could make it more if we were more vigorous about it.
Mr. Drinan. But Senator, you are not giving us any facts. 6 Mr. MATHIAS. Well now, just let me answer you. W! today is ministerial. If under this new procedure you họ the responsibility for issuing a warrant, the executive bra. request it, the judicial branch has to approve it, and the U oversees it, and we exercise this responsibility getting the repo.. our respective committees of taps that were in place, and, on a selecti. basis, we spot check some of the cases.
Mr. Drinan. But Senator, what information does your bill provide that we do not now have?
Mr. MATHIAS. You provide it directly. You put the committee in a direct oversight position.
Mr. DRINAN. Senator, that is not the question. The question is what do you provide under your bill that we do not now get from the administrative office?
Mr. MATHIAS. We provide on a 30-day basis the direct information.
Mr. DRINAN. All of that is provided now to the administrative office of the court, and we get it, and they tell us nothing. So you are not giving us any further information than is now available.
Mr. Mathias. Yes; they are reporting to us, and that is a very big difference. That is a very significant difference. A Federal judge who is going to report to this committee, and who knows that this committee and the Senate committee is going to oversee his activities, and the Attorney General who knows that this committee, with the powers of impeachment, is going to be overseeing the warrants which he authorizes is going to think a little harder before he issues them. And even more important, some subordinate down in the Department of Justice who may be acting for the Attorney General in advance of an actual authorization by the Attorney General is going to think two or three times before he sends this committee reports that are in any way misleading, or in which warrants requested cannot be fully justified.
I think the direct oversight relationship established would be a different one, a significant one, and would have greater influence on how this area of Government activity continues.
Mr. DrinAn. Now, in the law of 1968 it says that in April of each year the Director of the Administrative Office of the Courts shall transmit to the Congress a full and complete report concerning the number of applications for orders authorizing or approving the interception of communications, and the number of orders and et cetera. I have gotten that, and I have studied it for the last 7 years, and it does not tell you anything. And in your bill I do not see that we get anything further except in one item here, where the judge after 60 days sends a complete transcript of the proceeding where the Department of Justice asks for a tap. And I have seen such complete transcripts, and who is the judge that when a man says that we need this, and we think this terrible crime is going to be committed, and the judge just gives it, and there is nobody there repressing the individual or anybody. So I am not certain really that that is going to help after 60 days to get that, and then after 90 days we get a little bit more information. But you have pulled the punch on that, and you say we get the disposition of all records, but we do not get the records. So in all candor,