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will be particularly important. At that point, you call the Attorney General, or the Secretary of the Treasury, or whoever is the responsible department head, and say we now want to have some explanation of exactly what has been happening here. That would be the purpose of the whole procedure, to trigger that kind of an inquiry.
Mr. BADILLO. Now, as you visualize this, the order could be extended indefinitely, because you point out within 90 days after the order or any extension thereof, and the order could go on for a year or two years?
Mr. MATHIAS. This is an area where I would agree with Mr. Wiggins that you cannot be so rigid. I don't know how you could set by law any general definition, except to make them go back again and again and again to restate the necessity for the extension, as they did for the original application.
Mr. BADILLO. Thank you very much.
Mr. KASTEN MEIER. The Chair has one last question, prompted by the gentleman from Maine, Mr. Cohen, as to the scope of the bill.
I think the term which one of the witnesses used was, "confines of the United States." I wondered whether the bill would cover a case such as that involving Mr. Joseph Kraft, who was subjected to wiretapping or surveillance while in Europe. Is that outside of the scope of this particular bill?
Mr. MATHIAS. My personal philosophy, which I will not inflict on Congressman Mosher, is that the Constitution ought to follow the citizen wherever he is. But I think that raises some controversial areas of discussion which might delay the enactment of this guarantee within the United States, where it is much less controversial.
Mr. KASTENMEIER. Well, I am sure that if the subcommittee goes forward with this legislation, it can resolve that question, should it arise.
Thank you. Are there further questions of the witness?
Mr. DRINAN. All right. One simple question, Senator. Congressman Mosher, would this apply to surveillance by the FBI over demonstrations or assemblies such as the Socialist Party?
Mr. MOSHER. Yes, sir. Sure.
Mr. MATHIAS. Sure.
Mr. DRINAN. How would it? They are just sending their agents there to take pictures or to make observations and how would they be covered?
As I read it, they could say that we would not be required by any provision of H.R. 214 to get a court order.
Mr. MOSHER. This question goes back to an earlier question of the chairman's, where he asked if this included a shadowing, and I think this is essentially what you are talking about, is it not, that type of surveillance.?
Mr. DRINAN. How would they be covered?
Mr. MOSHER. Without intending to pun, I must say that the chairman's question raised a shadow of a doubt as to whether this legislation is as comprehensive as we intended. I have no easy, quick answers, Father Drinan, to your question. I have a personal abhorrence to any type of government surveillance that seems to inhibit freedom of speech, freedom of expression, and that sort of thing, and I think
that is what you are driving at here, a surveillance which would seem to inhibit and threaten the right to belief and speech.
Mr. DRINAN. As I read it, Congressman, there would be nothing that would prevent the FBI or the CIA or anybody else having that surveillance.
One last question. Does it apply to the military? In our hearings last spring we had Mr. Cooke here from the DOD, and he reported on the surveillance that the military does, and he had this particular statement, that the directive of the military requires quarterly reports to the Secretary of Defense concerning the employment of wiretaps and eavesdrops, including those conducted in areas of the world where the substantive provisions of the directive do not apply.
And I asked him for information about that, and he said he would send it, but it never did come. In other words, do you get into the whole question of military surveillance on which, as you know, many bills have been submitted in the Congress.
Mr. MOSHER. It is my personal intention, certainly, to get into that
Mr. DRINAN. By this bill?
Mr. MOSHER. Yes.
Mr. DRINAN. Once again, I am not certain it is covered. Thank you. Mr. KASTENMEIER. Does the gentleman from California have questions?
Mr. WIGGINS. Well, let me quickly ask this, and I hope it will be a quick answer.
Mr. KASTEN MEIER. Let me say to the gentleman from California, the next two witnesses will not necessarily be addressing themselves to this bill.
Mr. WIGGINS. All right. I am back again, troubled with the words "without reasonable cause." Now, I know that is in the statute now, and there are, unfortunately, very few cases under the warrant section interpreting "without reasonable cause." The case laws under the arrest. provisions of the law.
But, I am still troubled with the question. Without reasonable cause to believe what? And in order to focus your answer, I want to give you at least three options.
One, reasonable cause to believe that an offense has been committed. That is usually easy to establish, it is an objective fact.
Second, reasonable cause to believe that a given person committed that offense. That is very difficult. If you postulate that you must have that reasonable cause to believe, you already have the authority to go out and arrest him without need of further investigation.
And then the third and most difficult situation is that you have reasonable cause to believe that a person is innocent of any offense, but possesses information which may lead to the discovery of who, in fact, did commit the offense.
Now, if you can deal with particularly the latter two situations, and tell me what you intend to cover by this language "without reasonable cause" it would be helpful to me.
Mr. RAILSBACK. Would the gentleman yield?
Mr. RAILSBACK. I think it is important to note that the word "maliciously" is also part of that same clause. In other words, it is "maliciously" and "without reasonable cause." That may be significant.
Mr. WIGGINS. Perhaps that modifies it, but I still am troubled by the reach of "without reasonable cause," particularly when you are dealing with an individual, and I want to hypothesize, who committed no offense, but may be possessed of information which would be valuable to law enforcement officials in determining who did commit the offense.
Mr. MATHIAS. Again, I can give you my personal view. I will not attempt to impose it on my partner here.
We have intended to require a strict standard of reasonable cause.
Mr. MATHIAS. Tied to the concept of the commission of an offense or the prospect of the commission of an offense. I do not believe it is beyond the reach of this committee to broaden the definition of reasonable cause. I think that is feasible and might be done.
I, myself, would say that I believe we should stick to a rather narrow definition of reasonable cause, to the narrow and traditional definitions. Mr. WIGGINS. OK.
Mr. KASTEN MEIER. That concludes the questions this morning, and the Chair, on behalf of the committee, would like to personally thank both Senator Mathias and Congressman Mosher for this appearance this morning as leadoff witnesses in this most urgent area. Thank you
Mr. MOSHER. Mr. Chairman, it seems to me the quality of the questions you have asked indicates your very serious intent to deal with this problem, and I am very happy to note that.
Mr. MATHIAS. Mr. Chairman, I join with my partner in saying that we are very much heartened by the lively interest that has been shown by the committee. I might amplify my last answer to Mr. Wiggins by saying that as far as I am concerned, if we cannot do it within the four corners of the Constitution, it oughtn't to be done. And finally, to express the hope that the committee will give the House a better bill than we have given you.
Mr. KASTENMEIER. Next, the Chair would like to call Prof. Leon Friedman, of Hofstra University Law School and Mr. John Shattuck, legal counsel to the American Civil Liberties Union, both of whom have been witnesses before this committee, as well as many others, I assume, and in the past who have been enormously helpful and are extraordinarily well informed and knowledgeable about the elusive question of wiretapping, electronic surveillance, and the invasion of privacy by government.
Mr. Shattuck, would you begin?
TESTIMONY OF JOHN H. F. SHATTUCK, NATIONAL STAFF COUNSEL, AMERICAN CIVIL LIBERTIES UNION; AND LEON FRIEDMAN, PROFESSOR OF LAW, HOFSTRA UNIVERSITY
Mr. SHATTUCK. Thank you, Mr. Chairman.
We wish to express our gratitude for the opportunity to appear before the subcommittee for the second time in 6 months on a subject
of great importance to us, as well as to the subcommittee. We appear as lawyers representing a variety of private individuals who have been targets of various forms of governmental surveillance over approximately the last 5 years.
Mr. Friedman and I are serving as co-counsel in a number of cases which we will be discussing this morning, and we will both address ourselves to the questions before the subcommittee as well as to the issues in our statement.
Mr. KASTENMEIER. I take it you have prior to this made an assessment of what you are free to say and what you are not, either by virtue of the nature of the litigation or any inhibitions imposed upon you by a court in connection with the cases?
Mr. SHATTUCK. We have, Mr. Chairman. And the materials we have provided to the subcommittee are all matters of public record. These documents are now on file in cases in which we are involved as counsel, so not only are they matters of public record, but they are matters of record in our cases.
And I think your statement really poses one of the most difficult and important questions in this entire area, and that is that this subject we are addressing today is really a part of the governmental secrecy issue which has been of so much concern to the Congress and to the courts in recent years. The materials that we have obtained in our litigation are, of course, only a very small tip of the iceberg, and the fact that some of these materials are covered by a protective order, and we cannot even disclose them to the Congress-unless we are, of course, to receive a subpena, and you were to seek to enforce it-I think demonstrates the difficulty which you and the litigants whom we are representing face in attempting to get the kind of information which is necessary to legislate in this area, as well as to litigate. And I think goes to the question that Congressman Drinan was addressing during the previous testimony, which is precisely what kind of information is made available, and how useful is it.
The successes and failures of our litigation, more failures than successes, I might say, are spelled out in the article that is appended to our prepared statement, so I will not discuss in any detail the litigation itself. I would like to focus on the 17 exhibits that have been submitted to the subcommittee, and I would hope that they could be included within the record of this hearing.
Mr. KASTEN MEIR. Without objection, your statement, five-page statement, and appendixes, and the schedule of exhibits just referred to, which are at each member's desk, will be received and made a part of the record.
[The material referred to follows:]
STATEMENT OF JOHN H. F. SHATTUCK, NATIONAL STAFF COUNSEL, AMERICAN CIVIL LIBERTIES UNION AND LEON FRIEDMAN, PROFESSOR OF LAW, HOFSTRA UNIVERSITY
As attorneys currently engaged in litigation challenging various governmental surveillance practices, we are grateful for this opportunity to appear before the Subcommittee. Over the past several years we have represented, on behalf of the American Civil Liberties Union, a wide diversity of citizens who have become the targets of surveillance by the FBI, the Army, the Secret Service, the CIA, the IRS and other government agencies because of their controversial
political views and activities. Our litigation to date has not succeeded in establishing that surveillance without judicial control is illegal, but it has provided a glimpse of the size and conduct of such surveillance by federal agencies. The failures and successes of the litigation are summarized in an article, “Uncovering Surveillance" by John Shattuck (Trial Magazine, January 1975), a copy of which is attached to this statement.
The purpose of our testimony is to supply the Subcommittee with examples of the range of surveillance practices which we have discovered through our lawsuits, in an effort to suggest areas of inquiry that might be conducted in considering legislation to regulate surveillance and protect individual rights.
We should reiterate at the outset what has often been said by others: that political intelligence gathering and covert action by the federal government against private citizens is a product of at least the last two Administrations, and is rooted in the fear and paranoia of those in power in the face of rapid political and social change over the last decade. As a recent article in the Washington Post pointed out, “[a]lthough the factual evidence isn't settled, at least this much is clear: that these activities grew out of common reflexes of fear, that the regular inhibitions of decent men or traditional legal restraints proved inadequate, not just in the CIA or the Justice Department or the FBI, but in the White House." Greider, "Soldier, Agent, Tax Man, Spy," The Washington Post, February 2, 1975, p. Cl.
As a result of our litigation we have reached two general conclusions about the kinds of legislative controls which should be imposed on investigative and intelligence gathering agencies in order to dismantle the surveillance apparatus which has been assembled over the last decade. First, the warrant procedure must be strengthened and broadened so that no intrusive surveillance is conducted over American citizens outside of the judicial supervision required by the Fourth Amendment and in the absence of probable cause that a crime has been or is about to be committed. Second, the law must develop a variety of flat statutory prohibitions, including (a) a ban against the conduct of any form of surveillance over persons because of or in order to determine the nature of their political views and activities, in violation of their First Amendment rights; and (b) a bar against use or dissemination of the fruits of any lawful investigation beyond the purpose for which it was conducted. Both legislative approaches should be backed up by strong criminal and civil remedies. While the federal Privacy Act of 1974 is a step in the right direction, it is insufficient to curb political or intrusive surveillance because it broadly exempts the very agencies which make up the heart of the surveillance apparatus.
In our testimony we will attempt to give examples of what we consider are significant areas for this Subcommittee to probe in its hearings. These examples are all drawn from our litigation and are documented in the 17 exhibits appended to this introductory statement. Most of the material we will be discussing has received little, if any, public exposure, although in our view it highlights (1) the range of surveillance techniques utilized by the FBI, the Secret Service, military intelligence, and other federal investigative agencies; (2) the filing, recordkeeping and dissemination practices of these agencies; and (3) the purposes and effects of political surveillance.
Exhibits 1 through 6 demonstrate the length, intrusiveness of and varying asserted justifications for warrantless "national security" wiretapping. These documents provide examples of the issues we identified in our testimony last April before the Subcommittee (copy attached).
Exhibits 7 through 10 demonstrate the wide variety of private documents, records and information routinely obtained by federal investigators without any form of legal process or notice to persons having an expectation of privacy in the materials. These include bank records, telephone toll records, credit information and personal mail. Through such readily accessible private information investigative agencies are often able to construct intimately detailed portraits of private citizens. In many instances this information would not be obtainable pursuant to a subpoena because the agencies would not be able to lay the foundation for its issuance.
Exhibit 11 provides several examples of the routine use of informers and undercover agents in political and religious groups. including several indications of the degree to which agents must become actively involved in the affairs of their targets in order to provide useful information to the investigators.
57-282 O 76 pt. 1 8