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the country, told the Wiretap Commission in 1974 that he used it extensively for drugs-and only for drugs-he has used it only once in the last 5 years.
Indeed, the States' use of wiretapping has generally declined, despite the increasing number of States with wiretap authority.
I would add that the use of wiretapping in the ever-increasing number of RICO investigations is an especial cause for concern, since that statute is so vague and is being used so expansively that taps in such investigations will inevitably catch huge numbers of totally innocent people and conversations, far more than in almost any other kind of investigation.
Official electronic surveillance remains a distressing feature of modern America, and it will probably get worse. To many of us, the solutions are very inadequate and will become more so unless there is a basic change in official attitudes. Unfortunately, such changes seem highly unlikely at least at present.
[The attachments to the statement of Mr. Schwartz follow:]
[From the Nation, Oct. 29, 1983]
How Do WE KNOW FISA IS WORKING?
(By Herman Schwartz)
Every President since Franklin D. Roosevelt has abused the power to use electronic surveillance in national security matters. In an attempt to impose restraints on this power, Congress passed the Foreign Intelligence Surveillance Act of 1978 (FISA). Since the law was signed by President Carter five years ago this month, some stock-taking seems in order.
Like most reform legislation, FISA was passed in the wake of a scandal. When hearings in 1975 before Senator Frank Church's committee investigating intelligence agencies revealed the myriad outages perpetrated by U.S. intelligence agencies in the name of national security, civil libertarians jumped at the all-too-rare opportunity to impose some controls. The Ford and Carter Administrations agreed to some restrictions for fear that outraged public opinion would impel Congress to impose stricter ones. After almost three years of intensive negotiations involving Congress, both Administrations and civil liberties groups, a compromise was hammered out that allows electronic surveillance in this country for the purpose of gathering intelligence about foreign powers and foreign agents. Under FISA, the Justice Department must obtain an order from one of seven specially designated Federal judges, who constitute a special court, authorizing any foreign intelligence electronic surveillance. Hearings on the government's applications are conducted in secret. The law forbids eavesdropping on American citizens, except if they are suspected of engaging in intelligence activities for a foreign power that involve violations of criminal statutes.
Since FISA took effect, the judges have issued authorizations for nearly 1,500 surveillances, but we have little idea of how well the law is working. What we do know, however, is disquieting.
During the nineteen months the Carter Administration used FISA, the government obtained 529 surveillance orders. Because some of them were extensions of earlier orders, it is difficult to determine how many bugs and taps were installed in those years. How many people were targeted and how many of them were Americans?
In 1981 and 1982, the first two years of the Reagan Administration, the number of survellance orders granted by the judges to 433 and 475, respectively. Why? Were the additional taps and bugs used to eavesdrop on American citizens?
The judges have not denied a single government application. Is the special court a rubber stamp?
Reports of intelligence taps have surfaced in criminal cases, but the courts have done almost nothing to insure that FISA, which establishes looser procedures than
are required for criminal prosecutions, is not being used for law enforcement purposes.
Because the special judges' proceedings are secret, it is hard to evaluate how well they are doing their job. The statute called for annual assessments by Congressional intelligence committees for five years to determine how it is working, but Malcolm Wallop says that the Senate Intelligence Committee, of which he is a member, has never even "met to consider how FISA has functioned." Members of both the House and Senate committees have stated publicly that few Americans have been targeted, but the history of Congressional oversight in national security and foreign intelligence matters gives one little reason for confidence in those assurances. According to Senator Joseph Biden Jr., who gave some of those assurances, the Senate Intelligence Committee has never examined the special judges' authorizations in individual cases to determine whether the government's applications complied with the statute or whether the surveillance orders were properly issued; the House Intelligence Committee checked what it considered a "representative number" of authorizations and pronounced itself satisfied.
To shed some light on how the law is functioning, Representative Bob Kastenmeier of the House Judiciary Committee held hearings on June 8 and 9. Testifying were a judge of the special court, a Justice Department representative and Morton Halperin and Mark Lynch of the Center for National Security Studies. Not surprisingly, most of the testimony was not very informative. What information did emerge from the hearings was not reassuring, however.
The Justice Department representative, counsel for intelligence policy Mary Lawton, disclosed little of consequence. Judge George L. Hart Jr. of the Federal District Court for the District of Columbia, who served as the special court's first chief judge, refused to say very much, but his testimony was still revealing.
Hart's appointment to the court exemplifies one of the main problems with FISA-the judges themselves. The members of the special court were chosen by Chief Justice Warren Burger, who showed a preference for government-oriented judges like Hart and the present chief judge, John Lewis Smith Jr. Morton Halperin, who played a key role in the enactment of FISA, pointed out to the House committee that in making his appointments the Chief Justice did not consult as widely as he was expected to.
One indication of the special court's complacent attitude toward government requests for surveillance orders is the fact that it has authorized physical searches. Shortly after FISA went into effect on October 25, 1978, the Justice Department asked Judge Hart for permission to conduct such a search, even though the act applies only to searches by an "electronic, mechanical or other surveillance device.' Hart readily complied-as did other special judges to subsequent_requests. Upon learning of this expansion of the statute, the Senate Intelligence Committee criticized Hart and the other judges. After "further thought," as he put it, Hart decided he did not have the authority to issue break-in warrants after all. On June 3, 1981, the Justice Department sent him a formal memorandum along those lines, and a week later the judge issued an opinion declining the authority to authorize breakins, which followed the reasoning of the memorandum.
At the Kastenmeier hearings, Judge Hart refused to answer almost every question of substance on grounds of national security. He showed great deference toward the Justice Department, praising the "dedicated personnel" there for doing a "wonderful job" on their requests for surveillance orders. It seems never to have occurred to him that a member of the department might abuse the law or try to stretch it. He seemed oblivious to the department's record of flagrant surveillance abuses under almost ever President since Woodrow Wilson. It was the Justice Department, after all, that authorized the Federal Bureau of Investigation to tap and bug Martin Luther King Jr. That occurred under Attorney General Robert Kennedy, a nominal liberal. But Judge Hart seems to have long had a tolerant attitude toward the department. When Richard Kleindienst came before him in 1974 to be sentenced for having perjured himself in testimony to a Congressional committee about Richard Nixon's effort to influence the department's handling of the I.T.T. antitrust case, Hart imposed a $100 fine and offered the Attorney General heaps of sympathy.
Judge Hart told the committee that the special court exercizes no supervision after taps and bugs are installed. Consequently, there is no way of knowing if Federal agents observe the provisions in the act that limit the number of conversations they may overhear, record and disseminate to other Federal and state agencies and that seek to minimize the intrusiveness of a surveillance. Although FISA authorizes the judges on the special court to "assess the Government's compliance with the minimization procedures," Hart said that the court reviews only the Justice Depart
ment's general procedures and does not seek to determine if the government has complied with the law in specific surveillances.
Judicial diffidence in the face of the government's national security claims is responsible for another worrisome development. Prior to 1978, when FISA was enacted, criminal defendants would not infrequently discover that they had been overheard on so-called national security wiretaps. The government always claimed that the taps had nothing to do with the criminal case, but in some instances that claim was ludicrous. In the F.B.I. investigation of the Jewish Defense League, for example, a massive "national security" surveillance on every telephone line in the group's office continued for a month after the start of a criminal prosecution for bombing the offices of Amtorg, a Soviet trading firm in New York City, and ended only after the existence of the taps was revealed by the government.
FISA procedures are less stringent than those under the act authorizing law enforcement wiretapping. The enactment of FISA has thus not eliminated the incentive to use intelligence gathering authority improperly to obtain evidence for criminal prosecutions. The few courts that have dealt with this problem have made it so easy for the prosecution to successfully deny misuse of FISA that in this respect the government is under no restraints at all. These courts have made their decisions turn on ascertaining the government's "primary purpose," an elusive standard at best. Since the decisions are made without any participation by the defendants, the judges hear only the government's side, without its being subjected to cross-examination.
Some trial court rulings on such evidence have been simply implausible. In a case involving I.R.A. gunrunning in this country, for example, a Federal court in Brooklyn held that evidence obtained by wiretaps authorized under FISA would be admissible because the government's "primary purpose" in obtaining it had been to collect intelligence information, not to prosecute American supporters of the I.R.A. Yet, for some time before the taps were installed, the U.S. government had been pressed by the governments of Ireland and Great Britain to bring criminal proceedings against Amercians who were supplying guns to the I.R.A., and the targets of the surveillance were indeed indicted and tried.
Not even mentioned at the Kastenmeier hearings was the massive surveillance program carried out by the National Security Agency, which was exposed by the Church Committee and discussed in James Bamford's book The Puzzle Palace. In the early 1970s, the N.S.A. participated in President Nixon's war on drugs and worked with the Central Intelligence Agency under Operation Chaos to spy on protesters against the Vietnam War. For thirty years the N.S.A. ran its own surveillance program, known as Operation Shamrock, under which international cable companies turned over all their cable traffic to the agency. The information thus obtained was then disseminated to other Federal agencies, including the Justice Department, which used it in criminal prosecutions. N.S.A. surveillances touched not only suspected drug dealers but also antiwar activists, civil rights workers, Cuban exiles and such prominent Americans as Dr. Benjamin Spock, Joan Baez, Martin Luther King Jr. and Jane Fonda.
After the Church Committee exposed its illegal activity, the agency promised to mend its ways. But by taking advantage of loopholes in FISA, it is still engaging in electronic monitoring. The extent of its activities and whether they involve abuses like those committed in the past are not known, partly because the courts have blocked inquiries into N.S.A. procedures by allowing the government to invoke the "state secrets" privilege.
Obviously judicial scrutiny and legislative oversight of the administration of FISA are essential if the act is to achieve its purposes. Since there is no requirement in the act that targets of surveillance must be notified in all cases, there is little chance that anyone will challenge the legality of a tap or bug. Judge Hart's testimony, scanty as it was, provides little reassurance about judicial oversight. And Congress has not done what Morton Halperin has urged it to do: "insist upon a right of access, which . . . the statute clearly contemplated. . . insist upon seeing the full text of the whole record in some number of cases, randomly selected." Moreover, the annual reports by the House and Senate intelligence committees are no longer required by the act.
This is not to say there have been abuses. We just don't know. It may well be that most surveillance orders have been permissible under the law. The mere existence of FISA and its provisions for some external checks has probably forestalled some of the more egregious abuses. But the statute, with its elaborate provisions for judicial scruntiny and legislative oversight, was passed not just for easy cases but also for those where a careful look is both appropriate and necessary. As things stand, that hard look is missing.
TAPS, BUGS, AND FOOLING THE PEOPLE
(By Herman Schwartz)
III. NATIONAL SECURITY SURVEILLANCE
Where national security is concerned, privacy and confidentiality have rarely carried much weight. The CIA has opened hundreds of thousands of letters and screened millions more; the National Security Agency has intercepted millions of cables and international phone calls; the FBI, the military, the CIA, the IRS, and others have listened in on millions of phone calls in the United States involving countless numbers of people; the FBI, IRS, and others have perpetrated hundreds and perhaps thousands of burglaries; informants and agents provocateurs have been introduced into peaceful groups, often with tragic results for family, friendships, jobs, and health. All of this has been ostensibly for the purpose of obtaining intelligence to protect our national security against domestic and foreign threats, but all too often solely to stifle dissent.
Intelligence surveillance is even more indiscriminate and inclusive than law-enforcement surveillance. Where surveillance is directed to a crime, a specific criminal act or event provides at least some criteria for relevance and specificity. But where intelligence surveillance is concerned, there are few guidelines, and the “minimization" requirement becomes almost meaningless. As FBI Director Clarence Kelley said about foreign intelligence investigations: "In investigating crimes such as bank robbery or extortion, logical avenues of inquiry are established by the elements of the crime. The evidence sought is clearly prescribed by these elements. But there are no such guidelines in the field of foreign intelligence collection. No single act or event dictates with precision what thrust and investigation should take; nor does it provide a reliable scale by which we can measure the significance of an item of information. The value and significance of information derived from a foreign intelligence electronic surveillance often is not known until it has been correlated with other items of information, items sometimes seemingly unrelated. Also, difficulty in determining the potential value of information derivable from such an installation makes it hard to predict the required duraiton of the surveillance." The same absence of guidelines holds for the gathering of domestic intelligence, as the Supreme Court recognized in the Damon Keith case.
The Church Committee Report and discovery proceeding in court, especially in the on-going Socialist Worker Party Case, have now provided detailed confirmation of suspicions that national security taps and bugs have been used primarily for political and other illegal purposes. Virtually every intelligence agency, and many other government agencies as well, has violated the law again and again. Virtually every President since Franklin D. Roosevelt has approved, condoned, and often encouraged such violations. Attorneys General either ignored or encouraged. Congress deliberately chose not to know. Official lawlessness has been commonplace:
In 1941, Attorney General Francis Biddle approved a wiretap on the Los Angeles Chamber of Commerce as "persons suspected of subversive activities." Four years later, a high official in the Truman Administration and a former aide to Roosevelt were both tapped.
In the early 1960's Attorney General Robert Kennedy authorized, in the name of national security, an investigation of the sugar lobby, and approved taps on ten telephone lines of a law firm, three taps on executive branch officials, two on a Congressional aide, and a microphone in the hotel room of Harold D. Cooley, the Chairman of the House Agriculture Committee. The result, according to the Church committee, was "a great deal of politically useful information.'
At the 1964 Democratic Convention, the FBI installed wiretaps and bugs on Dr. Martin Luther King, Jr., the Student Nonviolent Coordinating Committee, and on other civil rights organizations, and transmitted a great deal of information to President Johnson's aides about the Mississippi Freedom Democratic Party's challenge to the regular Mississippi delegation.
In an effort to destroy Dr. King, J. Edgar Hoover had the FBI install 16 taps and eight room bugs in Dr. King's hotel rooms and offices from the Fall of 1963 until his assassination in 1968; New York and Miami police also bugged Dr. King at the FBI's instigation, even in church. This produced thousands of hours of tapes, from which the FBI tried to disseminate allegedly damaging material to Newsweek, the Los Angeles Times, and other media. Tapes were also sent to Dr. King and to Mrs. King, in what he and his aids considered an effort to drive him to suicide. The Church Committee concluded that "there is no question that officials in the White House and
Justice Department, including President Johnson and Attorney General Katzenbach, knew that the Bureau was taking steps to discredit Dr. King."
President Nixon authorized taps on four journalist and 13 government employees, allegedly to ascertain the source of leaks on foreign affairs matters. The tap on one of these, Morton Halperin, was in effect 21 months, revealed no information relevant to leaks, was not based on any reasonable suspicion of him, was in contravention of internal Justice Department procedures, and was maintained for almost two years despite repeated reports soon after installation that it was producing nothing of value. The taps were also on White House staffers who had no contact with national security matters. Although producing no evidence as to leaks, the taps generated "a wealth of information," which was transcribed and turned over to the White House, "about the personal lives of the targets-their social contacts, their vacation plans... marital problems. . . drinking habits, and even their sex lives." In addition, purely political information was obtained from the phones of two targets who were advisers to Senators Edmund Muskie and Edward Kennedy. These taps on newsmen and executive officials were merely the successors to taps in the early and mid-1960's on other newsmen, including Hanson W. Baldwin of the New York Times, in an always futile effort to ascertain the sources of leaks.
Between 1975 and 1976, the CIA bugged Micronesian officials to learn their bargaining position in negotiations with the United States about the status of Micronesia.
These are but a few of many. Attorney General Edward Levi reported that from 1940 to 1975, the FBI alone had installed some 10,000 taps and bugs. This is probably but a small portion of the surveillance that actually took place, if one considers the activities of the CIA, the NSA, the IRS, the military, and some 20 other federal agencies which conduct electronic surveillance, about which Levi did not testify. The CIA, for example, has admitted tapping people it considered left-wingers both in this country and abroad, partly in something called Operation CHAOS, an effort to find links between anti-war groups in this country and foreign groups, which were never found; the National Security Agency has intercepted millions of overseas telegram and telephone messages; the military listened in on numerous radio messages in the late '60s and early '70s in conncetion with civil disorders and in full knowledge that such listening was illegal. And the FBI may not have reported all the taps and bugs it installed; in various court proceedings, such as the Wounded Knee and Socialist Workers Party cases, the courts have found that the FBI had lied about the existence of taps and bugs. In addition to all this, there are an unknowable number installed by local police "Red" squads, often at the instigation of federal officers.
All of this was done in the name of national security. In reality, it was aimed again and again at dissent and association. The FBI, for example, saw itself as "the guardian of public order" and established values, ordained "to maintain the existing social and political order." As the Church Committee put it, "the Bureau chose sides in the major social movements of the last 15 years and then attacked the other side with the unchecked power at its disposal." The very vagueness of the targets of FBI and other investigations makes this clear. The FBI and other national security agencies set up and indexed files and spied on people it considered "rabble rousers,' "agitators," "subversives," "Black nationalists,' 'dissidents," "radical left," "new left," "extremists," "communist infiltrators," and the like. In many cases, these were citizens who simple disagreed with government policies.
And what was the primary purpose? To get names and to amass files on "enemies," people with whom the agencies were at "war." As one senior FBI official put it: "No holds were barred. We have used [similar] techniques against Soviet agents [The same methods were] brought home against any organization against which we were targeted. We did not differentiate. This is a rough, tough business.
Legality was not questioned, it was not an issue.
The number of people and conversations overheard is incalculable, but it must be enormous. Figures supplied by the Justice Department a few years ago to Senator Edward Kennedy disclosed that in 1968-70, an FBI national security tap lasted on the average from 78.3 to 290.7 days, and this calculation is confirmed by information in the Jewish Defense League and Halperin cases, where the taps lasted many months and indeed years. Since Title III (i.e., law enforcement) taps average about 55 people and 900 conversations per 13.5 day interception, simple arithmetic indicates that each federal national security tap catches between 5,500 and 15,000 people per year. If one multiplies this figure by the hundreds of taps and bugs installed each year by the federal national security agencies, the figure comes to hundreds of thousands of people each year. Support for this huge figure comes from a few items developed in court cases. In the Detroit Weatherman case, for example, it