has been reported that one tape contained 12,000 separate conversations, many of them lawyer-client conversations.

All of this has been done with few if any external or internal controls. These agencies still lack a clear statutory base and use vague statutory language and executive orders and letters as authority. The law itself hasn't been clear. It wasn't until 1972 that the Supreme Court said intelligence surveillance for domestic security purposes on Americans without substantial foreign ties was unconstitutional, if full Fourth Amendment procedures weren't followed, though it held open the possibility that Congress could authorize a watered-down warrant procedure for domestic intelligence. Several lower courts have upheld foreign security surveillance without a prior warrant, though the District of Columbia Circuit intimated that it disagreed, and the Department of Justice seems to have accepted that court's ruling by proposing legislation that would establish a modified warrant procedure for foreign surveillance.

Nor are internal controls any more impressive, John Shattuck and Leon Friedman of the American Civil Liberties Union have given numerous examples and many details of the weakness of such controls. Former Attorney General Levi recently told of his bemusement when, on his first day in office, he was handed an application for national security tapping by an FBI agent and, as he saw it, was expected "automatically" to sign it. Levi seems to have imposed some guidelines, before departure from office; their present status is not known.

On a more technical level, the Church Committee found that screening out nonpertinent conversations was "extremely difficult, if not impossible." And, given the "vacuum clearner" attitude of most intelligence agencies, an almost inevitable approach, given the broad and amorphous nature of "intelligence,” it is difficult to see how it could be otherwise, especially where microphones are concerned, since "minimization" of microphone surveillance is always just about impossible.

What good has all this tapping and bugging of law-abiding Americans done? Very little. Although the primary purpose of all intelligence surveillance is supposed to be preventive, both the National Wiretap Commission and the Church Committee make it clear that such successes are rare indeed. The Wiretap Commission offered a few examples of successful prevention where domestic criminality is concerned, and the Church Committee simply said that preventive intelligence had occasionally been useful for national security, but it specified nothing about whether the electronic surveillance had contributed to that utility.

Many who have worked with national security surveillance have disparaged its value. Talking to John Dean on February 28, 1973, Richard Nixon said: "They [the taps] never helped us. Just gobs and gobs of material: gossip and bullshitting (unintellible)... The tapping was a very unproductive thing. I've always known that. At least, it's never been useful in any operation I've ever conducted."

(In that respect, he wasn't totally accurate: the information that FBI picked up about a prospective article by Clark Clifford may not have promoted the national security, but it certainly was of political value to the Nixon Administration in countering opponents of its Vietnam policies.)

Ramsey Clark declared in 1972 that if all national security intelligence taps were turned off, the net adverse impact on national security would be "absolutely zero.' Morton Halperin, a former staff member of the National Security Council, has taken the same position. CIA records disclosed that its microphone surveillance of Micronesian officials was "wholly unproductive," according to a Senate Intelligence Committee report in April 1977. The Court of Appeals for the Third Circuit found that the taps in one case had been "ineffective and unsuccessful," and the JDL taps did not prevent an Amtorg office bombing. The Church Committee concluded that wiretapping and bugging had been particularly useless with respect to discovering the sources of leaks, despite repeated use of electronic surveillance for this purpose by several Administrations. And many intelligence experts have consistently downgraded the importance of any kind of covert intelligence gathering. William F. Sullivan, former Assistant to J. Edgar Hoover for Intelligence, has even suggested prohibiting all electronic surveillance for a trial period of three years to see how we would manage; obviously, he doesn't think the Republic would totter during those three years. The Church Committee opposed electronic surveillance of Americans for purely intelligence purposes, and proposed that no non-consensual electronic surveillance of Americans be conducted except under Title III, with somewhat looser provisions for surveillance of foreigners, and an amendment of the espionage laws to include "industrial and other modern forms of espionage."

Cutting across all of this is a lesson history has taught again and again. From the Alien and Sedition Laws to Watergate, it is clear that executive power cannot be trusted, that it constantly identifies national security with personal political securi

ty, and that especially in times of stress, the courts cannot be relied upon to curb it. Nor can we rely on good people in office. It really doesn't make much difference who is in power. Once in office. Jefferson, Lincoln, Wilson, Roosevelt, Truman, Eisenhower, Kennedy, and Johnson all committed grave violations of civil liberties when they felt threatened. No executive, caught in one of our perpetual domestic or international crises, can be expected to resist the temptation to use all the power at his disposal to fight criticism or obstruction of what he thinks he must do for what he may honestly consider the common good.

Any legislation to authorize intelligence surveillance must therefore be scrutinized very carefully, for the power it grants will almost certainly be stretched to the utmost. There is no reason to allow intelligence surveillance for domestic purposes, and neither the National Wiretap Commission nor the Justice Department has suggested it. Where foreign intelligence surveillance is concerned, no case has been made for going beyond the Church Committee recommendations mentioned above. Nevertheless, in 1976, Attorney General Edward H. Levi, Senator Edward Kennedy, and others proposed S. 3197, a foreign intelligence surveillance bill which goes considerably beyond the Church Committee proposals, and would allow wiretapping and bugging for foreign intelligence-gathering purposes of American citizens and resident aliens not chargeable with criminality. Apart from the wisdom of allowing any wiretapping on law-abiding Americans or resident aliens, the bill's procedural safeguards were meager: it gave the judiciary an oversight role much narrower than in Title III; it dispensed with even a representation by someone that the information sought is likely to be at the phone tapped or place bugged; it had a provision about Presidential power which some say denies the inherent power to tap and bug and others say implies its existence; and it did not cover interceptions by the National Security Agency of overseas communications.

Perhaps more important, the bill authorized electronic surveillance of people suspected of being involved in criminality without the protections of Title III, on the theory that the surveillance was only for intelligence purposes and not for criminal law enforcement. Attorney General Levi tried to distinguish sharply between intelligence and law-enforcement surveillances, in order to explain why fewer protections are needed for the intelligence variety. Regardless of the theoretical validity of such a distinction, in practice the two blur into each other. In case after case, so-called intelligence taps and bugs have turned up in criminal prosecutions. In the Jewish Defense League case, for example, a so-called intelligence tap was not only followed by an indictment, but was kept in operation for 30 days after the defendants were indicted. There are many other examples of the use of so-called intelligence taps for criminal law enforcement, but S. 3197 made no attempt to prevent such use. It could therefore be used as a device to circumvent Title III, which has much more stringent requirements than S. 3197.

In May 1977, the Carter Administration introduced S. 1566, a revised version of the bill which is better in some respects and worse in others. The ambiguous clauses about inherent presidential power to wiretap for national security purposes have been removed, from both the new bill and from Title III, and it is made clear that the two legislative acts are the exclusive means by which wiretapping and bugging may be conducted in the United States; NSA surveillance of messages emanating from the United States is covered; judges are given a little more authority (though still very little) to review the government's representations in its applications. On the other hand, the bill distinguishes sharply between American citizens and permanent resident aliens on the one hand, and temporary residents such as foreign visitors and students on the other, affording the privacy of the latter much narrower protection. The Constitution contains no such distinction, and it is unworkable as a practical matter: Electronic surveillance necessarily eavesdrops on the conversations of all who use a phone or talk in a room; and many of these will, in fact, be Americans.

Intelligence surveillance is something new in American law, and quite dangerous. Mechanically and legally, it is very difficult to control, especially where the investigations in which it is used are for such broad and vague purposes as national security or "foreign policy," as in S. 1566.

Nor dare we forget that more than wiretapping is involved. The electronic eavesdropping we authorize in the name of national security will not stop with that kind of "dirty business." The same justification has been applied to break-ins, burglaries, and physical violence by the intelligence agencies. It will be again.

Mr. KASTENMEIER. Thank you for that almost depressing conclusion, certainly. Thank you for your presentation.

Magistrate Carr?

Mr. CARR. It is a pleasure to be here. It is a particular pleasure to appear once again before Chairman Kastenmeier, for whom I worked, at least indirectly, in preparing the report of the National Wiretapping Commission several years ago.

I would like to address some of the issues which come out of the background of title III, how it happened to be written in the manner that it was, some of the problems that it has left for us, and some proposed, however tentative, solutions.

In an early article, an article which bears rereading by all of us, Professor Schwartz referred to wiretapping and bugging, electronic surveillance generally, as "omniverous," and I don't think there is a better one word description that can be used.

He also referred to title III as a "porous" statute, and indeed it is in many respects.

In order to understand title III and the problems which it creates for anyone who is involved with it, be it a prosecutor, a judge, defense counsel or private citizen, you should begin with the understanding, and never lose sight of that understanding, that title III was written to allow electronic surveillance, not to prevent it, although its structure is one of prevention or prohibition, subject to exception.

Prof. G. Robert Blakey was its draftsman and he had written a proposed electronic surveillance statute as part of his work with the Organized Crime Report for the President's Crime Commission in 1967. In many respects, that proposed statute predated title III and, indeed, predated the Supreme Court's Berger decision.

Professor Blakey's proposals remain unaltered, although many of the bases for those proposals were undercut by the Supreme Court decision in Berger.

In Berger, the Court held electronic surveillance, to be successful, must be conducted without notice to its subject; and in order to be constitutional, the waiver of notice that is necessary can be justified only if true exigency is shown to exist to justify the use of electronic devices. There is, thus, a key correlation between the absence of notice and the need for showing necessity.

In addition, the New York statute at issue in Berger was defective because it extended altogether too much authority to the officers executing the surveillance, and required too little judicial authority. And it did not require a showing of continued probable cause for extensions of the wiretap or bug and the prolonged duration of the use of the devices.

Nonetheless, following the Berger decision, Professor Blakey revised his proposals into the present form in which we have them. The statute takes only slight cognizance of the concerns which led the court to find the New York statute unconstitutional in Berger.

The duration problem remains with title III. A single wiretap order can permit surveillance to be conducted for 30 days, subject to further renewals for an indefinite period, although the average tap-and Professor Schwartz could probably correct my figuresbut at least until a couple of years ago, the average Federal tap ran about 20 days, a little longer now.

That is not because of any inherent control within the statute itself. The exhaustion of alternative techniques requirement found in title III is, in my opinion as written, inadequate, and you are all

familiar with the absence of any clear specification about how minimization is to be conducted. Finally, with reference to judicial control, although Federal judges regularly are involved through the medium of periodic reports in oversight of electronic surveillance operations, that is because that is the way the Justice Department runs its operations, not because of any requirement in title III.

Title III permits that which would be permitted anyway; namely, periodic reports to the court. It does not require them. Judicial review to the extent it occurs today occurs because that is an internal approach and policy adopted by the Justice Department which, of course, could be changed with the next wiretap order.

In many respects, I am afraid that title III was written in a fairly haphazard manner. Professor Blakey wrote it while on the staff of the Senate Judiciary Committee. Senator McClellan indicated to him not to be too worried about the details of the statute and its rough edges, because when title III went to the House, there would be plenty of debate and plenty of opportunity for revision and so forth. That did not occur, so what was essentially a draft became a statute.

There are three ways in which law enforcement electronic surveillance can be adequately controlled.

One way is to limit it to a very, very small number of crimes, in other words, only narcotics, or only threats upon the life of a President, or only treason or whatever.

If you have but two or three categories of criminal offenses which are subject to wiretapping, it is not likely to be used with frequency, and you don't have to worry about the second way in which you can control wiretapping, and electronic surveillance, namely, through a rigorous set of procedural requirements which seek to make it difficult to obtain a wiretap order and see to it that there is adequate judicial control rather than prosecutorial control or control by the agents.

Finally, the third way in which you can control the extent of wiretapping is, of course, to regulate, much more stringently than the statute presently does, the period for which wiretapping can

occur.

In my opinion, as a general rule, title III has adopted none of those three alternative methods of control. The Federal list of crimes which can be subject to a title III order is extensive and lengthy, and as Professor Schwartz notes, the opportunity to use wiretapping under the RICO statute opens all kinds of possibilities for broad and extensive wiretapping.

The authority extended to the State officials to wiretap, if their legislature extends that authority to them, is to wiretap or bug for any felony or other crime dangerous to life, limb or property. It is difficult for me to conceive of a crime which would not fit within that category, and consequently, State authorities have carte blanche to define the use to which they will put wiretapping and electronic surveillance under title III.

The procedures, the second category of control, the procedures as mentioned, are in my opinion loose.

The showing of necessity as presently prescribed is an inad equate protection.

It does not fulfill the policy, if not the mandate of the Berger decision, that true exigency be shown before these very dangerous devices can be approved and installed.

In terms of the success of title III, I have real questions whether title III has accomplished what its proponents said it would do, namely, to eradicate organized crime.

Certainly that has not occurred yet. Whether it does occur upon the marriage of title III and RICO remains to be seen. Title III has been only occasionally useful and the position and concerns expressed by the Wiretapping Commission represent the more accurate reading of the lack of success at that time.

Certainly, it has not been consistently useful in combatting organized crime. Those people frequently don't use the telephones and whether bugs could be more useful, I can't say. But talking as of today, the case has not been made that title III would accomplish what its proponents assured us it would accomplish: that is, that it would succeed in eliminating the existence and influence of organized crime in this country.

It can't do that because the constitutionally necessary restraints upon the use of wiretapping make it practically impossible to conduct the kind of surveillance which was successful in the 1950's, in the Manhattan District Attorney's office, which is frequently cited as proof that wiretapping can work.

It worked during that period because the wiretapping and electronic surveillance which was used then in New York City was totally unrestricted and not subject to the exclusionary rule. That is certainly not the case under title III. I would suggest to this committee to be very careful about citing ancient history about success, and what can be accomplished by title III.

Nor do I think that title III has been successful as it might in controlling excessive law enforcement wiretapping and at least avoiding, in an anticipatory fashion, the potential for abuse. The instances of abuse may have been slight, but that is not because of inherent strength within the statute. Professor Schwartz mentioned the decline in the use of title III type surveillance by the States.

I am not sure I would attribute that to its ineffectiveness. I think that has played a role. The principal reason that there is less and less State wiretapping and surveillance is the fact that it is an enormously expensive undertaking, and that indeed may be the only sure and certain protection against widespread electronic surveillance under title III: the cost of conducting these operations is

enormous.

Six or eight or ten agents assigned on practically a full-time basis, monitoring the conversations, preparing amendments, initial paperwork, et cetera. The bureaucratic consequences are staggering, but also mandated not only by title III but by the constitution.

Therefore, the best protection that has existed for the past 15 years has been the demands made upon an agency by the costs of the operation. In many smaller cities, such as my own, Toledo, the Federal authorities simply do not have the kind of manpower to allocate to frequent and constant wiretapping operations.