COMMITTEE ON THE JUDICIARY KF27 PETER W. RODINO, JR., New Jersey, Chairman HAROLD D. DONOHUE, Massachusetts ROBERT W. KASTENMEIER, Wisconsin EDWARD MEZVINSKY, Iowa J857 19742 Copy 2 EDWARD HUTCHINSON, Michigan CHARLES E. WIGGINS, California DAVID W. DENNIS, Indiana HAMILTON FISH, JR., New York WILEY MAYNE, Iowa LAWRENCE J. HOGAN, Maryland HAROLD V. FROEHLICH, Wisconsin JEROME M. ZEIFMAN, General Counsel HERBERT E. HOFFMAN, Counsel SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE ROBERT W. KASTENMEIER, Wisconsin, Chairman GEORGE E. DANIELSON, California ROBERT F. DRINAN, Massachusetts WAYNE OWENS, Utah EDWARD MEZVINSKY, Iowa TOM RAILSBACK, Illinois HENRY P. SMITH III, New York CHARLES W. SANDMAN, JR., New Jersey HERBERT FUCHS, Counsel BRUCE A. LEHMAN, Counsel THOMAS E. MOONEY, Associate Counsel (11) Andrews, Robert, assistant general counsel, Department of Defense.. Bender, William J., administrative director, Constitutional Litigation Clinic, Rutgers University School of Law. Caming, William, attorney, American Telephone & Telegraph Co.. Cleveland, William, assistant director, Federal Bureau of Investiga- Cooke, Hon. David O., Deputy Assistant Secretary of Defense for Administration, accompanied by Joseph A. Liebling, Deputy Assistant Secretary of Defense for Security; and Robert Andrews, Assistant General Counsel, Department of Defense.. Decker, Andrew, inspector, Federal Bureau of Investigation Friedman, Leon, and John Shattuck, American Civil Liberties Union, Halperin, Dr. Morton, former National Security Council staffer. Leibling, Hon. Jos. A., Deputy Assistant Secretary of Defense for Maroney, Kevin T., Department of Justice_- Miller, Hon. Edward S., Deputy Associate Director, Federal Bureau of Investigation, accompanied by William Cleveland, Assistant Director; and Andrew Decker, inspector, Federal Bureau of In- Nelson, Hon. Gaylord, a U.S. Senator from the State of Wisconsin Petersen, Hon. Henry E., Assistant Attorney General, Criminal Shattuck, John, American Civil Liberties Union, New York.. Turner, William, of California; former FBI Agent, private investi- Cooke, Hon. D. O., Deputy Assistant Secretary for Defense, letter dated Apr. 19, 1974, to Hon. Robert W. Kastenmeier, Chairman, Sub- committee on Courts, Civil Liberties, and the Administration of Excised copy of a memorandum of John Mitchell furnished to the District Court by Mr. Calhoun, dated July 14, 1969. Kastenmeier, Hon. Robert W., Chairman, Subcommittee on Courts, Additional information-Continued Nelson, Hon. Gaylord: Page 41 WIRETAPPING AND ELECTRONIC SURVEILLANCE WEDNESDAY, APRIL 24, 1974 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE OF THE COMMITTEE ON THE JUDICIARY, The subcommittee met at 10 a.m., pursuant to call, in room 2141, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman) presiding. Present: Representatives Kastenmeier (presiding), Danielson, Drinan, Mezvinsky, Railsback, Smith, and Cohen. Also Present: Bruce A. Lehman, counsel, and Thomas E. Mooney, associate counsel. Mr. KASTENMEIER. The subcommittee will come to order. Other members of the subcommittee will be joining us shortly. The Chair would like to make a statement relative to the hearing which we have before us today. Privacy is an essential element in the American ideal of liberty, a basic right recognized by the fourth amendment to the Constitution. As Justice Brandeis wrote, each individual's right to privacy is "the most comprehensive of rights, and the right 'most valued by civilized men." Within the last several years many citizens have begun to fear that this basic right is being steadily eroded by the use of modern electronic technology to eavesdrop on conversations. Unfortunately, increasing numbers of Americans have begun to fear that Government is more interested in intruding into their private lives than in acting to protect their privacy. A basic purpose of these hearings is to examine the trend toward privacy invasion and to determine what should be done to reassert the right of the individual to be free of Government surveillance. Until passage of the Omnibus Crime Control and Safe Streets Act of 1968, the only Federal statute on wiretapping was section 605 of the Federal Communications Act of 1934, which prohibited interception and divulgence of conversations transmitted by wire. The Department of Justice interpreted section 605 to mean that the law was violated only if an intercepted conversion was divulged to outsiders, and the question was never decided by the Supreme Court. It was not until the 1968 act that Congress enacted a comprehensive statute on wiretapping and electronic surveillance. (1) That statute, title III of the Omnibus Crime Control and Safe Streets Act, actually extended official wiretapping by authorizing frequent and prolonged eavesdropping by Federal and State investigators. It also authorized, for the first time, the use of wiretap evidence in criminal trials. In the 6 years since the enactment of title III we have witnessed an intensive, widespread, but perhaps avoidable encroachment on some of our most necessary rights. These hearings are not the first congressional effort to examine privacy invasion by electronic eavesdropping. Between 1934 and 1967 at least 16 sets of congressional hearings on wiretapping were held. From 1965 to 1971 former Congressman Corneillius Gallagher conducted numerous hearings on privacy invasion as chairman of the Special Subcommittee on Privacy of the House Committee on Government Operations. However, in 1972 the House defeated a resolution sponsored by Congressman Gallagher to establish a Select Committee on Privacy, Human Values, and Democratic Institutions. The then chairman of the Judiciary Committee, Congressman Celler took the position that the entire subject of privacy was within the jurisdiction of this committee even though Congressman Gallagher tried without success to assure Chairman Celler that the proposed select committee would not encroach on the Judiciary Committee's recognized jurisdiction in the area of bugging, wiretapping, and surveillance. In scheduling these hearings this subcommittee is reasserting the Judiciary Committee's longstanding involvement with the problems of privacy invasion and electronic surveillance. Of course, we are not alone in our examination of this sensitive subject. Within the last few weeks, two subcommittees of the Senate Judiciary Committee and one subcommittee of the Senate Foreign Relations Committee have begun joint hearings on warrantless wiretapping and electronic surveillance. In addition, there are two independent commissions which are authorized to consider the problem. Public Law 90-351 established a National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance. Recently, Congressman Railsback of this subcommittee and I were appointed as two of the House Members on this Commission. Congressman Edwards of California and Congressman Steiger of Arizona are the other House Members. Public Law 91-452 established another Commission, the National Commission on Individual Rights, which also has a mandate to consider wiretapping and electronic surveillance. I am also a member of that Commission. Unfortunately, this Commission cannot function presently as the President has failed to appoint its public members. Undoubtedly, these two Commissions will serve a useful purpose in undertaking a full scale reappraisal of the problem of privacy invasion by electronic eavesdropping. However, the growing public concern in this area requires that we not wait for the result of the Commission's findings to exercise our oversight in this sensitive area. Within the last year numerous reports have appeared in the press describing abuses of wiretapping and electronic surveillance on the |