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CHURCH COMMITTEE REPORTS

66
PREPARED STATEMENT OF HON. EDWARD H. LEVI, ATTORNEY GENERAL OF THE
UNITED STATES
I am here today in response to a request from the Committee to diseuss the
relationship between electronie surveillance and the Fourth Amendment of the
Constitution. If I remember correctly, the original request was that I place
befo!"e the Committee the philosophical or jurisprudential framework relevant
to this relationship which lawyers, those with executive responsibilities or dise)'
etron, and lawmakers, viewing this complex field, ought to kepp in mind. If
thj~ s!lUnds vague and general and perhaps useless, I can only ask for indulgence.
~ly first concern when I received the request was that any remarks I might
be nble to make would be so general as not to be helpful to the Committee.
Bill" I want to be as helpful to the Committee as I can be.
The area with which the Committee is concerned is a most important one.
In my view, the development of the law in this area has not been satisfactory,
although there are reasons why the law has developed as it has. Improvement
of t')e law, \vhleh in part means Hs clarification, will not be easy. Yet it is a most
important ventnre. In a talk before the American Bar Association last AUl,'1lst, I
discussed SOllie of thc aspects of the legal framework. Speaking for the DepartllH'nt
of Justice, I eonduded this portion of the talk with the observation and
commitment that "IYC Jun'e very much in mind the necessity to determine what
procedures through legislation, court action or executive processes will best serve
the national interest, including, of course, the protection of constitutional
rights, .,
I begin then with an apology for the general nature of my remarks. This will
be due in pa~t to the nature of the law itself in this area. But I should state at
the outset there are other reasons as well. In any area. and possibly in this
one more than most, legal principles gain meaning through an interaction with
the facts. Thns. the factnal situations to he imaginp(l are of enormons significance.
As this Committee well knows, some of the factual situations to be imagined
in this area are not only of a sensitive nature !Jut alBO of a changing nature.
Therefore, I am limited in what I can say about them, not only beeanse they
are sell.~ith'e, but also because a lawJ'er's imagination about futul'P scientific
developments carries its own warningi'; of ignoranee. This is a point worth
making vdwn onp tries to ctevelop appropriate safeguards for the future.
There is an additional professional restriction upon me which I am snre
the Cnmmittce will appredate. The Department of .Justice has uml\'r active
criminal inYPBtiglltion varions activities which mayor may not have been
illegal. In IHlctition. the Department through its own attorneys. or private
attorncrs specially hired, is representing present or former government employees
in civil suits which have been brought against them for activities in the course
of official conduct. These circumstances naturally impose some limitation upon
what it is appropriate for me to say in this forum. I ought not give specific
·conclusory opinions as to matters uncleI' criminal investigation or in litigation,
I can only hope thnt what I have to sny may neyprthe]ess be of some value to
the Committee in its i'carch for constructive solutions.
I do realir.e there hal' to he some factual hase. howpyer unfocused it may at
times have to be. to give this discussion meauinl';. Therefore, as a beginning,
I propose to recount something of the history of the Department's position and
practice with respect to the use of electronic surveillance, hoth for telephone
wiretapping and for trespassory placement of microphones.
As I read tIJe histor:>. going hack to 1931 and undoubtedly prior to that time,
excevt for an interlude between 1928 and 1931, and for two months in 1940,
the pnJiey of the Department of .Justice has been that electronic surveillance
con],] be employed without a warrant in certain circumstances.
In 1928 the Supreme Court in OImstcad v. United States held that wiretapping
was not within the coverage of the Fourth Amendment. Attorney General
Sargent had issued an order earlier in the same year prohibiting what was thpn
known as the Bureau of Invei'tigatioll from engaging ill any telephone wire·
tapping for any reason. Soon after the order was issued, the Prohibition Unit
"'as transferred to the Department as a new bureau. Because of the nature of
its work and the fact that the Unit had previously engaged in telephone wiretaP111ng,
in JannaI'> 1031. Attornf'Y Gpneral William D. ~Iit('hell directed that
a ;.:tndy be made to determine whether telephone wiretapping should be permitl"
E't1 ano. if so. under what circnmi'tant'E's. The Ath)l'ney General (jptermiJwd
that in the meantime the bureaus within the Department could engage in
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telephone wiretapping upon the personal approval. of the bureau chief after
consultation with the Assistant Attorney ~neral III charge of the case. The
policy during this period was to allow wiretapping only with respect to the
telephones of syndicated bootleggers, where the agent had probable cause to
believe the telephone was being used for liquor operations. The bureaus we~e
instructed not to tap telephones of public officials and other persons not directly
engaged in the liquor business. In December 1931, Attorney General
"Yilliam Mitchell expanded the previous authority to include "exceptional
cases where the crimes are substantial and serious, and the necessity is great
and [the bureau chief and the Assistant Attorney General] are satisfied that
the persons whose wires are to be tapped are of the criminal type."
During the rest of the thirties it appears that the Department's policy concernin~
telephone Wiretapping generally conformed to the guidelines adopted
by Attorney General William Mitchell. Telephone wiretapping was limited to
cases involving the safety of the victim (lIB in kidnappings), location and apprehension
of "desperate" criminals, and other cases considered to be of major
law enforcement importance, such as espionage amI sabotage.
In December 1937, however, in the first Nardone case the United States Supreme
Court reversed the Court of Appeals for the Second Circuit, and apl)
lied Section 605 of the Federal Communications Act of 1934 to law enforcement
officers, thus rejecting the Department's argument that it did not so
apply. Although the Court read the Act to cover only wire interceptions where
there had also been disclosure in court or to the public, the decision unuoubtedly
had its impact upon the Department's estimation .of the value of
telephone wiretapping as an investigative technique. In the second Nardone
case in December 1939, the Act was read to bar the use in court not only of
the overheard evidence, but also of the fruits of that evidence. Possibly for this
reason, and also because of public concern over telephone wiretapping, on
)!arch 15, 1940, Attorney General Robert Jackson imposed a total ban on its
use by the Department. This ban lasted about two months.
On May 21, 1940, President Franklin Roosevelt issued a memorandum to the
Attorney General stating his view that electronic surveillance would be proper
under the Constitution where "grave matters involving defense of the nation"
were involved. The President authorized and directed the Attorney General
"to secure information by listening devices [directed at] the conversation or
other communications of persons suspected of subversive activities against the
Government of the United States, including suspected spies." The Attorney
General was requested "to limit these investigations so conducted to a minimum
3nd to limit them insofar as possible as to aliens." Although the President's
memorandum did not use the term "trespassory microphone surveillance," the
language was sufficiently broad to include that practice, and the Department
construed it as an authorization to conduct trespassory microphone surveillances
as well as telephone wiretapping in national security cases. The authority
for. ~he President's action WlIB later confirmed by an opinion by Assistant
SolICItor Gem'ral Charles Fahy who advised the Attornev General that electronic
snrveillance could be conducted where matters affected the security
of the nation.
On .Tnly 17. 1946. AttornE'Y General Tom C. Clark sent President Truman
a lE'tter reminding him that President Roosevelt had authorized and directed
Attorney General Jackson to appro,p "listening c1pvicps [directed at] the con,
Ns-ation of nther communications of persons SllSpf'Cten of suhvprsivE' llctivities
a~llinst the Government of the trnited States. including snspected spies" and
that t"lw dirpctive had been follmw'd l1y Attorneys Genpral Rohert .Jackson and
Francis Birlc1le'. Attorney GE'neral Clark recommpndE'd that thE' dir"ctlve "he contintlPd
in force" in ,iE'W of the "increase in subversive acti,ities" and "a verv
snhstnntiaJ increase in crime." He staterl that it wns imperHtive to use such
t""]mi(J1H's "in cases vitally llffE'ctin.g' the rlompstic secnrity. or whE're hnman life
is in jeonaruy" and that Df'partmE'nt tilt's imli('atE'd thnt his two most recent
pre(lE'cpssors as Attorney General would concnr in this view. President Truman
Si~l"rl his (''')1('nrrenee on the AttornE'Y Gennrfll's letter.
,\pcorrling to the Department's recorrls. tl1f' flnn11a1 totfll of telephonp wirefnps
and microphones installed by the Bureau betwt'en 1940 through 1951 WfiS
as follows:
Tele1p9h4o0ne wiretaps: _
1941 _
1942 _
1943 _
1944 _
1945 _
1946 _
1947 _
194R _
1949 _
]9~0 _
1951 _
68
6 ",licr1o9p4h0ones : _
67 1941 _
304 1942 _
475 1943 _
517 1944 _
519 1945 _
364 1946 _
374 1947 _
416 1948 _
471 1949 _
270 1950 _
285 1951 _
6
25
88
193
198
186
84
81
67
7;:)
Gl
75
It should be understood that these figures, as is the case for the figures I have
given before, are cumulative for each year and also duplicative to some extent,
since a telephone wiretap or microphone which was installed, then discontinued,
but later reinstated would be counted as a new action upon reinstatement.
In 1952, there were 285 telephone wiretaps, 300 in 1953, and 322 in 1954. Betwcen
February 1952 and May 1954, the Department's position was not to authorize
trespassory microphone surveillance. This "'as the position taken by
Attorney General McGrath, who informed the FBI that he would not approve
the installation of trespassory microphone sun'eillance because of his concern
over a possible violation of the Fourth Amendment. FBI records indicate there
were 63 microphones installed in 1952, there were 52 installed in 1953, and there
were 99 installed in 1954. The policy against Attorney General approval, at least
in general, of trespassory microphone suneillance was reversed by Attorney
General Herbert Brownell on )fay 20, 1954, in a memorandum to Director Hoover
instructing him that the Bureau was authorized to conduct trespassory microphone
surveillances. The Attorney General stated that "considerations of internal
security and the national safety are paramount and, therefore, may compel the
unrestricted use of this technique in the national interest."
A memorandum from Director Hoover to the Deputy Attorney General on
:May 4, 1961, described the Bureau's practice since 1954 as follows: "[I]n the
internal security field, we are utilizing microphone surveillances on a restricted
basis even though trespass is necessary to assist in uncovering the activities of
Soviet intelligence agents and Communist Party leaders. In the interests of
national safety, microphone surveillances are also utilized on a restricted basis,
even though trespass is necessary, in uncovering major criminal activities. We are
using such coverage in connection with our investigations of the clandestine
activities of top hoodlums and organized crime. From an intelligence standpoint,
this investigative technique has produced results unobtainable through other
IDt:>ans. The information so obtained is treated in the same manner as information
obtained from wiretaps, that is, not from the standpoint of evidentiary value
but for intelligence purposes."
The number of telephone wiretaps and microphones from 1955 through 1964
was as follows:
Telephone wiretaps: Microphones:
19~5_______________________ 214 1955_______________________ 102
1956_______________________ 164 1956_______________________ 71
1957_______________________ 173 1957_______________________ 73
19j8_______________________ 166 1958_______________________ 70
1959_______________________ 120 1959_______________________ 75
1960_______________________ 115 1960_______________________ 74
1961_______________________ 140 ]961_______________________ 85
19G2_______________________ 198 1962_______________________ 100
1963_______________________ 244 1963_______________________ 83
1964_______________________ 260 1964_______________________ 106
It appears that there was a change in the authorization procedure for microphone
surveillance in 1965. A memorandum of March 30, 1965, from Director
Hoover to the Attorney General states that "[i]n line with your sugg:estion this
morning, I have already set up the procedure similar to requesting of authority
for phone taps to be utilized in requesting authority for the placement of microphones."
President Johnson announced a policy for federal agencies in June 1965 which
required that the interception of telephone conversations without the consent of
one of the parties be limited to investigations relating to national security and
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that the consent of the Attorney General be obtained in each instance. The
memorandum went on to state that use of mechanical or electronic devices to overhear
conversations not communicated by wire is an even more difficult problem
"~vlljch raises substantial and unresolved questions of Constitutional interpretation."
The memorandum instructed eacll agency conducting such an investigation
to consult with the Attorney General to ascertain wllether the agelll'y's
practices were fully in accord with the law. Subsequently, in September 196;:;,
the Director of tile FBI wrote the Attorney Genel'UI and referred to the "present
atmosphere, brought about by the unrestrained and injudicious use of special
investigative techniques by other agencies and departments, resulting in Congressional
and public alarm and opposition to any activity which could in any
way be termed an invasion of privacy." "As a consequence," the Director wrote,
"lYe have discontinued completely the use of microphones." The Attorney General
responded in part as follows: "The use of wiretaps and microphones involving
trespass present more difficult problems because of the inadmissibility of any
evidence obtained in court cases and because of current judicial and public
attitude regarding their use. It is my understanding that such devices will not be
used without my authorization, although in emergency circumstances they may
be used subject to my later ratification. At this time I believe it desirable
that all such techniques be confined to the gathering of intelligence in national
security matters, and I will continue to approve all such requests in the future
as I have in the past. I see no need to curtail any such activities in the national
security field."
The policy of the Department was stated publicly by the Solicitor General in
a "upplemental brief in the Supreme Court in Blew'" v. United State8 in 1!)li6.
Speaking of the general delegation of authority by Attorneys General to the
Director of the Bureau, the Solicitor General stated in his brief:
")ell exception to the general delegatlOn of authority has been prescribed, since
1()40. for the interceptioll of wire communications, which (in addition to being
lilllitell to matters involving national security or llanger to human life) has
required the specific authorization of the Attorney General in each instance.
ilia similar procedure existed until 1965 with respect to the use of devices such
[IS those involved in the instant ease, although rec(Jrds of oral and written
comlllunications within the Department of Justice reflect concern by Attorneys
Gf'neral and the Director of the Federal Bureau of Inyestigation that the use of
listening devices by agents of the government should be confined to a strictl~·
limited category of situations. Under Departmental practice in effect for a period
of years vrior to 1963, and continuing until 196;:;, the Director of the Federal
Bureau of Investigation was given authority to approve the installatiou of
devices such as that in question for intelligence (and not evidentiary) purposes
when required in the interests of internal security or national safety, including
organized crime, kidnappings and matters wherein llUman life might be at
stake....
Present Departmental practice. adopted in July 1965 in conformity with the
policies declared by the President on June 30, 1965, for the entire federal establishment,
prohibits the use of such li"tening devices (as well as the interception
of tf'lephone and other wire communications) in all instances other than those
involving the collection of intelligence affecting the national security. The specific
authorization of the Attorney General must be obtained in each instance when
this exception is invoked:'
The Solicitor General made a similar statement in another brief filed that
same term (Schipani v. U.S.) again emphasizing that the data would not be
made available for proseeutorial purposes, and that the specific authorization
of the Attorney General must be obtained in each instance when the national
security is sought to he invoked. The number of telephone wiretaps and microphones
installed since 1965 are as follows:
Telephone 1Yiretaps : ;)Iicrophones:
1965_______________________ 233 1965_______________________ 67
]966_______________________ 174 1966_______________________ 10
1967_______________________ 113 1967_______________________ 0
1968_______________________ 82 1968_______________________ 9
1969_______________________ 123 1969_______________________ 14
1n70_______________________ 102 1970_______________________ 19
1971_______________________ 101 1971_______________________ 16
1!)72_______________________ 108 1972_______________________ 32
In73_______________________ 123 1973_______________________ 40
1974_______________________ 190 1974_______________________ 42
70
Comparable figures for the year 1975 up to October 29 are:
Telephone wiretaps: 121
Microphones: 24
In 1968 Congress passed the Omnibus Crime Control and Safe Streets Act.
'l'itle III of the Act SEt up a detailed procedure for the interception of wire or
oral c(Jmmunications. The procedure requires the issuance of a judicial warrant,
prescribes the information to be set forth in the petition to the judge so that,
among other things, he may find probable cause that a crime has been or is abouT
to be committed. It requires notification to tile parties subject to the intended
surveillance within a period not more than ninety days after the application
for an order of approval has been denied or after the termination of the period
of the order or the period of the extension of the order. Upon a showing of good
cause the judge may postpone the notification. The Act contains a saving clause
to the effect that it does not limit the constitutional power of the President
to take such measures as he deems necessary to protect the nation against
actual or potential attack or other hostile acts of a foreign power. to obtain
foreign intelligence information deemed essential to the security of the United
States. or to protect national security information against foreign intelligence
activities. Then in a separate sentence the proviso goes on to say. "Nor shall
anything contained in this chapter be deemed to limit the constitutional powel'
of the President to take such measures as he deems necessary to protect the
United States against the overthrow of the government by force or other unlawful
means, or against any other clear and present danger to the structure or
existence of the government."
The Act specifies the conditions under which information obtained through a
presidentially authorized interception might be received into evidence. In speaking
of this saving clause. Justice Powell in the Keith case in 1972 wrote: "Congress
simpl)' left presidential powers where it found them." In the Keith case
the Supreme Court held that in the field of internal security, if there was no
foreign involvement, a judicial warrant was required for the Fourth Amendment.
Fifteen months after the Keith case Attorney General Richardson. in a letter to
Senator Fulbright which was publicly released by the Department, stated: "In
general, before I approve any new application for surveillance without a warrant,
I must be convinced that it is necessary (1) to protect the nation again~t
actual or potential attack or other hostile acts of a foreign power; (2) to obtain
foreign intelligence information deemed essential to the security of the Uniterl
States; or (3) to protect national security information against foreign intelligence
activities."
I have read the debates and the reports of the Senate Judiciary Committee
with respect to Title III and particularly the proviso. It may be relevant to point
out that Senator Philip Hart questioned and opposed the form of the proviso
reserving presidential power. But I believe it is fair to say that his concern was
primarily, perhaps exclusively, with the language which dealt with presidential
power to take such measures as the President deemed necessary to protect the
United States "against any other clear and present danger to the structure or
existence of the Government."
I now comE' to the Department of Justice's present position on electronic surveillance
conducted without a warrant. Under the standards and procedures
established by the President, the personal approval of the Attorney General i~
required before any non-consensual electronic surveillance may be instituted
within the United States without 11 jUdicial warrant. All requl'sts for surwillance
must be made in writing by the Director of the Federal Bureau of Investigation
and must set forth the relevant circumstancl's that justify the proposeo
SUrVl'illllnce. Both the agency and the Presidentinl appointee initiating the
rl'quNiit must be identified. These requests come to the Attornl'Y General aftl'r
they have gone through review procedures within the Federal Burpau of Investigation.
At my request, they are thpn reviewed in the Criminal Division of the
Department. Before they come to the Attorney General, they are tlwn examined
by a special reviE'w group which I ha,e l'stnbJished within the Office of the
Attorney GenernJ. Each request. before authorization or denial. receives my per!'
onnl attention. Rpquests are only aut'horized when thl' requested electronic snrveillance
is necessary to protl'ct the nation against actual or potential attack 01'
oOwr hostile nds of a foreign power; to obtain foreign intl'lJigellCf' dpem('(l
e,sf'ntial to th!' security of the llfiti0n; to pr0tect wltionnl s(,(,111'i(,' inf()rmMir'n
against foreign intelligf'nee flctivities; or to obtain information certified as
71
nf'CE'~~:1ty for the conduct of foreign affairs matters important to thE' nationar
sf'eurity of the United States. In addition the subject of the electronic sl1neillance
must be consciously assisting a foreign power or foreign-based political
group, and there must be assurance that the minimum physical intrusion Iwe<'ssary
to obtain the information sought will be used. As these criteria will show
and a>1 I will indicate at greater length later in discussing current guideline~ tlle
Department of Justice follows, our concern is with respect to foreign powers or
their agents. In a public statement made last July 9th, speaking of the warrantless
suncillances then authorized by the Department, I said "it can be said that
there 2re no outstanding instances of warrantless wiretaps or electronic surnoilance
directed against American citizens and none will be authorized h~- me
except in cases where the target of surveillance is an agent or collaborator of a
fureign power." This statement accurately reflects the situation toda~- as well.
Having described in this fashion something of the history and conduct of the
Department of Justice with respect to telephone wiretaps and microphone installation~.
I should like to remind the Committee of a point with which I began,
namely, that the factual situations to be imagined for a discussion such as this
are not only of a sensitive but a changing nature. I do not have much to say about
this <'xcept to recall some of the language used by General Allen in his testimony
before this Committee. The techniques of the NSA, he said, 2re of the most sensitiye
and fragile character. He described as the responsibility of the ]\"SA the
interception of international communication signals smt through the air. He
said there had heen a watch list, which among many other names, contained the
llames of V.S. citizens. Senator Tower spoke of an awesome technology-a huge
vacuulll eleaner of communications-which had the potential for abuses. General
Allen pOInted out that "The United States, as part of its effort to produce
foreign intelligence, has intercepted foreign communications, analyzed, and in
some Cllses decoded, these communications to produce such foreign iutelligence
since the Re,-olutionary War." He said the mission of XSA is directed to foreign
intelligence obt:lined from foreign electrical communications and also from other
foreign signals such as radar. Signals are intercepted by many techniques and
processed, sorted and analyzed by procedures which reject inappropriate or
unnecessary signals. He mentioned that the interception of communications.
however it ma~' occur, is conducted in such a manner as to minimize the unwanted
Ill<'Ssages. :\evertheless, according to his statement, many unwanted communications
are potentially selected for further processing. He testified that subsequent
processing, sorting and selection for analysis are conducted in accordance with
strict procedures to insure immediate and, wherever possible, automatic rl'jl'l'tion
of inflppropriate messages. The analysis and reporting is 2ccomplished only for
those messages which meet specific conditions and requirements for foreign
intelligence. The use of lists of words, including individual names, snbjects. locations,
et cetera, has long been one of the methods used to sort out information ot
foreign intelligence value from that which is not of interest.
General Allen mentioned a very interesting statute, 18 USC 952, to which I
should like to call your particular attention. The statute makes it a crilllp fnr
anyone who by virtue of his employment hy the United States obtains any
official diplomatic code and willfully publishes or furnishes to another withont
authorization Rny such code or any other matter which was obtained while
in the process of transmission between any foreign government and its diplomatic
mission in the United State>1. I call this to your attention because a certain indirection
is characteristic of the development of law, whetber by statutE' or
not, in this area.
The Committee will at once recognize that I have not attempted to snmmarize
General Allen's testimony, but rather to recall it so that this extended dimension
of the variety of fact situations whie11 we have to think ahout as we explore
the coverage and direction of the Fourth Amendment is at least suggestPtL
Having attempted to provide somethin.g of a factual base for our discnssion,
I turn now to the Fourth Amendment. Let me say at once, however, that while
the Fourth Amendment can be a most important guide to values and procedures,
it does not mandate automatic solutions.
The history of the lfourth Amendment is very much the history of the American
Revolntion and this nation's quest for independence. The Amendment is
the legacy or onr early years and reflects values most cherished by the Founders.
In a direct sense, it was a reaction to the g-eneral warrants and writs of assistance
employed by the officers of the British Crown to rummage and ran"acok
colonists' homes as a means to enforce antismuggling and customs laws. General
72
sE'arcll warrants had been used for cE'nturiE's in England against those accused
of seditious libel and other offenses. These warrants, sometimes judicial, SOIllE'tillll'S
not, often general as to persons to be arrested. pla(:es to he searched, and
things to be seized, were finally condemned by Lord Camden in 17G3 in Billick v.
Carrington, a decision later celebrated by the Supreme Court in Boyd v. UliitCll
Si l ltC8 as a "landmark of English liberty ... Olle' of the IwrllllllH'Ilt monuments of
the British Constitution." The case involved a general warrant, issued b~' Lord
Halifax as Secretary of State, authorizing messengers to search for John Entick
and to seize his private papers and hooks. Entick had written publications
criticizing the Crown and was a supporter of John 'Wilkes, the famous author
and editor of the Xorth Briton whose own publications had prompted wholesale
arrests, searches, amI seizures. Entick sued for treslJass and obtained a jury
verdict in his fllYOr. In upholding the verdiet, Lord Camden observed that if the
government's power to break into and search homes were accepted, "the secret
cabinE'ts and burE'aus of every subject in this kingdom would be thrown open
to the search and inspection of a messcnger, whenever the secretary of state
shall see fit to charge, or eVE'n to suspect, a person to lJe the author, printer,
or pulJlisher of a seditious lilJpl.'·
The practice of the general warrant", however, continued to he known in
the colonies. The writ of assistance, an even more arbitrary and oppressive
instrument than the gE'nE'ral warrant, was also widely used by ren'nue officers
to detect smuggled goods. Unlike a general warrant, the writ of assistance
was virtually unlimitecl in duration and !lW not llaVE' to lle returned to the court
upon its executiO!l. It broadly authorized indiscriminate searches and seizures
against any per"on suspected by IT ('ustoms officer of possessing prohibited or
uncustomed goods. The writs, sometimE'S judicial, sometimes not, were usually
isued by colonial judges and YestE'd Crown officers with umeviewed and unbounded
discretion to break into homes, rifle drawers, and seize private papers.
All ofIicers and subjects of the Crown were further commanded to assist in the
writ's execution. In 17Gl James Otis eloquently denounced the writs as "the
worst instrument of arbitrary powE'r, the most destructive of English liberty,
and the fundamE'ntal principles of law, that ever was found in an English law
book," since they put "the liberty of every man in the hands of every petty
officer." Otis' fiE'ry oration later prompted John Adams to reflect that "then
and there was the first scene of the fir"t act of opposition to the arbitrary
claims of Great Britain. Then and there the child Independence was lJorn."
The words of the Fourth Amendment are mostly the product of James :Madison.
Hi;.; original version appearE'd to be directrd solE'ly at the issuance of improper
warmnts.' Hevisions accomplished under circumstances that are still unclear
transformpd the Amendment into two serJarate clauses. The chanc:e has influencecl
our understanding of the nature of'the rights it protects. As'embodied in
our Constitution, the Amendment reads: "The right of the people to be secure
in their persons, houses, papE'rs, and effects, against unreasonable searches and
l'E'iznres, shall not be violatrd, and lJO 'Yarrants shall issue. but upon probable
CaIlSE', supported by oath or affirmation, aud particularly dE'scribing the place
to be searched, and the persons or things to be seizE'd."
Our understanding of the purposes underlying the Fourth AmE'ndmE'nt has
been an evolving one. It has beE'n shnped by snbsequE'nt historical events, by
the changing conditions of our modern technological society, and 0.1' the developmE'nt
of our own traditions, customs, and values. From the beginning, of course,
there has been agreement that the Anwndment protects against practices such
as those of the Crown officers unrlrr the notoriolls gpneral warrants and writs
of assistance. Above all, the Amendment safeguards the people from unlimited,
undue infringement by the governmE'nt on the sE'curlty of persons and their
property.
But our perceptions of the language and spirit of the Amendment have gone
beyond the historical wrongs the Amendment was intended to prevent. The
Supreme Court has servE'd as the primary explicator of these evolving perceptions
and has sought to articulate thE' values the AmendmE'nt incorporates.
I hE'Jie,e it is useful in our present endE'avor to identify some of these perceived
VahlE'S.
1 Madison's proposal read ns follows: "The rights of the prop]e to be secured In their
persons. their houses. their papers. and their other property, from all unreasonable searehes
and spiznres. shall not he violated hy warrants Issued without probable eause, stlpported by
olit11 0" affirmation. or not particularly describing the places to be searched, or the persons
or things to he seized."
73
First. broadly considered, the Amendment sppaks to the flUtonom~' of th~
imlh'idual ltg-ain"t snciet~·. It seeks to accord to ('ach indivillnal, albeit ill111erfec·tly,
a measure of the eontidentialit;; e""pntial to the attainnH'nt of human dig-llity.
It is a shidd ai'ainst imlis('riminate pxposure of an individnal's private atTairs
to the worJ(J--an exposlll'P whieh can destro;;, since it piacps in jeopanly the
spontaneity of tlllJU,:dlt :111(1 action on ,vhieh so much depends. As .Justice
BnI!H]f'is oilscl'H:d ill his dissent in tlw Olmstead case. in the Fourth ~\mclldl:tent
the Foull(lers "conferred, as against the GQH'rnlllcnt, the right to he let alonethp
most cOll1prehpilSiye of rights and the right most ,alued by (·ivili7.€'d men."
,Judgp .Jerome Frank Illack the same point in a (lissent in a case in ,vhleh a paid
informer with a concealed m!cl'Op]wne bronflcast all interceptc-d conversation ta
a uar('otics agent. ,Judge Frank wrote in UI/ited States v. On Lee that "[a)
sanl', decent, civilized society must provide some such oasis, some shelter from
puhlic scrutiny, some insulated enclosure some enclave, some inviolate place
wlJich is a man's castle." The Amendment does not protect absolutely the
priv:ley of an individual. The need fer privaey. and the law's response to that
IlPCtl, go beyond the Amendment. But the recognition of the value of individual
autonomv rpmains close to the Amendment's core.
A parallel value bas been tbe Amendment's special concern 'lVith intrusions
wben the purpose is to obtain evidence to incriminate the ,ictim of the search.
As llle Supreme Court observed in Boyd, which involved an attempt to compel
the production of an indi,idual's pri,ate papers, at some point tbe Fourtb Amendment's
prohibition against unreasonable searches and seizur€'s and the l!'ifth
Amendment's prohibition against compulsory self-incrimination "run almost
into each other." The intrusion on an individual's privacy has long been thought
to be especially grave when the search is based on a desire to discover incriminating
evidence.2 The desire to incriminate may be seen as only an aggravating
circumstance of the search, but it has at times proven to be a decisive factor
in dctermining its legality. Indeed. in Boyd the Court declared broadly that "compellillg
the production of [a person's] private books and Papers, to convict him
of crime, or to forfeit his property, is contrary to the principles of a free goverlllllent."
'rhe incriminating evidence point goes to the integrity of the criminal justice
system. It does not necessarily settle the issue whether the overhearing can
properly take place. .It goes to the use and purpose of the information overheard'.
An additional concern of the Amendment has been the protection of freedom
of thought, speech, and religion. The general warrants were used in England as
a powerful instrument to suppress what 'lVas regarded as seditious libel or nonconformity.
'Vilkes was imprisoned in the Tower and all his pri,ate papers seized
under such a warrant for his criticism of the King. As Jnstlce Frankfurter inquired,
dissenting in Harris v. United States, a case that concerned the perlllis~
ihJe scope of searches incident to arrest. "How can there be freedom or
thought or freedom of speech or freedom of religion, if the police can, without
warrant, search your house and mine from garret to cellar ...7" So Justice
Powell stated in Keith that "Fourth Amendment protections become the more
necessary when the targets of official surveillance may be those suspected or
ullorthodoxy in their political beliefs."
Another coneern embodied in the Amendment may be found in its second
clause dealing with the warrant requirement, even though the Fourth Amendment
does not always require a warrant. The fear is that the law enforc€'ment
officer, if unchecked, may misuse his powers to harass those who hold unpopular
or siIllply different views and to intrude capriciously upon the privacy of individuals.
.It is the recognition of the possibility for abuse, inherent whene,er
executive discretion is uncontrOlled, that gives rise to the requirement of a warrant.
'l'hat requirement constitutes an assurance that the judgment of a neutral
lwd detached magistrate will come to bear before the intrnsion is made and that
the decision whether the privacy of the individual must yield to a greater need
of society will not be left to the executive alone.
2 The eon(:ern with self-Incrimin.'tion is reflected in the test of standIng to invoke the
exel",ionar)' rnle. As the Court stated In United States v. Calalldr": "Thns. standin/: to
in"ol,e the exclnslonary rule [under the Fourth Amendmentl has been confined to situations
whpJ"(' tllp Goyernment seeks to use such evidence to incriminate the victim of the unlawful
"·llI'(·h.... 'l'hi" standing rule is premised on a recognition that the need for deterrence,
nud hpTlce tIle' rationale for excluding the p\,idellce are strong-est where the Governnu'nt"s
"n1'1\"f,,1 conduct would result in imposition of a crimina] sanction on the victim of the
8(':11'('11."
74
A final Yalue reflected in the Fourth Amendment is revealed in its openin'"
WfJ'"'L..:: "The right of the people." 'Vho are "the people" to whom the Amendment
ref'!',,? TIle Constitution begins with the phrase, "We the People of the united
States." That phra"e has the character of words of art, denoting the power from
whkh the Constitution comes. It does suggest a special concern for the American
citizen and for those who share the responsibilities of citizens. The Fourth
Alll€'ndment guards the right of "the people" and it can be urged that it was
not Illeant to apply to foreign nations. their agents and collaborators. Its application
may at least take accollnt of that difference.
The values outlined above have lJeen embodied in the Amendment from the
IJ€'ginning. But the importance accorded a particular value has varied during
the comse of our history. Some have been thought more important or more
thnatcned than others at times. When several of the values coalesce, the need
for l'I'otection has been regarded as greatest. When only one is im'oIYed, that
need has been regarded as lessened. Moreover, the scope of the Amendment
itself has been altered over time, expanding or contracting in the fact of changing
circumstances and needs. As with the evolution of other constitutional proYisions.
this development has been case in definitional terms. 'Vords have been
TPUd hy different Justices and different Courts to mean different things. The
-word;;: of the Amendment have not changed; we, as a people, and the world which
<cnvelops us, have changed.
An important example is what the Amendment seeks to guard as "secure."
'The wording of the Fourth Amendment suggests a concern with tangible prop-
erty. By its terms, the Amendment protects the right of the people to be secure
in their "persons, houses, papers and effects." The emphasis appears to be on the
material possessions of a person, rather than on his privacy generally. The
'Court came to that clnclusion in 1928 in the Olmstead case, holding that the
intereeption of telephone messages, if accomplished without a physical trespass,
Was outside the scope of the Fourth Amendment. Chief Justice Taft, writing
for the Court, reasoned that wiretapping did not involve a search or seizure;
the Amendment protected only tangible material "effects" and not intangibes
such as oral conversations. A thr('ad of the same idea can be fonnd in En tick,
where Lord Camden said: "The great end for which men entered into society was
to secure their property." But, while the removal and carrying off of papers
was a trespass of the most aggravated sort, inspection alone was not: "the
e;l"('," Lord Camden said, "cannot by the law of England be guilty of a trespass."
The movement of the law since Olmstead has been steadily from protection of
property to protection of privacy. In the Goldman case in 1942 the Court held
that the use of a deteetaphone pla('ed against the wall of a room to overhear
oral COllyersations in an adjoining office was not unlawful because no physical
tr('spass was involved. The opinion's un;;:tated assumption. howev('l'. appeared to
1,(> that a private oral conversation could be among tlle protected "effects"
within the meaning of the Fourth Amendment. The Silverman case later eroded
Olm~tead substantially by holding that the Amendment was "iolated hy the interc('
ption of an oral conversation through the use of a spike mike driven into
a part)- wall. penetrating the heating duct of the adjacent home. The Court
;;:tnted that the qnestion whether a trespass had occurred as a techni('al matter
of propf'l'ty law was not controlling; the existence of an actual intrusion was
suffieient.
The Court finally reachf'd the opposite emphaf'is from its previous strf'SS on
pt:Opert,. in 1967 in Katz v. United State.~. The Court declared that the Fourth
Amendment "protects people. not places," against unreasonable searche~ and
f'pizures: that oral conversations. although intangible. were entitled to be secure
ag:ainst the uninvited ear of a government officer. and that the interception of a
tplf'phone conversation. e»en if accomplished without a trespass, "iolated the
priyacy on which petitioner justifiably relied while using a telephone booth.
.TllsriC'e Harlan, in a concurring opinion. explained that to ha,e a constitutionall,"
protected right of privacy under Katz it was necessary that a person. first,
"IIWP exhibitf'd an actual (subjective) expectation of privacy and. second. that
tIp expectation be one that society is prepared to recognized a;;: 'reasonablf'.' "
At first g]:1.J1ce. Ka.tz might be taken as a statf'ment that the Fonrth ,j,mpndllWnf
no",' protects all reasonable expectations of privacy-that the boundaries
of til(' right of privacy are coterminons with those of the Fourth Am('nflment. But
t11:1t I1ssumption would be misleading. To begin with the Amendment still
prntr,,,ts'nme interests that have very little if any thing to do with privacy. Thns.
the pr,lir'e nwy not, without warrant, seize an automobile parked on the owner"s
75
driveway even though they have reason to believe that the automobile was nsed
in committing a crime. The interest protected by the Fourth Amendment in such
a case is probably better defined in terms of property than privacy. Moreover, the
llatz opinion itself cautioned that "the Fourth Amendment cannot be translated
into a general constitutional 'right to privacy.' " Some privacy interests are protected
by remaining Constitutional guarantees. Others are protected by federal
statute, by the states, or not at all,
The point is twofold. First, under the Court's decisions, the Fourth Amendment
dues not protect every expectation of privac;r, no matter how reasonable or
actual that expectation may be. It does mot protect, for example, against false
friends' betrayals to the police of even the most private confidences. ~econd. the
"reasonable expectation of privacy" standard, often said to be the test of Katz,
is itsell' a conclusion. It represents a judgment that certain behavior should as a
matter of law be protected against unrestrained governmental intrusion. That
judgment, to be sure, rests in part on an assessment of the reasonableness of the
expectation, that is, on ,an objective, factual estimation of a risk of intrusion
nnder given circumstances, joined with an actual expectation of privacy by the
V>l'son involved in a particular case. But it is plainly more than that, since
it is also intermingled with a judgment as to how important it is to society that
an expectation should be confirmed-a judgment based on a perception of our
cnstoms, traditions, and values as a free people.
The Eatz decision itself illustrates the point. Was it really a "reasonable expectation"
at the time of ](atz for a person to lJelieve that his telephone conver~
ation in a pUblic phone booth was private and not susceptible to interception by
a microphone on the booth's outer wall': Almost fortr years earlier in Olmstead
tile Court held that such nontrespassory interceptions were permissible. Goldmat~
n'affirmed that holding. So how could Kat:z reasonabl~' expect the contrary? The
:lllswer, I think. is that the Court's dcdsion in Katz turned ultimately on an
assessment of the effect of permitting such ulll'estrained intrusions on the inlliyidual
in his private and social life. The judgment was that a license for unlimited
governmental intrusions upon every telephone would pose too great
a danger to the spontaneity of human thought and behavior..Justice Harlan
IJut the point this way in Unite(l States v. White:
"The analysis must, in my view, transcend the search for subjective expectations
Dr legal attriLmtion of assumptions of risk. Our expectations, and the risks we
assume, are in large part reflections of laws that translate into rules the customs
and values of the past and present."
A weighing of values is an inescapable part in the interpretation and growth
of the ]'ourth Amendment. Expectations, and their reasonableness, vary according
to circumstances. So will the need for an intrusion and its likely efl'ect.
These elements will define the boundaries of the interests which the Amendment
holds as "secure."
To identify the interests which are to be "secure," of course, only begins the
inquiry. It is equally essential to identify the dangers from which those interestsare
to be secure. What constitutes an intrusion will depend on the scope
of the protected interest. The early view that the Fourth Amendment protected
only tangible property resulted in the rule that a physical trespass or taking was
Tlle measure of an intrusion. Oltnste(/(l rested on the fact that there had been no
j,l!ysical trespass into the defendant's horne or office. It also held that the use
Df the sense of hearing to intetcept a conversation did not constitute a search or
~pizure, Kat~, by expanding the scope of the protected interests, necessarily altered
our misunderstanding of what constitutes an intrusion. Since intanr;ibles
snch as oral conversations are now regarded as protected "effects" the OTerhearing
of a conversation may constitute an intrusion apart frorr;{ whether a
physical trespass is involved.
The nature of the search and seizure can be very important. An entry into
a house to search its interior may he viewed as more serious than the over!
lE'aring of a certain type of conversation. The risk of abuse may loom larger
;ll one case than the other. The factors that have come to be viewed as most
Important, however, are the purpose and effect of the intrusion. The Supreme
~'ourt has tended to focus not so much on what was physically done, but on why
I twas, done and wha~ thecon?equence is likely to be. What is seizE'd, why it
was seized, and what IS done ;nth what is seized are critical questions
I stated earlier that a central coneern of the Fonrth Amendment'was with
intrusions to obtain evidence to incriminate the Yictim of the search. This
.concern has been reflected in Supreme Court decisions which have traditionally
76
treated intrusions to gather incriminatory eyiaence differently from intrusions
fOl' nPlltral or benign purposes. In Franl,; v. ,Uaryland, the appellant was fined
for refusing to allow a housing inspector to enter his residence to determine
\\"llether it was maintained in compliance with the municipal housing code.
Violation of the code would haye lee] only to a direction to remove the yiolation.
Only failure to comply with the direction would lead to a criminal sunc'tion.
The Court lIeld tlmt such admiuistratiye searches could be conducted without
warrant. Justice I!'rankfurter, writiug for the Court, noted that the Fourth
Amendment was a reaction to "ransacking !ly Crown officers of the 110mes of
citizens in search of evidence of crime or of illegally imported goods." III' observed
that both Entick and Boyd were coneerned with attempts to compel indi\"
iduals to incriminnt{l tlJemseh"es in criminal cases and that "it was 011 the
issue of the right to be secure from searches for eyidence to be used in crimina!
prosecutions or for forfeitures that the great battle for fundamental liberty was
fought." There was th llS a gTPat difference, the Justice said, between seardJes
to seize evidence for crimina! prosecutions and searches to detect the existcllce
of municipal health code yiolations. Searches in this latter category, conducted
"as an adjunet to a r('~ulatory scheme for the general welfare of the community
and not as a means of enforcing the criminal law, [have] antecedents deep in
our history:' and should not he snbj('cted to the warrant requirement.
1-'1"([111.: was later oyerruled in Hlti7 in Camara v. Municipal Court, and a companion
ease, Sec v. CitJ} ot Scattlc. In Camara, nppellant was, like P1'G1II;, chargf'd
with a criminal yiolation ns a rp~ult of his refusal to permit a municipal inspector
to enter his apartment to im"estigate possible violations of the city's housing
code. The Supreme Conrt rejected the Franl" rationale that municipal fire, health,
and housing inspections could be conducted without a warrant oecanse the
objpet of the intrusion was not to search for the fruits or instrumentalities of
crime. ~[oreover, the Court noted that most regnlatory laws snch as fire, health,
a]Hl housing cm]es were enforcpd by criminal processes, that refusal to permi t
pntry to an inspector was often a criminal offense, and that the "self-protection"
or "non-incrimination" objective of thc Fourth Amendment was therefor(' illdpf'f]
inrolved.
nut the doctrine of Camara proyed to oe limited. In 1971 in Wyman v. James
the Court heh] th;l t a "home visit" by a welfare caseworker, which entailed terllIillntion
of benefits if the '\I"elfare recipient refused entry, was lawful despite
thp absenee of a warrant. The Court relied on the importance of the puulic's
interest in ohtaining information about the recipient, the reasonableness of the
measures tnken to ('nsure that the intrusion was limited to the extent practicable,
and most importantly, the fact that the primary objective of the search was not
to ohtain evidence for a criminal investigation or prosecution. Camara and
PI"II'IIk wpre distinguished as involving criminal proceedings.
Perhaps what these cases mainly say is that the purpose of the intrusion. and
the nse to whieh what is seized is put, are more important from a constitutional
st:lIlllpoiut thau the !Jhysical act of intrusion itself. 'Vhere the purpose or effect
is Iloucrimiua I, tIl(> search and seizure is perceiyed as less troublesome and there
is a readiness to find rpasonableness even in the absence of a judicial warrant.
By contrast, where the purpose of the intrusion is to gather incriminatory eviIlpIWP.
and hene!' hostile, or when the consequence of the intrusion is the SanCt'iOll
of the criminal !a,,", gTPater protections may be given.
The Fourth Amendment then, as it has always been interpreted, does not give
ahsollltl; prot!'ction against Government intrusion. In the words of the AmendIllt'nt,
the right guarnnteed is security against unreasonable searches and seizures,
.\s Justice 'Vhite said in the Cam{/,ra case, "there can be no ready test for determining
reasonahleness other than by balancing the need to search against the
inl"l1sjon ,,-hiI'll the st'arch entails." 'Whether there has been a constitutionally
prohibitPl] im-asion at all has come to d('pend less on an absolute dividing line
IIp(,Y(,I'n prn[petp(] and unprot('etpd areas, and more on an estimation of the
indil·il1ual s{'('n1'ity interests affected IIr the Gorernnwnt's actions. Those effects,
in turn. mar depend on the purpose for which the search is made, whether it
io< hn,stile. nputral, or henign in rplation to the person whose interests are in'
·aded. amI also on the mllnner of the sparch.
By thp same tokpn, tllE' Goyernment's lwt'd tn search. to inyade indiYiduat
pri\"ac.\" inl"1'psts, is no longer mNlsurt'l] rx{']usiyely-if illl]et'd it erer was~-hv
thp tnillitiona t prohnl'lp cause standard. The s('eonl! dausp of the AmcIH]lllen't
statps. in part, thnt "110 warrants shnll issue bnt upon prohahle cause." The'
COlll'Cpt of probahle cause has oft('n bePII read to hpar upon amI in mau;> cases,
77
to control the question of the reasonableness of searches, whether with or withont
warrant. The traditional formulation of the standard, as "rem:onable grounds
for believing that the law was being violated on the premises to be searched"
relates to the Governmental interest in the prevention of criminal offenses, and
to seizure of their instruments and fruits (Brinegar v. United States). This
formulation in GOl/led v. United States once took content from the longo-standing
"mere evidence rule"-that searches could not he undertal,en "solely for The
purpose of ... [securing] evidence to he used ... in a criminal or penal proceeding,
but that they may be resorted to only when a primary right to such ::;eardl
and seizure may be found in the interest which the public ... may have in the
property to be seized." The Government's interest in the intrusion, like the individual's
interest in privacy, thus was defined in terms of property, and the right
to search as well as to seize was limited to items-contraband and the fruits and
instrumentalities of crime-in which the Government's interest was thought
superior to the individual's. This notion, long eroded in practice, was expressly
abandoned by the Court in 19G7 in Warden v. Hayden. Thus, the detection of
crime-the need to discover and use "mere evidence"-may presently justify
intrusion.
Moreover, as I have indicated, the Court has held that, in certain situations,
something less than probable cause-in the traditional sense-may be suffidellt
ground for intrusion, if the degree of intrusion is limited strictly to the purposes
for which it is made. In Terry v. Ohio the Court held that a policeman, in order
to protect himself and others nearby, may conduct a limited "pat down" search
for weapons when he has reasonable grounds for believing that criminal conduct
is taking place and that the person searched is armed and dangerous. Last term,
in United States v. Brignoni-Poncc, the Court held that, if an officer has a
"founded suspicion" that a car in a border area contains illegal aliens, the
officer IlJllY stop the car and ask the occupants to explain suspicious circumstances.
The Court concluded that the important Governmental interest involved,
and the absence of practical alternatives, justified the minimal intrusion of a
brief stop. In both Terry and Brignoni, the Court emphasized that a more drastic
intrusion-a thorough search of the suspect or automobile-would require the
justification of traditional probable cause, This point is reflected in the Court's
decisions in Almeida-Sanchez and Ortiz, in which the Court held that, despite
the interest in stemming illegal immigration, searches of automobiles either at
fixed checlqlOints or by roving patrols in places that are not the "functional
equivalent" of borders could not be undertaken without probable cause.
Nonetheless, it is clear that the traditional probable cause standard is not the
exclusil'e measure of the Government's interest. The kind and degree of interest
required depend on the severity of the intrusion the Government seeks to make,
The requirement of the probable cause standard itself may vary, as the Court
made clear in Camara. That case, as you recall, concerned the nature of the
probaille cansc requirement in the context of searches to identify housing code
violations. 'rhe Court was persuaded that the only workable method of enforcement
was periodic inspection of all structures, and concluded that because the
~e::tl'ch was not "personal in nature," and the invasion of privacy involved was
limited, probable cause could be based on "appraisal of conditions in the area as
Ii whole," rather than knowledge of the condition of particular buildings. "If a
valid public interest justifies the intrusion contemplated," the court stated, "then
then' is probable cause to issue a suitable restricted search warrant." In the
Keith ensl', while holding that domestic national security surveillance-not involving'
the activities of foreign powers and their agents-was subject to the
warrant reqnirement, the Court noted that the reasons for such domestic surveillance
may differ from those justifying surveillances for ordinary crimes, and
that dOlllP::;tic seclll·it~· suneillances often have to be long range projects. For
th~'se reasons, a standard of prohahle cause to obtain a warrant different from
the traditional standard would be justified: "Different standards lllay he compatihle
with the Fomth Amenclnll'ut if thl'y are reasonable both in relation to
the legitima te need of GOYE~rnlllent for intelligence information and the protected
rig-hts of our dOzeus.
III hri(>f, although at one time the "reasonahleness" of a search may ha\'e been
defillcd Hc('o['(lillg' to the traditional probable C:luse stamlard, the situation bas
now ht'ell l"l'H'l"scd, ProhalJ)p cause has come to depend on reasonableness-on
the legitimate lIeed of the GO\'ernmellt and whether there is reasoll to believe
tlwt tllP preeise illtrnstioll ~(1llght, mea~nl"e(l in tprms of its effect on indil"idllal
spcurity, i~ np('(I~sary to satisfy it.
78
This point is critical in evaluating the reasonableness of searches or suryeillances
undertaken to protect national security. In some instances, the Government's
interest may be, in part, to protect the nation against specific actions
of foreign powers or their agents-action,s that are criminal offenses. In other
instances, the interest may be to protect against the possibility of actions by
foreign powers and their agents dangerous to national security-actions that
mayor may not be criminal. Or the interest may be solely to gather intelligence.
in a variety of forms, in the hands of foreign agents and foreign power,s-intelligence
that Illay be essential to informed conduct of our nation's foreign affairs.
This last interest indeed may often be far more critical for the protection of the
nation than the detection of a particular criminal offense. The Fourth Amendment'sstandard
of reasonableness as it has developed in the Court's decisions
is sUfficiently flexible to recognize this.
.Just as the reasonableness standard of the Amendment's first clau,se has
taken content from the probable clause standard, so it has also corne to incorporate
the particularity requirement of the warrant clause-that warrants particularly
describe ;'the place to be searched, and the persons or things to be
,pized." As one Circuit Court has written, in Unitcd Statc8 v. Poller, although
pointing out tlle remedy might not be very extensive, "[L]imitations on the
fruit to be gathered tend to limit the quest itself."
The Government's interest and purpose in undertaking the search defines
its scope, and the societal importance of that purpose can be weighed against
the effects of the intrusion on the individual. By precise definition of the objects
of the search, the degree of intrusion can be minimized to that reasonably necesS!
Il'y to achieve the legitimate purpose. In this sense, the particularity requirement
of the warrant clause is analogous to the minimization requirement of
Title Ill, that interception!> Hbe executed in such a wa.v to minimize the interception
of communications not otherwise subject to interception" under the Title.
But there is a distinct aspect to the particularity requirements-one that is
often overlooked. An officer who has obtained a warrant based upon probable
cau"e to search for particular items may in conducting the search necessarily
have to examine other items, some of which may constitute evidence of an
entirely distinct crime. The normal rule under the plain view doctrine is that the
officer may seize the latter incriminating items as well !IS those specifically identified
in the warrant so long as the scope of the authorized search is not exceeded.
The minimization rule responds to the concern about overly broad
searches, and it requires an effort to limit what can be seized. It also may be
an attempt to limit how it can be used. Indeed, this minimization concern may
have been the original purpose of the Hmere evidence" rule.
The concern about the use of what is seized may be most important for futurE!
actions. Until very recently-in fact, until the Court's 1971 decision in Biven v.
Sii1' Unkn07{'n Federal Narcotic Agents-the only sanction against an illegal
search was that its fruit,S were inadmissible at any criminal trial of the person
whose interest was invaded. So long as this was the only sanction, the courts,
in judging reasonableness, did not really have to weigh any governmental intere~
t other than that of detecting crimes. In practical effect, a search could only
he Hunreasonahle" as a matter of law if an attempt was made to use its fruits for
prol'!ecution of a criminal offense. So long as the Government did not attempt such
u~t", the search could continue and the Government's interests, other than
eBforcing criminal laws, could be satisfied.
It may be said that this confuses rights and remedies; searches could be
unreasonable even though no sanction followed. But I am not clear that this
is theoretically so, and realistically it was not so. As I have noted earlier, the
reasonableness of a search has depended, in major part, on the purpose for
which it is undertal{en and on whether that purpose, in relation to the person
whom it affects, is hostile or benignl. The search most hostile to an individual
is one in preparation for his criminal prosecution. Exclusion of evidence from
criminal trials may help assure that searches undertaken for ostensibly benign
moti,es are not used as blinds for attempts to find criminal evidence, while permitting
searches that are genuinely benign to continue. But there is a more general
point. The effect of a Government intrusion on individual security is a function,
not only of the intrusion's nature and circumstances, but also of disclosure
and of the use to which its product is put. Its effects are perhaps grE'atest when
it is employed or can be employed to impose criminal sanctions or to deter, hy
disclosure, the exercise of individual freedoms. In short, the use of the product
~eized hears upon t.he reasonableness of the search.
79
These observations have particular bearing on electronic surveillance. By the
nature of the technology the "search" may necessarily be far broader than its
legitimate objects. For example, a surveillance justified as the only means of
(lbtaining value foreign intelligence may require the temporary overhearing of
conversations containing no foreign intelligence whatever in order eventually to
locate its object. To the extent that we can, by purely mechanical means, select
(Iut only that information that fits the purpose of the search, the intrusion is
Tactically reduced. Indeed, in terms of effects on individual security, there would
be no intrusion at all. But other steps may be appropriate. In this respect, I think
we should recall the language and the practice for many years under former § 605
vf the Communications Act. The Act was violated, not be surveillance alone, but
(lnly by surveillance and disclosure in court or to the public. It may be that if a
l'ritical Governmental purpose justifies a surveillance, but because of technological
limitations it is not possible to limit surveillance strictly to those persons as to
whom alone sur,eillance is justified, one way of reducing the intrUision's effects
is to limit strictly the revelation or disclosure or the use of its product. Minimization
procedures can be very important.
Iu discussing the standard of reasonableness, I ha,e necessarily described the
l'Yolving standards for issuing warrants and the standards governing their scope.
But I have not yet discussed the warrant requirement itself-how it relates to
the reasonableness standard and what purposes it was intended to serve. 1.'he
rplationship of the warrant requirement to the reasonableness standard was deO'Cribed
in Johnson v. United States by Justice Robert Jackson: "Any assumption
that evidence sufficient to support a magistrate's disinterested determination
to issue a search warrant will justify the officers in making a search without a
warrant would reduce the Amendment to a nullity and leave the people's homes
!'ecure only in the discretion of police officers.... "'hen the rights of privacy
must reasonably yield to the right of search is, as a rule, to be decided by a judicial
officer, not by a policeman or government enforcement agent. This view has not
ah\"HYs been accepted by a majority of the Court; the Court's view of the relation"
hip between the general reasonableness standard and the warrant requirement
has shifted often and dramatically. But the view expressed by Justice Jackson
is now quite clearly the preYailing position. The Court said in Katz that "searches
condllcted outside the judicial process, without prior approval by judge or magistrate,
are per so unreasonable under the Fourth Amendment-subject only to a few
8pecifically established and well-delineated exceptions." Such exceptions include
those grounded in necessity-where exigencies of time and circumstance make
r('sort to a magistrate practically impossible. These include, of course, the Terry
stop and frisk and, to some degree, searches incident to arrest. But there are other
('xCf:>ptions, not always grounded in exigency-for example, some automobile
li'earches-and at least some kinds of searches not conducted for purposes of en·
forcing criminal laws-snch as the welfare visits of Wyman v. James. In short,
the ",arrant requirement itself depends on the purpose and degree of intrusion.
A footnote to the majority opinion in Katz, as well as Justice 'White's concurring
opinion, left open the possibility that warrants may not be required for searches
undertaken for national security purposes. And, of course, Justice Powell's opinion
in Keith, while requiring warrants for domestic security surveillances, suggests
that a different balance may be struck when the surveillance is undertaken against
foreign powers and their agents to gather intelligence information or to protect
against foreign threats.
The purpose of the warrant requirement is to guard against oyer-zealousness
nf Goyernlllent officials, who may tend to overestimate the basis and necessity of
illtrusion and to underestimate the impact of their efforts on indiYiduals. It
was said in UnHcd States v. United Statcs District GauI't: "The historical judgment,
which the Fourth Amendment accepts, is that nnreviewed executiyc discretion
may yield too readily to pressures to obtain incriminating evidence and
orerJook potential invasiO!ls of llriyucy and protected speech." These purposes
,.f thl' warrant requirement must be kept firmly in mind in analyzing the appropriateness
of applying it to the foreign intellip;ence and security area.
Tlwre is a real possibility that application of the warrant requirement, at least
.ill the form of the normal criminal search warrant, thp form adopted in Title
III. will Plldangl'r leg-itimate Goyernll1pnt interests..\13 I haYe indicat('d, Title
HI [,('ts up a detailed procedure for interception of wire or oral communications.
It requires the procurement of a jUdicial warrant and prescribes the information
to he set forth in tIll' petition to the jndl?:f' so that, among- other thing;s, he may
find probable cause that a crime has been or is about to be committed. It reo
80
quirps notification to the partips sulljed to the suneil1ance within a period ufterit
has takpn vlace. The statute is clearly unsuited to protection of the vital Batiollal
interests in cOlltinuing dptf'etion of Ole aethities of foreign powers and
thdr agents. ~\ llotice requirement-aside from other possible repercussionscould
destroy the usefulness of intelligenc0 sourC0S and methods. The most
eritical surveillance in this area may haH~ nothing wbate,"er to do with detection
of erimp.
Apart from the problems presented by particular provisions of Title Ill, the
argumpnt against application of the warrant requirement, even with an expanded
probable cause standard, is that judges and magistrates may underestimate
the importance of the Government's need, or that the information necessary
to make that determination cannot be disclosed to a judge or magistrate without
risk of its accidental revelation-a revelation tlmt could work great harm
to the nation's security. 'What is often less likely to be noted is that a magistrate
may be as prone to overestimate as to underestimate the force of the Government's
need. 'Varrants necessarily are issued ex parte,. often decision must
cOllie qUickly on the basis of information that must remain confidential. Applications
to anyone judge or magistrate would be only sporadic: no opinion coul(}
be published: this would limit the growth of jUdicially developed, reasonably
uniform standards based, in part, on the quality of the information sought and
the knowledgc of possible alternatives. Equally important, responsibility for the
intrmdoll would have been diffused. It is possible that the actual numlwr of
searches or surveillances would increase if executive officials. rather than b('aring
responsibility themselves, can find shield behind a maiistrate's judgment
of reasonableness. On the other band, wbatever the practical effect of a warrant
requirement lUay be, it would still sene the important purpose of assuring the
pnblic that searches are not conducted without the approval of a nentral
magistrate who could prevent abuses of tbe technique.
In discussing the advisability of a warrant requirement, it may also be useful
to distinguish among possible situations that arise in the national security
area. '1'hree situations-greatly simplified-come to mind. Tbey differ from
one anotber in tbe extent to wbich they are limited in time or in target. l"irst,
the seareb may be directed at a particular foreign agent to detect a sppcific
anticipated activity-such as the purchase of a secret document. The activity
which is to be detected ordinarily would constitute a crime. Second, the search
may he more extended in time-even virtually continuous-but still would be
directed at au identified foreign agent. The purpose of such a surveillnnce
wonld be to monitor the agent's activities, determine tbe identities of per",ons
whose nccess to classified information he might be exploiting, and determine
the identity of other foreign agents with Whom he may be in contae!. Snch a
suryeillanee might also gather foreign intelligence information about the
agent's own country, information that would be of positive intelligence value
to the United States. Third, there Illay be virtually continuous suneillance
which by its nature does not have specifically predetermined targets. Snc]l a
snrveillance could be designed to gather foreign intelligence information eS1!ential
to the security of the nation.
The more limited in time and target a :o;urveillance is, the more nenrly
analogous it appears to be with a traditional criminal search which involves
a particular target location or individual at a specific time. Thus, the first
situation I just described would in that respect be most amenahle to I"omesort
of warrant requirement, the second less so. The efficiency of a warmnt requirement
in the third situation would be minimaL If t.be third type of snrvrillance
I described were submitted to prior judicial appro..-al, that judicial deci~ion
wonld take the form of an ea; parte declaration that the program of surveillance
desig-ned hy the GOl'ernment strikes n reasonable balance between the government's
need for the information and the protection of individuals' rights. Xeycrtheless,
it may he that different kinds of warrants could he developed to eover
the third situation. In his opinion in Almeida-Sanchez, .Justice Powell ~ugge~ted
the possibility of area warrants-issued on the basis of the conditions in
the area to be surycilled-to allow automobile searches in areas near Ameriea's
horders. The law has not lost its inventiveness. and it might he possihle to
fashion new jUdicial approaches to the novel situations that ('ome up in the
area of foreign intelligence. I thinl, it must he pointed out tJlat for the (]prf'lopment
of such all extended. new kiml of warrant. a statutory hase might he
required or at least appropriate. At the same time, in dpaling with this arpa,
81
it lllfl'y be mistaken to focus on the warrant requirement alone to the exclnsion
of other, possibly more realistiC', proteetioIlS.
'Yhat, then, is the shape of tbe present law? To begin with, several statutes
alJpear to reC'ognize that the Governmcnt does interC'ept certain messages
for foreign intelligence purpose and that this activity must be, and can
be, efnried out. Section 9[;2 of Title IS, which I mentioned earlier is one
example; section iDS of the same title is another. In addition, Title nI"s proviso,
which I have quoted ern·lier. explicitly disclaimed any intent to limit
the authority of the Executive to conduct electronic surveillance for national
security and foreign intelligence purposes. In an apparent recognition that
the vower would be e:s:ercize<l, Title III specifies the conditions under which
information obtained through Pl'esidentially authorized surveillance Illay he
received into evidence. It seems clear, therefore, that in 1968 Congress was
not prepareu to come to a judgment that the Executive should discontinue its
activities in this area, nor was it prepared to regulate how those activities
were to be conuucteu. Yet it cannot be said that Congress has been entirely
silent on this matter. Its express statutory references to the existence of the
acti\-it~- must be taken into account.
The case law, although unsatisfactory in Ilome respects, has supported or left
untouched the policy of the Executive in the foreign intelligence area whenever
the issne has been squarely confronted. The Supreme Court's decision in the
Keith case in 1972 concerned the legality of warrantless surveillance directed
against a domestic organization ,,,ith no connection to a foreign power and the
'Government's attempt to introduce the product of the surveillance as evidence
in the criminal trial of a person charged with bombing a C.I.A. office in Ann Arbor,
Michigan. In part because of the danger that uncontrollcd discretion might result
in use of electronic surveillance to deter domestic organizations from exercising
First Amendment rights, the Supreme Court held that in cases of internal security,
when there is no foreign involvement, a judicial warrant is required. Speaking
for the Court. Justice Powell emphasized that "this case involves only the domestic
aspects of national security. We have expressed no opinion as to the issues
which may be involved with respect to activities of foreign powers or their agents.
As I observed in my remarks at the ABA convention, the Supreme Court surely
realized, "in view of the importance the Government has placed on the need
for warrantless electronic surveillance that, after the holding in Keith, the Government
would proceed with the procedures it had developed to conduct those
surveillances not prohibited-that is, in the foreign intelligence area or, as
.Justice Powell said, 'with respect to activities of foreign powers and their
agents.'" I
The two federal circuit court decisions after Keith that have expressly ad·
dressed the problem have both held that the Fourth Amendment does not require
a warrant for electronic surveillance instituted to obtain foreign intelligence.
In the first, United State-~ v. Brown the defendant, an American citizen, was
incidentally overheard as the result of a warrantless 'l\iretap authorized hy the
Attorney General for foreign intelligence purposes. In upholding the legality of
the surveillance, the Court of Appeals for the Fifth Circuit declared that on the
hURis of "the President's constitutional duty to act for the United States in the
fif'ld of foreign affairs, and his inherent power to protect national security in
the conduct of foreign affairs ... the President may constitutionally authorize
warrantless wiretaps for the purpose of gathering foreign intelligence." The
-court added that" (r)estrictions on the President's power which are appropriate
in cases of domestic security become inappropriate in the context or the inter'
national sphere."
In United States v. Butenlw tIl(' Third Circuit reached the same conclusionthat
the warrant requirement of the Fourth Amf'ndment does not apply to
electronic surveillance undertaken for foreign intelligence purposes. Although
the surveillance in that case was directed at a foreig-n agent, the court held
broadlv that the warrantless surveillance wonlc1 be lawful so long as the primary
purpose was to obtain foreign intelligence informati(1ll. The court stated that
such surveillance would be reasonahle without a warrant even though it might
involvp the ovprhearing- of conversations of "aHpn officials and agents, and perhans
of American citizens." I should note tlJat althongh the Unitec1 States prevailed in
the RlItenl,-n case, the Department acquiescl'G in the petitioner's application for
-certiorari in order to obtain the Supremp Court's ruling on the question. The
'Supr('me Court denied review, howeYer, and thus left the Third Circnit'~ decision
undisturbed as the prevailing law.
82
Most recently, in Zu:eibon v. Mitchell, decided in June of this year, the District
of Columbia Circuit dealt with warrantless electronic surveillance directl'd
agaiust a domestic organization allegedly engaged in activities affecting this
country's relations with a foreign power. Judge Skelly Wright's opinion for four
of the nine judges makes many statements questioning any national security
exception to the warrant requirement. The court's actual holding made clear in
Judge Wright's opinion was far narrower and, in fact, is consistent with holdings
in Brown and Butenko. The court held only that "a warrant must be obtained
before a wiretap is installed on a domestic organization that is neither the agent
of nor acting in collaboration with a foreign vower." This holding, I should add,
was fully consistent with the Department of Justice's policy prior to the time
of the Zu:eibon decision.
With these cases in mind, it is fair to say electronic sur,eillance conducted for
foreign intelligence purposes. essential to tbe national security, is lawful under
the Fourth Amendment. even in the absence of a warrant, at least where tile
SUbject of the surveillance is a foreign power or an agent or collaborator of a
foreign power. Moreover, the opinions of two circuit courts stress the purpose for
which the surveillance is undertaken. rather than the identity of the subject. This
suggests that in their view sueh snrveillance without a warrant is lawful ,,0
long as its purpose is to obtain foreign intelligence.
But the legality of the acti,ity does not remove from the Executive or from
Congress the responsibility to take steps. within their power. to seek an accommodation
between the vital public and pri,ate interests im·ol,ed. In our effort
to seek such an accommodation. the Department hilS adopted standards and
procedures designed to ensure the reasonableness under the Fourth Amendment of
electronic surveillance and to minimize to the extent practical the intrusion on
individual interests. As I have stated. it is the Department's policy to authorize
electronic surveillance for foreign intelligence purposes only when the subject
is a foreign power or an agent of a foreign power. By the term "agent" I mean
a conscious agent; the agency mu;<t be of a special kind and must relate to
activities of great concern to the United States for foreign intelligence or counterintelligence
reasons. In addition, at present, there is no warrantless electronic
surveillance directed against any American citizen, and although it is conceil-'
able that circumstances justifying such surveillance Illay arise in the future. I
will not authorize the surveillance unless it is clear that the American citizcn is
an active, conscious agent or collaborator of a foreign power. In no e,ent, of
course, would I authorize any warrantless surveillance against domestic person.~
or organizations such as those involved in the Keith case. Surveillance without
a warrant will not he conducted for purposes of security against domestic or
internal threatB. It is our policy. moreover, to use the Title III procedure whenever
it is possible and appropriate to do so, altbough the statutory provisions rE"garding
probable cause, notification. and prosecutive purpose make it unworkable
in all foreign intelligence and many counterintelligence cases.
The standards and procedures tIlat tile Department has established within the'
United States seek to ensure that every request for surveillance receives thorough
and impartial consideration before a decision is made whether to institute it.
The process is elaborate and time-consuming. but it is necessary if the public
interest is to be served and individual rights safeguarded.
I have jnst been spealdng about telPphone wiretapping and microphone surveillances
which are revi0wed by the Attorney Genpral. In the comse of its investigation.
the committf'e has become familiar with the more technologicllll~sophisticated
and complex electronic surveillance activities of other agencie.~.
These sUl'Yeillance activitips present somewhrrt different legal question!'!. The
communications con('eiYaill~' might tal,e place entirely outside the UnitN}
States. That fact alone, of course. would not automatically remove the agl'neie,,'
activities from scrutiny umler the Fourth Amendm!'nt since at times even communications
abroad may involve a legitimate privacy interest of American citizens.
Other communications conc<>ivably might be exclusively hetween foreilffi
powers and their agents and involve no American tcrminal. In such a case. even
though American citizens llJay b!' discussed. this rnny raisE' less l;ilIllificant. or
perhaps no significant, qUP~tiOllS under j-he Fourth Amendment. Bnt the primal'..
concern, I suppose, is whether rensonable minimization procedures are employc(l
with respect to use and dissemination.
With respect to all electronic surveillance, whl'ther conducted within the
United States or abroad. it is essential that efforts be made to minimize Q;>,
much a~ possible the extent of the intrusion. Much in this regard can be don~
83
by modern tt'chnology. Standard and procedures can be developed and effectively
deployed to limit the scope of the intrusion and the use to which its product is put.
Yarious mechanisms can provide a needed assurance to the American people that
the activity is undertaken for legitimate foreign intelligence purposes, and not for
political or other improper purposes. The procedures used should not be ones
which by indirection in fact target American citizens and resident aliens where
these individuals would not themselves be appropriate targets. The proper minimization
criteria can limit the activity to its justifiable and necessary scope.
Another factor must be recognized. It is the importance or potential importance
of the information to be secured. The activity may be undertaken to obtain
information deemed necessary to protect the nation against actual or potential
attack or othcr hostile acts of a foreign power, to obtain intelligence informMion
deemed essestial to the security of the United States, or to protect national
secm·ity information against foreign intelligence activities.
Xeed is itself a matter of degree. It may be that the importance of some
information is slight, but that may be impossible to gauge in advance; the significance
of a single bit of informatiion may become apparent only when joined
to intelligence from other sources. In short, it is necessary to deal in probabilities.
The importance of information gathered from foreign establishments and agents
may be regarded generally as high-although even here there may be wiele
variations. At the same time, the effect on individual liberty and security-at
least of American citizens--eaused by methods directed exclusively to foreign
agents, particularly with minimization procedures, would be very slight.
There may be regulatory and institutional devices other than the warrant
requirant that would better assure that intrusions for national security and
foreign intelligence purposes reasonably balance the important needs of Government
and of individual interests. In assessing possible approaches to this
problem it may be useful to examine the practices of other Western democracies.
For example, England, Canada, and West Germany each share our concern
about the confidentiality of communications within their borders. Yet each
recognizes the right of the Executive to intercept communications without a
judicial warrant in cases involving suspected espionage, subversion or other
national security intelligence matters.
In Canada and West Germany, which have statutes analogous to Title III,
the Executive in national security cases is exempt by statute from the requirement
that jUdicial warrants be obtained to authorize surveillance of communications.
In England, where judicial warrants are not required to authorize
surveillance of communications in criminal investigations, the relevant statutes
recognize an inherent authority in the Executive to authorize such surveillance
in national security cases." In each country, this authority is deemed to cover
interception of mail and telegrams, as well as telephone conversations.
In all three countries, requests for national security surveillance may be made
by the nation's intelligence agencies. In eaCh, a Cabinet member is authorized
to grant the request.
In England and West Germany, however, interception of communications is
intended to be a last resort, used only when the information being sought is
likely to be unobtainable by any other means. It is interesting to note, however,
that both Canada and West Germany do require the Executive to report periodically
to the Legislature on its national security surveillance activities. In
Canada, the Solicitor General files an annual report with the Parliament setting"
forth the number of national security surveillances initiated, their avera~'e
length, a general description of the methods of interception or seizure used, and
assessment of their utility.
It may be that we can draw on these practices of other ""Vestern democracies,
with appropriate adjustments to fit our system of separation of powers. The
procedures and standards that should govern the use of electronic methods of
obtaining foreign intelligence and of guarding against foreign threats are matters
of public policy and values. They are of critical concern to the Ex{'Cutive Branch
and to Congress, as well as to the courts. The Fourth Amendment itself is a reflection
of public policy and values-an evolving accommodation bdwpen governmental
needs and the necessity of protecting individual security and righh.
3 Report of the Committee of Privy Councillors appointed to Inquire Into the interception
of communications (1957), which state'. at page 5, that, "The orig:in of tile power to int..1'cept
communiC'atjons can only be ~nrmL:;f'r1.. but the power has bpen (>xpr('i.~e~1 froln vt"'ry
p:ul~' timps : and haR hp(ln recognised as a la'Yful power by a succession of f.:tntutes co\-eringthe
last 200 years 01' more."
84
Ger;eral public understanding of these problellls is of paramount importance, to
aswre that neither the Executive, nor the Congress, nor the courts risk discounting
the vital interests on both sides.
The problems are not simple. Evolving solutions probably will and should
cOllle---as they have in the past-from a combination of legislation, court decisiam:,
and executive actions. The law in this area. as Lord Devlin once described
the law of search in England, "is haphazard and ill defined." It recognized the existence
and the necessity of the Executive's power. But the Exeeutiv(~ and the
Legislature are, as Lord Devlin also said, "expected to act reasonably." 'fhe
future course of the law will depend on whether we can meet that obligation.
TESTHvIONY OF HON. EDWARD H. LEVI, ATTORNEY GENERAL OF
THE UNITED STATES
Attornev General LEVI. I must warn that even the truncated version.
unfortunately, is long.
I am here today, Mr. Chairman, in response to a request from the
('ommittee to discuss the relationship bet\n~n electronic surveillance
and tlle fourth amflndmrnt of the Constitution. If I remember corrretly,
the original request waS that I place before the committee the
philosophical or jurisprudential framework relevant to this relationship
which lawyers, viewing this complex field, ought to keep in mind.
J f this sounds vague and general and perhaps useless, I can only ask
for indulgence. My first concern when I received the request was that
any remarks I might be able to make w'ould be so general as not to be
helpful to the committee. But I want to be as helpful to the committee
as I can b~.
The area with which the committee is concerned is a most important
one. In my view, the development of the la,,' in this area has not been
satisfactory, although there are reasons why the law has devrloped
as it has. Improvement of the la,,', which in part means its clarification,
will not be easy. Yet it is a most important Yenture. In a talk
bdore the American Bar Association last August, I discussed some
of t he aspects of the legal framework. Speaking for the Department of
.Tl1sticc, I concluded this portion of the talk ,,,itll the obsen-ation and
~ommitment that "we have very much in mind the necessity to determine
what proced1ll'es through legislation, court action or executive
processes "ill best seITe the national interest, including, of course,
tlw protection of constitutional rights."
I begin then with an apology for the general nature of my remarks.
This will be due in part to the nature or the law itself in this area. But
I should state at the outset there arc other reasons as "'1'11. In any area,
and possibly in this one more than most, legal principles gain mraning
through an interaction with the facts. Thus, the factual situations
to be imagined are of enormous significance. '
As this committee wen knmvs, some of the fadnal situations to be
imagined in this area are not only of a sensitive nature but also of a
changing natnre. Therefore, I am limited in ,,,hat I can say about
them, not only because they arc sensitive, but also because a lawyer's
imag'ination about future scientific denlopments carriers its own
warnings of ignorance. This is a point worth making when one tries
to develop appropriate safeguards for the future.
ThC're is an additional professional restriction upon me which I am
sure the committee will appreciate. The Department of Justice has
uncleI' active criminal investigation various activities which mayor
85
may not have been illegal. In addition, t~le Dep.artm~nt through. its
own attorneys, or private attorneys specIa~ly ~I~'ed, ~s repI:esentmg
present or former Government employees 11l CIVIl smts ,vhIch have
been brought against them for activities in the course of official conduct.
These circumstances naturally impose some limitation upon
wha~ it is appropriat.e ~or me to say in this foru!ll'. I ol~ght n?t g! ve
speCIfic conclusory opllllons as to mattBrs uncleI' crImmalmvestIgatlOll
or in litiO"ation. I can only hope that what I have to say may nevertheless
b~of some value to the committee in its scarch for constructive
solutions.
I do realize there has to be some factual basc, however unfocused
it may at times have to be, to give this discussion meaning. Therefore,
as a beginning, I propose to recount something of the history of the
Department's position and practice with respect to thc use of electronic
sUrYcillance, both for telephone wiretapping l1nd for trespassory
placcment of microphones.
As I read the history, going back to 1031 and undoubtedly prior to
that time, except for an interlude between 1028 and 1931 and for 2
months in 1940, the policy of the Department of Justice has been that
electronic sUrYeilJance could Le employed "'ithout a warrant in c('rtain
circumstances. During the rest of the thirties it appears that the
Department's policy concel'11ing telephone wiretapping generally COiIformed
to the guidelines adopted by Attorney General ·William Mitchell.
Telephone wiretapping mIS limited to cases involving the safety
of the victim, as in li:idnapings, location and apprehension of "desperate"
criminals, and other cases considered to be of major law ellforcement
importance, such as espionage and sabotage.
In Decembcr 1937, howevcr, in the first Nardone case, the Unitcd
States Supreme Court reversed the Court of Appeals for the Second
Circuit, and applied section GOiS of the Federal Communications Act
of ID3± to law enforcement ofilcers; thus rejecting the Department's
argument that it did not so apply. Although the Court read the act
to cover only wire interceptions "'here there had also been disclosure
in court or to the public, the decision undoubtedly had its impact upon
the Department's estimation of the value of telephone wiretapping as
an investigative technique. In the second Nardone case in December
19~9, the act ,,;as read to bar the use in court not only of the oycrhead
eVIdence, but also the fruits of that evidence. Possibly for this reaSOll,
and also because of public concern over telephone wiretapping, on
March 15, 19'10, Attorney General Robert Jackson imposed a total
ban on its nse for the Department. This ban lasted abont 2 months.
On May 21, 1940, President Franklin Roosevelt issued a memorandum
to the Attorney General stating his view that electronic surveillance
would be proper under the Constitution where "grave matters
involving defrnse of the nation" were involved. The President
authorized and directed the Attornev General "to secure information
by listening devices [directed at] cthe conversation or other communications
of persons suspected of subversive activities against the
Govcrnment of the United States, including suspected spies." The Attornev
General ,,,as requested "to limit these investi!!ations so conducte'd
to a minimum and to limit them insofar as pos'sible to aliens."
Although the President's memorandum did not use the term "trespassory
microphone sUrYeillance," the language was sufficiently broad
86
to inc1urle that practice, and the Department construed it as an authorization
to conduct trespassory microphone surveillances as well as
telephone wiretapping in natIOnal security cases. The authority for
the President's action was later confirmed by an opinion by Assistant
Solicitor General Charles Fahy who advised the Attorney General
that electronic surveillance could be conducted where matters
affected the security of the Nation.
On July 17, 1946, Attorney General Tom C. Clark sent President
Tmman a letter reminding him that President Roosevelt had authorized
and directed Attorney General Jackson to approve "listenin
rr devices [directed at] the conversation of other communications
ol'persons suspected of subversive activities against the Government
of the United States, including suspected spies."
The CJIAIR"rA~.MI'. Attorney General, you're rrferring by that term
"trespassory microphone surveillance" to bugs, are you not I
Attornev General LEVI. 'Well--
The CH~\IR:\[AN.Bugs and wiretaps?
Attorney General LEVI. That is one way they are commonly referred
to.
The CHAIR:\L\X. Yes, thank you.
Attomev General IiEVI. And that the directive had been followed bv
Attorneys"General Robert Jackson and Francis Biddle. Attorney Gen('
ral Clark recommended that the directive "be continued in force"
in yiew of the "increase in subversive activities" and "a yery substantial
increase in crime." He stated that it was imperative to use such techniques
"in cases vitally affecting the domestic security, or where human
life is in jeopardy" and that Department files indirated that ~is
hyo most l'rcent predecessors as Attorney General would concur m
this view. President Truman signed his concurrence on the Attorney
General's letter.
In 1952, there were 285 telephone wiretaps. 300 in 1953, and 322
in 1954. Between February 1952 and May 1954, the Attorney General's
position was not to authorize trespassory microphone surveillance.
This was the position taken by Attorney General McGrath, who
informed the FBI that he would not approve the installation of trespassory
microphone surveillance because of his concern over a possible
violation of the fourth amendment.
Xevertheless, FBI records indicate there were 63 microphones installeel
in 1952, there were 52 installed in 1953, and there were 99 insbl1cd
in 1954.
Tile Crr.\IlmAX. 'Vas that during Attorney General McGrath's
period in office?
Attornev General LEVI. Yes.
The CH~\ImHx. Are you saying then that his orders were disregal'(
J('d by the FBI?
'Attorne~' General LnI. I may not be saying that because. as I
think the statement will show. there may well haye been a view that
tIl(' apprO\·~1 of thr Attorney General was not retluired. It may be that
J ..ttorney Grneral ~IcGrath was simply saying that he woulcl'not rrive
his appmntl, but he may not have been prohibiting the use. to>
I cannot answer the question better than that.
Sl'nafor :U..\THT.\S. ::Ur. Chairman. the Attorney General hac: relied
upon the ,,,it,,,,",:; of his predecessors in stating the position of the De87
partment. Perhaps it is not inappropriate to comment that some of
his predecessors, as advocates, did have the view that he is purporting.
But later when they went to the Supreme Court, in a more neutral
and objective position, they changed their views and Attorney General
,Tackson and Attorney General Clark had that experience. The elevation
of defense seemed to give them a different perspective.
Attornev General LEVI. This committee, of course, has an enormous
number of documents from the Department of Justiee. You may have
5('(>11 more than I have seen, although I doubt it on this point.
Senator MATHUS. I do not dispute your reflection of their views
[tS Attorneys General. I am just saying that not only this committee
but the J llstice Department has copies of Supreme Court opinions
where they regist~reddifterent views.
Attorn~y General LEV£. I think that the responsibility often deterwines
action. It is also true that when one speaks of Attorney General
.ruckson, I think he ,,'as unique in that his attitude was that he only
lw{'ume a free mrm when he went on the Supreme Court. That is not
;l position "'hich I think other people should take, and I always thought
it "1\"(18 rather astonishing that he took it.
To continue, the policy against Attorney General approval, at least
in general. of trespassory microphone surveillance was reversed by
Attorney Gl'neral Herbert Brownell on May 20, 19G4, in a memoJ':
ll1d1l111 to Dircctor Hoover instructing him that the Bureau was aut
hOl'ized to conduct trespassory micrOl)llOne surveillances. The Att.orllCy
General stated that:
Considerations of internal security and the natirmal safety are paramount
and, therefore, may compel the unrestricted use of this technique in the national
interest.
...:\. memorandum from Director Hom'er to the Depnty Attorney GenHalon
:JIay 4, 1961, described the Bureau's practice since 1954 as
follows:
In the internal security field. we are utilizing microphone surveillances on a
restricted basis even though trespass is necessary to assist in uncovering the
activities of Sodet intelligence agents llnd Communist Pany leadf'rs. In the
illtprE\sts of na tional safety, microphoue surveillances are also utilized on a re;.;
tricted oasis, even though trespass is necessary. in unCO\'erillg major criminal
activities. We are using such coverage in connection with our investigations of
the clandestine activities of top hoodlums and organized crime. From an intelli~
ence standpoint, this inn'Stigative techniqul' has produced results unobtainable
rhrr,ugh other means. The information so obtained is treated in the same manner
as information obtained from wirl'taps, that is, not from the standpoint of evidentiary
value but for intelligence purposes.
President .Johnson announced a policy for Federal agencies in
.Tune 1965, which requil'ed that the interception of telephone conver,"
at ions without the consent of one of the parties be limited to investi.~
ations relating to national security and that the consent of the Atrorney
Generafbe obtained in er..ch" instance. The memorandum went
OIl to state that use of mechanical or electronic devices to overhear
{'onversations not communicated bv wire is an even more difficult Droblem
"which raised substantial and unresoh'ed questions of Con~titut:
rmal interpretations." The memorandum instructed each agency conducting
such an investigation to consult 'with the Attorney General
to ascedain wllf'tlwr the agency's practices were fnlly in accord with
the Jaw. Subsequently, in September 10G5. the Director of the FBI
wrote the Attorney General and refelTed to the88
• • • present atmosphere, brought about by the unrestrained and injudicious use
of special investigative techniques by other agencies and departments, resulting
in CDngressional and public alarm and opposition to any activity which could
in any way be termed an innlsion of prh'ucy. As a consequence, we have discontinued
completely the use of microphones.
The Attorney General responded in part as follows:
The use of wiretaps and microphones involving trespass present more difficult
problems because of the inadmissibility of any evidence obtained in court cases
and because of current judicial and public attitude regarding their use. It is my
understanding that such devices will not be used without my authorization,
although in emergency circumstances they may be used subject to my later ratification.
At this time I believe it desirable that all such techniques be confined to
the gathering of intelligence in national security matters, and I will continue to
approve all such requests in the future as I have in the past. I see no need to
curtail any such activities in the national security field.
That was the Attorney General in 1965.
The CIIAIR:UAN. Is that still the policy?
Attorney General LEVI. That is not quite the policy ,Yhich I "'ill try
to explain.
The CUAIRlI1AN. Fine.
Attorney General LEVI. The policy of the Department was stated
publicly by the Solicitor General in a supplemental brief in the
Supreme Court in Blade v. United States in 1966. Speaking of the general
delegation of authority by Attorneys General to the Director of
the Bureau, the Solicitor General stated in his brief:
Present Departmental practice, adopted in .Tuly, 1965 in conformity with the
policies declared by the President on June 30, 1965, for the entire Federal establishment,
prohibits the use of such listening devices, as well as the interception
of telephone and other wire communications, in all instances other than those
involving the collection of intelligence affecting the national security. The specific
authorization of the Attorney General must be obtained in each instance
when this exception is invoked.
The Solicitor General made a similar statement in another brief filed
that same term again emphasizing that the data would not be made
available for prosecutorial purposes, and that the specific authorization
of the Attorney General must be obtained in each instance when
the national security is sought to be invoked.
In 1968, Congress passed the Omnibus Crime Control and Safe
Streets Act. Title III of the act set up a detailed procedure for the
interception of "ire or oral communications. The procedure requires
the issuance of a judicial warrant, prescribes the information to be set
forth in the petition to the judge 60 that, among other things, he may
find probable cause that a crime has been or is about to be committed.
It requires notification to the parties subject to the intended surveillance
within a period not more than 00 days after the application for
an order of approval has been denied or after the termination of the
pedod of the order or the period of the extension of the order. Upon a
shmving of good cause the judge may postpone t1w notification.
The act contains a saving clause to the efIect that it docs not limit the
constitutional power of the President to take surh mrasurrs as he
deems necessary to protect the Nation against actual or potential attack
or other hostile acts of a foreign po"Yer, to obtain foreign intelligence
information deemed essential to the security of the United States. or to
protect national security information against foreign intelligence
acti"ities. Then in a separate sentence the proviso goes on to say:
89
Nor shall anything contained in this chapter lJe deemed to limit the constitutional
power of the President to take such measures as he deems necessary to
protect the United States against the overthrow of the government by force or
other unlawful means, or against any other clear and present danger to the
structure or existence of the government.
Congress simply left presidential powers where it found tllem. Now
I think a very responsible thing for a Congress to have done, I may
say--
The CHAIRlIIAX. May I ask you what you meant by that?
Attornev General LEn. I meant, in a matter of this importance, Congress
should speak so that its intention is clear and if it meant to
affirm this power, as I rather snspect that it did, there should be no
ambiguity. But if it meant to pass an act that left a matter of this
kind dangling in the air, I do not regard that as responsible.
Senator MATHIAS. ::111'. Chairman, let me just say I support the Attorney
General absolutely. lYhen we asked about the overload in the
courts, it wonld be much more effective if the Congress, instead of
creating new judgeships, would simply write the laws more accurately
and more precisely so that there ,,'ould not have to be as many lawsuits
or those we have to be so protracted. And I think the Attorney
General has chided us in a way that is entirely justified. To this indictment
I think the Congress has to plead guilty.
The CHAIRMAN. In principle I agree, although I think the effect of
your proposal may greatly augment the rolls of the unemployed in
this country.
Senr-tor'MATHIAS. Unemployed lawyers. We have acted as a legal
employment bureau long enough, I think.
The CHAIR;\L\N. All right, Mr. Attorney General.
Attorney General LEI'!. In the J{e-ith case the Supreme Court held
that in the field of internal security, if there was no foreign involvement,
a judicial warrant was required by the fourth amendment.
Fifteen months aIter the J{eith case Attorney General Richardson, in a
letter to Senator Fulbright, ,,'hich waS publicly released by the Department,
stated:
In general, llefore I approve any new application for surveillance without a
"'arrant, I must be conyincec1 that it is llPcrssnry (1) to protect the nation
ag-'linst actual or potential attack or other hostile acts of a foreign power; (2) to
ohtain foreig-n intellig-eilce information deemed essential to the security of the
Fnited States; or (3) to protect national security information against foreign
intplligence actiYities.
I have read the debates and the reports of the Senate Judiciary
Committee with respect to titb III and, particularly, the proviso. It
may be relevant to point ant that Senator Philip Hart f[nestioned and
opposed the form of the pro,'iso resetTing presidential po"er. But I
believe it is fail' to say that his concern was primarily, perhaps exeJusi
\~ely, ,,'ith the language ,.-hich dealt with presidential power to
take snch measures as the President deemed necessary to protect the
united States "against any other clear and present danger to the
struetm'c or existence aT the Government."
I now COIllO to the Departmcllt of .Tustice's present position on electronic
snneil1ance eonductC'cl "Y1t11011t a ,,'[[Trant. Under the standal'cls
and procedures established by the President, the personal appronll of
the _\ttorney 8ene1'a1 is required before any nonconsensual electronic
snneillance may DC' instituted ,yithin the Fnitccl States without a ju90
dicial warrant. All reqnests for surveillance must be made in writin~
by the Director of the Federal Bureau of Investigation and must set.
forth the relevant circumstances that justify the proposed surveillance.
Both the agency and the Presidential appointee initiating the request
must be identified. These requests come to the Attorney General after
they have gone through review procedures within the Federal Bureau
of Investigation. At my reqnest, they are then review-ed in the Crimina.l
Division of the Department. Before, they come to the Attorney General,
they are then examined by a special review group which I have established
within the Office of the Attorney General. Each request, before
authorization or denial, receives my personal attention. Requests
are only authorized when the requested electronic surveillance is necessary
to protect the Nation against actual or potential attack or othel'
h<>..-~tile acts of a foreign power: to obtain foreign inteUigence deenwd
essential to the security of the Nation; to protect national security information
against foreign intelligence activities; or to obtain information
ceItified as necessary for the conduct of foreign affairs matters
important to the national security of the United States.
In addition the subject of the electronic surveillance must be 0011sciously
assisting a foreign power or foreign-based political group,_
and there must be assurance that the minimum physical intrusion neee.
ssary to obtain the information sought will be used. As these criteria
will show and as I will indicate at greater length later in discussing
current guidelines the Department of Justice follows, our concern is
with respect to foreign powers or their agents. In a public statement
made last Jnly 9, speaking of the warrantless suneillances then authorized
by the Department, I said:
It ran be said that there are no outstanding instances of warrantless wiretap"
or electronic surveillance directed against American citizens and none will be
authorized by me except in cases where the target of surveillance is an agent or
collaborator of a foreign power.
This statement accuratelv reflects the situation todav as well.
Havin,g described in this' fashion something of the history and conduct
of the Department of .Tustice with respeet to tl'lephone wiretap."and
microphone installations. I should like to remind the committee
of a point with which I began, namely, that the factual situations to
be imagined for a discussion such as this are not onlv of a sensitin'
but a changing nat11re. I do not have much to sny about this except
to recan some of the Ianr:-nng:e word bv GeneraJ Allen in his testimony
before this committ<~e. The techniques of the NSA, he said, are of tJ;"
most sensitive and fra,'!ile chararter. He desrribed as the res{lonsibilitv
of the NSA the inte.rception of international commnnication siQ'llflls
sent through the air. He said there had bern ft watch list, which U11101lg"
many other nanws. contftlned the names of U.S. ('itizens. .
Senator Tower' spoke of an awesome technoloL:v-a l11we vaC11nm
cleaner of commnnicaticns-whieh had the potenti~\l for ah~lses. Grneral
Allen pointed out that "The United Statl's. ns part of its rfl'Ol,t
to produce foreign intelligence, has intercepted forei!!!1 commnnications
to produce s11c11 foreign inteJligrnce sincf' the' Revolntiona1'\"
War." He said the mission of XSA is directed to fOl'eig:n intelli([Pl1l'e
obtained from foreign electrical communications and ~lso from 'otllf'l'
foreign signals, sucll as racIal'. Signals are intercer>ted bv many techniques
and processed, sorted, and analyzed by procedures which re91
ject inappropriaw or unnecessary signals. He mentioned that the interception
of communications, however it may occur, is conducted in
such a manner as to minimize the unwanted mes..%ges. Xevertheles~.
according to his statement, many unwanted communications are potentially
selected for further processing. He testified that subsequem
processinQ", sorting, and selection for analysis are conducted in accordance
with strict procedures to insure immediate and, wherever possible,
automatic rejection of inappropriate messages. The analysis
and reporting is accomplished only for those messages which ID'(>ct
specific conditions and requirements for foreign intelligence. The use
of lists of words, including individual names, subjects, locations. °et
cetera, has long boon one of the methods used to sort out information
of foreign intelligence value from that which is not of interest.
General Allen mentioned a very interesting statute, 18 U.S.C. 952,
to which I should like to call your particular attention. The statute
makes it a crime for anyone who by virtue of his employment by the
United States obtains any official diplomatic code and willfully publishes
or furnishes to another without authori7..ation any such code
or any other matter which was obtained while in the process of trammission
between any foreign government and its diplomatic mission
in the United States. I call this to your attention, because a certain indirection
is characteristic of the development of law, whether by statute
or not, in this area.
The CHAIRMAN. Can you explain what yon mean by that last sentence?
Are you suggesting that the law you have cited upon its face
makes the activities oithe NSA illegal?
Attornev General LEVI. I think that the law on its face seems to be
a law to protect the actions of the NSA from having any tranmission
of messages intercepted go to unauthorized persons. The statute a voids
by indirection saying that this is what the U.S. Government should
do. It is assumed that it does it, and proceeds to find some way to give
added potential.
The CHAlmL\.~. That particular statute is specifically limited to
codes between foreign governments and its diplomatic mission in
the United States, is it not?
Attorney General LEVI. That is right.
As I say, it has a certain indirection.
The CIIAIR~IA~. Yes.
Attorney General LEVI. The committee will at once recognize that
I have not attempted to summarize General Allen's testimony, but
rather to recall it so that the extended dimensions of the varietv of fact
situations which ,ve haTe to think about as we explore the coveraO'c and
direction of the fourth amendment is at least suggested. b
Having attempted to provide something of a 'factual base for our
discussion, I turn now to the fourth amendment. Let me say at once.
ho:"cver, that while the fourth ame,ndment can be a most Important
gmde to values and procedures, It does not mandate automatic
solutions.
The history 0:1' the fourth amendment is verv much the historv of
t he American Revolution and this Nation's ql1est for inclependence.
The ame~dment is the legacy of our early years and reflects valllPs
most cherIshed by the Founders. In a direct sense, it was a reaction to
the general warrants and writs of assistance employed by the officers of
92
the British Crown to rummage and ransack colonists' homes as a means
to enforce antismuggling and customs laws. General search warrants
had been used for Centuries in England against those accused of seditious
libel and other offenses. These warrants, sometimes judicial,
sometimes not, often general as to persons to be arrested, places to be
searched, and things to be seized, were finally condemned by Lord
Camden in 17G5 in Enticle v. Oa71'inpfon, a decision later celebrated by
the Supreme Court as a landmark of English liberty one of the permanent
monuments of the British Constitution."
The case involved a general warrant, issued by Lord Halifax as Secretary
of State, authorizing messengers to search for .Tohn Entick and
to seize his private papers and books. Entick had written publications
critieizing the Cro,Yn and was a snpporter of John lVilkes, the famous
author and editor of the "North Briton" whose own publications had
prompted wholesale arrests, searches, and seizures. Entick sued for
trespass and obtained a jury verdict in his favor. In upholding the verdict,
Lord Camden observed that if the Government's power to break
into and search homes were accepted, "the secret cabinets and bureaus
of eYE~ry subject in this kingdom ,vould be thrown open to the search
and inspection of a messenger, whenever the secretary of state shall
see fit to charge, or eyen to suspect, l\, person to be the author, printer,
or publisher of a seditious libel."
The practice of the general warrants, however, continued to be
known in the colonies. The writ of assistance, an even morc arbitrary
and oppressive instrument than the general "arrant, was also widely
nsed by revenue officers to detect smuggled goods. Unlike a general
warrant, the writ of assistance was virtna]}y unlimited in duration and
did not have to be returned to the court upon its execution. It broadly
authorized indiscriminate searches and seizures against any person
suspected by a customs officer of possessing prohibited or uncustomed
goods.
The writs, sometimes judicial, sometimes not, were usua]}y issued by
colonial judges and Vl'sted Crown officers with unreviewed and unbounded
discretion to break into homes, rifle drawers, and seize priYate
papers. All officers and subjects of the Crown were further commanded
to assist in the writ's execution. In 17tH, .Tames Otis eloquently
denounced the writs as "the worst instrument of arbitrary p0',er, the
most destructive of English liberty, and the fundamental principles of
law, that eyer was found in an English law book," since they put "the
libel:ty of every man in the hands of every petty officer." Otis' fiery
orabon later prompted .John Adams to reflect that "then and there was
the first scene of the first act of opposition to the arbitrary claims of
Great Britain. Then and there the child Independence was born."
The words of the fCllrth amendment are mostly the product of .Tames
Madison. His original nrsion appeared to bc directed solely at the
issuance of improper wnrrants. ReYisions accomplished uncleI' circumstances
that arc stiJIl1nclear transformed the amendment into two separate
chl11se~~. The change has influenced onr unclerstnnc1ing- of the
nature of the rights it 111'otects. As embodied in our Constitlltion, the
amendment reads:
The right of the people to oe ~ecure in their persons. bonses. papers, and
<'ffects, against unreasonable searches and seizures, shall not he violated, ano. no
\Yarrants shall issue, but upon probable cause, supported by oath or affirmation,
:md partiCUlarly describing the place to be s('arched, and the persOns or things
to be seized. -
93
Om understanding of the purposes underlying the fourth amen,dnwm
has been an eyolving one. It has been shaped by subsequent IllStorieal
nents, by the changing conditions of our modern technological
society, and by tIl(' (]evelopnwnt of our mvn traditions, customs, and
values. From the beginning. of COUl'se, there has been agreement that
the amenclmrnt protects ag'ainst practices such as those of the Crown
olhccrs under the notorious general warrants and writs of as.'3istance.
_\ ho\'e all, the anlPndment safegnards the people from unlimited,
1111dne infringement by the Government on the security of persons
an'] their propert,v.
But our perceptions of the language and spirit of the amendment
have O'one bevond the historical wrongs the amendnlf'nt was intended
to pr~'ent. The SupremE' Conrt has selTPd as the primary explicator
of thE'se eTolYing pE'rceptions and has sought to articulate the values
the amendment incorporates. I belieye it is useful in our present
endeavor to identif,'- SOllie of these perceived values.
First. broadlv considpre,l, the amendment speaks to the autonomy
of the individual against soc.iety, It seeks to accord to each individual,
albeit imperfedly. a measure of the confidentiality essential to the
attainment of human digl1ity. It is a shield against indiscriminate
exposure of an individuaFs private affairs to the world-an exposure
,vhich can destroy. sincp it places in jeopardy the spontaneity of
thong-ht and ar'tion on ,vhich so n111ch depends. As .Tustice Brandeis
ohc'PITed in his di:-isent in tIl(' 01m8fead case. in the fourth amendnwnt
the Founders ·'conferred. as against the Government, the right
to b' let alollr-tlw most c0111prphellsi n' of rights and the right most
nlued by civilized men." The amendment does not protect absolutely
the privacy of an individual. The need for privacy, and the law's
n'sponse to that need. go bC'yoncl the amendment. But the reco{.,rnition
of the value of imli \"idaa] autonomy remains close to the amendlllPnt's
core.
_\. parallel value has been the HnlPndment's sppcial concern with
intrusions when the pm'pose is to obtain evidence to incriminate the
I'jctim of the search. As the Supreme Court obsrrved in Boyd. which
im"oIYN] an attempt to compPl the production of an individual's priI'atp
papers. at some point the fourth amendment's prohibition against
unreasonable searches and seizures and the fifth alllC'ndment's prohibition
against compulsory self-incrimination "nm almost into each
otllE'l'." The intrusion on an individual's privacy has long been thought
to be especially gral'e ,,"hen the search is based on a desire to discover
incriminating eviflence. The desire to incriminate may be seen as
only an aggrayating circumstance of the search, but it has at times
proven to be a clecisiye factor in determining its legality. Inderd. in
Boyd the court declared broadly that "compelling the prodnetion of
(n person's) private books and papers, to com-iet him of crime, or to
-forfeit his property~ is contrar,'" to the principlps of a free gOVCl'llllH'nt."
The incriminating' evidpnee point goes to thp integrity of the
niminal justie2 system. It d()('s not npC'essarily settle the issue whether
the overhearing can propprly take plaC'e, It gor'S to the use and purpose
of the inf011l111tion ovel'llPanl.
..:\n additional concern of the anwndment has bC'pn the prott'ction
of freedom of thought, spepch. and rpligion. Th" gpnpral wan-ants w"re
1l:~l'(1 in England as H pmwrful instrument to '3Uppress ,dwt ,vas
67-522-76--7
94
regarded as seditious libel or nonconformity. So .Tustice Powell stated
in Keith that "fourth amendment protections become the more necessarv
when the targets of offici.al surveillance mav be those susDecten
of unorthodoxy in their political beliefs." v ...
Another concern emhodird in the, amendment may be found in its
second clause, dealing with the w,arrant requirement, e,,'en thongh the,
fourth amendment does not always require a warrant. The fear is that
the law enforceme,nt officer, if unchecked, may misuse his powe,rs tD
harass those who hold unpopular or simply diffeTe,nt yiews and to
intrude capriciously upon the princy of indiyiduals. It is the r~Ognition
of tlw nossibiIity for abuse. inherent when0"er executive discr!:'tion
is uncontrolled, that gives rise to the requirement of a warrant.
That require,ment constitutes an assurance that the judgme,nt of a
neutral and detached magistrate will come to bear before the intrusion
is made, and that the decision whether the privacy of the indio
vidual mnst yield to a greater need of society will not be left to the
executin:l alone,.
A final yalue reflected in the fourth amendment is revealed in its
opening ,yards: "The right of the people." ,Vho are "the people" to
whom the amendment refers? The Constitution begins with the
phrase, ",Ve the People of the United Stat('$." That phrase has the
character of words of art, denoting the power from which the Consti.
tution comes. It does suggrst a special concern for the Anwrican citizen
and for those "'ho share the responsibilities of citizrns. The fourth
amendment guards the right of "the people" and it can be urged that
it was not meant to apply to foreign nations. their 3gents and collaborators.
Its application may at least take account of that difference.
The yalues outlined above have bren embodied in the amendment
from the beginning. But the importance accorded a particular value
has yaried during the course of OUr history. Some, have been thought
more important or marc threatened than others at time. ·When several
of the vnlnes coalesce, the need for protection has been regarded as
greatest. ,Yhen only one is involved, that need has been regarded as
lessened. Moreover, the scope of the amendment itself has been altered
over time. 'Yords have been read by differrnt justices and different
courts to mean different things. The words of the amendment have not
changed; we, as a people, and the world which envelops us, have
changed.
An important example is what the amendment seeks to guard as
"secure." The ',ording of the fourth amendment suggests a concern
"with tangi.ble property. By its terms, the amendment protects the
right of the people to be secure in their "persons, houses, papers and
effects." The emphasis appears to be on the material possessions of a
person, rather than on his privacy generally.
The CHAm::lL1.x. ,Vhy do yon say that when the word "persons"
comes first; "houses, papers and effects" comes after "persons?" It
seems to me that the emphasis was on persons in the first instance,
and material holdings afterward.
Attorney General LEVI. I suspect one r('ason you think so. Mr.
Chairman, is the fact that you are Jiving today, but the emphasis on
property and property rights, I think, was the way the, amendment
was previously loolmd at. There is an interesting exchange be,tween Sir
Frederick Pollack and Justice Holmes on that very subject at the time
of the Olmstead case.
In any event, this emphasis on property was the conclusion the
court came to on the Olmstead case in 1928, holding that the intercept
of telephone messages, if accomplished without a physical trespass,
was outside the scope of the fourth amendment. Chief Justice Taft,
writing for the court, reasoned that wiretapping did not involw a
search or seizure; the amendment protected only tangible material
"effects" and not intangibles such as oral conversations.
But, while the removal and carrying off of papers was a trespai's of
the most aggravated sort, inspection alone was not: "The eye," Lord
Camden said, "cannot by the law of England be guilty of a trespa:,-s."
The CHAill:\IAN. Did he really sal' that?
.Attorney General LEVI. Yes; he clid.
The movement of the law since OlJnstcad has been steadily from
protection of property to the protection of priyacy. In the Goldman
case in 1942 the Court held that the use of a detectaphone placed
against the wall of a room to moerhear oral connrsatiolls in an adjoining
office was not unlawful becanse no physical trespass was involved.
The opinion's unstated assumption. hm-rever, appeared to be that a
pri \Oate oral conversation could be alllong the protected "effects" within
the meaning of the fourth amendment. The Sil1'cTln(ll1 case later
eroded Olmstead substantially by holding that the amendment was
violated by the interception of an oral conversation through the use
of a spike mike driven into a party wall, penetrating the heating duct
of the adjacent home. The Court stated that the question whether a
trespass had occurred as a technical matter of property law ,vas not
controlling; the existence of an actual intrusion was sufficient.
The Court finally reached the opposite emphasis from its previous
stress on property in 1967 in J(atz v. United States. The Court declared
that the fourth amendment "protects people, not plac2s."
against. unreasonable searches and seizures; that oral conversations,
although intangible, were entitled to be secure against the uninvited
ear of a government officer, and that the interception of a telephone
conversation, even if accomplished without a trespass, violated the
privacy on which petitioner justifiably rrlied while using a telephone
booth. ,Tusticc Harlan. in a concurring opinion, explained that to have
a constitutionally protected right of lwinlcy under Katz it was 11r('('8sary
that a person. first. "have exhibited an actual-subjective-expectation
of privac~r and, second, that tlw expectation be one that society
is prepared to recognize as 'rea:o:onable.' "
At first glance, Katz might be taken as a statement that the f011rth
amendment now protects all reasonable expectations of privacy-that
the boundaries of the right of pri,racy are coterminous with thosr of
the fourth amendment. But that DSS1~mption "oould he mislendinQ·. To
he!!in with, the amendment still protects some interrsts that haw' ,-ery
little, if anything, to do with privacy. Thus, the police may not. w;thout
warrant, seize an automobile parked on the owner's driveway
even though they have reason to believe that the automobile was used
in committing a crime. The interest protected by the fourth anwllflment
in such a case is probably better defined in terms of propert~othan
privacy. Moreover, the Katz opinion itself cautioned that "the fourth
amendment cannot be translated into a general constitutional 'right
96
to, pl'iy~,cy" ~~ SOlIIC pl'i,'acy ill:prests are pl'Otedl'cl by rPJlJainingColl~
tItutlOllal gn<lr<lnt('Ps. Otl1C'r'O <ll'l' nrolrcte(l by Fpdpml statute. In'
tll<' States. or not at all. ~, .. .
. The (>I.\11DL\2" )Iay I interrupt a~ this point t? sllp:ge~t that there
IS a vote III the Senate. a roll-call, WlllCh accounts for the fact that the
SP1WTOI'S hu\'p had to lean'. It looks as thouuh tll'~ balance of Yom'
statement "'ill require the remainder of the session this mornin:r so
that I wonld snggest. if it is pos;~ihle for YOU to do so. that we n~glrn
~lpon the completion of your testimony. that we retnrn this afte1'lloon
111 order that :Members then may have an op!)ortllnitv havino- heard
f ' ." ~ pnl'ts 0 your statenwnt and IX'ad the rest to ask qnestions.
.\t 2. o'clock this afte1'lloon. we will continne the qupstioning. I am
]jot p:omg to go 10 /11(' \'otp. I am ,'ery much interested in the paper.
Twonld Eke you (0 continue. please, .
Attorney Genrral LEVI. The point that I was making abont Katz
is twofold. First. under thr C01ll't's decisions. the fourth amendment
dors not protect m'rry expectation of pri,'acy. no matter how reasonable
01' artual that expectation may he. It does not protect. for example.
against falsp. fripnds' betrayals to the police of e,'en the most private
('ollfidpnpps. Sero'ld, tlw "rensonablp exppdation of privacy" standard;
often sa id to he t he test of Klitz. is itself a conclusion. It represents
a judgmrnt that rertain behavior should as a matter of law be protected
~lgainst unrestrained gO\'ernmentnl intrusion. That judgment, to be
Slll'(', rrsts in part on an assessnwnt of the reasonableness of the expectatim'.
that is. on all ohipdive. fartual estimation of a risk of intrusion
Hnder gj,'en eirC'umstanees. joined \viih an actual pxpectation of
pl'inwv by the person involved in a particnlar case. But it is plainly
morr than that, since it is also intermingled with a judgment as to how
inmol'tnnt it is to soriety that all expertation should he confirmed-a
judgment based on a perception of our customs. traditions. and vallws
as 11 free people.
The Katz decision itself illustrates the point. "'Vas it really a "reasonable
expectation" at the time of Katz for a person to believe that his
trlephone connrsatiol1 in a public phonr booth was private and not
sllsrrptihle to interception by a mirrophone on the booth's onter ,,'all?
Almost 40 years earlier in Olm~tead~ the Court lwld such nontrespassor.\'
intercentions ,"err permissible. G07r111J1111 reaffirnwcl
that holding:. So hm, could K(ftz reasonahly expect the contrary?
Thr fillS\YC'r: I think. is that thp ('omt·s dpcision in Katz tnrned ultimateh:
on an nssessmrnt of thr rffeet of prrmitting such unrrstrained
intl'llsions on thr indi,'idnal in his private and sorial life. The judgllwnt
\\'as that a licrnse for unlimited gO\'ernmental intrusions upon
(','pr)' tpjpphone ,,,auld po~e too gr~at a' danger to the sl:onta~eity of
human thouQ:ht and brhanor.•Tnshce Harlan put the pomt tIllS way:
"Thr analys'is mnst. in my view. transcend the search for subjective
eXlwct~tioilS or legal attrilmtion of assumptions of risk. Onr expectations.
and thE' risks wr assump. arr in large part reflections of laws
that tra~,slate into 1'ulrs the customs and values of the past and
l)1'Psrnt.~· A weighing of valurs is an inescapahle part i~l the interpr~tation
and growth of the fourth amrndmrnt. Expectahons. and theIr
rpasonahl('~('ss,vary according to circumstanres. ~o will the nred for
an intrusion and its likely effect. These elemrnts wlll flefine the bound-
(arips of the interests wh.irh the amendment hoIds as " secure."
07
1~0 idpllt,ify ~hc illt~l'psts ,,'hich are, to be, "sec~m'," of course, only
begms the m<jmry. It IS equally eSS0nhal to IdentIfv the danlYers from
\vhich those interests are to he serme. ",Vhat constitutes an~intrllsion
,vill depend on the scope of the protected interest. The early yiew
!hat the fomth amendl~1ent protected only tangible property resulted
~n the ,rn1e that ,l phY";]!'al treaspass or taking \I'a" the llJ('aSlIl'(' of ,lll
mtl'USlOn. 07mBteod rested 011 the fact that there had been no physical
trespass into thf' defen<bnt's homr or officr. It also held that tile nse
of the sense of hearing- to interrept a conyel'sating did Hot com;tit'lte
a search or seizure. 11·11t:=.:. by rxpancling the scopp of the protected
intpT'psts, necessarily altel'rcl our undrrstandinO' of what constitutes an
intrusion. Since intangibles such as oral cOI';'...·ersations are now' regaI'Cled
as protected "eLjfC'cts." the Q\'C'rhearing of a conversation may
constitute an intrusion apart from whptheI' a physical trespass is
involved. The naturr of the search and seizure can be very important.
,An e,ntn' into a hom;e to search its interior mav bc viewed as more
serious than the onrhraring of a cl:'rtain type of conversation. The
risk of aImsr may loom larger in one case than tlw other. The factors
that ha\'e rome to bp yiewed as most important, however, are the
purpose and effect of the intrusion. TI:e Supreme Conrt has ten~ed to
focus not so mnch on \vhat was phySIcally done. but on why It was
done and what tlw consequenee is likely to be. 'What is seized. \yhy
it \yas sl:'ized. and \"hat is clone \"ith \"hat i" spizprl ar(' (']'itical q1lP ct i011S.
I stated earlier that a central concern of the f01lrth amendllwut
was with intrusions to obtain evidence to incriminate the victim of
t11r :"parch. This conrern has Iwen reflected in Sll prelllr C01lrt drcisions
\v!lith ha\'e traditionally treated intrusions to gntlwT' incriminatory
e\'idpl1ce differently froin intrusions for neutral or benign purposes.
In }'mnk Y. Jfaryland. 31)9 U.S. 360 (19;)9). the apprllant \ya,: line(l
for reJusing to a1low a h01lsin,\l' inspector to enter his J'('siflelH'p to
determine \yhether it ,,'as maintainrd in compl ianee \"ith the nmnici pa1
honsing cO(le. Yiolntion of the code WOllld han' le(l only to a dil'rction
,to remove the yiolntion. Only failure to comply with tlIP dirpdion
\y01l1d lead to n criminal sanction. The C011rt. hel(l that :"l1rh aclministratiw
searrhes cOlll(1 he conducted without warrant. .T1Istire Frankfurter,
writing for the C01lrt. noted that the f01lrt h amendment was
a reaction to "ransackin,,! bv Crown officers of the homes of cjtizrns
in search of eyidence of cr'imr or of illegally imported Hoo(k·· TTl'
obseITed that both Entirl.· and Boyd \Vf're concerned \yith attpJ11pts
to compel indivi(lnals to incriminate themselws in criminal casps and
that "it was on the iss11e of the right to he secm'c from searches for
evidence to he 1Ise(1 i.n rriminal p~'oseclltions or for forfrihlrr" that
the grl:'at b~tt Ie for f1lndamentrrl 1ihrrtv was fOlW:ht." Thel'r W,F t h11s
a iu:eat differencr, the .Tnstire said. hrt~H'en sparchrs to seize e\'idf'nce
:foi· criminal prosecuti.ons and sparcl1Ps to detect the exi.stence of
m1lnicipal health corle yiolations. Searches in this lattp]' catrgo]'y,
conrlnC'led "as an adjunct to a reg-nlator~' :"chr]]H' fo]' t hl' !!'C'w'ra1
',r!fnl'E' of tlw cOlllllllmih' and not as a 111r:1nS of pnfo]'cin"o thp c:';;ninal
In\\'. have antecP(lenU; <l('ep in ou]' hi:"to]'y." and s!loulcl 1I0t be suhjeded
to the walTant reljuirC'llIent.
Fml1l~ was later overruled in 1967 in rrrmom Y • .l!/U1iriflrr7 (lO)!I't.
and a companion case. ,,'1"(' v. City of 8('(1tt7('. Tn romrrl'fl. appelhnt
was. like Fm111c, charged with a criminal yiolation as a ],P:"lllt of his
98
-refusal to permit a municipal inspector to enter his apartment to
investigate possible violations of the city~s housing code. The Supreme
Court rejected the Fral1lc rationale that municipal fire, health, and
housing inspections could be conducted 'without a warrant because
the object of the intrusion was not to search for the fruits or instrumentalities
of crime. Moreover, the COUlt noted that most regulatory laws
such as fire, heal'th, and housing codes were enforced by criminal
processes, that refusal to permit entry to an inspector was often a
criminal offense~ and that the "self-protection" or "noncrimination"
objective of the fourth amendment was therefore indeed involved.
'But the doctrine of Camara proved to be limited. In 1971 in Wyman
v. James the COUlt held that a "home "isit" by a welfare caseworker,
which entailed termination of benefits if the welfare recipient refused
entrv, was lawful despite the absence of a ,,'arrant. The Court relied
on the importance of the public's interest in obtaining information
about the recipient, the reasonableness of the measures taken to insure
that the intrusion was limited to the extent practicable, and most
importantly, the fact that the primary objective of the search was
not to obtain evidence for a criminal investigation or prosecution.
(}all7ara and Frank were distinguished as involving criminal proceellings.
Perhaps what these cases mainly say is that the purpose of the
intrusion, and the use to which what is seized is put, are more important
from a constitution~tl standpoint than the physical act of intrusion
itself. 'Vhere the purpose or effect is noncriminal, the search and
seizure is perceived as less trOllhlesome and there is a reacliness to find
reasOluthleness even in the absence of a judicial warrant. By contrast,
'where the purpose of the intrusion is to gather incriminatory evidence,
anel hence hostile, or when the consefluence of the intrusion is the
sanction of the criminal law, greater protections may be given.
The fourth amendment then~ as it has always been interpreted, does
not give absolute protection against Government intrusion. In the
words of the amendment, the right guaranteed is security against
lllll'casonable searches and seizures. As .Justice 'Yhite said in the
Ca'llwra case, "there can be no ready test for determining reasonableness
other than by balancin,rr the need to search against the invasion
which the search entails." 'Yhether there has been a constitutionally
prohibited invasion at all has COllle to depend less on an absolute
dividing line between protected and unproteC'ted areas, and more
on an estim:;tion.of the individual s.ecurity interests affected by the
Government's actIOns. Those effects, III turn. may depend on the purpose
for which the search is made~ whether it is hostile, neutral, or
benii-'11 in relation to the person whose interests are invaded, and also
on the manner of the search.
By the same token, the Government's need to search, to invade individual
privacy interests, is no longer measured exclusively, if indeed
it ever was, by the traditional probable cause standard. The
second clause of the amendment states, in part, that "no warrants
shall issue but upon probable cause." The concept of probable cause has
oftcIl been read to bear upon and in many cases to control the
question of the reasonableness of searches, whether with or without
warrant. The traditional formulation of the standard, as "reasonable
grounds for believing that the law was being violated on the premises
to be searchecF' relates to the governmental interest in the prevention
of criminal offenses, and to seizure of their instruments and fruits.
This formulation once took content from the long-standing "mere evidence
rule" that searches could not be undertaken "solely for the
purpose of securing evidence to be used in a criminal or penal proceeding,
but that they may be resorted to only when a primary right to
such search and seizure may be found in the interest which the public
may have in the property to be seized." The Government's interest
in the intrusion, like the individual's interest in privacy, thus was
defined in terms of property, and the right to search as well as to seize
was limited to items, contraband and the fruits and instrumentalities
of crime, in which the Government's interest was thought superior to
the individual's. This notion, long eroded in practice, was expressly
abandoned by the Court in 1967 in 1Varden v. Hayden. Thus, the detection
of crime, the need to discover and use "mere evidence" may
presently justify intrusion.
Moreover, as I have indicated, the Court has held that, in certain
situations, something less than probable cause, in the traditional sense,
may be sufficient ground for intrusion, if the degree of intrusion is
limited strictly to the purposes for which it is made. In Terry v. Ohio
the Court held that a policeman, in order to protect himself and others
nearby, may conduct a limited "pat down" search for weapons when
he has reasonable grounds for believing that criminal conduct is taking
place and that the person searched is armed and dangerous. Last term,
in United State8 v. Brignoni-Ponce, the Court held that, if an officer
has a "founded suspicion" that a car in a border areas contains illegal
aliens, the officer may stop the car and ask the occupants to explain
suspicious circumstances. The Court concluded that the important governmental
interest involved, and the absence of practical alternatives,
justified the minimal intrusion of a brief stop. In both Terry and
Brignoni, the Conrt emphasized that a more drastic intrusion, a
thorough search of the suspect or automobile, would require the
justification of traditional probable cause. This point is reflected in
the Court's decisions in Almeida-Sanche.?' and Ortiz, in which the
Court held that, despite the interest in stemming illegal immigration,
searches of automobiles either at fixed checkpoints or by roving patrols
in places that are not the "functional equivalent" of borders could not
be undertaken without prohable cause.
Nonetheless. it is clear that the traditional probable cause standard
is not the exclusive measure of the Government's interest. The kind
and degree of interest required depend on the severity of the intrusion
the Government seeks to make. The requirement of the probable cause
standard itself may yary, as the Court made clear in Oamara. Th'tt
case, as you recall, concerned the nature of the probable cause requirement
in the context of searches to identify housing code violations.
The Court was persuaded that the only workable method of enforcrment
was periodic inspec60n of all structures, and concluded
that because the search was not "personal in nature," and the invasion
of privacy inyolved ,,-as limited, probable cause could be based on "~ppraisal
of conditions in the area as a whole," rather than knowledge of
the condition of particular buildings. "If a valid public interest justifies
the intrusion contemplated," the Court stated, "then there is probable
cause to issue a suitable restricted search warrant." In the Keith
100
case, while holding that domestic national security surveillance, not
involving the activitiC's of foreign powers and their agents, was subject
to the warrant requirement, the Court noted that the reasons for "inch
domestic surveillance may differ from those justifying snrveillances
for ordinary crimes, and that domestic security surveillances often
have to be long-range projects. For thesC' reasons, a standard of probable
cause to obtain a warrant different from the traditional standard
,vould be justified: "Different standards may be compatible with the
fourth amendment if they are reasonable both in relation to the legitimate
need of Government for intelligence information and the protected
rights of our citizens."
In brief, although at one time the "reasonableness" of a search may
have been define{l according to the tratlitional probable cause standard,
the situation has now been reversed. Probable canse has ('0111e to c1ppend
all reasonableness, on the legitimate need of the Government and
whether there is reason to belim'e that the precise intrusion sought,
measured in terms of its effect on individual security, is uecessllry to
satisfy it.
This point is critical in evaluating the reasonableness of searcNe's or
surveillances undertaken to protect national secnrity. In some instances,
the Government's interest may be, in part, to protect th~ Xa·
tion a~aiust specific actions of foreigl1 p0',ers or th~ir agents. actions
that are criminal offenses. In other instances, the interest may be
to protect against the possibility of aetiollS by foreign pmwrs "and
their agents dangerous to national security, actions that mayor may
not be eriminaJ. Or tlw int('rest may be solel~' to ~athrr intelligPllr'r. in
a variety of forms, in the hands of fOl'rign agents and foreign pow(')'s,
intelligence that may be essential to informed conduct of onr Nation's
foreign affairs. This last interest i11(]('C'(l may often be far n;lOre rl'itical
for the protection of tll€' Kation that the detection of a particnlar
criminal offense. The fourth amendrnent's standard of l'easonablenpss
as it has developpd in the Court's decisions is sufficiently flexible to
reco!!nize this.
•Tl~St as the reasonableness standard of the amendment's first clause
has taken content frol11 the probable causE' stalldanl. so it has also ('orne
to incorporate the particularity requirement of tIlE' warrant ('lallSE'.
that warrants particnlarlv desrribe "the place to be searched, and the
persons or things to be seized." As one cirenit eourt has written. although
pointing ant the remedy might not be Yer~' extf'nsive "limitations
on the :frnit to 1)(' gatherpd tend to limit tl10 (111(,8t itspH." Thr Gm'ernment's
interest awl pnrposc in uw1ertaking the search definE'S its
scope, and the soeirtal importanre of that pmposr can he wrig1lt('(1
against the effects o:f thC' intrusion on the in(lividuul. By prerise definition
of the objects of the sC'ar-ch. tIl(' degree of intrusion can be minimized
to that rE'asonably ner'C'ssary to achif'Ye the legitimate pnrposE'.
In this sense, th(' particn1flrity requirrllwnt of tlw warrant clausr is
analogons to the minimization requirement of title III. that interceptions
"be execnted in snch a way I1S to minimize the interreption
o,f communications not otherwise snhjrct to interreption~' under the
tItle.
Rnt: tlwre is a distinct asper't to tlw particnlaritv n~qllirement.onr
that lS often overlookrd. An offirrr who has obtainerl a "'arrant hnsec1
npon probable ('Ruse to O'l'arch for particlllar itE'ms may in conducting101
the search necessarily haye to examine other items, some of which may
constitute evidence of an entirely distinct crime. The normal rule under
the plain view doctrine is that the officer may seize the latter incriminating
items as ,,,ell as those specifically identified in the warrant
so long as the scope of the authorized search is not exceeded. The
minimization rule responds to the concern aoout overly broad searches,
and it requires an effort to limit "'hat can be seized. It also may be an
attempt to limit how it can be used. Indeed, this minimization concern
may have been the original purpose of the "mere e"idence" rule.
The concern about the use of ,,,hat is seized may be most important
for future actions. Until VCI'V rccentlv. in fact. until the Court's 1971
deeision in Bi~'wn8, the only sanction against an' illegal search was that
its fruits were inadmissible at anv criminal trial of the person whose
interest was invaded. So long as this was the only sanction, the courts,
in judging reasonableness, did not really have to weigh any governmental
interest other than that of detecting crimes. In practical effect,
a search could only be "unreasonable" as a matter of law if an at·
tempt was made to' use its fruits for prosecution of a criminal offense.
So long- as the Gowrlllnent dicl not attempt such usc the search could
continue and the Government's interests, other than enforcing criminallav,
s. could be satisfie(l.
It may be sai(l that this confusrs rights and remedies; searches
could he Ullrpasonable eH'n though no sanction followed. But I am not
clear that this is theoretically so. and realistically it was not 80. As I
han noted earlier. thp rpasonablelwss of a searrh has depended. in
major part. on the ]JnJ'jlosP for ",hir11 it is 11lldrrtaken and 011 ,,,hether
that purpose, in relation to the prrson whom it affects. is hostile or
l)pni~m. The search most hostile to an indiyidual is one in preparation
for his criminal prosecution. Exclusion of ryidence from criminal
trials may help assure that searrIles undertaken for ostensibly benign
motives are not used as blinds for attempts to find criminal evidence,
,,,hile permitting srarclws that arr genuinely benign to continue. But
there is a more general poiilt. The effect of a gm'ernment intrusion
on individual secm'itv is a function. not only of the intrusion~s nature
awl circumstances, b~lt also of disclosure aild of the use to which its
product is put. Its effects are, perhaps grl:'atest ,,,hen it is employed
or can be employed to impose criminal sanctions or to deter, by disclosnre.
the exercise of individual freedoms. In short. the use of the
product seized bears upon tlw reasonableness of thr search.
These observations have particular bearing on ell:'ctronic surveillancr.
By the nature of the tpchnology the "search" may necessarily
bp far broader than its legitimate objerts. For exnmple. a surveillance
justified as the only means of obtaining valuable foreign intelligrnce
may require tlw temporary overhearing of conversations containing:
no foreign intelligence whatever in order eventually to locate
its object. To the pxtent that we can. by purely mechanical means,
SPtr>ct out only that information that fits the purpose of the search, the
intrnsion is radicallv rpdnced. Indeed. in terms of effects on individnal
spcurity. tlwre ,~ould bE' no intrusion at all. But other steps may
be appropriatp. In this respect, I think we should recall the language
and the practice for many ypars unrler formpr section 601) of the Communications
Act. The art ,ns violated. not bv surveillanre Idone. but
only by snrveillancp and disclosure in court or to the public. It may be
102
that if a critical government purpose justifies a suryeillance, but because
of technological limitations it is not possible to limit surveillance
strictly to those persons as to whom alone surveillance is justified,
one way of reducing the intrusion's effects is to limit strictly
the revelation or disclosure or the use of its product. Minimization
procedures can be very important.
In discussing the standard of reasonableness, I have necessarily described
the eyolving standards for issuing warrants and the standards
governing their scope. But I have not yet discussed the warrant requirement
itself, how it relates to the reasonableness standard and
what purposes it was intended to serve. The relationship of the warrant
requirement to the reasonableness standard was described by J ustice
Robert Jackson:
Any assumption that evidence sufficient to support a magistrate's disinterested
determination to issue a search warrant will justify the officers in making a
search without a warrant would reduce the amendment to a nullity and leave
the people's homes secure only in the discretion of police officers.
The CHAIRMAN. That is Senator Mathias' previous point, that once
Attorney General Jackson became Mr. Justice Jackson, he took a different
view.
Attorney General LEVI. That may be, although I had not realized
he had been a police officer. That is Justice Jackson.
The CHAIRMAN. He had been Attorney General.
Attorney General LEVI. I make a substantial distinction.
The CHAIRMAN. I recognize the distinction.
Attorney General LEVI. "'When the right of privacy must reasonably
yield to the right of search is, as a rule, to be decided by a judicial officer,
not bya policeman or government enforcement agent. That makes
his point better.
The CHAIRMAN. Yes.
Attorney General LEVI. This virw has not always been accepted by a
majority of the Court; the Court's view of the relationship between
the ge.neral reasonableness standard and the Warrant requirement has
shiffed often and dramatically. But the view expressed by .Justice
Jackson is now quite clearly the prevailing position. The Court said in
Katz that "searches concluct~d outside the judicial process. without
prior approval by judge or magistrate, are per se unreasonable under
the fourth amendment. subject only to a few specifically established and
well-drlineatecl exceptions." Such exceptions include those grounded
in necessity, where exigencies of time and circumstances make resort to
a magistrate practically impossible. These include. of course. the Terry
stop and frisk and, to some degree, searches incident to arrest. But
there are other exceptions, not ahrays grounded in exigency, for example.
some automobile searches, and at least some kinds of searches not
conducted for purposes of enforcing criminal laws, such as the welfare
visits of Wyman v. James. In short, the warrant requirement itseH
depends on the purpose and degree of intrusion. A footnote to the
majority opinion in Katz. as well as .Justice 1Yhite's concurring opinion,
left open the possibility that warrants may not be required for
sf'arches undertaken for national security purposes. And, of course,
Justice Powell's opinion in Keith. while requiring 'warrants for domestic
securitv snrveillanc0s. snggests that a different balance mav be
struck when the surveillal~ceis 'undertaken against foreign po,yers and
103
their agents to gather intelligence information or to protect against
foreign threats.
The purpose of the warrant requirement is to guard against overzealousness
of government officials, who may tend to overestimate the
basis and necessity of intrusion and to underestimate the impact of
their efforts on individuals.
The historical judgment, which the fourth amendment accepts, is that unreviewed
executive discretion may yield too readily to pressures to obtain incriminating
evidence and overlook potential invasions of privacy and protected speech.
These purposes of the warrant requirement must be kept firmly in
mind in analyzing the appropriateness of applying it to the foreign
intelligence and security area.
The CIIAIR'\IAX. Mr. Attorney General, we are now on final passage
of a bill. Since you have been' testifying for some time, I think you
could probably take a break, take a 5-minute recess, take a drink of
,,'ateI', and I think it would be inappropriate as we examine the vagaries
of the fonrth amendment for me to miss final vote on the Sunshine
bill permitting congressional committees to hold open hearings.
Attornev General LEn. ,Vithont a warrant.
The CH"~IR~IAX.'\Tithout a warrant, right.
[A brief recess was taken.]
The CJIAIR:;IL\X. The hearing will please come back to order.
Mr. Attorney General, would you take up where you left off, please f
Attorney General LEn. There is a real possibility that application
of the warrant requiremenL at least in the form of the normal criminal
scar('h warrant, the form adopted in title III, will endanger legitimate
government interests..As I have indicated, title III sets up a detailed
procBdure for interception of wire or oral communications. It requires
tIl(' procurenwnt of a judicial warrant and prescribes the information
to be set forth in the petition to the judge so that, among other things,
he may find probable cause that a crime has been or is about to be committed.
It requires notification to the parties subject to the slll'veill:mce
within a period after it has taken place. The statute is dearly unsuited
to protection of the vital national interests in continui.ng detection of
the activities of foreign powers and their agents. A notice requirement,
aside from other possible repercussions, could destroy the usefulness of
intelligence sources and methods. The most critical surveillance in this
area may have nothing- whatever to do with detection of cri.me.
Apart from the problems presented by particular provisions of title
III, the argument against application of the warrant requirement,
even with an expanded probable cause standard, is that judges and
magistrates may underestimate the importance of the Government's
need, or that the information necessary to make the determination
cannot be disclosed to a judge or magistrate without risk of its accidental
revelation. a revelation that could work great harm to the Nation's
security. ,Yhat is often less likely to be noted is that a magistrate
may 'be as prone to overestimate as to underestimate the force of the
Government's need. ,Yarrants necessarily are used em parte; often
decision must come quickly on the basis of information that must
remain confidential. Applications to anyone judge or magistrate would
be only sporadic: no opinion could be published; this would limit the
growth of judicially developed, reasonably uniform standards based,
104
in p.nt. on the quality of the information sought and the knowledge
of possible altc'l'llatin's. Equally important. responsibility for the intl'Usion
wOlllel haye been diffused. It is possible that the actual number
of s('arch('s or snryeillallc('s would increase if executive officials, rather
tllflll l)('tn'in~ responsibility themselycs, can finel shield behind a magistrate's
judgmrnt of l'rasona'bleness. On the other hand, what!wer th('
practical effect of a warrant requirement may be. it would still sene
the important purpose of assnring the puhlic that searches are not conc1nrtecl
"ithont the approyal of a neutral magistrate "ho could prey(,
Ht abuses of the' tcchniqne.
In discussing the achisability of a warrant requirement. it may also
lw llspfnl to clisti))[!uish amOlL'l' nossihl(' sitllations that arise' in the
lwtio!lal secnrity a're'a. Thl'pe sitlwtions. greatly simplified, ('ome to
mind. They cliffrr from one anotlwr in the extent to which they are
limirecl in time or in target. First. the search may be directed at a particula
l' fore'ign agent to detect a specific anticipated actiYity, such as
the nUl'chase of a i-'ccret document. The activit>, which is to be dptected
0]'(1 (nadly wonlel constitute' a erinH'. Second, the search may be more
extended in time. e\'en yirt11ally cD!1tinuous. but still would be directed
at ::n ielenti fieel fOl'ei!!n al2'ent. The pmpose of such a surveillance
,,-ou]<1 he to monitor the agent's activities. determine the identities of
l)('rsons "'hose access to classified information he might be exploiting.
aJHllleterllline the identity of other foreign agents with whom he may
1)(' in contact. Such a suneillauce might also gather foreign intelligence
information a'bont the agent's own country. information that
,voul(l be of posih'.'l' intelligellce yaIne to th(' rnitr<l States. Third,
there. mav be vil'tuallv continnons surveillance \\'hich bv its nature does
not hay(,.' sprci hcn11,\' 'predetrrm ined targets. Snch a sllrniIIancr could
be (Iesigned to gather foreig'n intelligence information essential to
the SE'c11l'itv of the Xation.
1'1)(' m01:e ]imitE'd in time and target a sHlTeillance is, the more nearly
nlla logous it appC'ars to be ,,'ith a traditional criminal search which
im"olns a particnlar target location or incli\'idual at a specific time.
Thus. the first situation I just drsC'rihecl wonld in that respect be most
nmenable to some sort of ,~'aITant requirement. the second less so. The
C'flicacv of a ,,'arrant rC'quirell1ent in the third situation would be minimal.
If the third type of snrveiliance I described were submitted to
prior judicial appronll. that judicial decision would take the form of
fin ex parte declaration that the program of surveillance designed by
the Goyernment strikes a reasonable balance 'between the Governn1C'nt's
need for the information anll the protection of individuals'
Tights. XHel'the]pss. it may he that clifferent kinds of warrants could
be developed to cO"er the third situation. In his opinion in A7meidaRlmrhez.
.Justice Powrll snggested the possibility of arpa warrants,
issllecl on the hasis of the conditions in the area to be surveilled. to
~1l0\Y antOll1Dhilp searches in areas near America's borders. The law
11:1" not lost its inwntiwness. and it might he possible to fashion new
jlHljeinl appro:1ehrs to the novel situations that come up in the area of
foreign intellig€llce. I think it must be pointed out that for the deyelopment
of snch an extended. new kind of warrant. a statutory base
might he reqnirrd or at least appropriate. At the same time. in dealing
,,-jth this area. it may 'be mistaken to focns on the warrant requirement
alone to the exclnsion of other. po~sihlymore realistic, protections.
10;')
'Vhat, tl\('n~ is the shape of tlw present la\d To begin \vith, se\Oe1'al
statutes appeal' to recognize that the Government does intercept C0rtain
messagrs for foreign intellig011ce purposes and that this activity
nl1lst be, and can Le, carried out. Section %2 of title 18. which I mrntioned
rarlier is one cxample; section 788 of the same title is another.
In addition, title Ill's proviso, which I hayc qnoted earlier, explicitly
(lisclaimed any intent to limit the authority of the Executiye to con(
luct electronic surveillance for national sccurity and foreign intelligence
purposes. In an apparent recognition that the power wonld be
0xcl'cised, title III specifies the conditions nnder \vhich information
obtained througoh Pr0sidcntia,lly authorized snrveillance llla~o be rec('
ive(l into evidence. It seems clear, therefore, that in 1968 Congress
\vas not prqmred to come to a judgment that the Executive should dis(
Oontinuc its adi\Oities ill this area~ nor was it prepared to regulatc how
those activit ies were to he condnded. Yet it cannot be said that Congress
has bcpn entirely silC'l1t on this matter. Its express statntor~o rrfercncrc;
to tl](' existrIlC(' of the acti,oity must be taken into account.
The cnse law, althougoh unsatisfactory in some !TSpe('ts, has suppodrd
or le'ft untonC'll('el the policy of the Executiye in the foreigtl
intellip:ence area wheneyer the issll(' has been sqna-relyconfronted. The
Suprpme Comt's decision in the Keith case in 1m2 concerned the legality
of warrantless surveillance elireetec1 against a domestic organizat
ion \" ith no c011llPC'tion to a foreign power and the Govel'lllllent's
attcmpt to introdllcr the product of the surveillance as evidence in the
('l'imi'lal tr;:t! of :l IWl"on dWl'grd \,"itll homhing a CIA office in Ann
.\1'1>c1". ~Ii('!l, III part bec:lus(' of the danger that llIwOIltTolled discl'rtioll
III 11[ht I'csnlt in usc of electronic snrveillance to drter dOIllf'stic
organizations from exercising first amendment rights, the Supreme
COlll't held that in cases of internal secnrity~ when there is no fOl'eigoll
imoolnlment. a judicial warrant is required. Speaking for the Conrt,
Jnstice PO\ycll emphasized that-
'l'hisC'ase Imoolves only the donlf'stiC' aSlwcis of national securityo \Ye lunoe
pxpresspd no opinion as to tbe issues which may be imooln'd with resjlt'd to
adiYitief> of foreign powel>: or their agentso
As I obsP!Ted in my remarks at the ABA conn~lltioll the Supreme
COlll-t snrely rcalizedin
Yie,Y of till' illljlOrt:ll1C'P thp Goyprnmpnt has plaC'prt on thp nppd for warrantIpss
electronic slllTeillancp tllat, aftpr ih" holding- in I(citll, thp GO\oernll1pnt
would IlIoocppd with th€' proeedurps it had dp,'ploped to conduct thosp sunopillances
not prohilJit('(I-that is, In the foreign intelligpnce area 01°, as oTustiC'e Powell
snirt, "with ref'IJpC't to aetiyities of foreign powers ancI their agents:'
The CJI\I10IAx. )Iay I interrupt to say that .Tnstice PowelFs p('J'C'PptiOll
of the latent threat of ull\varmnted snrYeillance aO'ainst domestic
organizations in the name of national security is of g~eat concrrn to
Ille and to the members of this committee because n-othina: coulel be
1i100°e intimidating on the right of individuals to express themsrlves
and protest policies of the Government with which thev disaO"ree. than
the belief that they are being watched and their conversation;an> being
monitored by the Federal Govel'l1ment. '
Attorney 'General LEYI, ~\s I believe von know. ~fr. Chairman. it has
aliOo been agreat ('oncern to me. .
~'I:e CTL~Il~:lL\oX, I alll simply eXI)]'essing apprO\oal of the PO\H'11
OpIl1lOll awl !ts Importance. and I am certain it is being obselTee1.
106
Attorney General LEVI. The two Federal court decisions after
Keitn-I am not sure, Mr. Chairman, if that is a question. If it were a
question, the answer is yes.
The two Federal court decisions after [{eith that have expressly
addressed the problem have both held that the fourth amendment
does not reqnire a 'warrant for electronic surveillance instituted to
obtain foreign intelligence. In the first. United States v. Brown, the
defenrlant, ~n Ameri~an citizen, was incidentally overheard as the
result of a warrantless wiretap authorized by the Attorney General
for foreign intelligence purposes. In upholding the legality of the
surveillance. the Court of Appeals for the Fifth Circuit declared that
on the basis of "the President's constitutional duty to act for the United
States in the field of foreign affairs, and his inherent power to protect
national security in the conduct of foreign affairs. the President may
constitutionally authorize warrantless wiretaps for the purpose of
gathering foreign intel1igence." The court added that "restrictions
on the President's power which are appropriate in cases of domestic
security become inappropriate in the context of the international
sphere."
In the United States v. Butenko. the Third Circuit reached the
·same conclusion-that the warrant requirement or the fourth amendment
does not apply to electronic snrveillance undertaken for foreign
"intelligence purposes. Although the surveillance in that case was
directed at a foreign agent, the court held broadly that the warrantle::;::;
surveillance would be lawful so long as the primary purpose was
to obtain foreign intelligence information. The court stated that such
surveillance would be reasonable without a warrant even though it
might involve the overhearing or conversations of "alien officials and
agents, and perhaps of American citizens." I should note that although
the United States prevailed in the Butenko case. the Department
acquiesced in the petitioner's application for certiorari in order to
obtain the Supreme Court's rnling on the qllestion. The Sllpreme Conrt
denied review, however, and thus left the third circuit's decision undisturbed
as the prevailing la".
The CHAIRUAN. Do vou know anywhere in the prevailing law that
the tenn "foreign intelligence" is defined?
~\.ttorney General LEVI. I am not S11re I can answer that qnestion.
I think that the constant emphasis on foreign powers and their u!!ents
helps define. In a discussion of the diplomatic powers of the President,
his position in terms of the Armed Forces and so on perhaps
helps.
The CHAIR~fA),T. ",Ye find it a very el11si,e term becallse it can be
applied as jnstification for most ariything and broadly defined can
go far beyond the criteria that yon j11st snggested. I know no place in
the la". that nndertakes to define the term.
Attorney General LEVI. That. of course. is the problem with all the
terms in this area. Also, a problem with the term "internal security,"
"domestic seeurity," or "national security." becanse one might tend
to billow those terms to the point that they cover foreign intelligence,
PO that we have a problem.
~r()~.t rrrcnth. in Zll'eihon Y. ,~fitr7z('7Z. (lpeirlrrl in ,Tnnr of t1)js Yf'flr,
the Di.strict of Columbia circuit dealt with warrantless electronic
surveillance directed against a domestic organization allegedly en107
gaged in adivitirs affecting this country's relations with a foreign
power. It dealt specifically with the .Jewish Defense League and the
allegation that it ,ns inyolyed with bombing of foreign diplomats of
importance to the UN. Judge Skelly "Wright's opinion for four of the
nine judges makes many sbvtements questioning any national se{'urity
exception to the warrant requirement. The court's actual holding
made clear in Judge ,Yright's opinion was far narrower and, in
fact, is consistent with holdings in Brown and B1ttenko. The court
held only that "a warrant must be obtained before a wiretap is installed
on a don1estic organization that is neither the agent of nor acting in
collaboration 'with a foreign power." This holding, I should add, was
fully consistent with the Department of ,Tustice's policy prior to the
time of the ZU'eibon decision.
The CHAIRMAN. Is it also preyailing law?
Attorney General LEYI. I regard it as pre,"ailing law.
The CHAIRMAN. Is there an appeal pending? Is it being taken to the
Supreme Court?
Attorney General LEVI. My understanding is that the Department is
not taking an appeal. I am not sure of the defendants.
Since the Department's policy is really in agl'C'empnt with the holding,
the only way for us to accept as la,Yyrrs repn'scnting others to
take an appeal, would have been to say that the broad language of
the eourt was an attempt to make an illicit rxtension of its holc1ing
and to try to appeal on that. I do not believe you would have gotten
anyplace. I would like to haye done it partly as a ,yay of trlling judges
thnt they should take care what they say.
'Vith these cases in mind. it is fair to sav plrrtTonic sllrvril1ance
conducted for foreign intelligence purposes, 'essent jn1 tD t1)(' nH'tiona1
security, is lawful under the fourth amendment. ev('Jl in thr a1J~PIH'e of
a warrant, at least where the subject of the surveillance is a foreign
power or an agent or eollaborator of a foreign power. )fo1'ro\'£'r. the
opinions of two cireuit courts stress the purpose for which tlw sun-eilJance
is undertaken, rather than the identity of the snhject. This snggests
that in their vipw such s1llTeillance without a warrant is lawful
so long as its purpose is to ohtain foreign inteIligen("e.
But the legality of the ncti,'+V does not remm"e from thr Executive
or from Congress the responsibility to take steps. within their powpr,
to seek an aceommodation between the vital publie and private interests
involved. In our effort to seek sueh an accommodation, the Department
has adopted standards and procedures designed to insure the
reasonableness under the fourth amendment of electronic surveillnnce
and to minimize to the extent praetical the intrusion on individual
interests. As I have stated, it is the Departmpnt's policy to authorize
eledronic surveillance for foreign intelligence purposes only when
the subject is a foreign powpr or an agent of a foreign powrr. By
the term "agent" I mean a eonscious agent; the agpncy mnst be of a
special kind and must relate to activities of great concern to the
United States for foreign intelligence or counterintelligenee reasons.
In addition at present there is no warrnntlpss elpctronic sUl'veil1ance
,lirected against any American citizen, and although it is conceivable
that circnmstances justifying such slllTrillmlcP may arisp in the fntnre,
I will not 9uthorize the slU'Yeillance unless it is clpar that the AmC'rican
eitizen is an aetive, conscio11s ag0nt or collaborator of a foreign
power. In no event, of eourse, would I authOl'ize any warrantless snr108
vril hll1cP ag-a il1~t dOIP.est ic !W!'SOIlS OJ' onranizatiollR such IlS t ho~p
inyolved in the Keith case. SnlTeillance ,,:ithout a "arrant "ill not
he condll('.t~d fol' purposps of security flu-a inst donwstic or intern a1
thrpats. It is OUI' policy. 1110I'rO\'rl'. to Ilsr the titll-' TIl procedure wl1"n('
VPI' it is possible and appT'Opriatp to (10 so. although the statuto]'y
j)I'O\-iRions regarding probablr crrURr. notification, and prosecll'tin' pnrposr
make it unwodmble in all fOl'eig-J1 int<>lligpnc<> anel many COlmtrl'intplligrncr
cases.
The standards and procedurrs that the Depaliment has establishr(l
within thr Fnitrd States srek to insm~ that evpry request for smypillance
recpives thorough and impartial consideration before a decision
is madp ,dwtl1rl' to iustitntl? it. Th<> 1>l'Ocess is elahomte and time
consuming. but it is necessary if the public interest is to be SBITPd and
individualriu-hts safe,(!llardrd.
I han' just lwen speaking about tele])hone, wiretapping and microphone
surveillances which are reviewed by the Attorney Genera1. In
thp comsr of its inwstig·ation. tilE' committl?e has hecome familiar with
the more tf'c1mologiclllly sophisticated and complex eleetI'Onic slHTeilIH1wP
act.iyitips of other agencies. These sUlTei11ance activities present
somewhat. different legal questions. The communications conceiYabl~might
tab' place entin'ly ontsirle tlle Fnited States. That, fact alone.
of course. ,,"ould not automatically remow the ag-encies' activities from
scrutinv undPI' the fourth amendrnent since at times even communications
abroad may involve a legitimate privacy interest of Americnn
citizens. Otlwr commllllications ronrpivablv might. be exe1usiyplv hehwpn
fo]'('ig-n pmwr:.; an<1 tlwir agpnts and involve no Americall tprminal
In sllch n, casc, even though American citizens may be discussNl.
this may raise less sig1lificant. at· perhaps no significant, questions
nnder the fourth nmendment. Rut the primary concern, I suppose. is
whether rpasonable minimization procedures are employed with respert,
to llse a,]1(l disspmination.
'With resprct to all elpctronic surwillance. whether conduded within
tll(' Fnitpd Statf's or abroad. it is essential that efforts be made to minimize
as much as possible the extent of that intrusion. Much in this
regn I'd can be done by modern technology. Standards and procedures
can be deyrloped and effectively deployed to limit the scope of thl?
intl'llsion and the USe to which its product is put. Various mechanisms
can pl'ovicle a needpd assurance to the American people that the activity
is undertaken for legitimate foreign intelligpnC'e lHlrposps. and not fo!'
political or other improper purposes. The procedures used should not
be onps which bv the indirection in fact tanret AmPI'ican citizens and
I'esidpnt aliens v;-hel'(, these individuals would not themselves be appl'opriat.
e targ-cts. The proper minimization criteria can limit the acti,-ity
to its jnstifiabk and necpssary scope.
TIlE' CHAIIDL\~. This is one of the subjects I'm sure the committee
",ill "'ant to onestion VOIl abont this afternoon because we had so l11nch
('vidence of ,,:atch list and even random openings of the mail without
any particular criteria. and names of people that would appear to be
,dlO]Jv inappropriate for purposes of suneil1ance. These are the rpal
lifc' fltlPstions that are presented to this committee in terms of what
t hn Gon'l'llll1ent art-UH 11 y has been doing.
,\.ttOi'lWY GpllPral LEn. I assume. -:\11'. Chairman, that the main
,h mst of t'hr, r0ll1111ittpe is to see what kind of legislation or better procedures
('an be den'loped and I\'e tried very hard speaking on those
109
subjects that I can speak on, and not speaking on those that I cannot.
to try to lay that down before the committee as a base.
Another factor must be recognized. It is the importance of potent ia1
importance of the information to be sC'cured. The activity may he
undertaken to obtain information deemed necessary to protect the
Xation against actual 01' potential attack or other hostilr acts of a foreign
power, to obtain foreign intelligence information deemed essential
to the security of the United States. or to protect national security
information against foreign intelligence acti"ities.
Need is itself a matter of degree. It may ]w that the importance of
some information is slight. but that may he impossible to gange in a<1nmce;
th(' si/--rnificance of a single bit of information may become apparent
only when joined to intelligence from other sources. In short.
it is necessary to deal in probabilities. The importancB of information
gathered from foreign establishments and agents may be regarded gellC'rally
as high-although even here may be wide variations. At the
same time, the effect on individual liberty and security-at least of
American citizens-caused bv methods directed exclusivelY to forei,!!,11
agents, particularly with minimization procedures, wOldd 00 \'e'ry
slight.
There may be regulatory and institntional dp\·iees other than the
,,'arrant requirrment that ',"ould 11Pttrr assnre that intrusions for
national s('cnr1ty and foreign intelligence pnrposes reasonably bnlanf'r
the important needs of Gon'rnment and of indiddnal interests. In
assessing possible approaches to this problem it may be useful to
pxaminp t11(\ prrretif'eq of onwr ,ypstpm r1emocraries. For rxa mplp.
England. Canada. and 'Ypst Germany each share our concern ahont the
confidentiality of communications "'1thin their horders. Yet earh 1'E'CO;:?-'nizps
the right of the Executin to intercept communicfltions ,,,ithont
a jndicial warrant in C'ases inYolying suspected rspiona/Ie, subwl'sion
01' othP1' national secnrity intelligencp matters.
In Canada and "~est Germany, which harC' statutE'S a11:1]0,0:0U8
to title III. the Executin in national security cases is expmpt hy
statutp from the re1uirement that jndicial ,,,arrants be obtained to
nnthori;:E' snrreillanre of commnnications. In England, where indiria1
"'nlTants are not refJllired to authorize 8111Teillance of commUJlic~tjoJlS
in criminal innstigations, the relerant statutes recognize an inherent
a11thoritv in the Executive to authorize snch surveillance in nati()]1al
secnritv' cases. In each case, this authoritv 1s dremed to cover intercepti011
of mail and t('legrams, as 'Yell as 'telephone conwrsations.
In all three countries, reqnests for national secnrity surreilJance
may he made by the nation~s intelligence agencies. In each, a Cahinet
member is authorized to grant the requpst. In EngJand and 'Vest
Germanv. howerer, interception of communications is intended to he
a last resort, used only "hen the information being sought is likely
to he unohtninable by any other means. It is interesting to note. howereI'.
that both Canada and 'Vest Germany do re'fuire the Exerntin~
to report periodically to the legislature on its national security surveillance
activities. In Canada, the Solicitor General files an annual
report ,,,ith the Parliament setting forth the number of national S('rl]ritv
snneilhmces initiatrd, their awrage length. it general description
of the nwtbods of interception or seizure used, and an assessment of
their utility.
110
It may be that "e can draw on these practices of other 1Vestern
democracies. with appropriate adjustments to fit our system of separation
of pmnors. The procedures and standards that should govern the
use of electronic methods of obtaining foreign intelligence and of
g'na rcling against foreign threats are matters of public policy and
YalnE's. Thev are of critical concern to the executive branch and to the
Congress, a's well as to the conrts. The fourth amendment itself is a
l'cflection of public policy and values-an evolving accommodation
Iwtll('Cll gmocl'1lwental needs and the necessity of protecting individual
se'cmity and rights. General public undeTstanding of these problems
is of paramount importance, to assure that neither the Executive,
nor the Congress, nor the courts risk discounting the vital interests
Oil hoth sides.
The prol)lems are not simple. Evolving solutions probably will and
shonl(] come-as they have in the past-from a combination of legislation.
court decisions, and execntive actions. The law in this area, as
Lord Devlin once de.scribed the law of search in England, "is hapha/~
ard and ill-defined." It recognizes the existence and the necessity
of the Executive's pmver. But the executive and the legislative are,
as Lord Dedin also said, "expected to act reasonably." The future
course of the law will depend on whether we can meet that obligation.
Tl1E' Cl'LUR:\LL\'". Indeed, it wilJ, Mr. Attorney General, and I want
to thank you for this very learned dissertation on the fourth amendllwnt.
I think that it will prompt a number of questions from the
committee this afternoon. It is 12 :30 now, and I had hoped that we
might adjoul'll until 2 this afternoon.
Senator ~Iathias?
Senator ~IATHIAs. :Mr. Chairman. I comply with the instruction of
the Chair to withhold questions for the moment, but I was one of
those urging the invitation of the Attorney General to the session
hecauq> I anticipated a thoroullh and scholarly discussion of the subjert.
I think that the Attorney General has fully met all of our expectations,
and this "ill be an important document on this whole subject,
both among those who will cite it for support and those who will
wish to argue against it. But I think that it is obviously an important
dorument and I look fonmrd to the dialog this afternoon.
The CIIAnDux. I think it goes further on the subject than any other
previous statement of the Government from any source. Therefore, the
committee appreciates the time and effort that you have given to it
and we look forward to a chance to question this afternoon.
If there are no further comments, the hearing stands adjourned
until:2 this afternoon.
["Whereupon, at 12 :30 p.m., the hearing adjourned, to reconvene at
:2 p.m. of the same day.]
AFTERNOON SESSION
The CHAIR~L\N.The hearing will please come to order.
~Ir. ~\..ttorney General. in your statement this morning, yon testified:
I now come to the Department of .Justice's presput position on electronic surypillance
conducted without a warrant. rnlll-r the standards and procedures
estahlished h.' the President, the personal approntl of the Attorney General is
rerjuired [)t'fore any nouconsensual t'lpetrouic suryt'illance may be instituted
Within the l:nited States without a jUdicial warmnt.
111
Do you mean by that statement that your approval is required before
anyone may be bugged or wiretapped without a warrant as long as
the target is within the Fnited States? Is that correct?
Attorney General LEVI. 1Vell, I really cannot quite mean that, because-
I guess I can. I ,,-as going to say that title III, which of course
has a warrant provision, permits States to do wiretapping, but I suppose
that I do mean that \vithout a judicial warrant, that is--
The CHAIR)UX. The existing practice?
Attorney General LEn. The standard procedure established by the
Pn'siclent.
The CHAIR)L\X. Yes. Since it is a procedure established by the President,
it could be changed at any time by the President.
Attornev General LEVI. I assume so.
The ClI~IR::IIAN."What about electronic surveillance of messages that
have one terminal outside the United States? Is your permission required
before an uuwarranted iuterc.eption of such messages may take
place?
Attorney General LEVI. vVell, my belief is, if it is a surveillance
which there is a base in the United States and a conul1lmication from
the United States, which is what we would ordinarily think of as being
covered, I think the Attorney GelleraFs appro~'al would be required.
The CUAIW\L\X. 1Vhat about the messages that NSA snatches out of
the ~lir? They do not require J'our approval, do they ~
Attorney General LEVI. You are now asking me about the NSA procedures.
The CHAIR3L\N. I'm only asking you whether they reqUlre your
approval.
Attornry General LEVI. I have only started to answer.
The CHAIW\IA~. I see.
Attorney General Ln~. The first part of the answer is, I want to
make this clear that I do not really know what the NSA procedures
are. And I think that is an important point. I do not think that a briefing
in which an Attorney General or some other kind of a lawyer is
given a certain amount of information which adheres, means that the
result of that is that the Attorney General knows what the procedures
are. And at this time I would have to sav that I do not know what the
procedures are. I do not know what the possibilities are. I do not know
t'Ilonp:h about the minimization possibilities. The position on that is,
\\8 have asked that we be fully informed, that we be fuJIy informed
as to the lee,vays, the possible proceduresl the possible minimization
procedures, and the President has directed the KSA to provide that
information to the Department of Justice, to the Attorney General,
so that we can make some kind of a determination on it.
The CHAIR)L\K. Until you have that information, you really do not
have the foggiest idea of ,,-hether what they are cloing is 'legal or
illegal, constitutional or unconstitutional?
Attorney General LEVI. I would be glad to accept the protective
shape of that proposed answer. I suppose I ha~-e a foggy idea.
The CIL\IR:\IAN. You do not--
Attorney Genend LEVI. I do not think I should be in a position of
making a detrrmination about it until, for various reasons possibly,
hut not until I really knO\y \yhat it is and I have tolel you many times
that I do not know what it is. 1Ve have requested that we be given a
112
full account, which is probably not too easy to give. ,Ve haY{~ reqlH'stE'cl
that, procedures be outlined. More important. that the possible protectlve
procedures be outlined a.nd the President has specifically
directed them to give them to us. .
The CHAIRMAX. These practices have been going on for a long time.
Hundreds of thousands of American citizens have had their messages
intercepted by the Government. analyzed, disseminated to variolls
agcncies of thc (;0VPl'JlnH'nt. Do yon not think that it is awfullv latl'
f;)r the Attorney Genera1to Ill' ilHluiring about the pl'Ocednl'es in"onlp1'
to dE'tennine their constitutionality! I commend you for doing it:
this question is not meant to be critical of you. but looking back onr
the years that these practices haH gOll(' on. is it not [t very late date
that 'Yl' should now lw scrionsly inquiring into their constitutionality
at the .Justice DepartmE'nt?
Attorney General L}~vI. One first has to rE'member that the law has
('hanged, that some of those practices-I do not know which ones about
the KSA you are referring to--lwgan a long time ago, so as a matter
of fact. I cannot say that other ,,\ttorneysGeneral might not han.
years ago, inquired into it. So I do not know how to answer that.
except to say that I have not becn around that long as Attorney
Genera1.
If you go hack to l!lH. 1\)4!). yon really had a different shape to it
all, and one would have to look at it in those terms.
'I'll(> CHAIR").IAN. If I understood vour testimony this morning correctly.
you said that thl' Pl'esiclrrlt hl'S thc p(),wr to wirptap lln
~\mrrir:m citizen without a wanant if he is an agPllt or a collaborator
of a fon'ign po\\'rl'. This ,,'ould lw one of thosl' casrs where yon. as the
a,2'Pllt of th(> Prcsident. ,,'ouh1 approYe of a wiretap without a judicial
\Y~ll'1'allt.That is correct. is it not?
~\ttorneY General LEVI. It is r01'1'l'ct. although I neYer-I hope. I
do not thiilk that I said that that ,,'as all that we would look for.
Tlw Cn,\1n:lL\x. Oh. no. I was jnst taking one l'xample. You laid 01\t
the criteria. I think there were two or three things you would look fol'.
But one ~was an agent or collaborator of a foreign power. I do not think
that any of ns ,,'ould qnarrel \yith a wiretap on a foreign agent as
faning ,,'ithin thr counterintplligence operations of the Government,
and ha\'ing to do with both foreign intl'lligence and national security.
1Vhat I am interested in is hmv yon would vie,,: a foreign agent or
collabon1tor. For example. what is a collaborator? Suppose you have
young people who were proh'sting the ~war, for example, as so man:"
did. and some of them met with certain foreign government officials.
,Yould they then be rcganll'd as collaborators? How cloes this term
apply!
Attol'llry Gcnrral LEn. I think-I will ans\ver directly-I do not
mwt one to think that I am Hading the question. but then I want to
go on to say somrthing more.
I would not think that that ,,'ould makr a person a collaborator.
You have not given all the facts. Yon could turn it around and say.
one cannot say that one is a collahorator because one is. at the same
time. takin,g part in nnpopular political canses. One has to look Yer~'
carefnllv at ,,-hat the kind of c\"id0nce is. and that really points to the
procedll'rc, which it sel'ms to me in any constr-ndive solution of this
113
kind of problem. {)]l(' has to look to sre what procedures arc followed
rlEd what kind of e\'idence has to be weig·hed.
I am sure that thpre is rrally no abs;)lutely automatic way of doing
that. One of the strong argmnpnts that is so frequently made for
warrantless sIl1Tl'illancl' is that it is necessary to use it in order to
drtrrmine \yhether SOl1wone is an agent 01' a conscious agent. That,
of course. is celtainlv \yhat \Ye ha,-e trird to do is make sure that the
evicl('!\('r is bettl'r tha'n that.
The CIL\lR~L\X. Of coursr. the difficnlty is that judgment in a case
of this kind. and I "'ould suppose necessarily so, is made by interested
parties. so to speak. Tlw ~\ttol11ey General is a member of the executive
1n':mch as an agent of thr Prrsident. l'nlike t1lP ordinary law enforcewent
Cfise. there is neypr a necessity to present the reasons that gi ,'e
probahle cause to IlPlie"e that a crime has been performed to some
independent tribunal.
Therefore, the procedures and the criteria become very important.
.Tnst to press this. because I can think of other examples, I remember
t1](' case of .Toseph Krait. a distinguished columnist. meeting with
('('Ita ill foreign agents of a certain foreign government in Paris during
t11(' Vietnam ,,·ar. In your vip\y. he was presnmably looking for news.
looking for their vie"IYpoints. ,You](l that. in any sense, in your view,
Ilia ke him a collaborator and justify a wiretap?
~\ttol'llry General LEY!. Certfiinly ilOt. I hope I have not said anyth
ill~ that snggests that.
The' CHAIlDL\X.l do !lot IJe1ien you have. I am just trying to clarify
t11(' l:onncJal'ips L~' Illy qllPstions.
~\ttomr.v General LEn. Let Illr make the point. since we are talking
about the foreign legislation remedies you take. If one had a statute,
ow' of the things that I suppose that a judge might hn H' to make some
kiwI of finding on is "'hrth('r there is evidence suftieient to establish
the' eOllscious collaboration of agents.
Thpl'p is a problem there. because one would know that through th~
most s('('ret sources. and disclosure might expose someone to assassination.
It is the killd of thing which I suppose It judge could make a
finding' on. As far as the Attorney General's position is concerned, I
think that the Attorney General probably feels that his position is one
of protecting- the laws of the rnited States, protecting the President.
Hp is probably Illore vigilant on that account. I assure you that it
is much easier for me to sign the title III than it is to handle these
ease".
Thr CIIAlR~IAX. You have been, I think it is fair to say, a vigilant
.\ttoI'Ilev Genera1. bnt that has not always been the case. We have
hal] s~lI1'e Attorneys General who have paid very little heed to the law,
and (lId pretty much as the President wanted them to do. So, unless
\,(' ha\'e som(' statntory guidelines. I think that it is very dangerous
just to leave it to the Attorney General to decide. knowing that the
office changes, and Presidents change. Do yon think thaf, there is
an~' way that we could write into law certain statutory guidelines
which would determine when warrantless snrvei1lance would be
permissible. what test must be met ~
"\ttol11ey General LEVI. I would hope so. Other countries have been
nble to do it. and I would hope that this one conld. althongh I am
not nbsolutely confident. as I say. it "'onld have to be the reason I
114
pointed ant this morning. This is an area where people proceed frequently
by statutes through indirection, in part, because of the nature
of the problem. But I, myself, would hope that it would be possible to
have a statute.
The CHAIRJlTAX. If this committee should decide that among its
recommendations we should include a recommended statute that would
govern warrantless' surveillance in the general field of foreign intel·
ligence and national security, would you be prepared, as Attorney
General, to assist the cOlmnittee in desig11ing such a statute?
Attorney General LEVI. Of course. The more interesting question
is whether the committee, since it has more power, would be willing
to assist me.
The CHAIRMAN. The power of the committee in this case is merely
that of recommending. The actual action upon any recommendations
would ha,e to go to the appropriate legislative committees of the
Senate. But in any case, I should think that our collaboration may
be fruitful, and I w~lcome it. .
The other aspect of this case-there are many aspects of the case t llat
are troubling me. Because other Senators are here now, I do not want
to monopolize the time, but I would like to ask you just a question or
two on another term that is constantly coming into use, the term
"foreign intelligence." Here ''Ie have an agency, the NSA, which has
no statutory base, by creation of an Executive order. Its scope of authority
rests on certain executive directives that give it a general mission
of obtaining foreign intelligence.
Now, as I suggestE'd earlier, foreign intelligE'nce has newr heen
defined by statute, and I snppose that we could all agree that rf'rtain
kinds of information wonld clearly be foreign intelligence. But we
look at the NSA and we find that they are collecting all kinds of data
on economic intelligence: that now falls in what we now call foreign
intelligence, having to do with transfer of funds, business investments,
the movement of capital.
Suppose that an American company was making a decision with
respect to an investment in some foreign land, was interested in keeping
that decision secret for business rensons, competitive reasons. Is
that a case that would fall within the net of foreign intelli~ence.
thus entitling the government to obtain that kind of information' with~
out a warrant, because it is generically a part of what we have come to
can foreign intelligence? How do ,,'e grapple with this?
Attorney General LEY!. I think the way you have to grapple with
it, Mr. Chairman, is not just to belabor the point of what the definition
of foreign intelligence means, because, as you pointed out, it ran inelude
an enormous variety. It can indurle, for example, all kinds of
economic information. And I am quite sure that professional intelligence
people would think that a very wide net might be appropriate
because small items of information all bv themselves may not mean
anything, as I said in m:- statrment, but n'dded to somethili'g elsf', the,Y
mean something. So vou mi~'ht han- a verI' broad definition of fOJ'eian
intelligence within that a ~;erv broad notion of important econo;ic
information, but certainly the'inquiry does not stop there. One has to
sa:v, ,yell, how did they get it? What is the target of the surveillance'?
!s .it heing oh~ained through the targeting of an official foreign unit. or
IS It targeted III such a ,,'ay as to pick up American firms or Americans
who are discussing these proLll'llls?
115
As I tried to say this morning, it seems to me that the fourth amrndment
coveracre wfll depend to a considerable extent on the limitations
one can imp;se. It is one thing, I think-although this is a very difficult
field-for an American company to be discussing something ,vith a
foreign official establishment, and quite another thing when it is discussing
it with some kind of a foreign concern. So that it is one thing
where the information is picked up because the targeting is on the
foreiO'n governmental unit, or whatever it is, official unit, whatev"r it
is, and quite another thing where the targeting, in fact, is on the American
firm. A great deal will depend on how one-maybe one can
mechanically, to a considerable extent, minimize that. 'Vhen one gets
to that point, one has to find out how one can go any further.
The CHAIRJ\fAN. This committee knows that the NSA is one gigantic
set of earphones and all kinds of requests are coming in as to what to
listen to in the world, and the agencies themselves determine-I do not
suppose that the President enters into it, clearly the Attorney General
does not enter into it, no department of the government that is supposed
to look out for the laws and the Constitution enters into it. We
know some of the things they have done; some are laudible in terms
of the ultimate objective, for example, drug traffic. That is a good
thing to learn about. 'Ve are trying to enforce laws in this country,
and information that you can get by listening in on telephone conversations--
Attorney General LEVI. Of American citizens abroad?
The CHAIRlHAN. American citizens at one end of the terminal. and
possibly an American citizen on the other, or a foreign citizen on the
other; they listen to all the telephone conversations and extract ones
relating to drugs. That is a laudable purpose, but is that foreign
intelligence ? ~
Attorney General LEVI. It may be foreign.
The CI-IAIR.:\fAN. Or is that law enforcement?
Attorney General LEVI. It may be foreign intelligence, but as you
stated quite broadly, and you stated quite broadly a number of possible
sit,uations. Some of them I would regard as unconstitutional. At that
pOlllt the word-I cannot imagine the word intelligence is to be defined
in such a way as to permit unconstitutional behavior.
The CHAIRJ\fAN. Right. That is terribly important to say bec:.mse
very seldom can you get anybody, when you get into this field of
national security, to say that it is subject to the Constitution. It is
much more frequent for them to say in this area the Constitution is
an archaic docl~ment of the 18th century, and we have to be practic:1l
about these thmgs. I am not saying you suggested that, but I am
happy for you to say that even in questions relating to foreign intelligence
and national security, the Constitution and its guarantees
remain applicable.
Attorney General LEVI. Mr. Chairman, there are arguments-I mnst
say that I tried in the paper I gave this mornincr-in fact, Senator
)fathias. hurt my feelings by complimf'nting me. I was really trying
to be qUIte neutral. I was really not making an argument on one side
or the other. One argument that I did not include which is sometimes
made is that if .matters J}re picked Hp out of the air~ so to speak, as
waves of some kmd go across the ocean, that there is no reason for people
to assume that the conversations are private and therefore the
116
fourth amendment does not apply. I do not make that argument because
I do not like it, I guess, and because I think it goes too far. I guess
I say that only to say again that this is a very difficult field, and the
procedures which are devised and the protections that are devised
are terribly complicated.
::'enator .l\hTHIAS. If the chairman would yield, I do not think the
Attorney General's feelings should be hurt by what I said because I
believe I did indicate that there were those that might take this document
and raise it as their banner and march off in one direction. There
'''ould be others who would take this document and raise it as their
banner and march in the other.
_\.Homey ~neral LEY!. I hoped that is what you were going to say,
and I am delighted that you said it.
The CHAIRMAN. There is another example that the committee spent
a 'H>ek looking into, which was:20 years of opening the mail, conducted
by the CIA in this case, and it developed in the course of the inquiry
that some of this mail was opened because it was clearly foreign government
mail,1 Other mail mls opened because various agencies had furnished
the CIA ,vith names of American citizens that they wanted
'''ntched. If a letter were coming to that citizen or were being sent by
that citizen to a foreign address, that mail ,vas opened. Other evidence
show('d that letters were also op('n('d just at random, random selection
to l'rad and photograph and then to distribute to various agencies.
(}n']' the years, a quarter of a million lett21's ';-£'1'e opened and photograpIH'd
in this way. Do you think that that practice, which Tthink is a
fair statement of the range of ('yidence that we received. conforms "dth
the protections that are supposed to be conferred by the fourth amendment?
_\.ttorney General LEn. In one statement you mentioned, as I am
s1lI'e ~'on recognize, many different examples. You might ha \"I' 11 Iptter
which for some rpason or another yon get a warrant to open. and of
course. that can be done. You might haye Iptters written by or addressed
to partieular persons "'ho might or might not be American citizens
,,1lf'J'C' you would have good reason to think that they were conscious
collaborators. in a meaningful sense, of a foreign government. Then
yon would have the prohlem of where does the authorization to proceed
under Presidential power. if that is what we are discussing. come
fro111. And I think that one would have to look for the authorization.
Sow. you are in an area ",here there is a criminal investigation by
the Department, and I really should not say very much. I do want to
say that if one goes back early enou/lh in the forties Director Hoover
hn(l a particHlar position. I think. if I remember correctly, as censor
of the mails. appointed by the President for that purpose. So that it
dops l)('come a matter of sonw question as to authorization.
TJw ('HAIR~L\N. lVe have looked into the law and we cannot find any
ullthOl lzation for oppning thp mails. ",Ve find 1:1',8 and court decisions
ng'ainst it. CertainlY random opening of the mail could not possibly
1)(' reconciled with tIle fourth amendment.
.\ttorney General LEVI. I did not sav that.
The CHAIR)rA~. Could it? .
1 See Senate select committee hearings, vol. 4, Mail Openinl<.
lli
Attol'1ley General LEYI. I shonld not think the random opening conld.
Certainly in circumstances, I cannot imagine what circumstances to
imagine, I suppose random mail from a particular source would no
longer be random. so I do not know how to comment on that.
But I would like to go back to the authorization point becHlhP I
think that ,dmt you haye said suggests that there cannot be Pn·~idential
anthorization for it. I haye to say that I am not at all sure but
I think that there could be n Presidential nuthorization under nI'Y
limited circumstances. Then the question would be, would it han' to be
in writing. I do not know whether it has to be in writing or not. How
does onf' know whf'ther the authorization "'as ginn, is it belieYH bIe,
and so on and so on.
The CHAIRMAN. None of these procedures seem to exist in this area.
It is part of the work of this committee to try to get them denloped
and established.
Attomey General LEYI. That is right. I hope the activities to which
yon are referring do not exist either.
The CHAIRMAN. At the moment, the particular mail opening operation
has come to a halt, and since this investigation started, some of
the NSA activities have come to a halt, but 've would like to see some
laws that would keep it that way.
~enator Huddleston.
Senator HrDDLEsTON. Thank you, )11'. Chairman.
Attorney General Levi. I appreciate the detail and scholarly dissertation
that yon have giYen to this committee on this genern] suhject.
I did not hear all of it, but I did have an opportunity to read it.
I am olle of the few members of this committee that is not an attol'llf'\',
which I am sure is apparent when I pose questions relating to legal
problems. I am wondering, thongh, after reading your statement
whether or not I might be qualified at least to apply for a license to
practicf' law.
Attorney General LEVI. Yon mean the statement is so inferior that
anybody else could do it, too.
Senator HUDDLESTON. If I leal'1led all the knowledge there, I might
have something to go along with my honorary doctorate degree of ]:l'\',
Mr. Attorney General, there have been seyeral court cases. one
going back as far as 1928 in O"~terul Y. United States in which the
majority held that wire tapping did not constitute a trespass over
constitutional rights.•Tustin' Bramkis in a disspnt that said, "tIl(' progress
of science in furnishing Government with the means of espionage
is not likf'ly to stop wiretapping. 'Yays lllay some day be deyeloperl 1l\'
which the Government. without removal of papers from secret drawers,
can reproduce them in court. and by which it will be enabled to expose
to the jury the most intimate occurrences of a home." In a later
case, 1963, Lopez v. United States. the eflect of technology on the fourth
amendment guarantees was again alluded to by the Court throngh
.Tnstje(' Hl'f'J1nan. He snid that "this COl1l't hns hy flnd Inr!!f' stf'fldfasth
held the fourth amendment against the physical intrusiOll of a person's
home and property by law enforcement officers, but our course of decisions,
it now seems, have been outflanked by the technological advances
of the recent past." I am just wondering whether you think
that thf' Court's prf'sent posture with regard to the fourth amendnwnt
has been outflanked by the technology that is now amilable.
118
Attorney General LEVI. No; I do not. I think, in fact, what the Court
is doing is a little bit like what the Congress is doing, or has done,
That is to say, that it knows that technological advances are occurring.
It knows that many of these devices can be extremely important for
good in the sense that they are essential to the security of the country,
or for evil if they are misused. And it is difficult then for the Court,
and I think for the Congress, to try to solve the whole problem at once.
I do not believe that the legal system, even though lawyers like sometimes
to think it does, I do not think the legal system would say all of
the~p efforts must be banned, period. I think that that is just much too
simple. Therefore it is a complicated problem that has to be appl'u:
lched. I rnyself think it has been approached too piecemeal. I have
constantly said that one can put the pieces together.
Sc'lUttor HUi:lDLESTOX. Are you saying that rather than attempt to
legislate the kind of restrictions that would cover all of these possible
situations, that we are going to have to rely on court interpretations
of ('ach case as ive go along?
.Attorney General LEVI. You will have court interpretations. And
there will hai'e to be procedures, because one cannot really be sure of
what new dei'elopments will occur. One can build in reporting procedures,
one can build in a variety of kinds of procedures to try to handle
that.
Senator HCDDLESTOX. In your statement you list four pnrposes of
electronic surveillance. The first three come from language of Congress
in the Ul68 aet, so-called conceptions of national security. The fourth
one is new, which says "to obtain information certified as necessary
for r.1lC conduct of foreign affairs matters important to the national
security of the United States." \Vho certifies this?
Attorney General LEVI. As it says, it would have to be an appropriate
Presidential appointee.
Senator HCDDLESTO"'. It may be somebody he may designat€, Secreta
ry of State. Director of Central Intelligence.
Attorney General LEVI. It wonld have to be a Presidential appointee.
Senator HLDDLESTOX. In effect, on behalf of the President of the
rnjted States.
.Attorney General LEn. I am not sure it would jnst be that. I think
that also speaks to the level of the responsibility that that President
has and the appropriateness for him to give that kind of It certificate.
Senator H LDDLESTO",. How does that reason differ from the second
purpose that you han listed, which ivas to obtain foreign intelligence
deemed essential to thr securitv of the Nation?
Attorney General LEVI. It "is an excellent question coming from a
nonlawyer, and I interpret the two of them as the same. That has not
always been a welcome interpretation.
Senator HUDDLESTO"" It seems to me that the latter one would be a
litt 10 broader.
~\ttorney General LEVI. I do not interpret it as broader. I interpret
it as an attempt to say what foreign intelligence deemed essential to the
secnrity of the Nation might mean when it comes to the conduct of
forrign affairs, bnt my flat answer is that the way I have interpreted
that is to reC(uil'e that it be deemed essential.
Senator HLDDLESTON. In order for it to be important it has to be
essential.
119
Attorney General LEVI. This is an area where, if you are going to
have legislation or procedures, you will find that words of that kind are
always used. That is true in the Canadian legislation. It is just genemIly
true.
Se~lator HlnmLEsTox. Another area that is almost foreign to me, as I
understand the fourth amendment, it sets out very specifically that
\Y;\rrants should be obtained for instrusion, for search and seizure. It
:::ays, at least to me, that these warrants must be very specific, first of
all, in the place ,vhich is going to be searched; second, in things that
are to be seized. How can that be applied to a situation where, while
the general purpose may be acceptable-that of security, that of maybe
discovering a violation of law-the system is such that it is bound
to bring in a lot of extraneous information. It is almost as though you
had a warrant to search an apartment for drugs and you also walked
out with the dining room table, because a lot of information that is
picked up in conversations necessarily does not have anything at all
to do with the original purpose.
Attorney Geneml LEVI. If it ,,'ere a notorious dining room table
stolen from the lVbite House and the person who went in for drugs
could not help but notice it was there, I suppose it might be within
tlw authority to take it.
Senator HUDDLESTON. I understand if it is a clear observation that
there is something illegal about the dining room table, I would take
it, too. maybe. In the case of picking up conversations, this is not
the case. That is the first part of my question: How in the world can
you prescribe the activity to the extent that you would eliminate in
the first place getting this information which is a violation of privacy;
more importantly, though, is the use of it?
In some of our inquiry there have been at least indications that
some agencies have used information for the purpo:::e of either embarrassing
or discrediting individuals, although the specific information
that they used, gathered from wiretaps, had no relationship at
a11 to a crime or to the purpose that the ,"iretap was placed there. How
elo ynu keep that information from being used in such a 'vay as to
be detrimental to the citizen and when it is not related to the original
purpo~e of the surveillance?
.Attorney General LEVI. Senator, I really do not know how to answer
that one. lYhat you can do is to try to legislatively ban all operations.
That, of course, would be an expression of the opinion of the
Crmgress. It would raise a question whether it was Presidrntial power
to continue it any,,-ay, that you could attempt to han it. I suppose the
Prrsiclent could ban it.
Somehow or another that does not seem to me to be a constructive
,,'a~' to approach that kind of a problem because the fourth amendment
was not originally conceived of as applying to these kinds of
nwrhnnisms anyway. The fourth amendment has shown, by so many
othpr provisions in the Constitution~ which is one reason why the
Constitution works, that it can both C3Xry important values and have
a f!0xihility and yet have a real meaning- of protection. The problem
that yon are asking me is. of course, the central problem referring to
things likr. again, the NSA. operation which I think you are desClihing-,
bnt I all1110t sure.
120
Senator HUDDI-ESTOX. That is true, except you have two parts of
it because the NSA is just a collector, and it supplies the information
to its so-called customers. Thl'\' do not know what the customers
do with it. The customers might use it in a \vay entirely different from
what had been anticipated.
.c\.ttorney General LEVI. It is possible to devise procedurrs \v!licIt
undollbteclly arr not pel'fr.ct. designed to minimize it. \Vhat one ha:'
to do is see how far one can go in that. and then take a look at it
and see whether the achievement is sufficient. That is one of the
reasons that the President asked that these procedures be shown to
us. That is the reason that \YC asked for tllt' description, to see \vhat
procedures \vould be possible. I think the procedures can \,ork at
both ends, procedures as to what is picked up; you have to han procedures
as to what use is made of it and where it goes.
Senator HUDDLESTOX. Another elementary statement: Today under
the present interpretation of laws if an individual found out that he
had been maligned, damaged. or slandpl'ed by use of information that
had been gathered in what started out as a legitimate surveillance.
what recourse would he have? Could hp sue anybody~
Attol'Iley Gem'ral LEVI. Again. I really do not know how to answrr
that question. You are asking nw what is the relationship between
sUlTeillancc which may have been proper, or may have been improper
and the law of slander-it may be libel in the kind of case yOIl
drscribe. I just have to say I do not knmv the answer to that question.
If I did ~now it. I would havp to rrmind myself that the Department of
.rustice is defending a great many dpfendants in prrsPl1t cases wherr
thrre aT{' all kinds of lawsuits filed a.round the countrv. I do not think
I should bp making proelamations. '
Senator HlJDDLESTOX.•\1so in your statenlPnt. YOU say there' ~H(,
appropriate lwd adpqllUte standa~>ds for a person' being' wiretapper]
or bllgged. 'I'll(' qlH~stion is, these a,re ~>onr standarr]s. ('an they hind
any SlH'C'('ssor of YOllrs. or are they standards that are just con~titutionally
requirrd by the fourth amendment?
Attorney General LEVI. ·Well. it is mv view-two answers to that. In
the first place, the only authority that:I have in this area comes from
thp Prpsident. so that a good deal of what is decided is the authorizlltion
which is limited in that way bv the President. I cannot authorize'
an~-thing that goes beyond that. My interpretation of it is based on
what I regard as the constitutional reqllirements which I think in this
area rpsp0Jl(l to and do reflect to a considerable degree public polic~·
and concerns about individual rights. so that I think the only power
t Itr Attorney General has in this area is. first the authorization aIH]
its restrictions. and second. his interpretation of what the Constitution
allows.
Senatol' HroDLEsTOX. \'~hat wOllld lJrPvpnt a future Prrsident or
Attorney General from rpdefining a foreign agent or collaborator to
inclnde a political leadrl' who might collaborate in a sense with n £01'rign
goyernment by loh];yinr>' his col1ea:2'uPs for support for that C'01]11try.
nnd mepts with its officials?
'Attorney General LEVI. I think the Constitution would prevent that.
I am not smp that that is what your question is asking. I do not know
hoy; to anS\YPr a fluestion which says there is a great deal of varipty in
political leaders and there is a ,!.'.wat deal of history. Of comse there is.
1~1
I suppose that is why we ha,~e the form of government that we do
haye.
Senator HroDLEsTOX. It just occurred to me that a political enemy
of a President or Attorney General that may have had some foreign
contact could be brought under this as a potential collaborator, and
therefore be subject to surveillance.
."-ttornev General Ll;n. I included in the statement that one of the
procedures that has to be worked toward is to make sure that there is
no partisan political purpose. I am sure, speaking from what I lmow,
there is none. I cannot obviouslv talk about these other areas.
The CHAIR)IAX. Senator Sch"weiker.
Senator SCHWEIKER. Thank you, ~Ir. Chairman.
~1r. Attorney General, one of the concerns of this committee as
related to the warrant requirements is that the more deeply we got into
the various intelligence agencies, CIA, KSA, and FBI, there seems to
be ,1 failure in the system to go before any kind of neutral magistrate
to make a determination about such requirements. And the result is, 0:£
course, because that fail-safe system is not in operation, that we have
illrgal activities such as mail opening, listening, and black bag jobs.
hI like to ask you, as Attorney General, what is currently being done
in the Justice Department to give you some kind of a better check, better
control, better feel of the situation in terms of ferreting out possihle
illegal procedures and making certain that they are followed up
as to what happens in the future 'I
Attorney General LEn. As far as the Federal Bureau of Investigation
is concerned, there are memoranda from me and from the Director
which have asked that all activities which might raise any question
of impropriety be called to my attention. Insofar as you are talking
about what goes on in other agencies, what I think you are referring
to are violations of law. vVe have criminal prosecutions and we
ha,~e investigations in process now.
Senator SCHWEIKER. The problem here in the case of both mail opening
and KSA intereeptions-I believe the testimony shmvs that the
.\ttorney General did not know about the mail openings until 1973
and the KSA interceptions until 197;'5. So we have seen a breakdown
in the system in terms of your people being aware that these things
,wre going on for 20 or 30 years.
Attorney General LEVI. vVell--
Senator SCIIWEIKER. I'll say your people. I am talking about the
system.
o Attorney General LEYI. It seems to me that the kind of items that
)'ou are describing usually require presidential authorization of some
kil 1d or anot!lPr and I ,,~oul(l hope in the future that any such presi(
lential authorization or intended authorization would be passed upon
h~ the Attorney General.
. Senator SCIiwEIKER. The problem was that it did not have presi(
l('ntial authorization. In the case of mail opening I do not believe we
h:l<l any testimony specifically linking it to a President. This ,vas one
of the troubles. The sYstem seemed to break down because it does not
,go up the elwin of cOlimland at present. Apparently, in most cases not
to the Attorney General either. It seems to me it places a larger burden
OJl the Attorney G'enrral and the .Tustice Department to luwe a ,yay
of checking' this, finding it out, ferreting it onto That is the point I'm
trying to raise.
122
Attorney General LEVI. As I say, I do not understand unless there
is Presidential authorization on the mail openings, ror example, 01'
the kind or case where you can get a warrant. I am not sure how that
differs rrom any other kind or violation ir in ract they occur. There is
always the problem about authorization. I would not be so sure abont
who, arter a great many years have passed, has the burden. I really
should not discuss that, the question or authorization. If you are
saying do I know some automatic way, no; I do not.
'Senator SCHwEmER. Let me put the question another way thell.
How would you reel about an Inspector General's office under your
direction that would have this responsibility?
Attorney General LEVI. That would roam around the Government?
Senator SCHW"EIKER. To the areas that you would normally haw
jurisdiction ror prosecution ir there were illegal procedures. It Sf>ems
to me that something is missing in our government procedures. That
inrormation has not gotten to the Justice Department so that action
could be taken. The CIA has an Inspector General. The question is
whether the Attorney General shou~d have ror his procedures an
Inspector General procedure or some kmd.
Attorney General LEVI. The argument that is being made is that
the Inspector General worked so well with the CIA, that the Department
of Justice should also have a similar, perhaps a more general
Inspector General? I really think what is involved is, first, the morality,
which is perhaps not the right word, or the administration of the country.
I say it is not the right word because I am very conscious that
many or these things were begun at different times with different spirit
and reeling or importance and what not. But, second, the enrorcement
or the criminal law. And I think that has to be pursued vigorously.
I am not sure that an Inspector General would make any difference
in terms or the investigation because the investigation would be conducted
for us, as you described it now ror the other agencies, by the
FBI.
Senator SCHWEIKER. Let me rocus maybe even more specifically on
my question. Part I, section 9 or the FBI manual, ror example, which
is entitled "Disciplinary )Iatters." has this section in it. I would Ii ke
to read it. This is a matter of the policing or possible areas or possible
illegality. It's entitled "Disciplinary Matters."
It reads. and I quote:
Any investigation necessary to de,elop complete essential facts regarding any
allegation against Bureau employees mnst be instituted promptly, and every
logical lead which 'will establish the true facts should be completely run out
nnless such action would embarrass the Bureau or might prejudice pendillg
investigations or prosecutions in which event the Bureau will weight the facts,
along with the recommendation of the division head.
I think the attitnclinal prahlI'm. the intrinsic institutional prohlclll,
here is a built-in pl'OcCflnre. that ir it's embarrassing to the Bureau,
that investigation is aLorted. I'm talking here to the FBI. Frankly.
I can ma1w jll;;:;t ns strong n case ror CIA as someone else. I do not
want tD single out the FBI.
It seems to me as Jong as VOll have that attitude within the Government
by enfOl'C'f'rS llmfpeol)lc \yho look at others for laws, we really
haY(' some problems, If it is embarrassing, do not pursne it, do not
follo\'; it up, do not inYestigate~ abort. "Tlwt is your response to that
123
attitude, that situation? Do you agree with that statement? Should
that be a part of the FBI manual?
Attorney General LEVI. Senator, I assume you know I do not agree
with the statemC'nt. First, I do not know ",hen this delightful statement
was written. Statements of this kind have been in the Go,'el11ment
long enough, I know get written, and there they are. They do
remind me when I ,vas in the Antitrust Division, of similar statements
written by employees of companies, and obviously, it is a foolish
and wrong statement. I am sure that it does not retiect the present
policy or attituue of the Bnreau.
On the ,,-hole, I think it is a rather good thing that you haY(' this
document and that I have it and that one can usc it to make the point
which I suppose has to be repeatedly made. But I can assure you that
as far as I know, that docs not represent the present position of the
Bureau in anv wav. I have not seen this before. That should not surprise
you. Tllere are a number of these things I have not seen. I am
glad to see it. I suppose that this is one of those actions that "Woulel
embarrass the Bureau and so they will have to deal with it. It is a little
unfortunate, I think, because I am sure the present lca(1ercohip of the
Bureau is not reflected in the slight€st in this statement. Of course I am
opposed to this statement.
Senator SCHWErKER. To be fair, ~[r. Attorney GeneraL "e did alert
you this morning that I vms going to make tli.is point so you would
have a response.
Attorney General LEn. To be fair, that is really not the case. 'To be
fair, I was alerted when I sat clm,n here after lunch and I had no opportunity
to check it whatsoever. I did not muke any point of it. because
it "would not have made any difference.
Senator SCHWEIKER. IVe did"eall the Bureau this morning, Mr. Attorney
General. rhey came back with a statement to me. I assume they
came back to you around lunch time. :My only point is we first talked
about this esoterically, theoretically. You say you do not really see a
need for an Inspector General's office. You do not see a neecl to police
it. I'm getting very specific. I think intrinsically and institutionally
that there is a heck of a problem and we have it here and this is just
part of it. I am not pinning it on the FBI or CIA.
Attorney General LEVI. The Bureau does have a very active inspection
system. The Department of .Justice when there is an allegation of
"Tongdoing-we establish a separate group to look into it. So really
it becomes a question-I am not arguing about the means.
Eienator SCHwErKER. I asked you that just 5 minutes ago.
Attorney General LEVI. Then I do not understand the question.
I thonght the question was, should we have an Inspector General in
the Department of .Tllstiee for the entire Government. I thouO'ht that
}
• C ,..as w lflt your questJOn was.
Senator SCHWEIKEH. Both.
Attorney General Lv-vI. As to the letter. it seems to me that the Department
of .Justice's function, when it is not referred to as a matter
of law, would be a violation of the criminal law, and we have to be
vig'ilant in the enforcement of criminal law.
Senator SCHWEIKER. 'What we are dealing with is an intrinsic. inher('
ut institntional problem. In one of the other hearings we had on
black bag jobs, a memo again said that in essence black bag jobs are
124
justified. The special agent in charge must completely justify the need
TO]' tlw nse of the technique-black bag job--and at the same time asSl1rr
that it can be used safely without any danger or embarrassment
to tlw Bureau.
The point that T am making is that the criteria seem to be not what
the facts are, not ,,,hat the legalities are, not what the integrity of the
system is. not what the enforcers ought to be doing, but is it embarrassing?
.\s :roulook through here, this is really the whole thrust, and to pnsh
it 011 and say: "Gee ,,,hiz. we do not need an Inspector General, we do
not need this. we do not need thaL" is to ignore the whole mountain of
eyidence the other way. I think it is the job of this committee to point
this ont. I think it is the job of all of us to see if we cannot find a better
,,,ay of giying assistance.
I do not want to say the FBI-I want to make it very clear you
can make just as strong a case against any intelligence agency you
,"oul(l look at. It just so happens that ,,,e have something in terms of
specifics. To say that there is no problem, to say that we do not need
a system. to Sa" that we do not seek some kind of inspector. is to say
\H:do not haY(,'to take a look at it. Thonestly do not think it's realistic.
That is all I have. ~fr. Chairman. .
cHtomey General LEVI. I ,,,ish to say that the Attorney General did
J] ot s:' y thosr thimfs.
~rnator SCHWEIKER. I would like to insert into the record a statement
provided to me by the FBI which is the Bureau's explanation of
tlw provision in the present manual that I have been referring to.
[The material referred to follows:]
ThE' FBI's }fanual of Rules and Regulations; Part I, Section 9: Disciplinary
MattE'rs; Item C: Investigation; states as follows:
"Any inwstigation necessary to develop complE'te essential facts regarding any
allE'l:ntion al'?:ninst BurE'au employees must be instituted promptly, and every
log-ical lead which will establish the true facts should be completely run out unless
wcll action would E'mbarrass the Bureau or might prejudice pending investigations
or prosecutions in which event the Bureau will weigh the facts, along with
tlw rE'cor.mwndation of the division head,"
TIlE' statE'ment, "unless such action would E'mbarrass the Bureau," means that
in sueh eventuality, FBI Headquarters desires to be advisE'd of the matter before
inYt'sti,gation is instituted so that Headquarters would be on notice and could
clil'pct the inquiry if necessary,
The statement. "unless su('h action ... might prejudice pending invE'stigations
or prosecution;" in which event the Bureau will WE'igh the facts" mE'ans that in
,Suell cases, FBI Headquarters would desire to carefully evaluate the propriety of
initiating or defE'l'l'ing invE'stigation of a disciplinary matter where such im'estig-
ation might prejudice pending invE'stigations or prosecutions.
Xothing in this ",fanual provision is intended to dpviate from tbp FBI's e!'<tahli!'<
hed policy of conducting logical and npcpssary investigation to resolve possible
misconduct on the part of its employees!
Senator HART of Colorado. ~rr. Attornev General, just an observation
of your statement: ~rll('h of the' case law ~'on presented, and the
po1i(':" discussions anI' the years rf'late to unauthorized use of inforI11ntion
by Gonrnment employees, FBI age.nts, or whatever, carrying
out snrwi11ance, ,viretapping. and so on. One of the reasons that this
committee sits and von aTe here today is the chanlIcd circnmstanC('s.
tlw situation ,vhere'the highest officials of onr Government use the
instrmnentnlities and the information the~' gain for ,,,lwt('''Cr pm'pose.
1 See ~.\cppendix, page 164,
125
largely for political purposes, often for an i~leg!timate pu~·pose. "'\V~at
we 'vant to do is address that problem, wInch IS at least In my ml!1d
utmost, rather than the problem of the random FBI agent, Justlce
lawyer, U.S. attorney, or assistant U.S. attorney somewhere, who may
strike out with a little bit of information he picked up. "'\Ye are concerned
about the frontiers here and consequently I think your thoughts
on the question of warranted versus warrantless search and seizure,
are extremely important to us.
I noticed at the beginning of your statement in this connection, you
talk about your present policies of authorizing.electronic su~vei11anee,
and interestingly enough, of the four. categorIes you mentlOn~d, two
start off with the purpose of protectmg, and two start off With the
purpose of obtaining. I personally have very little problem with the
two, starting off with protect. I have more problem with the two that
talk about obtaining-"to obtain foreign intelligence deemed essential
to the security of the Xation." That, as I am sure you would admit,
is a very, very wide category. Although your statement i.s liI?ited to
electronic surveillance, it could be broadened to the breakmg mto embassies
and a lot of other things. Do you feel competent to determine,
even with the structure established under you, what is essential to the
security of this Nation ?,
Attorney General LEVI. I feel competent to pass in a legal way on
whether the kind of certification ,vhich has been given to me and to
my staff, along with such responses to questions of importance which
we may have, so that we are sure that the certification is taken seriously
and so that ,ve can hawl some measure of the importance. Yes:
I feel competent to do that. I am sure that a different answer would
be that the intelligence people would think that I was quite incompetent
to do it.
Senator I-L\RT of Colorado. "'\Vould you feel equally comfortable with
this procedure if you knew your successor were a highly politicized
Attomey General, appointed by a President in which you had little
confidence, whom you suspected would use this procedure to further
his own political purposes?
Attorney General LEVI. I would never feel comfortable with people
in high office if that is what it is, distorting the law for political
reasons.
Senator H,\RT of Colorado. There is no law here. This is the problem
we are talking about.
Attorney General LEVI. That is not my view in the slightest. I think
that there is law. I do not know how one defines that. There are cases;
they make law.
Senator HART of Colorado. What cases would you refer tD, to instruct
you as to what is essential to the security of the Nation? ""Ve
are talking about judgment here, factual judgment.
Attorney General LEVI. All right. That happens to come, that language
comes from the proviso which Congress wrote into title III.
And I suppose it would be the same law if Congress, in writing it in.
had provided some kind of a procedure to implement it. We would
stilI have tD make that determination.
I do not know going back to--you asked me really two questions.
One is am I competent to make that determination or members of my
61-522-16-9
126
staff; and second, how would I feel about someone who is distorting
judgments for political rcasons or something. I thillk spcftking ill
this political forum, I ahrays feel uncomfortable if legal matters, if
the interpretation of this phrase in a sense is a legal matter, are distorted.
But I think that the constructive problem is, if this is not the
best way to do it, to find the best way to do it. I tried to discuss in the
paper how one \vould do it if you went to a judge for a warrant; on
that you \vould have exactly the same kind of a problem. It might be
worse.
Senator IL'\RT of Colorado. How about a congressional oversight
committee to which you brought these requests and consulted with
them to share that burden?
Attorney General LEVI. That strikes me as raising both of the questions
that you asked me. First, the one of competence and second, a
political vie\v. So I do not know \vhat to say. You have had more
experience than I have had on such matters, about whether that ,vould
make it more or less political. And the second question, I do not know
if the information is secure. I cannot answer that either. "Whether that
would be some kind of a check, I do not know-that kind of a procedure
as mentioned in the paper is followed in some foreign countries.
",Vhile I have not given-and I rather doubt \vhether a congressional
oversight committee might 'want the specific job of passing on a
warrant or an authorization, \vhich I \yould not regard as oversight
at all. I do not know what YOU would call it. I do not know whether
you "auld want that. I have" reported to what I regarded as the appropriate,
so-called oversight committees. mainly the .Judiciary Committees,
quite precisely, on wiretaps and microphones. The question is
how far one goes with that. I do not know whether it is the cOJlgressional
O\'el'sight function to pass on a particular warrant. That may
be. That seems to me to raise serious constitutional problems.
Senator I-L\RT of Colorado. I take it your answers so far would apply
to the fonrth category, also to obtain information certified as necessary
for the conduct of foreign affairs. Does that include, let us say, a
Secretary of State \....ho is concerned about members of his staff talking
to the press?
Attornev General LEVI. Certainly not.
Senator'HART of Colorado. Certainly not?
Attorney General LEVI. Certainly not.
Senator HART of Colorado. Well, if to the degree that conduct of
foreign affairs is being jeopardized or was thought to be jeopardized
by possible leaks from within the staff, I would think obtaining information
about that would be important, would it not?
Attorney General LEVI. If you think that, Senator Hart, I really
have to worry about the procedure that vou are suggesting about having
it go to an oversight committee. •
Senator HART of Colorado. I did not suggest it. I was merely asking
your opinion.
Attorney General LEVI. My opinion would be it would not.
Senator HART of Colorado. Why is that?
Attorney General LEVI. I do not think that that is an appropriate
way to read that kind of doctrine against the background of what I
tried in this paper to describe as the reach of the fourth amendment.
I would think it quite inappropriate and a violation really of what
127
the Keith case is talking about. I cannot believe that either you or
1-
Senator R.\.RT of Colorado. I am sorry. \Ve have some dangling
answers here. I am not sure I understood what you said.
Attorney General LEVI. Apparently I misunderstood you. I thought
you said that a scrutiny of a newspaperman as to whether he was getting
leaks, whether that was necessary for the foreign affairs matters
and national security of the United States, would that be uncovered?
I misunderstood you to sav that you thought it would be. That
shocked me. •
Senator HART of Colorado. I was asking a rhetorical question, Again,
,ve have the problem that '.ve don't knmv what your successor would
think.
Attornev General LEYT. ,ITe do not knmv ,vho he is, I presume.
Senator'IL\RT of Colorado. If the Secretarv of State were to come
to the Attorney General and sny, "a member ofmy staff is talking to the
press about matters importantto the conduct 01 foreign affairs"-you
say you ,Yould not grant it. 'lYe do not know whether your successor
,vould.
Attorney General LEVI. It is unconstitutional.
Senator'HART of Colorado. I hope your successor :feels the same way.
Unfortunately, I have to go vote. ""Ve will bid you good day. Thank
you very much for your participation.
[A brief recess was taken.]
Senator MATHIAS. Mr. Attorney General, you have chosen to visit
us on a yery peripatetic day. ,Ve seem to haye difficulty in arranging
our meeting so we do not stumble all over each other.
I was interested in several of the facets of the statement. One, in
"hich you refer to the Constitution as emanating from and applying
to the people. And I do not think any of us seriously challenges that
flS a concept. But I guess the difficulty arises, when do you decide
that a certain American is no longer one of the people?
Andlet me ask the question, maybe more speeifically, if an American
citizen is charged with foreign espionage, does that separate him from
the people?
Attorney General LEYI. No. Of course the fourth amendment applies
to it, as do other constitutional protections. I think that was not really
intended to be the thrust of that paragraph.
Senator :MATHIAS. So that the mere charge or serious suspicion on
the part of the law enforcement authorities would not suspend the
protections of the fourth amendment?
Attorney General LEVI. Senator, if I may so say to sharpen it, the
question is whether you think it applies to foreign nations. And all I
was sug-gesting was that its application must at least take account of
that difference.
Senator :MATHIAS. Also in your statement. you refer to the fact that
at the same time, in dealing ,,,ith this area, it may be mistaken to focus
on the warrant requirement alone to the exclusion of other, possibly
more realistic, proteetions, That could get us into days of discussion
on what more realistic protections are, I was more interested that there
seemed to be a cross-reference between that and another line in which
yOll refer to the Canadian experience, in ,yhieh one of the other more
,'ealistie protections was the report to the Parliament of the number
128
of national security surveillances initiated, their average length, a
general description of the methods of interception or seizure used, and
an assessment of their utilitv.
You and I, on a previous occasion, discussed a bill which I had introduced
,vhich in fact calls for this very kind of a report to the Congress.
I wonder if you would like to enlarge on either of these references?
Attorney General LEn. I think that is a possibility, and I said, I
think ,vhen you were not here, that I had, in fact, made something of
a report that mlS made public to the Judiciary Committee which gave
some of this information. Now. my guess is that the Solicitor General
files in Omada are in fact, quite general, and it is probably somewhat
the same as my letter. althou!rh mine did not include an assessment of
the utility. \Vl~cn you were not here, Senator Hart was asking me how
I felt ab'out having a so-called oYersight committee, if I understood
him correctly. to determine ,,,hether a ,varrant or authorization could
be given. Tllnt seemed to me to mix up all parts of the Government
even more than they are nOlV, and to raise security questions and so on.
It is obviously something one can think about.
Senator MATHIAS. In some\dwt the same area, Kevin T. Maroney
who is your Deputy Assistant in the Criminal Division testified in the
House and argued against a requirement of judicial warrant in all
national security cases. One of the grouncls he advanced vms the question
of the competency of judges, who are perhaps not that accustomed
to dealing with foreign policy matters, to evaluate the affidaYit of a
person ,Yho is a foreign intelligence expert. It is a long time since I
earned a living at the law. My recollection is, we impose on judges a
task of evaluating a wide yariety of technical questions on matters that
deal with inclustl'ial processes, with surgical procedures, with traffic
patterns, with environmental questions. ,Voulc1 you not think that a
judge could e"aluate an affidavit that the person who was a foreign
intelligence expert as he does other expert testimony?
Attorney General LEVI. I think that there would be some problems.
In the first place, it would be hard to get a doctrine of common law on
the subject. because opinions could not really be written. A great deal
of the material would be extremely confidential.
Since I concluded that portion of my paper, not Kevin Maroney's, by
saying that I thought that a judicial warrant would gin a greater
sense of security to the country, I do not want to overpress the point
that it would be difficult for judges to make the kind of determinations
that would be necessary. I ,Yould say that I would assume that they
would have to spencl as much time on it as I do, and would have to have
as much a staff on it as I do, which is considerable, and that there would
be security problems, and so on and so forth, and the security of the
judge. So that, I also think that the judges undoubtedly would respond
to this in general by haying broad categories where they automatically,
,yhere I clo not. ryive the warrant. I think that that is a fact. I do not
say that becanse'I wish to keep for myself or my successors this undelightful
duty. I think it is something that you have to take account of.
though, in thinking about the legislation.
Senator MATHIAS. You have been very patient with us, I must say,
in spite of the fact that your voice is still very strong and yigorous-Attorney
General LEY!. It is because of electronic surveillance.
129
Senator MATHIAS. 'Without pressing you on that point, I would say
that it does concern me that an American has less protection because
the "probable cause" standard docs not exist if there is a suspicion of a
national security interest in the case.
Attorney General LEVI. I think the fact is that at the moment Americans
have much more protection under the procedures that we have
devised than they do under title III.
Senator MATHIAS. That is a subject that will be debated, I think.
The CHAIRMAN. You are talking about your Department, are you
not, and not the NSA?
Attorney General LEVI. Yes; that is all I am talking about.
The CHAIRMAN. You are just talking about the Justice Department?
Attorney General LEVI. That is correct.
Senator MATHIAS. I have two very brief other questions. I am just
wondering if, in your view, the constitutional powers in the area of
foreign intelligence are exclusive to the Executive or whether they are
concurrent with the legislative branch?
Attorney General LEVI. They are sufficiently concurrent so that legislation
by the Congress would be influential. You have an example of
it, because the wording of the President's memorandum, while not
identical, so closely follows the proviso that Congress wrote. You are
asking me whether I think there is presidential power beyond that,
and my answer is, "Yes."
Senator lfATHIAs. Finally, and I realize this might be asking you
to make a statement against your interests, whatever way you answer:
Do you think the Attorney General ought to be a statutory member of
the National Security Council?
Attorney General LEVI. I have never thought of that. Up until the
present time, I have been delighted that I have not been.
Senator MATHIAS. If you think further of it and care to share your
thoughts with US, we would be glad to hear them.
The CHAImIAN. One final question from me. I have listened to the
discussion of how one set of procedures, a traditional set of procedures
involving courts and warrants, has developed in the criminal field;
how a very different set of procedures exist in the intelligence or national
security field; how, in the latter field, people could be watched
and listened to without knowing in any way that their rights had been
trespassed upon by a less scrupulous Attorney General than yourself,
or a less scrupulous administration; and how there is nothing outside
of the executive branch to check on it, and in this way it is different
from the ordinary practices in the law; I think it is potentially very
dangerous. You can fall back on the argument that good men will
establish and follow good procedures, but there is no one outside the
executive branch that can check on any of this, and I should think that
there ought to be. Maybe it is not a judge that has to give a warrant.
That may not be the practical way of dealing with it. :Maybe it should
be an oversight committee of the Congress that exercises jurisdiction
oyer such matters, a committee that can ascertain to its own satisfaction
that pro~edures are being followed and the laws, whatever they
may be, are bemg adhered to.
The question I have relates hm';ever to the FBI. I sometimes think
that the FBI has a kind of .Tek:vll and Hyde complex, in the sense that
'when it is dealing with law enforcement matters it has these rather
130
traditional procedures that it must adhere to; but when the same
agency deals with the counterintelligence, national security, it is living
in a different ·world. ,Vould it be sensible to break the Bureau in two
so that the part that deals with traditional law enforcement is that, and
that alone, and that another department within the Justice Department
and under the Attorney General would deal exclusively with
national security and counterintelligence matters, that are really quite
a different character than normal law enforcement?
Attorney General LEVI. Obviously, that is not a question that one
answers without a great deal of thought. My own present view is that
it would not be a good idea, because the point is to develop procedures
which are adhered to just as vigorously in both areas. This is one
reason we do have a committee which has been hard at work fashioning
guidelines. These guidelines, when completed-I think the committee
has seen some of them-will be in statutory or Executive order
form.
But I think, whatever the shortcomings may have been in the past,
that a strong attribute of the Bureau is its discipline, and that one
wants to develop in this area-where, by the way, it is wrong in some
sense to fault agencies when the law changed as it did. It would bE'
desirable to develop procedures in that area which would evoke the
same discipline and, although the area is quite different, there are
comparable points, the checking, the reviewing, the getting permission,
and so on. It is really a different world. One of the problems, Mr.
Chairman, if I may say so, is when one looks at the past, one finds
some terribly interesting things, hut sometimes one forgets what the
present is like.
Tho CUAIRlIfAN. I will not belabor the point, except to say when one
agency does both kinds of work, I think that there is some dangel',
although it may be well-disciplined, for the methods in the one area
to creep into the other. It may be more sensible to let counterintelligcmce
and national security matters of that kind be handled by a separate
bureau under the .Justice Department. I would not want to see
it all thrown into the CIA, for example; I want them to look outward
in dealing with foreign countries, and not dealing with this country.
But a separate department within Justice that deals with this quite
separate matter from ordinary law enforcement, is an idea which I
think should be given more thought.
Thank you very much for your testimony.
Our next witness is Prof. Philip Heymann of the Harvard Law
School.
[The prepared statement of Prof. Philip Heymann in full follows:]
PREPARED STATEMENT OF PHILIP B. HEY~rANN, PROFESSOR OF LAW, HARVARD
LAW SCHOOL
1, INTRODUCTION
A. This Committe€ has heard evidence about a number of aethities of the
intelligence agencies which raise significant questions.
1. Two forms of activities are familiar:
a. Surreptitious entries.
h. Domestic electronic surveillance.
2. Two other forms of activity were previously unknown and raise comparatively
novel questions:
a. The opening of maHto and from the United States.

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