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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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b. The interception of cable and phone communications between the united
States and foreign countries.
B. These activities and others the Committee has reviewed raise three sets
of questions. I shall address only the last of the three, not because the others
are unimportant or even less important but because time does not allow dealing
with all of them on a single occasion.
1. 'l'here is a serious question about the collection of files 011 dissenters. I
think there can be no serious doubt that an operation such as the "CHAOS"
operation of the CIA tends to discourage participation in legitimate political
activities, particularly by those who are somewhat timid. The Army intelligence
gathering program raised similar questions.
2. Wholly separate from the question of the chilling effect of an excessive
collection and maintenance of files, there are the unique problems that are created
when intelligence agencies such as the CIA and NSA wander into the domestic
area. 'l'hese agencies ai"e unlike our domestic investigative agencies in a number
of rcleva.nt ways.
a. Tlley are funded in the billions of dollaTs.
b. Their employees are trained to operate in secret circumstances abroad and
without necessary conformity with local law.
c. 'l'lle importance of secrecy makes the monitoring function performed for
domestic agencies by the Congress, the courts, and the public at large much less
applicable.
'l'hese characteristics led the Congress to attach a statutory prohibition to
domestic activities of the CIA. I am aware that members of the Committee
pressed General Allen all whether this would not also be desirable for the NSA.
3. The third subject for the Committee's concern, and the only one I intend to
address today, is the problem of invading the privacy of communications of
American citizens. This is an area that the Fourth Amendment of the Constitution
and a number of statutes protect. In discussing this area I will attempt to
make clear where the law is moderately firm and where it is uncertain. I shall
also do my best to separate off my recommendations from my estimates of what
the law is.
C. As we proceed to discuss these questions, it will become apparent that additional
legislation would be highly desirable for several reasons.
1. We are dealing with the area of foreign policy and most particularly with
the special situation of intelligence gathering and secret technology. This Committee
and through it, the Congress, have a factual basis for assessing these
matters which courts cannot duplicate. This is especially true after the Committee's
extended set of hearings.
2. There are obvious and important gaps in the present law which legislation
will be needed to flll. I will allude to these as I proceed.
II. THE EFFECT OF A GOVERNMENTAL INTEREST IN FOREIGN INTELLIGENCE ON THE
FOCRTH AMENDMENT RIGHTS OF CITIZENS
A. One question runs through each of the areas the Committee bas been investigating:
to what extent does the Fourth Amendment apply to matters of
national security?
1. 'l'here are a series of additional difficulties to be addressed in connection
with searches of international mail and international voice and non-voice
communications.
2. But the same question as to what difference is made by a foreign intelligence
objective applies to those programs as well as to more familiar searches of
homes. offices, or domestic communications.
B. The Fourth Amendment provides two different forms of protection, each of
which could be affected by the fact that the government is pursuing a foreign
intelligence interest.
1. Through its requirement of a judicial warrant absent certain long-established
exceptions for emergencies and arrests, the Amendment imposes a more neutral
e"alnation of the situation between a governmental desire for information and
the action of engaging in a search. It also, equally significantly, requires a written,
sworn record of the basis on which the search is undertaken.
a. It is important to emphasize, as .Justice Powell did in United States v.
District Court, that the fears the framers had in mind included not only invasions
of privacy but also the use of a search to silence dissent.
lJ. The classic language IH're is that a detached, neutral judicial officer should
stand between an over-eager executive branch and the rights of citizens.
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2. 'I'he Fourth Amendment also imposes certain requirements of probable cause
and sensible procedures.
a. In this al'ea there has been a great deal of fluidity. Less probable cause is
necessary if the intrusion is less or if the threatened harm is greater.
lJ. SUCll requirements as notice of tbe search bave been held to be snhject to
re:1Sonable modifications as in the case of the "Wiretap Act where no nutice need
be giyen for nincty days and even thcn it can be delayed if this is essential to an
investigation.
C. The simpler part of the question as to the impact of national secnrity concerns
on the Fourth Amendment goes to the need for a warrant at nil. This part
Illay be the more important nOlletheless, for on our trust in the neutrality of
judges turns a great deal of the citizens' sense of securit~· as well as a real protE'etion
against unjustified attacks on dissent or a simple arbitrariness.
1. 'Vith the concurrence of judgE'S from the most conservative to the most
liberal wings of their benches, the courts have by now gone far toward answering
the question as to the necessity for a warrant in national security areas.
a. First the Supl'eme Court held in a unanimous opinion by Justice Powell that
the President had no power to dispense with the warrant in the area of internal
security. Justice Powell emphasized the dangers to dissent.
b. 'I'hen after two courts had sustained surveillance without a warrant of
diplomatic establishments and non-citizen foreign agents, the D.C. Circuit in
Zwcibon v. lJIitchell has held unanimously that, at least whereyer the party being
monitored is neither a foreign agent nor a collaborator with a foreign government,
a warrant is required for a wiretap even in the pursuit of fOTeign intelligence
or foreign policy.
c. Note that this leaves the government free to search without a warrant in
the cases of embassies and non-resident employees of foreign governments.
d. This area is one to be regulated by diplomacy, not by the Fourth
Amendment.
2. The courts' reasoning has been, I believe, persuasive.
a. The rules as to probable cause and necessary procedures can be adjusted in
such a way that the requirement of a warrant protects against malice, arbitrariness,
or attacks on dissent without limiting the government in its pursuit of
legitimate goals.
b. The history of the Fourth Amendment involves a number of searches in
the national security area where, in important cases, warrants have been
reqUired.
c. The notion that courts are unable to understand enough of the situation
to exercise a meaningful review function is implausible, especially when one
recognizes that the Attorney General exercised that function for the executive
branch. Moreover, there is no real risk of revealing secrets. The record of courts
in this regard is far better than that of the executive branch.
d. It is my understanding that the Attorney General has now accepted the
position of the D.C. Circuit at least for the time being.
3. These cases leave open three questions that the Committee could well
address:
a. No court has yet held that an American citizen or resident alien-as opposed
to an embassy or foreign employee of another nation-who is found to be
a foreign agent or collaborator can be searched without judicially determined
probable cause to believe he has committed espionage, sabotage, or some other
crime. Both the Supreme Court and the D.C. Circuit have left that question
open. Should there be such a category? The case against it is that the Congress
has prohibited and can prohibit any conduct it considers dungerous to our
national security and that no action should be taken against a citizen until there
is reason to believe be has violated (or conspired to violate) such a prohibition.
The case for an exception is that secret foreign agents are an important source
of positive information about intentions of other gOYernments and about other
agents even when they are not yet engaged in illegal conduct.
b. If there is to be such a less-protected category of citizens who are secret
agents, what should the definition of foreign agent or collaborator be when we
are dealing with American citizens? It cannot, for example, open to electronic
surveillance the telephones of any law firm which represents the government
of France or Bolivia. A statutory definition would have to involve the secret
acceptance of payor directions from a foreign government.
c. Perhaps most important, if there is a category of American citizens who
are foreign agents or collalJorators and which receives less protection under the
Fourth Amendment, should tllere not be a requirement that the status of foreign
133
agent or collaborator, as defined by Congress, be determined by the courts on
a warrant. The excessive suspicions of Presidents Johnson and Nixon that
anti-war dissent was controlled from abroad led to the CHAOS program. A
sensible protection against any recurrence would be to require a judicial warrant
based on a sworn affidavit establishing that a citizen is a foreign agent.
This is obviously 11 highly important protection when organized, legitimate
disagreement with government policy is involved.
D. The second aspect of the queston whether a foreign intelligence interest
makes a difference to Fourth Amendment protection is harder. It raises the
question whether in the case of citizens ,rho are not foreign agents or collaborators
,,,ith a foreign government there is any right to s<'arch simply to obtain
foreign intelligence and not only, as traditionally. with prohable cause to believe
that eyidence of a crime will be found. On analysis, it seems clear to me that
no such right should eXist, although the case law is not helpful one way or the
other.
1. Put in its clearest form, the question is this. Assume that an American
industrialist or banker has returned from an unfriendly country with knowledge
that would be yery valuable to our intelligcn<.:e agencies regarding the industry
or finances of the foreign country.
a. Certainly it is proper to ask the American citizen to reveal that information
and indeed we presentlY do.
b. But what if that extremely important foreign intelligence is withheld by
the citizen for any of a number of reasons. Can he then be made a subject of
electronic surreillance or can his home and office be searched if the information
is important enough? The question, quite starkly, is whether there should be
a warrant procedure that allows searching entirely loyal Americans wheneyer
there is probable cause to believe that they possess important foreign intelligence
which they will not reveal freely.
2. I believe the answer to this question is that the matter should be handled
by leg'islation, if at all, and not by executive discretion. Although the merits
of the proposal are highly questionable, the Congress might:
a. Make it a crime to fail to turn over certain well-specified classes of information.
If it did, there would then be probable cause to search for and seize such
information if it was not turned over.
b. In the alternative, the Congress could make a well-defined class of information
subject to subpoena.
I don't recommend either of these alternatiYcs, but they are obviously preferable
to an undefined executive discretion to search entirely loyal American
citizens. If the matter is to be handled at all. it should be by legislation.
3. There is indeed case law that indicates that a search of an innocent party
is improper unless there is reason to believe that the evidence will not be turned
oyer voluntarily or in response to a subpoena. This case law would also suggest
that only a well-defined class of foreign agents (who could not be expected to
comply with a subpoena) might possibly be subject to electronic surveillance
in order to obtain valuable, positire intelligence in situations where there is
no reason to belieye that they haye committed or are about to commit a crime.
III. TIlE ADDITIOXAL DIFFICULTIES PRESENTED BY THE PROGRAMS OF MAIL OPENINGS
AND INTERCEPTION OF II\TERNATIONAL COMMUNICATIONS TO AND FROM THE UI\ITED
STATES AXD INVOLVING UNITED STATES CITIZENS
A. Vi'holly aside from the special questions with regard to a possible foreign
intelligence exception to the Fourth Amendment rights of American citizens,
there are a series of difficult problems presented by the testimony the Committee
has receiyed with regard to mail openings and interception of international
communications. I will address three of these in an order of increasing
difficulty.
B. Fourth Amendml.'nt rights only pertain to American citizens in a situation
,,-here they cnjoy a reasonable expectation of privacy with regard to their comIllunica
tions.
1. The situation with regard to mail is unusuallv clear.
a. TIl(' germinal case dealing with Fourth An~endment protection of the Illail
waf! E:r Parte .!aek8()n, fl6 U.S. 727 (1878) in which the court helti thnt while
in the first class mail. papers can only he opened anti examined nnder a search
,,-n.rrant. This Tnle which was reaffirmed as rN'pntly as 1070 in U.s. Y. Van
J,ceI11DCJ1. :'\fl7 U.R. 249. is now embodied in a fetieral statute. 39 U.S.f'. 4057. It
proYides tllat "only un employee opening dead mail by authority of the Post
134
~Iaster General, or a person holding a search warrant authorized by law may
<lpen any letter or parcel of the first class which is in the custody of tlIe Department."
b. The only possible questions involve whether a U.S. citizen is protected as
a recipient of mail from a foreign resident, or is only protected as the sender
of mail. For four reasons I believe it is moderately well established that We
recipient is also protected.
(1) A number of cases have indicated that there is such protection subject
only to a reasonable customs power. See, c.g., U.S. v. Bohnen, 298 F. Supp. 51
and U.S. ... Farious Articles of Obsccne j}[erchand'isc, SuS l!'. Supp. 165; State v.
Gallan t, 308 A.2d 274.
(2) sn U.S.C. 4057 seems to clearly cover the recipient as well as the sender.
(3) The modern law with regard to the privacy of oral communications protects
ail the parties to the communication anll would probably be read to apply
to all the parties to a written communication as well.
(4) 'l'he recipient of a letter has something very close to a possessory claim
to the paper 011 which it is written.
2. I believe the situation with regard to voice communications involving an
American citizen and with one terminal in the United States is equally plainly
covered both by the Constitution and by thc Omnibus Crime Control and Safe
Streets Act of 1068.
a. The definition of "wire communication" in the 1968 Act includes any comn1Unication
made through the use of facilities for the transmission of communications
by cable by any person engaged as a common carrier in providing
such facilities for the transmission of foreign communications. The definition
of common carrier plainly incorporates international communications to and
from the United States.
b. PresumablY the definition of "oral communications" would be read to he
consistent \vith' that and would therefore include radiotype voice communications.
S. The situation with regard to non-voice communications is less clear, but I
believe there is every indication that they, too, would be considered protected
under the Fourth Amendment.
a. As a matter of a reasonable privacy in expectation of communications, the
only difference from voice communications is the extent to which a cable is
revealed openly to a transmitting company. This might make revelation of its
contents to the government within the reasonable expectation of senders were
it not for 47 U.S.C. §605, the old Wiretap Act, which still forbids the revelation
of content except "in response to a subpoena issued by a court of competent
jurisdiction or on demand of other lawful authority." Any other form of interception
of a non-voice communication would be a violation of a reasonable expectation
of privacy. I take it that the voluntary act of a common carrier in
complying with a request by a government agency to turn over cable traffic
would not satisfy the exception for "demand of other lawful authority," a
phrase that is apparently intended to refer to the subpoena powers granted by
Congress to various agencies. See NeWfield v. Ryan, 91 F.2d 700. Certainly an
interception without the assistance of the common carrier would be treated as
an invasion of the privacy of communications. Still, I should quickly acknowledv,
e that tlwre are practically no 1<'onrth Amendment cases dealing with the
interCE'I)tion of communications either domestically or in international traffic.
b. I do not believe that the 1968 statute covers non-voice communications. Its
definition of "intercept" requires "the aural acquisition of the contents of any
wire or oral communication." Acquiring the contents of a non-voice communication
would not be "aural." The only possible statutory prohibition is in 47 U.S.C.
§ 605 which first prohibits the interception and divulgence of radio communications
and then states that "no person not being entitled thereto shall receive
or assist in receiving any ... foreign communication by radio and use such
communication (or any information therein contained) for his own benefit or
for the benefit of another not entitled thereto."
4. With regard to each of these forms of communication, the situation may be
entirely different when there are two foreign terminals.
a. A channel of communication that is overwhelmingly used and controlled by
foreign interests does not invoke a reasonable expectation of privacy by American
citizens.
b. The only qualification here would be if American agents or foreign governments
acting at their behest specifically targeted the foreign communications of
an American citizen. Here there might well be a Fourth Amendment claim.
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C. In one situation the result of all this seems moderately clear. If an intelligence
agency wants to open the letters or intercept the international communications
of a named American citizen who is the target of an investigation, it will
naye to get a warrant and either show there is probable cause to believe the
citizen is committing a crime or, if the Congress so determines, show that he
is a secret foreign agent and that the communication is likely to contain important
foreign intelligence.
1. This alone disposes of many of the situations before the Committee.
2. The lack of a clear law dealing with non-voice communications suggests
that t he Committee would serve a real function by addressing this question
directly.
D. The luudest question arises with communications that can, without a
serious inyasipn of lll'ivacy, be checked for words or other selection criteria or,
in the case of letters, for indicators on the envelope that tend to show that the
COP.llllUllication may contain evidence of a past or prospective crime.
1. In the case of mail, looking at the outside of the envelope for indicators
that it ma~' contain evidence is not itself a search.
2. The difficult question arises if it turns out that the indicators will lead the
investigatiyt' agency to read a number of innocent letters for each letter that
contains evidence of a past or prospective crime. At this point, there is apparently
lW c!l(,:ce other than to either open the letter and invade the privacy of the
~encler mul receiver or to leave it unopened although there is a probability that
it contains evidence bearing on a substantial danger.
a. In traditional t>'rms, the question is one of a general search. The Constitution
,vas \yrilten to forbid general search warrants such as the Writs of Assistance
were in colonial times.
b. There is no simple answer to when a search is too general. Any search
involves a certain probability that it will not reveal evidence and every search,
even where the result is that evidence is found, involves breaching the privacy of
non,eyitlentiary matters. The question is always one of establishing a balance
hetween the illyasion of privacy and the need for the search. As always under
tile Fourth Amendment, if what is involved is a serious prospective crime, there
is more room for a fairly general search.
3. The problem with international communications is similar, but may be
subject to more of a technological solution. Consider the case of non-voice communications
between an American citizen and an alien.
a. General Allen's testimony indicates that it may be possible to identify
certain selection criteria without reading the entire message. These, like the
indicators on the outside of a letter, would narrow the number of communications
inspected and would increase the probability that any single communication
containpd evidence of a past or prospective crime. If this were done mechanically
without reading all of the messages, there would not be a search during this stage
of the operation.
b. \'.'hen a narrower, but perhaps still excessive, class of non-voice communications
has been identified, it may be possible to review these without revealing
the name of the sender or receiver. Adding in that second step would substantially
rednce the invasion of privacy.
c. It is also, of course, relevant whether the intelligence agency immediately
discards an" message that, on reading, proves to be innocent without keeping
copies or recol'us of the transactions.
4. The hardest question of all would be presented if: (1) an important part
of the communications traffic on an international route to and from the United
Statcs does not involve American citizens; and (2) there is no way of sorting
this part of the traffic from the part involving American citizens without a
substantial invasion of the privacy rights of citizens. This might well be true
with regard to voice communications, for example. Here there would be two
questions to be addressed in sequence.
a. What procedures could be developed to minimize the intrusion on the
privacy of American citizens, for example by quickly and completely discarding
any communication involving American citizens and not revealing evidence of a
crime?
b. What is the balance between the now-diminished invasion of the privacy
of American citizens and the volume and importance of the purely foreign
traffic involved? If, for example, ninety-five percent of the "take" were domestic
and the remaining five percent pertained primarily to commercial matters, the
balance would have to be struck in favd'r of forbidding the particular technique
of intercepting international communications.
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E. Obviously the questions I have just reviewed concerning- the permissible
techniques for monitoring international communications are matters which badly
need legislative standards. In some cases, the nature of the program will he so
clear and stable that Congress could itself define the requirements. In other
cases, the Committee might well wish to consider a warrant requirement that
first set forth general standards and procedures and then directed a court to
approve a hroad vlan for monitoring a particular type of communications.
1. In either event, I would think it was highly tlesirahle to require the intelligence
agency to furnish on a continuing hasis two forms of information.
a. Copies of any communications perused in their entirety with some indication
of which onE'S were furnished to other government departments.
b. A numerical summary of the relationship between communications read but
discarded and communications read and kept as part of any governmental program
or file.
2. This will make it possible to estimate the extent to which the search is
over-broad, the equivalent of a general warrant.
TESTIMONY OF PHILIP B. HEYMANN, PROFESSOR OF LAW,
HARVARD LAW SCHOOL
Mr. HEYl\L\XN. Mr. Chairman, I recognize it is late, and if I could
submit my prepared statement for the record, I would be happy to try
to sunm1arize in a very few minutes 'vhat I have to say.
Tlly objective. ::\11'. Chairman, is to try to state clearly the four or five
or six issues that I think are presented by surreptitious entries, domestic
bugging', NSA interceptions and mail openings.
I have had the feeling today that sometimes we are dealing with a
larg-c ball of wax called national security; sometimes we are dealing
with 500 difficult little issues. :'\Iy own view, and I hope I can convince
YOll, is that there are abod five or six different issues. and that
this committee can address them individually with the result. I hope,
that the law will be a little clearer when you are through. There are
two types of issues. I want to break the categories into two, and then
bred: them. There are certain issues that go directlv to what the impact
of foreign intelligence is on fourth amendment rights. Then there
is another set of issues that involve what is special about international
communications, mail, nonvoice cable. or voice.
Let me start with the question of ,vhat is special about national intelligence,
foreign intelligence, because that one cuts through everything
this committee has looked at. It cuts all the wav from black
bag jobs to sophisticated NSA items. v
As you well know, there are two pri;nrrry protections here, and foreign
intelligence considerations could afi'ect these. First, the fourth
amendment has a warrant protection, to get a judge over an overly
eager executive branch, if it is over-eager in a search. The warrant was
there largely, as Justice Powell reminded us recently, because of fears
as far back as the 18th century.
In the area of the warrant, the first part of what is special about
intelligence, the courts have taken us a very long way toward a conclusion.
First the Supreme Court, in the United States v. U.S. District
Court, held that internal security required a warrant. Then the D.C.
Circuit, in Zweibon v. l1fitchell, in an opinion that the Attorney General
has said he will live with, at least for the time being, has said
even when the Government is pursuing foreign intelligence, it must
get a warrant unless it's dealing with a foreign agent or colhLborator.
In other words, a great deal of the ambiguity the Congress left in
137
1968 is now cut down to the question, what happens with foreign
agents and collaborators. As to that, I think that this committee has
two very important questions to addI:ess, and it has been asking them
of the Attorney General today. One question is: 'Vhat should the definition
of foreign agent or collaborator be? Senator Hart was pressing
the Attorney General on that. It is not going to be an easy thing to
draw up. If there is some special category of foreign agent and collaborator,
it is going to take some work. It cannot include Kew York
law firms who are representing Bolivia or France. It cannot include
major .Jewish organizations ,Yorking in collaboration with Israel on a
bond drive. It is going to take some work.
The second issue under the ,,,arrant that this committee is going
to have to address is: If there is an exception for foreign agents and
collaborators, should that be decided by the executive branch without
a warrant, or should there be a warrant required where a judge
decides that someone is a foreign agent, a citizen, a foreign agent
or collaborator? Let me be clear that no one, including me or any
court, is suggesting a warrant requirement for embassies or nonresident
employees of foreign gonrnments, all right? But what if
the executive branch believes that someone is a foreign agent or a
collaborator? Should not a court have to get into it? I would strongly
urge that they should.
The CHAIR~L\~. Are you talking in this point, Professor Heymann,
about bugging and wiretapping? The cases you have cited
relate to those traditional methods.
Mr. HEYMANN. I believe exactly the same standard would apply
with regard to intercepting overseas communications, Senator Church.
In other words, as I go about three steps down the line I am going
to say to you that I think it is clear that international mail with a
U.S. terminal, or U.S. citizen; international phone conversations,
the same conditions: and international cable traffic, are all protected
by the fourth amendment. I am going to give you cases and statutes
that say that, and I am going to say that requires a warrant unless
it is a foreign agent.
I hope that this committee says if the Government wants to say
it is a foreign agent. it will require a warrant to certify that it is a
foreign agent.
The second half of what is special about foreign intelligence is do
you always need probable cause of crime, or can the Government
sometimes go out, simply pursuing foreign intelligence. I think that
you have to divide that one into two cases. One, with regard to foreign
agents or collaborators, it makes some sense. There is a quite argtlable
position that for a foreign agent or a collaborator so certified by
a court on a warrant, the Government ought to be able to pursue foreign
intelligence, not just probable cause of a crime. The executive
branch could live with a stricter standard, but there are cases that
you can imagine and point out where a foreign agent would have
information about a foreign country's plan that you wanted to pick
up, with or without probable cause that the agent is committing a
crime: or a foreign agent would make contact with other agents whose
names it was important to know.
My sharpest difference with everything that the Attorney General
was saying comes, I think, in the question. can the Government pick
67-5220-76-10
138
up information from loyal, trustworthy American citizens by electronic
surveillance at home, or through international means? Can it
do that simply to get foreign intelligence when there is no evidence
of a crime '? Let me state the question very specifically: if David Rockefeller
goes to the Soviet Union and learns information about their
financial structure that the CIA would give a great deal to know,
that it is very important to our foreign security, is there a right to
bug David Rockefeller's phone to find out what he has learned?
At the moment, as you know, we do make inquiries of David Rockefeller,
and that is entirely proper. The question is if for any of a
number of reasons he refuses to furnish that information, the foreign
intelligence information that the executive branch wants, can his
communications be monitored to find it out?
The CHAIRl\IAN. At home?
Mr. HEYl\L\NK. I mean at home. bv cable overseas, letter overseas.
I mean by phone overseas, Mr. Cha·irman. It seems to me that the
Congress ;has to face up to that rather directly.
The CHAIRl\IAN. Let us take the case of business transactions that
may have an economic impact upon the Unit€d States. I would take it
that if thev were a transaction that involved foreign governments,
investment~. capital transfers and the like, that this would be within
the right. of the Government. to obtain information through electronic
surveillance methods, or any other method.
Mr. HEYMANN. The position that. I am urging on you, Senator-The
CHAIRMAN. We are talking now about actions of foreign governments
in the economic field.
Mr. HEYMANN. The question is whether the communications of an
American citizen are monitored secretly to find out that information.
I suggest to you that Congress would not pass a statute making it a
crime to withhold valuable information, making it a crime for an
American citizen to withhold valuable information, that Congress
would probably not pass a statute authorizing an executive agency to
subpena that information. It would be regarded as the information of
that citizen. If Congress were not to allo'w it to be done directly by
criminal statute or subpena. Congress should not allow it to be done
indirectly by the executive branch monitoring an entirely innocent
American citizen's communications.
The CHAIRMAN. Suppose that you are looking simply for intelligence
having to do with mes...-~gesof foreign governments.
MI'. HEYMANN Wholly?
The CHAIRMAN. You would have no problem with that?
MI'. HEYMANN. Foreign to foreign messages, I would have no trouble
with, and foreign to foreign terminals, I have no trouble with.
The CHAIRMAN. How about messages between foreigners, as such,
either abroad with both terminals abroad, or one terminal in this
countrv and the other terminal abroad? Any trouble with that?
MI'. HEUIANN. Between two foreigners?
The CHAIRMAN. Yes.
Mr. HEYMANN. No, Mr. Chairman. There could be possibly a problem
with resident aliens, but setting that minor problem aside.-The
CHAIR.lfAN. Suppose in order to get the messages of foreign governments
or foreign aliens with which you would have no problem,
139
it was necessary for technical reasons to take these messages out of the
whole stream of messages.
Mr. HEYMANN. That is the hardest problem of all, Mr. Chairman.
The CHAIR..."\fAN. Yes, it is.
Mr. HEYMANN. If I just may take three sentences to work up to the
hardest problem. As I said to you, my statement makes clear that I
think the law is absolutely solid that letters, including international
letters, are protected. They have been protected by statute of Congress
since 1825. The Supreme Court has held them highly protected for
the last 80,90 years. I think the law with regard to international voice
communications involving American citizens is clear, constitutionally
protected, and protected under the Safe Streets and Crime Act. I think
the Wiretap Act applies to international communications if you look
carefully at its definitions.
Mr. SCHWARZ. Do you mean with one terminal in the United States?
Mr. HEYMANN. With one terminal in the United States, that is the
way the definition was.
Finally, I think the case is slightly less clear in regard to· nonvoice
communIcations. What this means, the second sentence that leads up to
your hardest of examples, if these are protected communications, then
you need a warrant. I think the Attorney General agrees with that,
although he is hard pressed to say at this time, November 6, whatever
date it is. If these are protected communications, the executive branch
cannot read them or hear them without a warrant if what is being
read, if what is being targeted is an American citizen. If somebody
says I want to read Frank Church's international cables, there is a
warrant requirement protecting it.
The hardest question, if what is being targeted is not an individual
American, if it is an individual American--
The CHAIRMAN. To answer my question.
Mr. HEYMANN. That is the hardest question. As your committee has
heard, the NSA has systems for identifying particular parts of the international
traffic which are somewhat more likelv to contain either
evidence of a crime or foreign intelligence info;mation than other
parts. What if once it has identified a large, relatively large volume
of traffic, that is suspicious? It will still be true that the investigating
agency is going to have to read a great deal of that traffic in order to
separate out perhaps perfectly proper foreign-to-foreign cables from
American cables. Then what? My answer is really quite similar to the
Attorney General's, if I heard him right, Mr. Chairman. The first
question is what steps can be taken to minimize the invasion of privacy
with regard to the protected cables involving an American citizen, an
American terminal, or a protected phone conversation or protected
mail? What steps can be taken to minimize the invasion? That includ~
s. among other things, how quickly is the matter discarded. who
sees It.
The second step which I think the Attorney General recognized
this morning is you then compare the minimized-a court woul(l have
to and the Congress would have to-the minimized damage to American
privacy with the importance and the value of the foreign-to-foreign
traffic which is intercepted. If it turns out that 95 percent of the
traffic is protected in the sense that it involves a loyal American citizen
as one terminal in the Fnited States. and 5 percent is foreign to
140
foreign, and the 5 percent is not of great value, say the 5 percent involves
the price of grain; then the whole bundle would be unconstitutional.
THE CHAIRMAN. Who makes that judgment?
Mr. HEYMANN. The last question. It can only be done in one or two
ways, I believe. If we are talking about a type of interception of communications
which was very constant over time, Congress could go far
to either declaring it legal or illegal. If we are talking about a type
of interception that may change and be different next year than it
is this year, Congress is going to have to lay down standards for courts
to apply.
Now the Attorney General's statement this morning contains references
to a number of cases where the Supreme Court has ordered and
authorized courts to set up general principles and general procedures
for handling fourth amendment questions. The most recent is ,Tustice
Powell involving Customs searches on the border of Mexico. The
Supreme Court with Justice Powell speaking said, the lower court
ought to say just when and where there can be inspections within 20
miles of the border of Mexico.
I believe that ultimately the Congress is going to have to pass a
statute that sets forth standards and then requires a warrant from a
court. Perhaps a warrant approving a monitoring system with a whole
volume of traffic. It does not have to be a warrant for each individual
bit. Congress is going to have to set forth the standards and courts are
going to have to come in and apply them.
Finally, I think it is very important that the whole system is not
going to work unless there is some what is technically called feedback
where the court or legislative oversight committee keeps getting records
regularly giving a comparison of the quantity and quality of
the American messages being intercepted, the innocent American messages
being intercepted, a comparison of that quantity and quality
with the value of the legitimate take. There is going to have to be
some wrt of system that keeps bringing that back in.
The CHAffiMAN. It would seem to me that where you get into the
legitimate foreign intelligence area that the introduction of a court
device or the warrant device may indeed become very awkward.
The best device would be an oversight committee of the Congress that
would be kept fully informed and would pass judgment on these cases
just to satisfy itself that these operations were being kept within
proper guidelines and under proper restriction.
The trouble I have with the Attorney General's dissertation and his
responses today is that he somehow seems to visualize that all of
this could be done within the executive branch, that everything could
be worked out with better procedures. Unless there is somebody checking
on the executive branch that is not part of the executive branch
and not subject to the ultimate control, direction and dismissal of the
President, I do not think you have much protection.
Mr. HEYMANN. I certainly agree with that, Mr. Chairman. The
only thing that I question in your statement is to whatever extent it
involves a notion that entirely innocent, meaning nonforeign agent,
American citizens can properly be monitored in their communications
at home or from home to abroad simply because they are thought to
possess in their minds intelligence which the CIA, or the NSA, or the
State Department, or the Department of Defense, or the White House
141
would like to have. That is a notion which I believe on reflection the
committee will find unpalatable. I must say I believe that, and a number
of courts have acted whether it is in dictum quite acceptable. On
reflection courts will not accept it. I think when tIl(' committee thinks
hard about what it means--
The CHAIRMAN. In such cases you would require a warrant, or would
you simply flatly prohibit?
Mr. HEYMANN. I would simply flatly prohibit a claim to own the
mental--
The CHAIRMAN. That would be part of the definition. That would
be part of the statutory exclusion from a definition of foreign intelligence.
Mr. HEYMANN. That is correct. In fact, the amendment that was
written in 1789 or 1791 requires probable cause. Of course it has
been extended and applies otherwise now.
The CHAIRMAN. Mr. Schwarz would like to ask a question.
Mr. SCHWARZ. Picking up on Senator Church's and your recognition
of the hardest question, on a stream of communications, I understood
your first point to be that if upon analysis the foreign intelligence
value of the stream is not very great, even though it might exist,
you say the stream could not be surveilled at all.
Mr. HEYMANN. If surveilling the stream requires a substantial invasion
of the privacy of protected American communications.
Mr. SCHWARZ. Now let us assume that the stream does include significant,
legitimate fnreign intelligence-government to governmentand
in the courSe of analyzing. of obtaining that. it is technologically
inevitable that one also obtains American citizrns' messages. I want to
put two different cases to you. One of those messages from an American
citizen to an American citizen upon analysis contains eviclence of
a crime, although no one had any reason to suspect that before the
stream was interrupted. The other message contains eviclence of either
economic matters or political matters. \\mat do you 00 with those
two messages that NSA or some other agencv has now? Pnder your
first principle, it was legitimate for the NSA to snrvri11 the strel\m.
and in the course of doing so it has acquired these two messag-es. What
shonld thev do with them?
~rr. KTR·BOW. This is withont a "'arrant?
~rr. SCHWARZ. TllPrr has been no warrant.
~fr. HEY)[ANN. ~fv answer. ~fr. Schwarz, is the traditional one.
T helie\'c it is the oj;posite of what the Attorney General suggested
todav. I think if the XSA legitimately reacls a message which revealed
itself as being evidence of a crime. keeps that message and seizes it. it
has come upon it legitimately ancl is eviflencf' of a crime. It keeps it
and uses it and sends it to the FBI and it sends the people to jail. The
other messap"e that it renos that involn's economic information, it has
no right to. That is what I was urging npon Sf'nator Church. That you
havp no right to take from ~\nlPrican citizens what they happen to
know just because the Government is interested in it. too.
Onr of my major differpnces with the Attorney Gpneral this morning
was the notion that the fonrth amendment particnlarly protects
criminals. that its most important function is to exrJnde evidence
against criminals. It ,vas not written for that. It was written to protect
142
you and me. In your case I would send it directly to the FBI. I would
send the message that indicated evidence of crime.
~fr. SCHWARZ. That you would send to the FBI, but the one economic
or political--
)1r. HEYl\fAXX. ,Yould have to be destroyed immediately.
)fr. leIRBOW. ,Yhere do you attach the illegality? At the collection
point, or the distribution point, or the machine where they supposedly
sort all of this you are talking about?
~fr. HEYMAXX. Let me take it in those three stag-es, Mr. Kirbow.
I do not think that there is any search that is worth being called a
search that would trouble anybody, either in looking at the envelopes
for indicators, whatever they may be. I do not know what they are, or
in g-oing through voice or nonvoice traffic simply to cut down from
1 million items to 100,000 items which have the word assassination in
them, let us say, or have the word Xorth Korea in them. I do not think
there is any search running those million items past somebody, only
going so far. That does not seem to be a search.
The next step is the question as to whether you then have to read
the 100,000 items along with the name of the sender and receiver. If it
were technologically possible to do this somehow or another without
g-etting the name of the sender and receiver, you could read the items.
I think that there was just a limited search at the second stage. But if
at the second stage, having cut yourself down to envelopes with indicators
or some other kind of international traffic with selection criteria,
if at that point you have to read the whole message or hear the whole
message, together with the sender and receiver. there is very definitely
a search at that point. You can minimize the effect of the search by
thereafter discarding quickly whatever you have no right to.
~1r. KIRBOW. Do you mean to draw a distinction between reading the
body of the message which I send as being different from one which
I send if you read my signature as the sender and the addressee as the
receiver? Do you draw a distinction between those two categories?
~fr. HEY~L\XX. I recognized it is idiosyncratic. I have not seen it
anywhere else. ,"nen I think of it myself. I think I would feel quite
differently. Let us take a letter. for example. about having a Government
official read my letter, the body of my letter. If it were possible
to eliminate who wrote it and who it is to. I would feel very differently
about the privacy of that letter from a Government official reading it
and knowing who it is from and who it is to.
)fr. KIRBOW. You are familiar with some of the technology of extremely
high-speed transmissions. are you not? How do you distinguish
there where they are almost instantaneously sent and then the
signal goes off the air. and in that stream or volume of information
when they are finally decoded on the other end. or smoothed ont on the
other end. we will C:all it bv another mechanical device? How do yoU
provide for snch high-speed transmissions in this theory of yours a's to
what is legal? These are messages which make nothing but a sound as
they go out over the air as you probably know. What do you do with
those sort of things, which is the predominant way of sending secret
information?
)1r. HEYl\L\NN. I just have togo through the steps. :Mr. Kirbow.
There is no happy answer at the end of the steps. The first qnestion is
you have to ide.ntify conceptually what it is legitimate to pick up and
143
what it is not legitimate to pick up on that instantaneous stream, almost
instantaneous s-tream. I have arg-ued it is only leg-itimate to pick
up foreign agents' traffic. foreign to foreign traffic. evidence-of-crime
traffic. or something like that. First you haYe to identify what is illegitimate
and what is legitimate. Then you ask yourself, is there any
,,-ay that you can process this strE'am so to cut <lm\n the invasion of
privacy to a minimum in the leg-itimate traffic that should not be
intercepted?
You know. in the protected traffic. once you haw done that and you
explore e\'Cry possibility for doing that. vou do it by statute or by ~warrant.
The next step is to say what is the balance between ,vhat is properly
taken out of that and what is not? I agree ,\"it11 vou. I think yoU
are sug-gesting-, ~I:r. Kirbow. when you are all through ,vith that l{ind
of fancy transmission. you're going to hnve a lot of USI?ll?ss stuff that
vou are allowed to take and a lot of stuff that YOU are not allowl?d to
take when you arl? all through. At that point C'ongress and the courts
are g-oing to have to decide whether you are getting too much that is
proteet~d in order to get what you are leg-itimately allowed to take.
:Mr. KIRBOW. Among the methods being- used I do not see when the
production comes you can review it as an aftereffect thing-. I do not see
how you are protecting the "ender and receiver from an interception of
the communication.
~fr. HEY:\L\XX. J would ref]uire some kind of warrant in advance,
unless Cong-ress could handle that by statute. which I do not think the
,,-armnt procedure-I am shooting a little bit from the hip. Mr.
Kirbow. I have only been thinking about it in thE' last few days since
I startE'd looking into it. The warmnt procedure might say a court
would itself pass on the selE'ction criteria and the Congress might say
use qualitative standards. saying the selection criteria shoulrl onlv be
acceptable if they are so designed as to bring in highlv important
information of a forl?ign intelligencl? sort, proportionate in some way
to the im-asion of privacy. Thl?n it could go on and Congress could add
a second paragraph and 8.:'ty, eYen with thE'se selection criteria, it can
only be u"ed if the following measures and minimization are used.
Something like that.
Mr. KlRBOW. Thank vou.
The CHAIRMAN. I think that we all recog-nize that this is a very
complex mattrr when we are dealing with snch advanced and rapidly
changing trchnologies. and it leans us all groping for new wavs to
keep old protections alive. .
I think that yonr testimony has been very forthrig-ht and it has been
yerv hel pfnl. I want to thank VOll for it.
Mr. HEY2IL\XX. Thank von ~'erv mnch.
. The CI.£AIRl\1;\N. That conclndps thr hearing today. 'Ye mret again
m a pubhe srSSlOn at the call of the Chair.
['Vhereupon. at 4 :25 p.m.. tIlr hearing in thr abovf'-mcntioned matter
was concluded.]

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