SUPPLEMENTARY DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS
BOOK III /// FINAL REPORT
OF THE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES UNITED STATES SENATE
APRIL 23 (under authority of the order of April 14), 1976
WARRANTLESS FBI ELECTRONIC SURVEILLANCE
Technological developments in this century have rendered the most private conversations of American citizens vulnerable to interception and monitoring by government agents. The electronic means by which the Government can extend its "antennae" are varied: microphones may be secretly planted in private locations or on mobile informants; so-called "spike mikes" may be inserted into the wall of an adjoining room; and parabolic microphones may be directed at speakers far away to register the sound waves they emit. Telephone conversations may be overheard without the necessity of attaching electronic devices to the telephone itself or to the lines connecting the telephone with the telephone company. An ordinary telephone may also be turned into an open microphone — a "miketel" capable of intercepting all conversations within hearing range even when the telephone is not in use.
Even more sophisticated technology permits the Government to intercept any telephone, telegram, or telex communication which is transmitted at least partially through the air, as most such communications now are. This type of interception is virtually undetectable and does not require the cooperation of private communications companies.
Techniques such as these have been used, and continue to be used, by intelligence agencies in their intelligence operations. Since the early part of this century the FBI has utilized wiretapping and "bugging" techniques in both criminal and intelligence investigations. In a single year alone (1945), the Bureau conducted 519 wiretaps and 186 microphone surveillances (excluding those conducted by means of microphones planted on informants). 1 Until 1972, the Bureau used wiretaps and bugs against both American citizens and foreigners within the United States — without judicial warrant — to collect foreign intelligence, intelligence and counterintelligence information, to monitor "subversive" and violent activity, and to determine the sources of leaks of classified information. The FBI still uses these techniques without a warrant in foreign intelligence and counterintelligence investigations.
The CIA and NSA have similarly used electronic surveillance techniques for intelligence purposes. The CIA’s Office of Security, for example, records a total of fifty-seven individuals who were targeted by telephone wiretaps or microphones within the United States between the years 1947 and 1968. 2 Of these, thirty were employees or former employees of the CIA or of another federal agency who were presumably targeted for security reasons; four were United States citizens unconnected with the CIA or any federal agency. 3 One of the primary responsibilities of the National Security Agency (NSA) is to collect foreign "communications intelligence." To fulfill this responsibility, it has electronically intercepted an enormous number of international telephone, telegram, and telex communications since its inception in the early 1950’s. 4
Electronic surveillance techniques have understandably enabled these agencies to obtain valuable information relevant to their legitimate intelligence missions. Use of these techniques has provided the Government with vital intelligence, which would be difficult to acquire through other means, about the activities and intentions of foreign powers, and has provided important leads in counterespionage cases.
By their very nature, however, electronic surveillance techniques also provide the means by which the Government can collect vast amounts of information, unrelated to any legitimate governmental interest, about large numbers of American citizens. Because electronic monitoring is surreptitious, it allows Government agents to eavesdrop on the conversations of individuals in unguarded moments, when they believe they are speaking in confidence. Once in operation, electronic surveillance techniques record not merely conversations about criminal, treasonable, or espionage-related activities, but all conversations about the full range of human events. Neither the most mundane nor the most personal nor the most political expressions of the speakers are immune from interception. Nor are these techniques sufficiently precise to limit the conversations overheard to those of the intended subject of the surveillance: anyone who speaks in a bugged room and anyone who talks over a tapped telephone is also overheard and recorded.
The very intrusiveness of these techniques implies the need for strict controls on their use, and the Fourth Amendment protection against unreasonable searches and seizures demands no less. Without such controls, they may be directed against entirely innocent American citizens, and the Government may use the vast range of information exposed by electronic means for partisan political and other improper purposes. Yet in the past the controls on these techniques have not been effective; improper targets have been selected and politically useful information obtained through electronic surveillance has been provided to senior administration officials.
Until recent years, Congress and the Supreme Court set few limits on the use of electronic surveillance. When the Supreme, Court first considered the legal issues raised by wiretapping, it held that the warrantless use of this technique was not unconstitutional because the Fourth Amendment’s warrant requirement did not extend to the seizure of conversations. This decision, the 1928 case of Olmstead v. United States, 217 U.S. 438, arose in the context of a criminal prosecution, and it left agencies such as the Bureau of Prohibition and the Bureau of Investigation (the former name of the FBI) free to engage in the unrestricted use of wiretapping in both criminal and intelligence investigations.
Six years later, Congress imposed the first restrictions on wiretapping in the Federal Communications Act of 1934 5 which made it a crime for "any person" to intercept and divulge or publish the contents of wire and radio communications. The Supreme Court subsequently construed this section to apply to federal agents as well as ordinary citizens, and held that evidence obtained directly or indirectly from the interception of wire and radio communications was inadmissible in court. 6 But Congress acquiesced in the Justice Department’s interpretation that these cases did not prohibit wiretapping per se, only the divulgence of the contents of wire communications outside the federal establishment, 7 and government wiretapping for purposes other than prosecution continued.
The Supreme Court reversed its holding in the Olmstead case, in 1967, holding in Katz v. United States, 389 U.S. 347 (1967), that the Fourth Amendment’s warrant requirement did apply to electronic surveillances. But it expressly declined to extend this holding to cases "involving the national security." 8 Congress followed suit the next year in the Omnibus Crime Control Act of 1968, 9 which established a warrant procedure for electronic surveillance in criminal cases but included a provision that neither it nor the Federal Communications Act of 1934 "shall limit the constitutional power of the President" 10 — a provision which has been relied upon by the Executive Branch as permitting "national security" electronic surveillances.
In 1972, the Supreme Court again addressed the issue of warrantless electronic surveillance. It held in United States v. United States District Court, 407 U.S. 297 (1972), that the constitutional power of the President did not extend to authorizing warrantless electronic surveillance in cases involving threats to the "domestic security." The Court distinguished — but remained silent on — the question of warrantless electronic surveillance where there was a "significant connection with a foreign power, its agents or agencies." 11
Without effective guidance by the Supreme Court or Congress, executive branch officials developed broad and ill-defined standards for the use of warrantless electronic surveillance. Vague terms such as "subversive activities," "national interest," "domestic security," and "national security" were relied upon to electronically monitor many individuals who engaged in no criminal activity and who, by any objective standard, represented no genuine threat to the security of the United States.
The secrecy which has enshrouded the warrantless use of this technique moreover, facilitated the occasional violation of the generally meager procedural requirements for warrantless electronic surveillance. Since the early 1940’s, for example, Justice Department policy has required the approval of the Attorney General prior to the institution of wiretaps; 12 such approval has been required prior to the institution of microphone surveillances since 1965. 13 This requirement has often been ignored for wiretaps and bugs, 14 and it was not even applied to NSA’s electronic monitoring system and its program for "Watch Listing" American citizens. From the early 1960’s until 1973, NSA compiled a list of individuals and organizations, including more than one thousand American citizens and domestic groups, whose communications were segregated from the mass of communications intercepted by the Agency, transcribed, and frequently disseminated to other agencies for intelligence purposes. The Americans on the list, many of whom were active in the anti-war and civil rights movements, were placed there by the FBI, CIA, Secret Service, Defense Department, and the Bureau of Narcotics and Dangerous Drugs without judicial warrant, without prior approval by the Attorney General, and without a determination that they satisfied the executive branch standards for warrantless electronic surveillance. 15 For many years in fact, no Attorney General even knew of this project’s existence. 16
Electronic monitoring by the National Security Agency and the CIA, however, is outside the scope of this Report. This Report focuses exclusively on the FBI’s use of electronic surveillance; NSA’s monitoring system is described at length in the Committee’s Report on NSA. Because the legal issues and the FBI’s policy and practice regarding consensual monitoring devices such as "body recorders" are distinct from those of nonconsensual wiretaps and microphone installations, 17 the Report is also confined to the latter forms of electronic surveillance.
II. PRESIDENTIAL AND ATTORNEY GENERAL AUTHORIZATION FOR WARRANTLESS WIRETAPPING
FBI use of warrantless wiretapping for limited purposes has received the approval of Presidents and Attorneys General consistently — with only one three month exception in 1940 — from 1931 to the present day. The legal theories advanced to justify the use of this technique, however, have been developed almost entirely by the executive branch itself, and have been "legitimized" largely by the reluctance of Congress and the Supreme Court to confront directly the arguments presented by executive officers.
The evolution of executive branch wiretapping policies from 1924 to 1975, and of the legislative and judicial reaction to these policies, is summarized below.
Justice Department records indicate that the first time an Attorney General formally considered the propriety of warrantless wiretapping for either law enforcement or intelligence purposes, he found it to be "unethical:" in 1924, Attorney General Harlan Fiske Stone ordered a prohibition on the, use of this technique by Justice Department personnel, including those of the Bureau of Investigation (the original name of the Federal Bureau of Investigation). 18 To implement this policy, the Director of the Bureau of Investigation, with the approval of Stone’s successor, Attorney General John G. Sargent, included the following section in the Bureau’s Manual of Rules and Regulations:
Unethical tactics: Wiretapping, entrapment, or the use of any other improper, illegal, or unethical tactics in procuring information in connection with investigative activity will not be tolerated by the Bureau. 19
This prohibition only applied to the Justice Department. During the 1920’s, wiretapping was extensively used by the Bureau of Prohibition, then a part of the Department of the Treasury, in its investigations of violations of the National Prohibition Act. In Olmstead v. United States, 277 U.S. 438 (1928), criminal defendants charged with violating this Act challenged the Bureau of Prohibition’s use of this technique, but the challenge was unsuccessful. In that case, the Court held that evidence obtained from wiretapping which did not involve a physical intrusion or trespass was admissible and that wiretapping was not unconstitutional because the Fourth Amendment’s protections did not apply to the seizure of conversations. The Bureau of Prohibition continued thereafter to employ this technique in its investigations, but the restrictive policy of the Justice Department remained unchanged for the next three years.
In 1930, the Bureau of Prohibition was transferred from the Treasury Department to the Justice Department, and the differing policies regarding wiretapping posed a problem for Attorney General William B. Mitchell. "[T]he present condition in the Department cannot continue," he wrote. "We cannot have one Bureau in which wiretapping is allowed and another in which it is prohibited." 20 He ultimately resolved his dilemma by permitting both the Bureau of Investigation and the Bureau of Prohibition to engage in wiretapping with senior level approval for limited purposes.
On February 19, 1931, instructions were issued at the direction of Attorney General Mitchell stating that no wiretap should be instituted without the written approval of the Assistant Attorney General in charge of the particular case, and that such approval would only be given in cases "involving the safety of victims of kidnappings, the location and apprehension of desperate criminals, and in espionage and sabotage and other cases considered to be of major law enforcement importance." 21 The Manual provision relating to wiretapping was consequently altered to read as follows:
Wiretapping: Telephone or telegraph wires shall not be tapped unless prior authorization of the Director of the Bureau has been secured. 22
Three years later, Congress’ first pronouncement on wiretapping threatened to invalidate the policy enunciated by Mitchell: in June 1934, Congress enacted Section 605 of the Federal Communications Act, 47 U.S.C. 605, which made it a crime for "any person" to intercept and divulge or publish the contents of wire and radio communications. The Supreme Court construed this section in 1937 to apply to Federal agents and held that evidence obtained from the interception of wire and radio communications was inadmissible in court. 23 The Court elaborated on this decision two years later, holding that not only was evidence obtained from such interceptions inadmissible, but that evidence indirectly derived from such interceptions was equally inadmissible. 24
The Justice Department did not interpret these decisions as prohibiting the interception of wire communications per se, however; only the interception and divulgence of their contents outside the federal establishment was considered by the Department to be unlawful. 25 Even after the Nardone decisions, the Department continued to authorize warrantless wiretapping, albeit with the recognition that evidence obtained through the use of this technique would be inadmissible in court.
B. 1940 to 1968
1. The Roosevelt Administration
Shortly after taking office in 1940, Attorney General Robert H. Jackson reversed the existing Justice Department policy concerning wiretapping. By Order No. 3343, issued March 15, 1940, he prohibited all wiretapping by the Federal Bureau of Investigation, and the previously operative Manual section, which described wiretapping as an unethical practice, was reinstated at his direction.
Jackson’s prohibition proved to be short-lived, however, for less than three months later President Franklin D. Roosevelt informed the Attorney General that he did not believe the Supreme Court intended the 1939 Nardone decision to prohibit wiretapping in "matters involving the defense of the nation." The President sent the following memorandum to Attorney General Jackson, granting him authority to approve wiretaps on "persons suspected of subversive activities against the Government of the United States:"
I have agreed with the broad purpose of the Supreme Court decision relating to wiretapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and it is also right in its opinion that under ordinary and normal circumstances wiretapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.
However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.
It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so called "fifth column" in other countries and in preparation for sabotage, as well as in actual sabotage.
It is too late to do anything about it after sabotage, assassinations and "fifth column" activities are completed.
You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigating agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens. 26
In 1940 and 1941, several bills were introduced in Congress to authorize electronic surveillance for the purpose Roosevelt articulated in his letter to Jackson and for other purposes as well. One of these was a joint resolution introduced by Representative Emmanuel Celler authorizing the FBI "to conduct investigations, subject to the direction of the Attorney General, to ascertain, prevent, and frustrate any interference with the national defense by sabotage, treason, seditious conspiracy, espionage, violations of neutrality laws, or in any other manner." 27 This resolution would have lifted Section 605’s ban on wiretapping for such investigations.
Both President Roosevelt and Attorney General Jackson endorsed such legislation. Roosevelt wrote to Representative Thomas Eliot on February 21, 1941, "I have no compunction in saying that wire tapping should be used against those persons, not citizens of the United States, and those few citizens who are traitors to their country, who today are engaged in espionage or sabotage against the United States . . ." 28
The Justice Department also informed Congress about the theory that had been developed to rationalize ongoing electronic surveillance under Section 605. Attorney General Robert Jackson advised Representative Hatton Summers on March 19, 1941, "The only offense under the present law is to intercept any communication and divulge or publish the same . . . Any person, with no risk of penalty, may tap telephone wires . . . and act upon what he hears or make any use of it that does not involve divulging or publication." 29
The import of these two statements was undoubtedly clear to the members of the House Judiciary Committee to whom they were addressed. The FBI would use wiretaps in the investigation of espionage and sabotage, despite the Federal Communications Act, since the results of the wiretaps would not be "divulged" outside the government. Legislation was needed only in order to use wiretap-obtained evidence or the fruits thereof in criminal prosecutions; a new statute was not necessary if the purpose of wiretapping was to gather intelligence that would not be used in court."
This policy was explicitly acknowledged several months later. After an incident where labor leader Harry Bridges discovered he was under surveillance, Attorney General Francis Biddle announced that FBI agents were, in fact, authorized to tap wires in cases involving espionage, sabotage, and serious crimes such as kidnapping after first securing the permission of the FBI Director and the Attorney General. 31 At the same time Attorney General Biddle advised FBI Director Hoover:
A good deal of my press conference yesterday was consumed in questions about wiretapping. I refused to comment on the Bridges incident, on the ground that it would be improper for me to comment on a case now pending before me.
I indicated that the stand of the Department would be, as indeed it had been for some time, to authorize wiretapping in espionage, sabotage, and kidnaping cases, where the circumstances warranted. I described Section 605 of the Communications Act, pointing out that under the Statute interception alone was not illegal; that there must be both interception and divulgence or publication; that the Courts had held only that evidence could not be used which resulted from wiretapping; that the Courts had never defined what divulgence and publication was; that I would continue to construe the Act, until the Courts decided otherwise, not to prohibit interception of communications by an agent, and his reporting the result to his superior officer, as infraction of the law; that although this could be said of all crimes, as a matter of policy wiretapping would be used sparingly, and under express authorization of the Attorney General. 32
2. The Truman Administration
The permissible scope of wiretapping was expanded after World War II by President Truman to include "cases vitally affecting the domestic security, or where human life is in jeopardy." The documentary evidence suggests, however, that this expansion was inadvertent on Truman’s part and that he actually intended simply to continue in force the policies articulated by President Roosevelt in 1940.
By memorandum of July 17, 1946, Attorney General Tom Clark asked President Truman to renew Roosevelt’s authorization for warrantless wiretapping issued six years earlier. Attorney General Clark quoted from that authorization but omitted the portion of Roosevelt’s letter which read: "You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens." He then stated to President Truman:
It seems to me that in the present troubled period in international affairs, accompanied as it is by an increase in subversive activity here at home, it is as necessary as it was in 1940 to take the investigative measures referred to in President Roosevelt’s memorandum. At the same time, the country is threatened by a very substantial increase in crime. While I am reluctant to suggest any use whatever of these special investigative measures in domestic cases, it seems to me imperative to use them in cases vitally affecting the domestic security, or where human life is in jeopardy.
As so modified, I believe the outstanding directive should be continued in force … In my opinion the measures proposed are within the authority of law, and I have in the files of the Department materials indicating to me that my two most recent predecessors as Attorney General would concur in this view. 33
Truman approved the Attorney General’s 1946 memorandum, but four years later aides to President Truman discovered Clark’s incomplete quotation and the President considered returning to the terms of the original 1940 authorization. A February 2, 1950, memorandum located in the Truman Presidential Library reflects that discovery: George M. Elsey, the Assistant Counsel to the President, wrote Truman that
Not only did Clark fail to inform the President that Mr. Roosevelt had directed the F.B.I. to hold its wiretapping to a minimum, and to limit it insofar as possible to aliens, he requested the President to approve very broad language which would permit wiretapping in any case ‘vitally affecting the domestic security, or where human life is in jeopardy.’ This language is obviously a very far cry from the 1940 directive. 34
Elsey recommended in this memorandum that "the President consider rescinding his 1046 directive." An order was drafted which closely paralleled Roosevelt’s 1940 directive, but for reasons that are unclear it was never issued. 35
The wiretapping standards that were expressed in Clark’s 1946 memorandum and approved by President Truman were continued under Attorney General J. Howard McGrath. In a 1952 memorandum to J. Edgar Hoover, McGrath also made explicit the requirement of prior approval by the Attorney General, which had been informally instituted by Attorney General Biddle in 1941:
There is pending, as you know, before the Congress legislation that I have recommended which would permit wiretapping under appropriate safeguards and make evidence thus obtained admissible. As you state, the use of wiretapping is indispensable in intelligence coverage of matters relating to espionage, sabotage, and related security fields. Consequently, I do not intend to alter the existing policy that wiretapping surveillance should be used under the present high restrictive basis and when specifically authorized by me. 36
3. The Eisenhower Administration
The Government’s perceived inability to prosecute in espionage and sabotage cases where electronic surveillance had been used, which stemmed from the Nardone decisions in the late 1930’s, Ied Attorney General Herbert Brownell to press strongly in 1954 for legislation to authorize "national security" wiretapping without judicial warrant. Rejecting arguments for a warrant requirement, Brownell contended that responsibility should be centralized in the hands of the Attorney General. 37 He also saw a "strong danger of leaks if application is made to a court, because in addition to the judge, you have the clerk, the stenographer and some other officer like a law assistant or bailiff who may be apprised of the nature of the application." 38 Discussing the objectives of "national security" wiretapping, Brownell observed:
We might just as well face up to the fact that the communists are subversives and conspirators working fanatically in the interests of a hostile foreign power …
It is almost impossible to "spot" them since they no longer use membership cards or other written documents which will identify them for what they are. As a matter of necessity, they turn to the telephone to carry on their intrigue. The success of their plans frequently rests upon piecing together shreds of information received from many sources and many nests. The participants in the conspiracy are often dispersed and stationed in various strategic positions in government and industry throughout the country. Their operations are not only internal. They are also of an international and intercontinental character …
It is therefore neither reasonable, nor realistic that Communists should be allowed to have the free use of every modern communication device to carry out their unlawful conspiracies, but that law enforcement agencies should be barred from confronting these persons with what they have said over them. 39
The House Judiciary Committee accepted Brownell’s reasoning and reported out warrantless wiretapping legislation in 1954. 40 The full House, however, rejected the arguments in support of warrantless wiretapping and amended the bill on the floor to require a prior judicial warrant. 41 Without the support of the Justice Department, the House bill received no formal consideration in the Senate and no serious attempt was again made to enact electronic surveillance legislation until the 1960s.
Because of Congressional deliberations regarding wiretapping, J. Edgar Hoover wrote a memorandum to Attorney General Brownell on March 8, 1955, in which he outlined the current FBI policy in that area and stated that this policy was based on the May 21, 1940, letter from President Roosevelt and the July 17, 1946, memorandum from Attorney General Clark, which was signed by President Truman. 42 Specifically, he noted that the current policy permitted wiretapping, with the prior written approval of the Attorney General, in "cases vitally affecting the domestic security or where human life is in jeopardy."
Hoover also asked Brownell if he believed the Roosevelt and Truman statements constituted sufficient legal authority for wiretapping at the present time, and suggested that if Brownell did not believe they did, he "may want to present this matter to President Eisenhower to determine whether he holds the same view with respect to the policies of the Department of Justice with respect to wiretapping." 43 Brownell responded that he did not believe it necessary to obtain further approval of the existing practice from President Eisenhower as he was of the opinion that President Roosevelt’s approval was sufficient. The Attorney General wrote, in part:
In view of the fact that I personally explained to the President, the Cabinet, the National Security Council and the Senate and House Judiciary Committees during 1954 the present policy and procedure on wiretaps, at which time I referred specifically to the authorization letter to the Attorney General from President F. D. Roosevelt, I do not think it necessary to reopen the matter at this time. . . . You will also remember that I made several public speeches during 1954 on the legal basis for the Department of Justice policy and procedure on wiretaps. 44
4. The Kennedy Administration
The existing policy and procedures for wiretapping continued in force through the Kennedy administration. On March 13, 1962, Attorney General Robert F. Kennedy issued Order No. 263-62, which finally rescinded Attorney General Jackson’s March 15, 1940, order prohibiting wiretapping, and noted that this rescission was necessary "in order to reflect the practice which has been in effect since May 21, 1940." 45 This order also changed the Manual provisions relating to wiretapping to formally permit use of this technique and reaffirmed the vitality of "[e]xisting instructions to the Federal Bureau of Investigation with respect to obtaining the approval of the Attorney General for wiretapping …." 46
5. The Johnson Administration
During the Johnson administration, the procedures for conducting wiretaps were tightened and the criteria for use of this technique were altered. Until March 1965, no requirement had existed for the periodic re-authorization of wiretaps by the Attorney General: some surveillances consequently remained in operation for years without review. 47 On March 30, 1965, Attorney General Katzenbach therefore suggested to J. Edgar Hoover that authorizations for individual telephone taps should be limited to six months, after which time a new request should be submitted for the Attorney General’s reauthorization. 48 This suggestion was immediately implemented by the FBI.
One week later, on April 8,1965, Katzenbach sent to the White House a proposed Presidential directive to all federal agencies on wiretapping. 49 This directive, formally issued by President Lyndon Johnson in slightly modified form on June 30, 1965, 50 revoked Attorney General Tom Clark’s wiretapping standard of "cases vitally affecting the domestic security or where human life is in jeopardy." The new directive forbade the nonconsensual interception of telephone communications by federal personnel within the United States "except in connection with investigations related to the national security," and then only after first obtaining the written approval of the Attorney General. The President stated, in part:
I am strongly opposed to the interception of telephone conversations as a general investigative technique. I recognize that mechanical and electronic devices may sometimes be essential in protecting our national security. Nevertheless, it is clear that indiscriminate use of these investigative devices to overhear telephone conversations, without the knowledge, or consent of any of the persons involved, could result in serious abuses and invasions of privacy. In my view, the invasion of privacy of communications is a highly offensive practice which should be engaged in only where the national security is at stake. To avoid any misunderstanding on this subject in the Federal Government, I am establishing the following basic guidelines to be followed by all government agencies:
(1) No federal personnel is to intercept telephone conversations within the United States by any mechanical or electronic device, without the consent of one of the parties involved (except in connection with investigations related to the national security.)
(2) No interception shall be undertaken or continued without first obtaining the approval of the Attorney General.
(3) All federal agencies shall immediately conform their practices and procedures to the provisions of this order. 51
Despite this Presidential approval of "national security" wiretapping, Director Hoover informed Katzenbach on September 14, 1965, that he was restricting or eliminating the use of a number of investigative techniques by the Bureau
in view of 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 activities which could in any way be termed an invasion of privacy.
With regard to wiretapping, Hoover wrote that
[w]hile we have traditionally restricted wiretaps to internal security cases and an occasional investigation involving possible loss of life, such as kidnapping, I have further cut down on wiretaps and I am not requesting authority for any additional wiretaps.. 52
Katzenbach responded on September 27, with a memorandum setting forth what he believed to be appropriate guidelines for the use of the techniques Hoover had restricted or eliminated. He noted that "[t]he 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 attitudes regarding their use." 53 He continued:
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 is 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.
It is also my belief that there are occasions outside of the strict definition of national security (for example, organized crime) when it would be appropriate to use such techniques for intelligence purposes. However, in light of the present atmosphere, I believe that efforts in the immediate future should be confined to national security. I realize that this restriction will hamper our efforts against organized crime and will require a redoubled effort on the part of the Bureau to develop intelligence through other means. 54
While suggesting the possibility that warrantless wiretapping might appropriately be used at some future time in cases involving organized crime, in short, Katzenbach endorsed its use only in "the national security field."
On November 3, 1966, Attorney General Ramsey Clark circulated a memorandum to all United States Attorneys in which he reiterated the "national security" limitation on wiretapping contained in President Johnson’s June 30, 1965, directive and in Katzenbach’s September 27, 1965, letter to Hoover. He quoted as follows from the 1966 Supplemental Memorandum to the Supreme Court that had been filed in Black v. United States, 55 a criminal case which involved a microphone installation:
Present practice, adopted in July 1965 in conformity with the policies declared by President Johnson on June 30, 1965, for the entire Federal establishment, prohibits the installation of listening devices in private areas (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. Intelligence data so collected will not be available for investigative or litigative purposes. 56
Clark’s subsequent guidelines for the use of wiretapping and electronic eavesdropping, issued in June 1967 to the heads of executive agencies and departments, reaffirmed the prohibition of wiretapping in all but "national security" cases. 57
C. The Omnibus Crime Control Act of 1968
Although Justice Department policy regarding wiretapping remained essentially constant from 1965 to 1968, two Supreme Court decisions during this period significantly altered the constitutional framework for electronic surveillance generally. In Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), the Supreme Court overruled Olmstead and held that the Fourth Amendment did apply to searches and seizures of conversations and protected all conversations of an individual as to which he had a reasonable expectation of privacy. Katz explicitly left open the question, however, whether or not a judicial warrant was required in cases "involving the national security." 58
In part as a response to the Berger and Katz decisions, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-20. This Act established procedures for obtaining judicial warrants permitting wiretapping by government officials, 59 but the issue of "national security" wiretaps, which was left open in Katz, was similarly avoided. Section 2511 (3) of the Act stated that nothing in the Omnibus Crime Control Act or the Federal Communications Act of 1934 shall limit the constitutional power of the President in certain vaguely defined areas. The text of this subsection reads as follows:
(3) Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143, 47 U.S.C. 605) shall limit the constitutional powers 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. Nor shall anything contained in this chapter be 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. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power. 60
Significantly, this subsection dose not define the scope of the President’s constitutional power in the national security area. As the Supreme Court noted in the Keith case, it is merely a statement that to the extent such powers exist, if they exist at all they override the procedural requirements for electronic surveillance that are outlined in this statute and in the 1934 Act. 61
D. Justice Department Criteria for Warrantless Wiretaps: 1968-1975
In fields other than national security, the Justice Department was obligated to conform with the warrant procedures of the 1968 statute. But in national security cases, Justice Department policy permitted — and the Act did not forbid — warrantless wiretapping if the proposed surveillance satisfied one or more of the following criteria (which paralleled the standards enunciated in Section 2511 (3) ) :
(1) That it is necessary to protect the nation against actual or potential attack or any other hostile action of a foreign power;
(2) That it is necessary to obtain foreign intelligence information deemed essential to the security of the United States;
(3) That it is necessary to protect national security information against foreign intelligence activities;
(4) That it is necessary to protect the United States against the overthrow of the Government by force or other unlawful means; or
(5) That it is necessary to protect the United States against a clear or present danger to the structure or the existence of its Government. 62
Existing procedures for warrantless wiretaps requiring the prior written authorization of the Attorney General and subsequent reauthorization after 90 days remained in effect after the passage of the 1968 Act.
2. The Keith Case: 1972
On June 19, 1972, the Supreme Court decided the so-called Keith case, United States v. United States District Court, 407 U.S. 297 (1972), which held that the Fourth Amendment required prior judicial approval for "domestic security" electronic surveillance. The Court acknowledged the constitutional power of the President to "protect our Government against those who would subvert or overthrow it by unlawful means," 63 but it held that this power did not extend to the authorization of warrantless electronic surveillance directed at a domestic organization which was neither directly nor indirectly connected with a foreign power. 64
To conform with the Keith decision, the Justice Department thereafter limited warrantless wiretapping to cases involving a "significant connection with a foreign power, its agents or agencies." 65 A spokesman for the Department stated that such a connection might be shown by "the presence of such factors as substantial financing, control by or active collaboration with a foreign government and agencies thereof in unlawful activities directed against the Government of the United States." 65a
The Justice Department’s criteria for warrantless electronic surveillance were next modified in 1975. On June 24, 1975, Attorney General Edward H. Levi wrote Senators Frank Church and Edward Kennedy a letter in which he set forth his standards for warrantless wiretaps. He wrote, in part:
Under the standards and procedures established by the President, the personal approval of the Attorney General is required before any non-consensual electronic surveillance may be instituted within the United States without a judicial warrant. All requests for surveillance must be made in writing by the Director of the Federal Bureau of Investigation and must set forth the relevant factual circumstances that justify the proposed surveillance. Both the agency and the Presidential appointee initiating the request must be identified. Requests from the Director are examined by a special review group which I have established within the Office of the Attorney General. Authorization will not be granted unless the Attorney General has satisfied himself that the requested electronic surveillance is necessary for national security or foreign intelligence purposes important to national security.
In addition, the Attorney General must be satisfied that the subject of the surveillance is either assisting a foreign power or foreign-based political group, or plans unlawful activity directed against a foreign power or foreign-based political group. Finally, he must be satisfied that the minimum physical intrusion necessary to obtain the information will be used.
All authorizations are for a period of ninety days or less, and the specific approval of the Attorney General is again required for continuation of the surveillance beyond that period. The Attorney General has also been directed to review all electronic surveillance on a regular basis to ensure that the aforementioned criteria are satisfied. Pursuant to the mandate of United States v. United States District Court, electronic surveillance without a judicial warrant is not conducted where there is no foreign involvement. 66
In his public testimony before the Senate Select Committee on Intelligence Activities on November 6, 1975, Attorney General Levi again articulated current Department of Justice criteria for the approval of warrantless electronic surveillance. His formulation on that date returned to the three foreign-related categories which were based on Section 2511(3) of the 1968 Act, between 1972 and 1975, and a fourth category was also added. He stated:
Requests are only authorized when the requested electronic surveillance is necessary to protect the nation against actual or potential attack or other hostile acts of a foreign power; to obtain foreign intelligence deemed essential to the security of the nation; to protect national security information against foreign intelligence activities; or to obtain information certified as necessary for the conduct of foreign affairs matters important to the national security of the United States. 67
In his November 1975 testimony, the Attorney General also omitted the phrase in his June 24 letter which would have permitted warrantless electronic surveillance to be directed against American citizens or domestic groups which "plan[ned] unlawful activity directed against a foreign power or a foreign-based political group." Warrantless electronic surveillance, he said, would only be authorized when the subject of the proposed surveillance is "consciously assisting a foreign power or a foreign-based political group." The elimination of this category was apparently due to the decision of the Court of Appeals for the District of Columbia in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir., 1975) (en banc), which held unconstitutional warrantless electronic surveillance of a domestic organization that was neither the agent of nor collaborator with a foreign power. 69
To date, neither Congress nor the Supreme Court has ever squarely faced the issue of whether the President may legitimately authorize warrantless electronic surveillance in "national security" cases involving the activities of foreign powers or their agents. As noted above, Section 2511(3) of the 1968 Omnibus Crime Control Act does not represent an affirmative grant of power to the President; it is simply an acknowledgement that Congress does not intend to limit or restrict whatever constitutional power the President may have in connection with "national security" cases. And the Supreme Court in Keith explicitly wrote that it only reached the question of the constitutionality of "national security" electronic surveillance in cases that involved "domestic security." While two federal circuit courts have determined that the President may constitutionally authorize warrantless electronic surveillance directed against foreign agents or collaborators, 70 the Supreme Court denied certiorari in both cases and has yet to decide the issue. In the absence of a mandate from Congress or the Supreme Court, the Justice Department has relied on these circuit court cases to support its current standards for warrantless electronic surveillance. 71
Legislation has recently been introduced, with the support of Attorney General Levi, to require a prior judicial warrant for electronic surveillance of an "agent of a foreign power." One of seven specially designated federal judges would be authorized to issue a warrant upon a finding that there is "probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power." The term "agent of a foreign power" is defined as
(i) a person who is not a permanent resident alien or citizen of the United States and who is an officer or employee of a foreign power; or
(ii) a person who, pursuant to the direction of a foreign power, is engaged in clandestine intelligence activities, sabotage, or terrorist activities, or who conspires with, assists or aids and abets such a person in engaging in such activities. 72
Thus, the legislation would not define the activities which could subject an American to electronic surveillance in terms of the federal criminal laws.
The new legislation also would not reach electronic surveillance of Americans abroad or other "facts and circumstances … beyond the scope" of its provisions. Authority for such surveillance would continue to be based on whatever may be "the constitutional power of the President." In other respects, however, the proposed statute is a significant step towards effective regulation of FBI electronic surveillance.
III. PRESIDENTIAL AND ATTORNEY GENERAL AUTHORIZATION FOR WARRANTLESS MICROPHONE SURVEILLANCE
Warrantless microphone surveillance, while perhaps the most intrusive type of electronic surveillance, has received significantly less attention from Presidents and Attorneys General than has warrantless wiretapping. The first documentary indication that microphone surveillance was separately considered by any Attorney General is not found until 1952, when Attorney General McGrath prohibited its use in cases involving trespass. Two years later, Attorney General Brownell issued a sweeping authorization for microphone surveillance, even when it involved physical trespass, in cases where the Bureau determined such surveillance was in the national interest; no prior approval by the Attorney General was required. This policy continued until 1965, when microphone surveillance was placed on an equal footing with telephone surveillance, and since that time the policies for both these forms of electronic surveillance have remained identical.
1. 1931 to 1942
The legal status of microphone, as opposed to telephone, surveillance was not addressed by the Supreme Court until 1942, and it was not addressed by Congress until 1968. It is perhaps for this reason that the Justice Department developed no distinct policy on microphone surveillance during the first half of the century.
The Olmstead case in 1928 involved a wiretap rather than a microphone surveillance. Similarly, the Federal Communications Act of 1934 was addressed only to the interception of wire and radio communications; microphone surveillance was not within its ambit. Neither Attorney General Mitchell’s nor Attorney General Jackson’s instructions on wiretapping in 1931 and 1940, respectively, encompassed microphone surveillance, and President Roosevelt’s 1940 authorization and President Truman’s 1946 authorization were also limited to wiretapping.
An internal Justice Department memorandum from William Olson, former Assistant Attorney General for Internal Security, to Attorney General Elliot Richardson notes that "[d]uring the period 1931-1940, it appears safe to assume that microphone surveillances were utilized under the same standards as telephone surveillances — ‘in those cases involving the safety of the victims of kidnapping, the location and apprehension of desperate criminals, and in espionage, sabotage, and other cases considered to be of major law enforcement importance."’ 73
In 1942, the Supreme Court decided Goldman v. United States, 316 U.S. 129, which held in the context of a criminal case that a microphone surveillance was constitutional when it did not involve physical trespass. Thereafter, the test for the validity of a microphone surveillance appeared to be whether or not it involved a trespass. 74 There is no evidence, however, that an Attorney General gave any firm guidance to the FBI in this area until 1952. Although there did not appear to be any distinct articulated Justice Department policy on microphone surveillance for a decade after Goldman, J. Edgar Hoover summarized FBI practice since Goldman in a 1951 memorandum to Attorney General McGrath:
As you are aware, this Bureau has also employed the use of microphone installations on a highly restrictive basis, chiefly to obtain intelligence information. The information obtained from microphones, as in the case of wiretaps, is not admissible in evidence. In certain instances, it has been possible to install microphones without trespass, as reflected by opinions rendered in the past by the Department on this subject matter. In these instances, the information obtained, of course, is treated as evidence and therefore is not regarded as purely intelligence information.
As you know, in a number of instances it has not been possible to install microphones without trespass. In such instances the information received therefrom is of an intelligence nature only. Here again, as in the use of wiretaps, experience has shown us that intelligence information highly pertinent to the defense and welfare of this nation is derived through the use of microphones. 76
B. 1952 to 1965
The first clear instruction to the FBI from an Attorney General regarding microphone surveillance was issued in 1952. On February 26, 1952, Attorney General McGrath wrote to Mr. Hoover as follows:
The use of microphone surveillance which does not involve a trespass would seem to be permissible under the present state of the law, United States v. Goldman, 316 U.S. 129. Such surveillances as involve trespass are in the area of the Fourth Amendment, and evidence so obtained and from leads so obtained is inadmissible.
The records do not indicate that this question dealing with microphones has ever been presented before; therefore, please be advised that I cannot authorize the installation of a microphone involving a trespass under existing law. 77
As a result of this instruction, Hoover declared in a March 4, 1952, internal FBI memorandum that he would similarly not approve any request for a microphone surveillance in a case involving trespass. 78
The FBI evidently considered this policy on microphone surveillance to be too restrictive, however, especially in the area of internal security. 79 Under pressure from the FBI — and despite the 1954 Supreme Court decision in Irvine v. California 80 — Attorney General Brownell reversed his predecessor’s position. On May 22, 1954, he wrote Director Hoover:
The recent decision of the Supreme Court entitled Irvine v. California, 347 U.S. 128, denouncing the use of microphone surveillances by city police in a gambling case, makes appropriate a reappraisal of the use which may be made in the future by the Federal Bureau of Investigation of microphone surveillance in connection with matters relating to the internal security of the country.
It is clear that in some instances the use of microphone surveillance is the only possible way of uncovering the activities of espionage agents, possible saboteurs, and subversive persons. In such instances I am of the opinion that the national interest requires that microphone surveillance be utilized by the Federal Bureau of Investigation. This use need not be limited to the development of evidence for prosecution. The FBI has an intelligence function in connection with internal security matters equally as important as the duty of developing evidence for presentation to the courts and the national security requires that the FBI be able to use microphone surveillance for the proper discharge of both such functions. The Department of Justice approves the use of microphone surveillance by the FBI under these circumstances and for these purposes.
I do not consider that the decision of the Supreme Court in Irvine v. California, supra, requires a different course. That case is readily distinguishable on its facts. The language of the Court, however, indicates certain uses of microphones which it would be well to avoid, if possible, even in internal security investigations. It is quite clear that in the Irvine case the Justices of the Supreme Court were outraged by what they regarded as the indecency of installing a microphone in a bedroom. They denounced the utilization of such methods of investigation in a gambling case as shocking. The Court’s action is a clear indication of the need for discretion and intelligent restraint in the use of microphones by the FBI in all cases, including internal security matters. Obviously, the installation of a microphone in a bedroom or in some comparably intimate location should be avoided wherever possible. It may appear, however, that important intelligence or evidence relating to matters connected with the national security can only be obtained by the installation of a microphone in such a location. It is my opinion that under such circumstances the installation is proper and not prohibited by the Supreme Court’s decision in the Irvine case.
… It is realized that not infrequently the question of trespass arises in connection with the installation of a microphone.
The question of whether a trespass is actually involved and the second question of the effect of such a trespass upon the admissibility in court of the evidence thus obtained, must necessarily be resolved according to the circumstances of each case. The Department in resolving the problems which may arise in connection with the use of microphone surveillance will review the circumstances in each case in light of the practical necessities of investigation and of the national interest which must be protected. It is my opinion that the Department should adopt that interpretation which will permit microphone coverage by the FBI in a manner most conducive to our national interest. I recognize that for the FBI to fulfill its important intelligence function, consideration of internal security and the national safety are paramount and, therefore, may compel the unrestricted use of this technique in the national interest. 81
Brownell cited no legal support for this sweeping authorization. By not requiring prior approval by the Attorney General for specific microphone installations, moreover, he largely undercut the policy which had developed for wiretapping. The FBI in many cases could obtain equivalent coverage by utilizing bugs rather than taps and would not be burdened with the necessity of a formal request to the Attorney General.
On May 4, 1961, Director Hoover wrote a memorandum to Deputy Attorney General Byron R. White, in which he informed the Department that the FBI’s policy with regard to microphone surveillance was based on the 1954 Brownell memorandum quoted above. Hoover stated that Brownell had "approved the use of microphone surveillances with or without trespass," and noted that "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 [foreign] intelligence agents and Communist Party leaders." He continued: "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 clandestine activities of top hoodlums and organized crime." 82 This memorandum apparently did not lead to further reconsideration of microphone surveillance policy by Justice Department officials, and the practice articulated by Hoover continued without change until 1965. 82a
The Department later summarized the policy during these years in the Supplemental Memorandum to the Supreme Court in the case of Black v. United States, 83 referred to above.
The memorandum read, in part: "Under Department practice in effect for a period of years prior to 1963, and continuing until 1965, the Director of the Federal Bureau of Investigation was given authority to approve the installation of devices such as that in question [a microphone] for intelligence (and not evidentiary) purposes when required in the interest of internal security or national safety, including organized crime, kidnappings, and matters wherein human life may be at stake. Acting on the basis of the aforementioned Departmental authorization, the Director approved installation of the device involved in the instant case." 84
C. 1965 to the Present
On March 30, 1965, when Attorney General Katzenbach instituted the six month limitation on telephone taps, he also expressed the view that proposals for microphone surveillances should be submitted for the Attorney General’s prior approval and that this type of surveillance should also be limited to six month periods. 85 While Attorneys General since the 1950s had sporadically given their prior approval to microphone surveillances, the requirement of such approval had never been a consistent policy of the Justice Department, as it had been with respect to wiretapping for more than two decades. 85a With the immediate implementation of Katzenbach’s suggestions, therefore, the Justice Department procedures with regard to both wiretapping and microphone surveillance became identical.
President Johnson’s June 30, 1965, directive to all federal agencies, which formally prohibited all wiretapping except in connection with "national security" investigations and then only with the prior approval of the Attorney General, referred to the issue of microphone surveillances only tangentially. It read:
Utilization of mechanical or electronic devices to overhear nontelephone conversations is an even more difficult problem, which raises substantial and unresolved questions of constitutional interpretation. I desire that each agency conducting such investigations consult with the Attorney General to ascertain whether the agency’s practices are fully in accord with the law and with a decent regard for the rights of others. 86
Apparently, J. Edgar Hoover did not find his "consultations" with the Attorney General to be encouraging. It is noted above that on September 14, 1965, the Director informed Katzenbach that, "[i]n accordance with the wishes you have expressed during various recent conversations with me" and because of public alarm at alleged invasions of privacy by Federal agencies, he was severely restricting or eliminating the use of a number of investigative techniques. Specifically with regard to microphone surveillance, he wrote that "we have discontinued completely the use of" this technique — despite Katzenbach’s approval of the limited use of microphone surveillance in March of that year and despite the absence of a prohibition oil the use of the technique in the President’s June directive.
It is also noted above in Section II that Katzenbach responded about two weeks later with a memorandum setting forth what he believed to be appropriate guidelines for the use of the techniques Hoover had restricted or eliminated. He gave virtually unrestricted authorization to the FBI to conduct microphone surveillances not involving trespass, writing, "[w]here such questions [i.e., of trespass] are not raised, I believe the Bureau should continue to use these techniques in cases where you believe it appropriate without further authorization from me." 88 With regard to microphone surveillances that did involve trespass, he again treated the use of this technique in a fashion identical to warrantless wiretapping: for both he required his prior approval (except in "emergency circumstances") and for both the legitimate purposes were limited to the gathering of intelligence in "national security matters." While he expressed the belief that both wiretaps and microphone surveillances involving trespass might at some future time be appropriate to use in the area of organized crime, he gave no authority for such use at that time.
The policy set out in Katzenbach’s September 27 letter to Hoover was reaffirmed by the Justice Department at least three times prior to the 1967 Katz decision and the passage of the Omnibus Crime Control Act of 1968.
In the July 1966 Supplemental Memorandum filed in the Black case, the Justice Department stated that "[p]resent Departmental practice, adopted in July 1965, prohibits the use of such listening devices 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 involved." This language was quoted by Attorney General Ramsey Clark in his November 3, 1966 memorandum to all United States Attorneys 81 and reaffirmed in Clark’s 1967 memorandum to heads of executive departments. 90
The Katz decision, in December 1967, held that a warrantless microphone installation on the side of a public telephone booth was unconstitutional in the context of a criminal case. Thus, Justice Department policy prohibiting microphone surveillances in non-"national security" cases became a constitutional requirement as well — regardless of whether or not the installation involved trespass. 90a As noted above, however, the issue of electronic surveillance in "national security" cases was not addressed by the Supreme Court in Katz.
The 1968 Omnibus Crime Control Act, unlike the Federal Communications Act of 1934, applies to both telephone wiretaps and microphone surveillances. Because of this, and because the Justice Department policy regarding both techniques became virtually identical in 1965, the description of the evolution of wiretapping policy over the past decade applies equally to the technique of microphone surveillance. In recent years, for all practical purposes, there has been but a single policy for both forms of electronic surveillance.
IV. AN OVERVIEW OF FBI ELECTRONIC SURVEILLANCE PRACTICES
The preceding two sections have dealt with the legal framework and Justice Department policy regarding warrantless wiretapping and bugging. This section attempts to provide an overview of FBI electronic surveillance practices. Without purporting to explore the full range of FBI electronic surveillance practices, a limited number of key areas are highlighted in order to suggest the manner in which electronic surveillances are conducted. More specifically, this section discusses the frequency of FBI use of this technique since 1940; internal FBI restrictions on the maximum number of simultaneous electronic surveillances; the method by which requests have been initiated and approved; the manner in which wiretaps and bugs have been installed; the means by which the FBI has responded to the legal obligation to produce electronic surveillance records in criminal trials; and the traditional reluctance of the FBI to permit outside scrutiny of its electronic surveillance practices. A discussion of the application of the Justice Department’s standards for wiretapping and bugging to particular cases is reserved for Section VII below.
A. Extent of FBI Electronic Surveillance: 1940-1975
While FBI use of warrantless electronic surveillance has not been as pervasive as many other investigative techniques such as informants, both wiretaps and bugs have been strategically utilized in a large number of intelligence investigations. The Bureau’s reliance on these techniques was greatest during World War II and the immediate postwar period. During the 1960s and early 1970s, internal FBI policy placed a ceiling on the number of simultaneous electronic surveillances conducted by the Bureau. This self -restriction did not act to curtail all use of this technique, but it apparently frustrated intelligence officials in the FBI and other agencies who sought — unsuccessfully — a change in this policy through the Huston Plan in 1970. In recent years, Judicial decisions have severely restricted the use of warrantless electronic surveillance against domestic targets, although wiretaps and bugs still continue to be commonly used in the area of foreign intelligence and counterintelligence.
1. Annual Totals for Wiretaps and Microphone Installations
According to Justice Department records, the annual totals of warrantless FBI wiretaps and microphones in operation between 1940 and 1974 were as follows:
Attorney General Edward H. Levi testimony, Nov. 6, 1975, hearings, vol. 5, pp. 68-70. The statistics before 1968 encompass electronic surveillances for both intelligence and lawenforcement purposes. Those after 1968, when the Omnibus rime Control Act was enacted, include surveillances for intelligence purposes only; electronic surveillances for law enforcement purposes were thereafter subject to the warrant procedures required by the Act.
Comparable figures for the year 1975, through October 29, are: 121 telephone wiretaps and 24 microphone installations. 91
It should be noted that these figures are cumulative for each year; that is, a wiretap on an individual in one year which continued into a second year is recorded in both years. The figures are also duplicative to some extent, since a telephone wiretap or microphone which was installed, then discontinued, and later reinstated is counted as a new surveillance upon reinstatement.
2. FBI Policy on the Maximum Number of Simultaneous Electronic Surveillances
From at least the early 1960s, J. Edgar Hoover placed a ceiling on the number of warrantless electronic surveillances that could be in operation at any one time. As expressed by Charles D. Brennan, who became Assistant Director in charge of the FBI’s Domestic Intelligence Division in 1970, ". . . there was always a maximum figure which you were not allowed to exceed, and if you recommended an additional wiretap, it had to be done with the recognition that in another area you would take one off." 92
Until the mid-1960s, the maximum figure was approximately eighty. 93 In response to the 1965 and 1966 investigation by the Senate Subcommittee on Administrative Practice, and Procedure into the use of electronic surveillance and other techniques by federal agencies, however, Hoover instructed Bureau officials to reduce by one half the number of warrantless electronic surveillances then in effect. According to Brennan, the ceiling was lowered out of a concern that this subcomittee’s "inquiry might get into the use of that technique by the FBI . . . ." 94 The number of warrantless wiretaps in the "security field" was subsequently reduced from 76 to 38, and remained close to the latter figure for several years thereafter. 95
Intelligence officials both within the FBI itself and in other intelligence agencies clearly felt constrained by Hoover’s policy, and through the Huston Plan in 1970 they attempted to raise or eliminate the internal limitations on the number of simultaneous electronic surveillances. The Report that was presented to President Nixon in June of 1970 noted: "The limited number of electronic surveillances and penetrations substantially restricts the collection of valuable intelligence information of material important to the entire intelligence community," 96 and it presented the President with the option of modifying "present procedures" to "permit intensification of coverage of individuals and groups in the United States who pose a major threat to the internal security." 97 This option was specifically recommended to the President by Tom Charles Huston. 98
Director Hoover nonetheless remained strongly opposed to lifting restraints on the FBI’s use of warrantless electronic surveillance. He added a footnote to the electronic surveillance section of the Huston Report which read:
The FBI does not wish to change its present procedure of selective coverage of major internal security threats as it believes this coverage is adequate at this time. The FBI would not oppose other agencies seeking authority of the Attorney General for coverage required by them and thereafter instituting such coverage themselves. 99
In part because of Hoover’s opposition to the Huston Plan, President Nixon, who had originally endorsed the recommendations, withdrew his approval 100 and the maximum number of electronic surveillance stayed essentially constant until 1972.
The policy of placing an arbitrary ceiling on simultaneous warrantless electronic surveillances was apparently terminated after J. Edgar Hoover’s death in 1972. With the apparent lifting of this self-restriction, the number of foreign related surveillances increased 101 — a fact which is reflected in the annual totals listed above.
B. Requests, Approvals, and Implementation
1. The Request and Approval Process
Recommendations for the use of electronic surveillance in particular cases are typically initiated at the field level of the Bureau, although at times they have originated with the Attorney General, the White House, and the head of another agency. 102 If Headquarters approves a field request, the appropriate field office then conducts a feasibility study to determine whether or not the surveillance can be conducted with complete security. Upon a favorable security finding, the Director personally sends the Attorney General a formal request for coverage, setting forth the name and address of the person or persons to be monitored as well as pertinent facts about the case. 103
According to former Attorney General William Saxbe, the "request must contain very detailed information." 104 In numerous cases in the past, however, the information supplied in the request has been minimal at best. For example, several of the so-called "17 wiretaps" during the Nixon administration were approved by Attorney General John Mitchell despite the lack of any data in the formal requests to support the need for the technique’s use. 105 It is possible that these and similarly defective requests submitted to other Attorneys General were supplemented by information imparted orally, but, as the District of Columbia Court of Appeals stated in Zweibon v. Mitchell:
. . . we nevertheless note the possibility of abuse when there are no written records of the justifications for instituting a surveillance. Such lack of records allows a search to be justified on information subsequently obtained from the surveillance and permits the assertion that more information was relied on than was in fact the case. Prior judicial approval for wiretapping, among other benefits, of course freezes the record as to the data upon which the surveillance was based. 106
2. Implementation of Wiretaps and Bugs
If the Director receives the written approval of the Attorney General for a particular surveillance, the field office is instructed to implement it. In the case of wiretapping, an agent from the field office generally contacts a representative of the local telephone company who acts as Government liaison. One such telephone company representative in Washington, D.C., testified that he was simply orally advised by an agent of the FBI’s Washington Field Office that authority had been granted to tap a particular telephone number. 107
According to the Washington Field Office supervisor in charge of the employees who implemented and monitored "national security" wiretaps, the telephone company representative would then assign "pair numbers" in the cable connecting the FBI’s Washington, D.C. Field Office with the company’s central office in the city, and the recording and monitoring devices would be attached to the assigned cable pair at the field office, where the Bureau monitoring agents were located. After the supervisor verified the wiretap by determining that the intercepted line was the correct one, he would give the tap a symbol number to be used in lieu of the words "telephone surveillance" in any later communication. 108
Generally, two agents would conduct the monitoring operation in eight-hour shifts. These monitors typically tape recorded all calls on the line and added supplementary notes concerning such items as the identity of the caller and the subject of the conversation if unclear from the tape. 109 Each day, they typed up log summaries, which included anything they believed was consequential. Because the monitors were not told specifically what to look for, however, the summaries tended to be over-inclusive rather than under-inclusive: the supervising agent noted, for instance, that any information obtained about the subject’s sex life or drug use would usually be included in the log summaries. 110 He also stated that he disliked having empty summaries for any day, and so issued a general instruction to his monitors that an attempt should be made to include at least one item in the log each day. 111 Even if there was no activity, a monitor would still have to file a log summary stating "no activity" or "no pertinent activity." 112
A special squad within the Washington Field Office was responsible for implementing microphone installations. According to one Bureau agent who served on this squad for a number of years, the authorizing document (which, he said, invariably bore J. Edgar Hoover’s initials) would be transmitted to the field office and shown to him and the other members of the squad prior to the installation. This agent stated that in the majority of cases he was able to obtain a key to the target’s premises, either from a landlord, hotel manager, or neighbor. In other cases, he simply entered through unlocked doors. He stated that only in a small proportion of the cases to which he was assigned was it necessary to pick a lock. 113 Once the bug was planted, it was generally necessary for Bureau agents to monitor the conversations from a location close to the targeted premises.
C. The ELSUR Index
In the mid-1960s, the Justice Department established a policy of filing disclosures in the courts in cases where criminal defendants had been monitored by electronic surveillance. 114 As a result, it became necessary to establish a general index of the names of all persons overheard on such surveillances. In September 1966, the Assistant Attorney General of the Criminal Division informed Director Hoover that:
In recent months the Department has been confronted with serious problems concerning the prospective or continued prosecution of individuals who have been the subject of prior electronic surveillance. These problems have sometimes arisen comparatively late in the investigative or prosecutive process. For example, we recently were forced to close an important investigation involving major gambling figures in Miami because we were advised that the evidence necessary to obtain a conviction was tainted….
In view of these experiences, it appears necessary and desirable that the Department have full knowledge of the extent of any device problem at as early a stage of preparation for prosecution as possible in order to determine whether a particular case may or may not be tainted or what responses will be necessary with respect to a motion under Rule 16 to produce statements.
Accordingly, I feel it is imperative for us to establish between the Bureau and the Department . . . some sort of "early warning" system. This may require the Bureau to set up and maintain appropriate indices with respect to electronic surveillance and the materials derived therefrom.
I have discussed this suggestion with the Attorney General and the Deputy Attorney General. Both feel that the establishment of such indices is necessary. . . 115
In fact, for a number of years prior to this suggestion the Bureau had maintained rudimentary indices within each field office, although there was no central index and those which existed on the field level were believed to be inadequate by Justice Department officials. Because Hoover believed the existing system was adequate, he reacted defensively when Assistant Attorney General Fred Vinson requested a conference between the Department and the Bureau to discuss the details of the Justice Department’s proposal. The Director penned the following notation on the Vinson memorandum: "Since [an indexing system] is already operating, I see no need for such a conference…. Tell him it is already done and see that it is meticulously operated." 116
About one week later, however, Hoover directed officials at Headquarters to send a teletype to all field offices which had conducted electronic surveillances since January 1960. 117 These offices were instructed to transmit to Headquarters the names of all individuals whose voices were were monitored through electronic surveillance any time within the previous six years, as well as the initial date of the monitoring and the identity of the subject against whom the installation was directed. Each office was also informed that it had a continuing obligation to submit to Headquarters on a weekly basis the names of any additional individuals monitored in the future. 118
The Bureau has since maintained a central index at Headquarters, referred to as the ELSUR Index, which contains the names of all individuals overheard, even incidentally, on both court-ordered and warrantless electronic surveillances. Additional information such as the initial date of the monitoring and the identity of the target of the surveillance is also included in the index. The method by which this index has been compiled, however, raises some questions as to its accuracy and completeness.
Although the ELSUR Index covers the period January 1, 1960, to the present, for example, the FBI’s response to a request by the Senate Select Committee for the date and location of all electronic overhears of Martin Luther King, Jr., conceded that retrieval of some of the overhears of King may be impossible. Three factors contributing to this difficulty were set forth by the Bureau:
1. Prior to issuing instructions to field offices in October, 1966, directing them to submit the names of all individuals whose voices have been monitored through a microphone installed or a telephone surveillance operated by the offices anytime since 1/1/60, additional surveillances on which King was monitored are unaccountable for as these surveillance logs may have been destroyed.
2. Prior to the instructions, personnel handling logs may have felt that overhears were of no substance or significance and consequently were not recorded.
3. The setting up of the ELSUR indices was a fieldwide project of large proportions and the instructions going to the field 10/5/66, were subject to broad interpretation, thus leading to possible misinterpretation of these instructions. Also, the factor of human error might be involved, thereby causing incomplete indices until the mechanics of the procedure were ironed out. 119
In fact, several surveillances of King himself which were known to personnel at FBI headquarters were apparently not reflected in the ELSUR Index.
One Special Agent’s description of the preparation of ELSUR Index cards by FBI monitors suggests that the Index may be incomplete even for the post-1966 period. According to this agent, the FBI monitors are under instructions to prepare ELSUR Index cards for each identifiable person who speaks over the intercepted line. 120 Since the cards must contain the proper names of these individuals rather than phonetic spellings, and since this information is often difficult to obtain from an overhear alone, the monitors maintain a separate index of phonetic spellings prior to their determination of the proper spelling and its entry into the ELSUR Index. 121 The monitors then attempt to confirm the identity of the persons overheard from various research aids kept at their disposal, such as telephone books and Congressional and federal agency directories, and from discussions with the Bureau agents assigned to the substantive cases. In most cases, it is possible to make an accurate identification, but when this proves to be impossible, the names of unidentified individuals never get entered into the ELSUR Index. 122 Sometimes no entry has been made in the ELSUR Index even though positive identification was subsequently obtained. 122a Thus, a person could be overheard and this fact would not be revealed by a check of the ELSUR Index. 123
D. Congressional Investigation of FBI Electronic Surveillance Practices: The Long Subcommittee
The Bureau has traditionally been reluctant to permit Congressional investigation into its electronic surveillance practices. During the 1965 and 1966 inquiry by the Senate Subcommittee on Administrative Practice and Procedure into the use of electronic surveillance and other techniques by federal agencies, the FBI took affirmative steps to avoid substantial exposure of such practices to the subcommittee. The Bureau’s attempt to thwart this subcommittee’s investigation into the use of mail covers in February and March of 1965 is described in the Senate Select Committee’s Report on CIA and FBI Mail Opening; 124 a similar attempt, apparently acquiesced in by the Subcommittee, was made in the area of electronic surveillance.
The Bureau’s wary attitude toward this investigation is reflected in an internal memorandum dated August 2, 1965:
Senator [Edward V.] Long [of Missouri] is Chairman of the Senate Subcommittee on Administrative, Practice and Procedure. He has been taking testimony in connection with mail covers, wiretapping, and various snooping devices on the part of Federal agencies. He cannot be trusted and although the FBI has not become involved in these bearings, our name has been mentioned quite prominently on several occasions . . . . 125
When the Subcommittee’s investigation began to touch on the Bureau’s electronic surveillance practices in connection with organized crime several months later, Assistant Director Cartha DeLoach and another ranking Bureau official personally visited the Subcommittee’s chairman, Senator Edward Long of Missouri, to explain to him the FBI’s practices in the area of electronic surveillance. 126 This meeting lasted approximately one and one-half hours, 127 and there is no indication in the documentary record that any other briefing occurred prior to this visit. Nonetheless, an FBI memorandum notes that after the Senator "stated that unfortunately a number of people were bringing pressure on him to look into the FBI’s activities in connection with usage of electronic devices," 128 DeLoach suggested to him:
that perhaps he might desire to issue a statement reflecting that he had held lengthy conferences with top FBI officials and was now completely satisfied, after looking into FBI operations, that the FBI had never participated in uncontrolled usage of wiretaps or microphones and that FBI usage of such devices had been completely justified in all instances. 129
According to this memorandum, Senator Long agreed, and when he "stated that he frankly did not know how to word such a release," 130 DeLoach "told him that we would be glad to prepare the release for him on a strictly confidential basis." 131
The next day, Bureau agents prepared such a statement for Senator Long, noting that "it is written from the viewpoint of the Senator and his Committee in that it indicates they have taken a long, hard look at the FBI and have found nothing out of order — but that they will continue looking over our procedures and techniques from time to time in the future. Such an approach," it was stated, "is felt to be essential if the statement is to have the desired effect. A statement reflecting a stronger pro-FBI position might not only prove ineffective in thwarting those persons who are exerting pressure on the Subcommittee for a probe of our operations, but it could also bring criticism and additional pressure on Senator Long." 132 The statement written by the Bureau for Senator Long reads in full:
As Chairman of the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee, I instructed my staff at the outset of our activities to include the FBI, together with all other Federal agencies, among the organizations to be dealt with to ascertain if there had been invasion of privacy or other improper tactics in their operations. Toward this end, my staff and I have not only conferred at length with top officials of the FBI, but we have conducted exhaustive research into the activities, procedures, and techniques of this agency.
While my Staff and I fully intend to carefully review FBI operations from time to time in the future, I am at the present time prepared to state, based upon careful study, that we are fully satisfied that the FBI has not participated in highhanded or uncontrolled usage of wiretaps, microphones, or other electronic equipment.
The FBI’s operations have been under strict Justice Department control at all times. In keeping with a rigid system of checks and balances, FBI installation of wiretaps and microphones has been strictly limited, and such electronic devices have been used only in the most important and serious of crimes either affecting the internal security of our Nation or involving heinous threats to human life. Included among these are major cases of murder, kidnapping, and sadism perpetrated at the specific instruction of leaders of La Cosa Nostra or other top echelons of the extralegal empire of organized crime.
Investigation made by my staff has reflected no independent or unauthorized installation of electronic devices by individual FBI Agents or FBI offices in the field. We have carefully examined Mr. J. Edgar Hoover’s rules in this regard and have found no instances of violation. 133
As noted above, there is no indication in the record that any briefing about electronic surveillance by the FBI occurred prior to the preparation of this statement by Bureau agents other than the ninety-minute briefing given by DeLoach. No Bureau agents had been called to testify before the Subcommittee. It does not appear that any Senator or staff members reviewed FBI files on electronic surveillances. Nor is there any indication in the record that the Subcommittee ever learned of the bugging of a Congressman’s hotel room, the bugging and wiretapping of Martin Luther King, Jr., or the wiretapping of a Congressional staff member, two newsmen, an editor of a political newsletter, and a former Bureau agent — all of which had occurred within the previous five years. 134
Ten days after the statement was prepared for Senator Long, DeLoach again visited him and "asked him point blank whether or not he intended to hold hearings concerning the FBI at any time in the future." According to DeLoach’s memorandum:
He stated he did not. I asked him if he would be willing to give us a commitment that he would in no way embarrass the FBI. He said he would agree to do this. 135
When the Subcommittee’s Chief Counsel asked DeLoach at this meeting "if it would be possible for [DeLoach] or Mr. Gale [another FBI Assistant Director] to appear before the Long Subcommittee … and make a simple statement to the effect that the FBI used wiretaps only in cases involving national security and kidnapping and extortion, where human life is involved, and used microphones only in those cases involving heinous crimes and Cosa Nostra matters," DeLoach refused. He wrote that he informed the Chief Counsel:
that to put an FBI witness on the stand would be an attempt to open a Pandora’s box, in so far as our enemies in the press were concerned [and] that such an appearance as only a token witness would cause more criticism than the release of the statement in question would ever cause. 136
DeLoach noted that Senator Long then stated "he had no plans whatsoever for calling FBI witnesses," but that the Chief Counsel indicated that he would like to call one former FBI agent who was known to DeLoach. According to DeLoach’s memorandum regarding this meeting, he told the Chief Counsel that this agent "was a first class s.o.b., a liar, and a man who had volunteered as a witness only to get a public forum," and that the Chief Counsel then reconsidered. The memorandum concludes with the observation:
While we have neutralized the threat of being embarrassed by the Long Subcommittee, we have not yet eliminated certain dangers which might be created as a result of newspaper pressure on Long. We therefore must keep on top of this situation at all times. 137
Partly as a result of the Subcommittee’s apparently willing "neutralization" by the Bureau, the FBI’s electronic surveillance practices were protected from intensive Congressional and public scrutiny until the 1970s.
V. WARRANTLESS FBI ELECTRONIC SURVEILLANCE OF FOREIGN INTELLIGENCE AND COUNTERINTELLIGENCE TARGETS WITHIN THE UNITED STATES
Foreign agents and foreign establishments within the United States have often been, and continue to be, the targets of warrantless FBI electronic surveillance. In general, the Fourth Amendment questions raised by electronic surveillance of foreigners are not as serious as those raised by the targeting of American citizens; and surveillance of foreign targets may be less susceptible to the types of abuses that have often been associated with wiretapping and bugging of American citizens. Because Americans are often overheard on "foreign" taps and bugs, however, and because American citizens may also be the indirect targets of "foreign" surveillances, the rights of Americans may nonetheless be affected even by surveillance of foreign targets.
Apparently, most warrantless electronic surveillances conducted by the FBI in the past fifteen years have fallen into this broad category. Foreign establishments and foreigners living within the United States have been the subject of wiretaps and bugs far more frequently than have American citizens connected with domestic organizations, for purposes ranging from the collection of foreign intelligence and counterintelligence information to the detection of terrorist activity. 138 Since the 1972 Keith decision, which invalidated "domestic security" warrantless electronic surveillances, the proportion of foreign targets has been even greater. As of November 1975, for example, all existing warrantless electronic surveillances were directed against foreigners. 139
The purpose and value of electronic surveillance against foreign targets, as well as "domestic" abuse questions which have arisen in this context, are discussed below.
A. Purpose and Value as an Investigative Technique
Electronic surveillance of foreign targets has been used extensively by the FBI for the purpose of collecting foreign counterintelligence information. Within the past fifteen years, both wiretaps and bugs designed to collect such information have been directed against targets in the following categories: "Foreign Establishments," "Foreign Commercial Establishments," "Foreign Officials," "Foreign Intelligence Agents," "Foreign Intelligence Contacts," "Foreign Intelligence Agents Suspect," "Foreign Officials’ Contact," and "Foreign Intelligence Agents Business Office." Wiretaps alone have been used against "Foreign Intelligence Contact Suspect" and "a [foreign] Exile Group;" bugs alone have been used against the "wife of a foreign intelligence contact," a "relative of a foreign intelligence agent suspect," a "foreign intelligence agent contact," another "[foreign] exile group," and for "coverage of foreign officials." 140
Electronic surveillance of targets such as these is clearly considered by FBI officials to be one of the most valuable techniques for the collection of counterintelligence information. According to W. Raymond Wannall, the former Assistant Director in charge of the Bureau’s Domestic Intelligence Division, wiretaps and bugs directed against foreign targets:
give us a base line from which to operate…. Having the benefit of electronic surveillance, we are in a position to make evaluations, to make assessments, to make decisions as to [the conduct of counterintelligence operations]…. It gives us leads as to persons . . . hostile intelligence services are trying to subvert or utilize in the United States, so certainly it is a valuable technique. 141
Some of the surveillances in the categories listed above have also been conducted for the primary purpose of collecting "positive" foreign intelligence (which may include economic intelligence) rather than counterintelligence information. 141a While the collection of "Positive" foreign intelligence is outside the FBI’s intelligence mandate, such surveillances have been responsive to specific requests of the Attorney General by the State Department and the CIA, both of which have a responsibility for "positive" intelligence. 142
In addition, the Bureau has electronically monitored foreign targets for the purpose of detecting and preventing violent and terrorist activities by foreigners within the United States. Wiretaps have been used for such purposes against a "Foreign Militant Group," a "Foreign Revolutionary Group," a "Foreign Militant Group Official," and a "Propaganda Outlet of the League of Arab States." Microphone surveillances in the last two of these categories and of an "Arab Terrorist Activist," and an "Arab Terrorist Activist Meeting" have been used for similar purposes. 143
B. Foreign Surveillance Abuse Questions
Even properly authorized electronic surveillances directed against foreign targets for the purposes noted above may result in possible abuses involving American citizens. Because wiretaps and bugs are capable of intercepting all conversations on a particular telephone or in a particular area, American citizens with whom the foreign targets communicate are also overheard, and information irrelevant to the purpose of the surveillance may be collected and disseminated to senior administration officials.
It is also possible to institute electronic surveillance of a foreigner for the primary purpose of intercepting the communications of a particular American citizen with that target; since the "foreign" surveillance in this situation can accomplish indirectly what a surveillance of the American could accomplish directly, the former may be used to circumvent the generally more stringent requirements for surveillances of Americans.
Both of these practices, which clearly affect the rights of the Americans involved, have occurred in the past and are discussed below.
1. Dissemination of Domestic Intelligence from Incidental Overhears
Essentially political information — unrelated to the authorized purpose of the surveillance — has occasionally been obtained as a by-product of electronic surveillance of foreign targets and disseminated to the highest levels of government. In the early 1960s, for example, Attorney General Robert Kennedy authorized the FBI to institute electronic surveillances of certain foreign targets in Washington, D.C., in connection with the possibly unlawful attempts of a foreign government to influence Congressional deliberations over sugar quota legislation. 144 From these surveillances, the Attorney General was provided with significant information not merely about possible foreign influence but about the reaction of key members of the House Agriculture Committee to the administration’s sugar quota proposal as well. 145
Through the Bureau’s coverage of certain foreign establishments in Washington, it was also able to supply two President’s with reports of the contacts between members of Congress and foreign officials. According to a 1975 F BI memorandum:
On March 14, 1966, then President Lyndon B. Johnson informed Mr. DeLoach [Cartha DeLoach, former Assistant Director of the FBI] … that the FBI should constantly keep abreast of the actions of representatives of these [foreign countries] in making contacts with Senators and Congressmen and any citizens of a prominent nature. The President stated he strongly felt that much of the protest concerning his Vietnam policy, particularly the hearings in the Senate, had been generated by [certain foreign officials]. 146
As a result of the President’s request, the FBI prepared a chronological summary — based in part on existing electronic surveillances — of the contacts of each Senator, Representative, or staff member who communicated with selected foreign establishments during the period July 1, 1964, to March 17, 1966. This summary — which comprised 67 pages — was transmitted to the White House on March 21, 1966. The cover letter noted that: "based upon our coverage, it appears that" certain foreign officials "are making more contacts with" four named United States Senators "than with other United States legislators." 147
A second summary was prepared on further contacts between Congressmen and foreign officials and was transmitted to the White House on May 13, 1966. From that date until January 1969, when the Johnson administration left office biweekly additions to the second summary were regularly prepared and disseminated to the White House.148
This practice was reinstituted during the Nixon administration. On July 27, 1970, Larry Higby, Assistant to H. R. Haldeman, informed the Bureau that Mr. Haldeman "wanted any information possessed by the FBI relating to contacts between [certain foreign officials] and Members of Congress and its staff." 149 Two days later, the Bureau provided the White House with a statistical compilation of such contacts from January 1, 1967 to July 29, 1970. 149a As in the case of the information provided to the Johnson White House, no members of Congress were targeted directly but many had been overheard on existing electronic surveillances of foreign officials in Washington, D.C.
2. Indirect Targeting of American Citizens Through Electronic Surveillance of Foreign Targets
There is also evidence that in at least one instance the FBI, at the request of the President, instituted an electronic surveillance of a foreign target for the purpose of intercepting telephone conversations of a particular American citizen. An FBI memorandum states that about one week before the 1968 Presidential election, President Johnson became suspicious that South Vietnamese Government might sabotage his peace negotiations in the hope that Presidential candidate Richard Nixon would win the election and take a "harder line" towards North Vietnam. 150 More specifically, the President believed that Mrs. Anna Chennault, widow of General Clair Chennault and a prominent Republican leader, was attempting to [dis]suade South Vietnamese officials "from attending the Paris peace negotiations until after the election since it would devolve to the credit of the Republican Party." 151
In order to determine the validity of this suspicion, the White House instructed the FBI to institute a physical coverage of Mrs. Chennault, as well as physical and electronic surveillance of the South Vietnamese Embassy. 151a The electronic surveillance of the Embassy was authorized by Attorney General Ramsey Clark on October 29, 1968, installed the same day, and continued until January 6, 1969. 152
Significantly, a Bureau memorandum indicates that FBI officials were ill-disposed toward direct surveillance of Anna Chennault because "it was widely known that she was involved in Republican political circles and, if it became known that the FBI was surveilling her this would put us in a most untenable and embarrassing position." 153 Thus, a "foreign" electronic surveillance was instituted to indirectly target an American citizen, who, it was apparently believed, should not be surveilled directly.
VI. WARRANTLESS FBI ELECTRONIC SURVEILLANCE OF AMERICAN CITIZENS
American citizens and domestic organizations have also been the direct targets of FBI wiretaps and bugs for intelligence purposes. Indeed, the use of these techniques against Americans for such purposes has a long history. In 1941, for example, Attorney General Francis Biddle approved a wiretap on the Los Angeles Chamber of Commerce under the standard of "persons suspected of subversive activities." 154 Four years later, a high official in the Truman administration 155 and a former aide to President Roosevelt 156 were both the subject of warrantless electronic surveillance.
Between 1960 and 1972 numerous American citizens and domestic organizations were targeted for electronic surveillance. Most of these warrantless wiretaps and bugs were predicated on the need to protect the country against "subversive" and/or violent activities; many were based on the perceived need to discover the source of leaks of classified information; and an undetermined number 157 of American citizens were wiretapped for other reasons such as the desire to obtain foreign intelligence or counterintelligence information.158
The Keith decision in 1972 sharply restricted the grounds for wiretapping and bugging which had been asserted previously, although it did not prohibit warrantless electronic surveillance of American citizens for foreign intelligence or counterintelligence purposes when a substantial connection is shown to exist between the American individual or group and a foreign power. 159 No Americans were the subjects of this technique as of November 1975, 160 but a small number of Americans have been electronically monitored since the Keith case on the basis of such a foreign connection. 161
This section focuses on warrantless electronic surveillance of American citizens during the 1960 to 1972 period. It contains a general description of surveillances which were instituted because of the perceived "subversive" or violent nature of the targets, because of leaks of classified information, and on various other grounds. In Section VII, this Report elaborates on three types of abuse questions which have arisen in connection with warrantless electronic surveillance of American citizens.
A. Electronic Surveillance Predicated on Subversive Activity
Numerous American citizens and domestic organizations have been wiretapped and bugged because their activities, while not necessarily violent, were regarded as sufficiently "subversive" to constitute a threat to the security of the United States. In many of these cases, it was believed that the individuals or groups were controlled or financed by, or otherwise connected with, a hostile foreign power. In other cases, the surveillances were based only on the possibility that the targets, whether consciously or not, were being influenced by persons believed to be acting under the direction of a foreign power; such surveillance typically occurred in the context of COMINFIL (Communist infiltration) investigations. 162
The Communist Party, USA, provides the clearest example of a group that was selected for electronic surveillance on the ground of foreign-connected "subversive" activities. In addition to a wiretap on the Headquarters of the Communist Party, the FBI conducted wiretaps in the following target categories:
Communist Party Functionaries
Communist Party Propaganda Outlet
Communist Party Front Group
Communist Party Member
Communist Party Affiliate
Communist Party Publication
Microphone surveillances are recorded in these categories:
Communist Party Functionaries
Communist Party Front Groups
Communist Party Propaganda Outlets
Communist Party Front Groups Organizer
Communist Party Function
Communist Party Members
Communist Party Publications
Coverage of Communist Party Meeting
Communist Party Youth Activist
Communist Party Labor Group
Communist Party Youth Group
Communist Party Affiliate
Coverage of Communist Party Conference
Communist Party Apologist 163
Other groups adhering to a communist ideology have also been electronically monitored for similar reasons. According to FBI records, wiretaps were used in cases involving a "Marxist-Leninist Group Affiliate," a "Marxist Leninist Group Leader," and a "Marxist-Leninist Group Functionary." Microphone surveillances were also conducted against a "Basic Revolutionary Group Founder," a "Marxist-Oriented Youth Group," a "Trotskyite Organization," a "Basic Revolutionary Group," an "Organizer of a Basic Revolutionary Group," "Marxist-Leninist Groups," a "Basic Revolutionary Front Group," a "Basic Revolutionary Front Functionary," a "Marxist-Leninist Front Group," and a "Marxist-Oriented Racial Organization." One "Trotskyite Organization Meeting" was also bugged. 164
Several groups which were believed to have a connection with the Communist Party in Cuba and China have been targeted as well. Into this category fell wiretaps which were directed against a "Pro-Castro Organization," a "Pro Castro Movement Leader," a "Pro-Castro Group Functionary," and a "Pro-Chicom [Chinese Communist] Propaganda Outlet;" and microphones directed against "Pro-Castro Organizations," a "Pro-Chicom Group," and a "Pro Cuban American Group which travelled to Cuba." 165
The "subversive activities" predicate was stretched furthest when used to support electronic surveillance of American citizens and domestic organizations not primarily because their own activities were considered to be subversive but because they were believed to be adversely influenced, whether consciously or not, by persons acting under the direction of a foreign power. One example of reliance on such a rationale is seen in the wiretapping and bug of Dr. Martin Luther King, Jr., and several of his associates. In October 1963, Attorney General Robert Kennedy authorized wiretaps on the residence and two office telephones of Dr. King on the ground of possible Communist infiltration into the Southern Christian Leadership Conference, of which Dr. King was President. 166 The possibility that two of Dr. King’s advisors may have been associated with the Communist Party, USA, led to four additional wiretaps on King and a total of fifteen microphone installations in his hotel rooms during 1964 and 1965. 167 Apparently as part of this COMINFIL (Communist infiltration) investigation, several of King’s associates were also wiretapped and bugged. 168
At least three other organizations have been targeted for electronic surveillance primarily on the ground of possible Communist infiltration. One such organization, believed to have been influenced by the Communist Party, USA, was wiretapped in 1962. 169 In 1965, Attorney General Nicholas Katzenbach approved wiretaps on both the Student Non-Violent Coordinating Committee (SNCC) 171 and the Students for a Democratic Society (SDS) for similar reasons; 171 the former group had also been the subject of a microphone surveillance in 1964. 172
B. Electronic Surveillance Predicated on Violent Activity
Allegations of violent activity, or the threat of violent activity, have also served as the predicate for numerous warrantless electronic surveillance of Americans.
Most of the wiretaps and bugs which were instituted for this reason have been directed against "black extremists" and "black extremist organizations." In 1957, for example, Attorney General Herbert Brownell authorized a wiretap on Elijah Muhammad, a leader of the Nation of Islam, because of the organization’s alleged "violent nature." 173 This tap, which was never re-authorized until 1964, was finally terminated in 1966. A wiretap was also placed on Malcolm X, another Nation of Islam leader, in 1964 for essentially the same reason. 174 Similarly, Attorney General Katzenbach approved a wiretap on a "black extremist leader" of the Revolutionary Action Movement in 1965. 175 During the first half of the 1960’s, microphone surveillances were also directed against a "black separatist group" (one surveillance in 1960 and 1961; two separate surveillances each year from 1962 until 1965) and a "black separatist group functionary"( from 1961 until 1965). 176
The possibility of violent activity also led to wiretaps on the Black Panther Party and one of its leaders in 1969. 177 Both of these taps continued into 1970, when wiretaps on a "black extremist group affiliate" and two (non-white) "racial extremist groups" were added to the list. 178 1971 apparently represented the high point of wiretapping "black extremists:" in that year, there were wiretaps on the Black Panther Party (six separate taps as of March 29, 1971), 179 two (nonwhite) "racial extremist groups," two individuals described as "militant black extremist group members" (one of whom was a member of SNCC), two individuals described as "militant black extremist group functionaries," and a "racial group member." A wiretap was also authorized to cover a "meeting of a militant [black] group." 180 In 1972, wiretaps continued to be used against the Black Panther Party and one of its leaders, a (non-white) "racial extremist group," a "militant black extremist group member," and a "militant black extremist group functionary." 181 Microphone surveillances during the Nixon Administration years were directed against the Black Panther Party in 1970 and a "Black Extremist Group Functionary" (Huey Newton, a leader of the Black Panther Party) from 1970 to 1972. 182
Electronic surveillance based on a "violent activity" predicate was certainly not confined to "black extremists," however. In the early and mid-1960’s, wiretaps were placed on Ku Klux Klan members for similar reasons. Two "leaders of a racist organization," one of whom was a Klan member suspected of involvement in the bombing of a black church in Birmingham, Alabama, were wiretapped in 1963 and 1964. 183 Another Ku Klux Klan member was wiretapped in 1964 and 1965. 184 FBI records also disclose the bugging of The National States Rights Party in 1962. 185
White radical organizations were also the subjects of electronic surveillance in the late 1960’s and early 1970’s on the grounds of violent or potentially violent activity. A "New Left Campus Group" was both wiretapped and bugged in 1969, and the wiretap continued into 1970. 186 Three anti-war organizations which were involved in planning the November 1969 "March on Washington" were also wiretapped in 1969. 187 In 1970, the Headquarters of the Worker Student Alliance (an affiliate of SDS) 188 and an individual who was a contact for the Weatherman organization were wiretapped. 189 The tap on the Worker Student Alliance continued into 1971 and was supplemented in that year by wiretaps on a "New Left Activist", a "domestic protest group," and a "violence prone faction of a domestic protest group" (two separate wiretaps). 190 Additional wiretaps and microphone surveillances during the years 1969 to 1972 fall into the categories: "Investigation of Clandestine Underground Group Dedicated to Strategic Sabotage;" "Weatherman Organization Publication;" "Publication of Clandestine Underground Group Dedicated to Strategic Sabotage;" "Leader of Revolutionary Group;" and "Weather Underground Support Apparatus." 191
For several years during the 1960’s, Puerto Rican nationalist groups and their members were also electronically monitored because of their alleged proclivity towards violence. FBI records reveal wiretaps on a "Puerto Rican Independence Group" in 1960 and 1962; and on a "Puerto Rican Independence Group Member" in 1965. Microphone surveillances were placed on a "Contact of Puerto Rican Nationalist Party" in 1960; a "Puerto Rican Independence Group Office" in 1963, 1964, and 1965; a "Puerto Rican Revolutionary" in 1968; and "Pro-Puerto Rican Independence Group Activists" in 1964 and 1965. 192
Other organizations were the subject of electronic surveillance because they were seen as violent advocates of the interests of a foreign power or group. (To the extent an actual connection with a hostile foreign power was perceived, they would also be considered "subversive.") These organizations, which were, or may have been, composed at least in part of American citizens, are described by the following categories: "Pro-Arab Group," "Arab Terrorist Affiliate," "Pro-Palestine Group," "Militant Pro-Chicom [Chinese Communist] Group," "West Coast Fundraising Front for Arab Terrorist Groups," "Arab Terrorist Activist Affiliates," and "Co-Conspirators in Plot to Kidnap a Prominent Anti-Castro Cuban Exile." 193
C. Electronic Surveillance Predicated on Leaks of Classified Information
Another purpose of warrantless electronic surveillance of American citizens during the period 1960 to 1972 was to determine the source of perceived leaks of classified information. At least eight separate investigations into perceived leaks resulted in the wiretapping or bugging of nearly thirty American citizens, yet Bureau memoranda reveal no case in which the source of any leak was discovered by means of electronic surveillance. These investigations are described below.
Lloyd Norman: 1961. 194 — On June 27, 1961, Attorney General Robert Kennedy informed FBI Director Hoover that the most recent issue of Newsweek magazine contained an article about American military plans in Germany, which, the administration believed, was based on classified information. According to an FBI memorandum, Kennedy stated that the President had called him to see if it would be possible to determine who was responsible for the apparent leak. 195 On the same day, and without specific authorization from the Attorney General, the FBI placed a wiretap on the residence of Lloyd Norman, the Newsweek reporter who wrote the article. 196 Kennedy was informed about the tap on June 28, and formally approved it on June 30. It was discontinued on July 3, 1961, when "Norman left Washington, D.C., for the west coast on a month’s vacation [and) the only person left at Norman’s residence [was] his son." 197
Hanson Baldwin: 1962. — A July 1962 New York Times article about Soviet missile systems by Hanson Baldwin, which the administration also believed was based on classified information, led to the installation of wiretaps on the residences of both Baldwin and a New York Times secretary. According to contemporaneous Bureau memoranda, these wiretaps were instituted without the prior written approval of the Attorney General, and one of them — the tap on the secretary — was instituted without the Attorney General’s prior knowledge. 198 Formal written approval for these wiretaps was obtained on July 31, 1962, however, three days after the tap on Baldwin was installed and four days after the tap on his secretary was installed. 199 The wiretap on the secretary continued until August 15, 1962; that on Baldwin until August 29,1962. 200
Former FBI Special Agent: 1962. — Warrantless electronic surveillance predicated on classified information leaks continued with the wiretapping of a former Bureau agent who "disclosed information of a confidential nature concerning investigations conducted by [the] Bureau" in a public forum on October 18, 1962. 201 According to an internal memorandum, the coverage lasted from October 18, 1962, until October 26, 1962, and was repeated in January 1963. 202 On October 19, 1962, Attorney General Kennedy was advised that the Bureau desired to place coverage on this agent; he was apparently not informed that coverage had already been effected the day before. 203 Kennedy’s written approval was granted on October 26, the day the surveillance was terminated. 204 The surveillance was reinstituted in January: a Bureau memorandum dated January 9, 1963, simply states:
Mr. Belmont called to say [FBI Assistant Director Courtney] Evans spoke to the Attorney General re placing the tech on [ ] again, and the Attorney General said by all means do this. Mr. Belmont has instructed New York to do so. 205
The authorization for the second surveillance therefore appears to have been oral. Coverage of this agent was permanently suspended on September 9, 1963. 205a
High Executive Official: 1963. — Because of the possibility that a high-ranking executive official may have provided classified information not to the press but to a foreign intelligence officer, the FBI requested the Attorney General in February 1963 to authorize a wiretap on the residence telephone of this official. 205b According to the request which was sent to Attorney General Kennedy, "The President expressed personal interest in receiving information concerning the current relationship between [the official] and representatives of [a foreign country]." 205c
The Attorney General approved the request, and it was instituted three days later. 205d It was discontinued on June 14, 1963, when the target travelled abroad, 205e reinstituted on July 14, 1963; and permanently discontinued on November 6, 1963, "because of lack of productivity." 205f
Editor of an Anti-Communist Newsletter. 1965. — The publication in an anti-Communist newsletter of information believed to be classified led to the wiretapping of both the editor of the newsletter and an attorney in the Washington, D.C. area with whom the editor was in frequent contact. These surveillances were approved in writing by Attorney General Nicholas Katzenbach in April and June of 1965, respectively, and each began about three weeks after approval. 206
In November 1965, the FBI recommended discontinuance of the taps because "[w]e have not developed any data since outset of investigation which would show that [the targets] are currently receiving information from individuals in the Executive Branch of the Government. In fact, we now believe that it is highly unlikely that our technical coverage will develop such information in the future." 206a
According to a memorandum sent to the Attorney General, the tap on the lawyer was discontinued on November 2, 1965, and that on the editor on November 10, 1965. 206b
Joseph Kraft: 1969. 207 — The basic facts surrounding the wiretapping and microphone surveillance of columnist Joseph Kraft are a matter of public record. In June 1969, possibly in response to a leak from the National Security Council, John Ehrlichman instructed John Caulfield and John Ragan, two individuals associated with the White House "Plumbers" and unconnected with the FBI, to place a wiretap on the Washington, D.C. residence of Mr. Kraft. This tap was removed one week later, when the columnist left Washington on an extended trip to Europe. W. C. Sullivan, then Assistant Director of the FBI, subsequently followed Mr. Kraft abroad, apparently on instructions from Mr. Hoover and Mr. Ehrlichman. Overseas, Sullivan arranged with a foreign security agency to conduct electronic surveillance of Kraft in his hotel room: when the installation of a telephone tap proved to be impossible because of the "elaborate switchboard" of the hotel," a microphone was placed in his room instead. 209 The results of this coverage, which lasted from July 3 to July 7, 1969, were transmitted back to Mr. Hoover personally through the FBI’s Legal Attache at the American Embassy. 210
In November and December of that year, Mr. Kraft was again the target of FBI surveillance: the Washington Field Office conducted physical surveillance of the columnist from November 5 until December 12. 211 In addition, Director Hoover requested approval from Attorney General Mitchell for a wiretap on Mr. Kraft on November 5, 212 but approval was never granted and the wiretap never installed. 213
The "Seventeen Wiretaps:" 1969-1971. 214 — The wiretaps which were directed against seventeen government employees and newsmen between May 1969 and February 1971 have been the subject of civil litigation and extensive Congressional inquiries. In view of the pending civil litigation, the Committee has not attempted to duplicate the depositions which bear on the authorization of these wiretaps. The basic facts as recorded in FBI documents and public record testimony, however, may be summarized as follows:
On May 9, 1969, a story by William Beecher concerning American bombing raids in Cambodia appeared in the New York Times. According to a contemporaneous internal memorandum from J. Edgar Hoover to senior FBI officials, Henry Kissinger telephoned him that morning requesting the Bureau to "make a major effort to find out where [the story] came from." 215 Kissinger called Mr. Hoover twice more that day, once to request that additional articles by Beecher be included in the inquiry and once to request that the investigation be handled discreetly "so no stories will get out." 216 Before 5:00 p.m. on May 9, Hoover telephoned Kissinger to inform him that initial FBI inquiries suggested that Morton Halperin, a staff member of the National Security Council, could have been in a position to leak the information upon which Beecher was believed to have based his article: Hoover noted that Halperin "knew Beecher and that he [Hoover] considered [Halperin] a part of the Harvard clique, and, of course, of the Kennedy era." 217
According to Hoover, "Dr. Kissinger said he appreciated this very much and he hoped I would follow it up as far as we can take it and they will destroy whoever did this if we can find him, no matter where he is. 218
Dr. Kissinger has testified that he had been asked at a White House meeting, which, he believed, may have occurred in late April 1969 and which was attended by the President, the Attorney General, and J. Edgar Hoover, "to supply the names of key individuals having access to sensitive information which had leaked [even before the Cambodia story]." 218a He noted that at this meeting "Director Hoover identified four persons as security risks and suggested that these four be put under surveillance initially." 218b Among the persons so identified was Morton Halperin. Kissinger said that when the Cambodia story was published on May 9, "I called Mr. Hoover at President Nixon’s request to express the President’s and my concern about the seriousness of the leak appearing that date and to request an immediate investigation. He also stated that in these telephone conversations, "I do not recall any discussion of wiretapping. At that time, my understanding was that the wiretapping program had been authorized and that, therefore, Mr. Hoover or his staff had the right to use wiretapping in their investigations. I do not recall any discussions as to when the program would actually be put into effect." 218d He further testified that "[i]n view of the President’s authorization, Mr. Hoover evidently chose to institute the wiretaps after my calls to him on May 9, regarding the national security significance of the Beecher story in the New York Times of the same date." 218e
The wiretap on Halperin was installed without the written approval of the Attorney General, in late afternoon on May 9, 1969. 219 The next morning, Alexander Haig personally visited William Sullivan at FBI Headquarters. According to a memorandum from Sullivan to Cartha DeLoach, Haig requested that wiretaps be placed on four individuals, including Halperin, who were members of the National Security Council staff and Defense Department employees. 220 Haig stated that this request "was being made on the highest authority" and "stressed that it is so sensitive it demands handling on a need-to-know basis, with no record maintained." 221 According to Sullivan, Haig said that "if possible, it would be even more desirable to have the matter handled without going to the [Justice] Department." 222
Alexander Haig testified that Dr. Kissinger had instructed him to see Mr. Sullivan and to act as the "so-called liaison as this program was instituted, I believe, authorized by the President, the Director, and the Attorney General." 222a He further stated that Dr. Kissinger provided him with the names to take to Sullivan 222b and that he had the "impression" that the names were "cleared and concurred in by" the President or his representative, the Director, and the Attorney General. 222c Haig denied that he requested the Bureau not to maintain a record of the surveillances, noting that "the point I would recall making very clearly was the extreme sensitivity of this thing, and the avoidance of unnecessary paperwork, which would make this program subject to compromise." 222d He also testified that he does not recall urging Sullivan to avoid going to the Justice Department. 222e
On May 12, a formal request was sent by the Director to Attorney General Mitchell for wiretaps on all four individuals (one of which had been in operation for three days); Mitchell approved; and the additional taps were subsequently instituted. 223
Over the course of the next one and one-half years, thirteen more individuals became the subjects of wiretaps in this same program. Bureau documents reflects the following authorizations from Attorney General Mitchell: