LETTER TO MR. JAMES M. FREY ATTENTION: MR. WILLIAM V. SKIDMORE FROM GEORGE L. CARY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000600120003-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 19, 2016
• Document Release Date: October 25, 2005
• Sequence Number: 3
• Publication Date: June 20, 1975
• Content Type: LETTER

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TO MR. CARY
FROM: WPB / DATE 19 June 1975
SUBJECT: Comments to 0MB on H.R. 141
You had asked o review our comments on H.R. 141, elec-
tronic surveillance . He approved our draft and attached is
the final for your signature. Also attached is a buckslip to the
Director.
COORDINATED WITH (list names as well as offices) :
J. Warner 0GC
_J
_u
ACTION REQUIRED BY GLC:
Signature
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 ^ UNCLASSIFII D ved F Re YWA3O5/11/21: CIA-RDP7 M Ot MDMWOO3-3 ^ SECRET
ROUTING AND RECORD SHEET
SUBJECT: (Optional) a?:te:-ative RepiBix~
FROM:
Legislative Counsel
EXTENSION
NO.
DATE n
Y JUI! WS
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
Di for
If you approve, we intend to send
the attached to OMB in response to
2.
its request for our views on HR 141,
a bill prohibiting all warrantless
electronic surveillance. This
3.
response has been coordinated with
OGC and I believe it reflects your
views on the subject. In consulta-
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tion with DDO it has been determined
that this letter is unclassified.
5.
S
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edge Cary-
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Legislative Counsel
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FORM
3-62
USEDITIO PREVIOUS
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^ SECRET ^ CONFIDENTIAL ^ I
U EE ONLY
^ UNCLASSIFIED
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WASHINGTON, D.C. 20505
OLC 75-1082/A
2 0 JUN 1975
Mr. James M. Frey, Assistant Director
for Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Attention: Mr. William V. Skidmore
This is in response to your request for our views on
H.R. 141, a bill which seeks to amend Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
2510 et seq. The bill would require that electronic surveillance
be un rtaken in all cases pursuant to judicial warrant based
on probable cause. This would include electronic surveillance
conducted against foreign targets to obtain foreign, intelligence
information. Further, the bill would repeal section 2511(3)
which specifically disavows any limitation on the constitutional
powers of the President to obtain foreign intelligence information..
The Central Intelligence Agency opposes enactment of this
legislation.
The Central Intelligence Agency collects foreign
positive intelligence information--information on a foreign
country, or the activities of a foreign government or its
representatives--that is useful in assessing that country's
capabilities or intentions. By repealing section 2511(3) and
by requiring that the intelligence exploitation of foreign
communications be undertaken only when authorized by judicial
warrant, H.R. 141 purports to confer on judicial officers the
President's constitutional powers to obtain foreign intelligence.
However, the necessity for conducting a particular foreign
intelligence collection effort is a matter inappropriate for
judicial resolution. It is a matter committed to the Executive
Branch by the Constitution, for which there are no judicially
manageable standards. An arrangement by which federal judges
decide what foreign intelligence the President may have in his
conduct of foreign relations, or whether he may have any at all
in a particular case, is incompatible with the Chief Executive's
inherent foreign intelligence-gathering powers and his special
competence in foreign affairs.
v
7?;% i91C~
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In addition to this fundamental constitutional objection,
there are practical and more specific objections to the pro-
visions of H.R. 141.
The bill attempts to transpose "probable cause" standards,
developed to protect the rights of potential criminal defendants,
to the area of foreign intelligence collection.. It would prohibit
the electronic surveillance of foreign sources unless a judicial
warrant is obtained issued on probable cause to believe that the
source is "engaged in activities which are intended to serve
the interests of a foreign principal and undermine the security
or national defense of the United States" (emphasis added).
Many important foreign communications are not directly related.
to an undermining of the national security. Therefore, the
proposed "probable cause" standard would preclude collection of
much important foreign intelligence information. Moreover, in
order to establish probable cause, the nature of a specific
communication and of the parties thereto would. have to be
anticipated and demonstrated to the court prior to the communi-
cation itself. The fact that several ominous Japanese communi-
cations were intercepted both outside and within the United States
prior to the attack on Pearl Harbor, but were not processed
with sufficient urgency prior to the attack because there was no
reason to believe--no "probable cause" to believe--that an attack
was imminent, demonstrates the bald unrealism of this requirement,
even in cases where activities undermining the national. security
are underway.
H.R. 141 would require that the necessity for a particular
foreign intelligence electronic collection effort be demonstrated
to a court. Not only does this raise a fundamental conflict with
the separation of powers, but from a practical standpoint, judicial.
officers are not competent to make judgments in this area. The
intelligence involved may not be susceptible to evaluation by
persons who do not regularly deal with foreign affairs and
intelligence matters. The judgments. involved require consideration
of matters not available to the judiciary.
As the Department of Justice points out in its comments on
this bill, in making a decision to employ electronic surveillance
to obtain foreign intelligence, the entire spectrum of pertinent
information, much of which is derived from sensitive and confidenti.al
sources, is available to the Executive. It would be extremely
difficult to convey all relevant information to a court, much less
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isolate a particular factor upon which a decision to employ such
surveillance would be based. In this connection, it should be
noted that the value and significance of information derived from
a foreign intelligence electronic surveillance often may not be
known until it has been correlated with other items of information--
items sometimes seemingly unrelated.
Finally, assuming that Title III of the 1968 Omnibus Crime
Control and Safe Streets Act has no extraterritorial. application,
H.R. 141 may still affect the possibility of conducting electronic
foreign intelligence collection outside the United States.. H.R.
141 would probably foreclose the possibility of intercepting
transnational communications, i.e., foreign communications
received in or transmitted from the United States, unless a
prior judicial warrant was obtained. Moreover, with respect to
the possible interception of foreign communications both trans-
mitted and received overseas, complex questions could be raised
where an element of an interception process was within the United
States, e.g., the physical presence of the surveillance device.
In view of the foregoing considerations, the Central.
Intelligence Agency opposes enactment of H.R. 141.
Sincerely,
George L. Cary
Legislative Counsel.
Distribution:
Orig - Adse
1 - DCI
1 - 0GC
1 - OLC/Legis
i_1- OLC/Subj w/basic
1 - OLC/Chrono
OLC/WPB/ksn (19 Jun 75)
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON. D.C. 20303
May 16, 1975
LEGISLATIVE KEFEJ1U.L MEMORANDUM
To: Legislative Liaison Officer
Department of State
Department of Defense
Central Intelligence Agency
Subject:
H.R. 141, a bill cited as the "Surveillance
Practices and Procedures Act of 1975" and
Justice's proposed report on the same
The Office of Management and Budget would appreciate
receiving the views of your agency on the above subject
before advising on its relationship to the program. of the
President, in accordance with 0MB Circular A--19.
To permit expeditious handling, it is requested
that your reply be made c>iithin 30 day.
(xx~j Special circumstances require priority treatment
and accordingly your views are requested by
Friday, June 6, 1975
Questions should be referred to Jim Purcell
( 395?-4516 ) or to William Skidmore (395-4870
the legislative analyst. in this office.
t?
William V. Skidmore for
Assistant Director for
Legislative Reference
be,
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 ASSISTANT AT1"ORNEY GENERAL
LEGISLATIVE AFApproved For Rele die 20}051111~/21 - CIARDP71AA00 144R000600120003-3
.V 4Iar4; ttt tiI 7711
Honorable Peter W. Rodino, Jr.
Chairman
Committee on the Judiciary
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is in response to your request for the views; of
the Department of Justice on H.R. 141, a bill which seeks to
amend Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, 18 U.S.C. ?2510, et seq., with respect to
electronic surveillance practices and procedures. It would
amend Title 18, United States Code, by adding a. specific
requirement that electronic surveillance in all national
security cases, including those aimed at foreign diplomatic
personnel and foreign intelligence operatives, be undertaken
only when authorized by a judicial warrant based on probable
cause. Further, the bill would strike out Section 2511(3)
which currently disclaims any limitation by Congress on the
constitutional power of the President to authorize national
security electronic surveillance. The Department of Justice
opposes enactment of this bill.
At the present time, the President, acting through the
Attorney General, may constitutionally authorize the use of
electronic surveillance deemed essential to gather informa-
tion to protect the nation against actual or potential attack
or other hostile acts of a foreign power, or to obtain foreign
intelligence information deemed essential to the United States.
The President derives such authority, as Commander in Chief,
under Article II, Section 2, of the Constitution.
Every federal court, without exception., in which the
matter has been considered has upheld this Department's
contention that such electronic surveillances are lawful.
when the power of the President in foreign intelligence
matters is involved. See, e.g., United States v. Clay,
430 F.2d 165 (5th Cir. 1970), rev d. on-other grounds, 403
U.S. 698 (1971); United States v. Hoffman, 334-F. Supp. 504,.
(1971); United States v. Brown, 4$ F.2d 418 (5th Cir. 1.973),
cert. denied, 415 U.S. 960 (1973); United States v. Ivanov,
494 F. d 593 (3rd Cir. 1974), cert. denied, 43 U. S. L.W. 3213
(U.S. October 15, 1974).
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_2_
The bill, in effect, takes from the President powers
which have always been exclusively his, -and by requiring
that a warrant be issued for electronic surveillance in
national security cases, would grant that power to the
judiciary. Presently, in making a decision to employ
electronic surveillance in national security cases, the 4
entire spectrum of pertinent information, much of which is
derived from sensitive, confidential sources and involves
matters which must be kept secret, is available to the
Executive. In such cases,. it would be virtually impossible
to convey this information to a court, much less isolate a
particular factor upon which a decision to employ such sur-
veillance would be based.
The nature of the sensitive intelligence involved in L
these cases is such that it is not susceptible to evaluation
by persons who do not regularly deal with foreign affairs
and intelligence matters. The judgment involved requires
consideration of matters not available to the judiciary.
Furthermore, the need to acquire foreign intelligence and
diplomatic information essential to the United States may
involve such emergent matters as the Cuban missile crisis
or the outbreak of hostilities in the Middle East. It is
obvious that it would be impossible in such situations to
comply with the detailed requirements of the bill without
seriously hampering our ability to acquire the information
as quickly as possible. We, therefore, object strongly to
Section 3(a) of the bill which would amend the current
statute by deleting entirely Section 2511(3) of Title 18.
We also object to Section 2 of the bill which would
amend Section 2510 of Title 18 by adding new subsections
pertaining to "foreign agents" and "foreign principals."
The intent of this amendment is to require that electronic
surveillance may be undertaken against foreign agents and
foreign principals only when authorized by a judicially
approved warrant. This would be in derogation of the
President's constitutional power to authorize the use of
such surveillance when deemed essential to gather information
for national security purposes, as explained in detail above.
The bill defines a foreign agent as "a person who is
engaged in activities which, in the opinion of the Attorney
General, are intended to serve the interests of a foreign
principal and undermine the security or national defense of
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the United States (emphasis supplied). In addition, to our
general objection, we object specifically to the definition
of a foreign agent because it would require that two condi-
tions must be met before the individual could fall within that
category, and before electronic surveillance could be judici-
ally authorized against him. First, he must be engaged in
activities which, in the opinion of the Attorney General,
are intended to serve the interests of a foreign power and
second, those activities must be intended to undermine the
security or national defense of the United States. This
dual requirement would preclude the use of such surveillance
against,.persons such as, for example, foreign commercial or
milita y attache, who, although they serve the interests of
a fore n__p.ower may not necessarily be engaged in activities
specifically aimed at undermining the security of the United
States. Accordingly, we feel that the definition of "foreign
agent" is entirely too restrictive.
Section 4 of the bill would amend Section 2519 of Title
18 by adding new subsections (4) and (5), which require the
Attorney General to report quarterly to four specified
committees of Congress regarding the number, duration, and
cost of interception orders under 18 U.S.C. 2516, et seq.
This reporting requirement is not limited to "national secu-
rity" interceptions, but includes all interceptions applied
for and granted under the federal statutes. We oppose such,
a reporting requirement because information regarding Title
III interceptions is currently being supplied on a.yearly
basis to the Administrative Office of the United States
Courts pursuant to 18 U.S.C. 2519(2) and the Director of that
Office is required to transmit to Congress the very same
information in April of each year pursuant to 13 U.S.C. 2519(3).
Thus, Section 4 of H.R. 141 would cause the Attorney General.
and his staff to engage in formalized, quarterly preparation
and reporting of information which is presently being kept
and reported to Congress by a body created for just such
administrative activities. The duplication of effort would
be time and resource consuming and wholly unnecessary.
In view of the foregoing considerations, the Department
of Justice opposes the enactment of H.R. 141. The Office of
Management and Budget has advised that there is no objection
to the submission of this report from the standpoint of the
Administration's program.
Sincerely,
A. Mitchell McConnell
Acting Assistant Attorney General
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