TESTIMONY OF CLARENCE M. KELLEY DIRECTOR FBI CONCERNING SENATE BILL NUMBER 2820 SURVEILLANCE PRACTICES AND PROCEDURES ACT OF 1973

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800110056-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 18
• Document Creation Date: December 14, 2016
• Document Release Date: June 16, 2003
• Sequence Number: 56
• Publication Date: October 2, 1974
• Content Type: COURTFILE

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UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF INVESTIGATION
DIRECTOR
FEDERAL BUREAU OF INVESTIGATION
CONCERNING
SENATE BILL NUMBER 2820
"SURVEILLANCE PRACTICES AND
THE SUBCOMMITTEES ON
CRIMINAL LAWS AND PROCEDURES
AND CONSTITUTIONAL RIGHTS
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
OCTOBER,2, 1974
FBI review(s)
completed.
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There is no explicit prohibition, of course; but
requirements and restrictions imposed by the bill would be.
prohibitive in ways I shall explain later.
But first let me say that as Director of the FBI
I have found myself in recent months thrust by circumstances
into the position of being an official exponent of legal
and proper electronic surveillances as an investigative
technique.
But I don't mind this. I sincerely believe it's
an invaluable and proper technique when used according to
the rules of law and ethics.
But, let's be candid, improper electronic surveillances
are not only unpopular in today's climate of public opinion,
they are downright repugnant to Americans. Reverence for
liberty and individual rights, I am proud to say, have been
inbred in Americans for two centuries. We place a high
value on our right of privacy. And abuses of this right
brought to light in the recent past outraged many Americans.
That is really why we are here today.
We are met at a time when this outrage still
smoulders in the public forum, and we feel its heat.
It would be easy for my associates and me in the
FBI to withdraw from the heat; it would be easy to abandon
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Mr. Chairman and members of the Subcommittee, I
very much appreciate the opportunity to appear before you
today.
My associates and I have carefully reviewed
Senator Nelson's bill from the standpoint of its practical
application in FBI national security investigations.
And quite frankly, we have concluded that this
legislation would in effect prohibit the FBI from using
electronic surveillance for intelligence, gathering.
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the electronic surveillance technique to be laid to eternal
rest by its critics.
We gain nothing personally by defending its legal
and proper use, nor is the FBI's storied image enhanced by
our apologist's role.
Who stands to gain from my presentation here
today? In all sincerity, I say our country stands to gain...
the American people-the less developed countries throughout
this world whose existence is dependent upon a strong and
vigorous United States.
So I would urge you, as one of my concerned
associates in the FBI's. Intelligence Division suggested,
not to burn the house down to roast the pig.
Let's first take notice of the fact that the FBI
has a vital mission to support the President in,discharging
certain constitutional mandates: his responsibility to
formulate and to implement foreign policy...to maintain
our nation's defenses...to preserve the basic structure
and existence of our government from hostile acts by foreign
powers or their agents.
How do we do this? Essentially, in two ways:
First, the FBI provides the President with
intelligence information essential to foreign policy planning
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and essential to those officials responsible for the national
If we can provide advance indicators of a dramatic
diplomatic initiative by an adversary foreign power, our
foreign policy planners are invaluably aided.
If we can detect a spy, the interests of
national defense are certainly well served.
Secondly, we support Presidential objectives by
investigating violations of Federal statutes relating to the
national security such as espionage, sabotage and treason.
I cannot overemphasize the profound importance I
attach to the FBI's responsibility to provide the President
with the very best information possible to assist him in
conducting our foreign policy and maintaining our nation's
defenses.
Perhaps the most dramatic illustration of this is
provided by the Pearl Harbor tragedy, December 7, 1941. The
Army Pearl Harbor Board exhaustively studied the circumstances
surrounding that attack, and this was one of the Board's
conclusions:
"The Japanese Armed Forces knew everything
about us. We knew little about them.-This
should not come to pass again...We must know
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as much about other major world powers as
they know about us. This is an absolute
condition precedent to intelligent planning
by those charged with formulating our
international policies and providing for
our security."
With that grim reminder on the record, let me
emphasize one or two general conclusions my associates and
I have reached regarding the Nelson Bill - conclusions
by no means hastily drawn.
The legislation before this Subcommittee would
severely hamper the FBI's efforts supportive of our government's
ability to effectively conduct relations with other nations,
provide for our defense and enforce laws relating to national
security.
The bill would affect the national security in
ways which I cannot discuss in public. session. Detailed
discussion could permit hostile foreign intelligence
services to adjust their tactics to avoid detection. And
such discussion could severely prejudice the vital interests
of our government's foreign policy and defense planners.
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However, there are some points that I would like
to clearly make here and now regarding the severely restrictive
provisions of this bill.
First, the Nelson bill.would permit the FBI to
seek intelligence 'information through the use of electronic
surveillance only against "foreign powers" and "foreign
agents," not against American citizens or persons becoming
American citizens.
Frankly, we think this is a distinction that may
appeal to Americans' pride of citizenship but has no practical,
logical basis, or value to them.
To draw such a distinction ignores the fact that
individuals and groups in our country have been, are and
probably always shall be, influenced and in some cases
directed by foreign powers. Remember the German-American
Bunds? Shall we forget the close rapport the Communist
Party in this nation has with adversary governments? Can
we ignore the fact that violence-prone revolutionary groups
in this country clasp Chairman Mao's quotations to their
bosoms and deify Che Guevara.
Let me give you a more positive example:
A United States District Court recently found
that Jewish Defense League harassment of Soviet diplomatic
personnel and facilities in New York City so affected our
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relations with the Soviet Union as to bring the matter within
the purview of the President's authority over the conduct
of foreign affairs. This, the court said, justified the FBI's
electronic surveillance of Jewish Defense League activities.
But had the Nelson Bill been in effect, the FBI would
have been unable to collect intelligence information relevant
to formulation of policies regarding the Soviet Union and the
Middle East.
It would be naive in the extreme, Mr. Chairman,
to assume that only a foreigner is an appropriate subject
for an intelligence surveillance to obtain information
pertinent to foreign policy or national security.
And. please, if you would, carefully consider
the bill's inordinately narrow and restrictive definition
of "foreign agents:"
One, a foreign agent must be an individual who
is not a United States citizen or in the process of becoming
one.
Two, the foreign agent's first allegiance must
be to a foreign power.
Three, his activities must be intended to serve
the interest of that foreign power, and
Four, his activities must be for the purpose of
undermining the security of the United States.
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We interpret that last provision to mean that
only those foreign agents whom we could show are
actively undermining the security of the United States
could be subjected to a foreign intelligence electronic
surveillance.
Each and every element of the bill's definition
of a foreign agent must be satisfied before an electronic
surveillance warrant may be obtained under this provision.
This in itself could be a formidable piece of
work. And it could very well prevent the FBI from obtaining
critically needed intelligence information during a grave
international crisis.
Consider, for example, a flareup between two
small powers - neither interested in undermining the security
of the United States, but each of which could inadvertently
involve the super powers in a major conflict.
The President might properly instruct that an
electronic surveillance be conducted by the FBI to detect
early warning signs of major power involvement in the crisis.
Under the Nelson Bill, the FBI would be prohibited
from obtaining the essential information if we-were unable
to show the court that the intended subject of the surveillance
was, at that particular time, engaged in activities intended
to undermine the security of the United States.
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Let's examine another requirement of the bill. It
provides that the FBI could not conduct a foreign intelligence
surveillance unless a judge finds "probable cause" to
believe the surveillance is necessary and will produce the
desired results.
There is an express requirement that we furnish
"evidence" independent of our conclusory opinion, or others'
conclusory opinions, that the surveillance will serve
purposes enumerated.
Conclusory opinion standing alone has never been
adequate for an arrest or search warrant. While "evidence"
is not defined in the bill, its presence in the bill's
language suggests something more will be required than
presently is required for warrants. But what?
Remember, we are talking about intelligence cases
bearing on foreign policy and national defense.'
And the bill demands that a judge must find
probable cause to believe that the surveillance is necessary
and will produce the desired results.
Should judges be burdened with the grave
responsibility of deciding whether such surveillances are
rc.a.sonable and necessary to fulfill information requirements
of foreign policy and national defense?
Judges presumably are well qualified by training
and experience to exercise final discretion in matters of
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law and questions of evidence. But can they be expected
to be as well versed in matters of foreign policy and
national defense?
Practical experience and common sense
compel us to believe that the Nelson Bill's warrant
requirements for foreign intelligence electronic
surveillances would be unworkable in practice.
For example, we would be unable to obtain a
warrant to surveil a suspected foreign intelligence
officer unless the Bureau could produce facts showing the
surveillance will produce valuable national security
information, which we must identify.
It would be a rare case indeed in which we could
provide such evidence to a judge.
The FBI's experience with foreign intelligence
cases, I can tell you, has clearly demonstrated to us the-
difficulty in predicting the potential benefits to be
derived from a surveillance.
In investigating crimes such as bank robbery or
extortion, logical avenues of inquiry are established by
the elements of the crime. The evidence sought is clearly
prescribed by these elements.
But there are no such guidelines in field of foreign
intelligence collection. No single act or event dictates
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with precision what thrust an investigation should take;
nor does it provide a reliable scale by which we can measure
the significance of an item of information.
The value and significance of information derived
from a foreign intelligence electronic surveillance often
isn't known until it has been correlated with other items
of information - items sometimes seemingly unrelated.
Also, difficulty in determining the potential
value of information derivable from such an installation
makes it hard to predict the required duration of the
surveillance.
Which brings us to another point. The Nelson
Bill permits warrants for foreign intelligence surveillance
installations for only 15 days with extensions of only ten
days.
In my opinion, these periods are prohibitively
brief and are incompatable with foreign intelligence collection,
which must continue as long as foreign intelligence activity
poses a threat to the United States.
Furthermore, provisions of the bill would so
increase manpower and budgetary requirements that they could
conceivably discourage use of this technique even when such
use would be prudent and reasonable.
One such provision is the requirement that the
FBI furnish the issuing judge progress reports justifying
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continuance of the surveillance - apparently in addition
to written justification for ten-day requests for extensions.
These progress reports and the ten-day extension
periods obviously would impose severe constraints on our
foreign intelligence collection responsibilities. I should
note that Justice Department policy is to authorize for
90-day periods, initially and for extensions.
Mr. Chairman, there is one provision in this
bill which, in itself, would render electronic surveillance
useless as a foreign intelligence-gathering technique.
I refer to the requirement that any person whose
conversations with a foreign agent are overheard by the
FBI through an installation must be furnished complete
details of the interception.
This, indeed, would amount to burning the house
down to roast the pig.
Let's say we obtained the Attorney General's
authorization for an installation at the residence of
a known, active foreign intelligence officer in the
United States under diplomatic cover.
Let's suppose the FBI overhears conversations
between the intelligence officer and two other persons -
an American friend with whom he plays tennis, and his
ambassador, a bona fide diplomat.
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Should the Nelson Bill become law, the FBI
would be required to furnish the intelligence officer's
tennis partner and his ambassador copies of the warrant
authorizing the surveillance. We also would have to furnish
them copies of the FBI's application for the warrant.
Bear. in mind that the application will contain
whatever information the FBI possessed regarding this foreign
agent's activities to undermine the security of the United States.
We also will have set forth in the application the national
security objective served by the surveillance.
We further would be required by disclosure provisions
of the Nelson Bill to furnish the tennis partner and the
ambassador with a transcript of the intercepted communications.
Under these conditions, I can assure this subcommittee
that the intelligence officer could consider himself immune
from electronic surveillance by the FBI. We would have no
part of it.
Let's consider another point, the provision that
evidence of a crime obtained from a foreign intelligence
electronic surveillance may not be used in a criminal
prosecution.
Doesn',t this seem unreasonable? How is our
society served by suppressing evidence of a crime discovered
during the course of a legal and proper foreign intelligence
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electronic surveillance - a surveillance conducted by the
FBI as a reasonable and prudent exercise of the President's
authority in foreign relations and national defense areas?
It serves no good purpose to preclude use of
damning evidence against a foreign intelligence officer
without diplomatic immunity simply because the evidence
was obtained from such a surveillance.
The Nelson Bill, as I have indicated, requires
a judicial warrant for a foreign intelligence electronic
surveillance; but it contains no emergency provision.
There is no allowance for surveillance prior to
issuance of a warrant in a national emergency. This omission
could well deny the President the use of a vital source of
information in an international crisis.
The use of electronic surveillance has proved its
value time and again in foreign intelligence work. The Nelson
Bill would divest us of this technique, and the security of
this country would be that much diminished.
Should the Nelson Bill be enacted, no responsible
official would recommend use of this technique, even on
occasions when its use appears reasonable and prudent.
Permit me to turn now to the Nelson Bill's effect
on obtaining evidence of violations of statutes relating to
national security.
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These restrictions are aimed primarily at electronic
surveillances of American citizens or persons in the process
of becoming citizens.
Generally speaking, the bill contains provisions
which would sharply reduce the value of electronic surveillances
in such cases..
To obtain a surveillance installation against a person
suspected of committing an offense such as sabotage or espionage,
the FBI would be required to meet standards of cause more
demanding than those imposed by Title III of the Omnibus
Act of 1968.
The Nelson Bill demands that to electronically
surveil a suspect the FBI must furnish evidence that suspect
has committed or is about to commit a specific offense -
such as espionage.
In practical terms, this means we would have to
have almost enough evidence against a spy to arrest him before
we could obtain an electronic surveillance warrant. This, in
effect, rules out intelligence-gathering through electronic
surveillance of American citizens.
I should note, too, that under Title III, electronic
surveillances may be continued for up to 30 days - thus there
is a far more liberal time allowance for ordinary crimes such
as gambling than the Nelson Bill provides for national security
crimes such as sabotage.
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Furthermore, applications for each ten-day renewal
period under the Nelson Bill must be supported by information
and evidence over and above that furnished initially for
the original order.
The practical effect of this is that electronic
surveillance in a national security crime case would have
to be discontinued in the absence of new evidence of
the crime.
Title III imposes no such requirement.
In my opinion, our country would be ill served
by making the investigation of violations of national security
statutes more difficult than investigation of criminal
activity not affecting national security.
In concluding, Mr. Chairman, let me leave you
with these thoughts.
As a family man, as an American, as a career
lawman, as Director of the FBI, I am deeply committed to
the individual's right of privacy. I would never tolerate
an unlawful or unethical breach of this right.
I am unequivocably committed to strict adherence
to Department of Justice standards to ensure the propriety
of intelligence and national security crimes electronic
surveillances, as detailed for you by Attorney General Saxbe.
But I am genuinely concerned that the legislation
before you would substantially diminish the FBI's ability
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to respond to legitimate presidential requirements for
foreign intelligence information.
I am genuinely concerned that this bill would
likewise diminish our effectiveness with regard to enforcing
laws affecting our national security..
I know you must share these concerns.
I am firmly in favor of reasonable measures to
avoid abuses, measures which would recognize the President's
constitutional authority, but would employ appropriate means
to prevent misuse of that authority.
Mr. Chairman, thank you for permitting me to
testify. This concludes my remarks. My associates and I
will be pleased to answer any questions you may have.
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