FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000500040006-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 52
• Document Creation Date: December 19, 2016
• Document Release Date: September 20, 2005
• Sequence Number: 6
• Publication Date: September 6, 1978
• Content Type: OPEN

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September .6, 1978 ,,,CONGRESSIONAL RECORD-HOUSE H 9101.
ous Federal and intergovernmental c
mate activities.
The NOAA office cannot attempt in
any way to operate as a "Climate Czar"
because the Various agencies and depart-
ments have perfectly legitimate missions
which are impacted in one way or an-
other by climate considerations. Some of
these missions involve the development
of climate information, while others in-
volve the use of climate information.
The purpose of this legislation is
to bring together the various climate
activities in a programmatic sense to
make a stronger whole without orga-
nization change. To help accomplish
this, the bill provides for: First, a
unified budget request-to be prepared
by the Office of Management and Budget
and to include climate-related budgets
from all the agencies; and second, a com-
prehensive 5-year plan covering all Fed-
eral climate activities to be prepared in
consultation between all the pertinent
agencies. Thus, the role of the program
office must be to take actions to coordi-
nate, strengthen, and supplement the
various climate activities of the mission
agencies. This should in no way result in
any jurisdictional disputes between agen-
cies or struggles over agency missions.
There is no language anywhere in this
bill that would take away from any
agency any of its legitimate, traditional
missions. Rather, the purpose and the in-
tent Is to encourage cooperation between
the agencies in climate-related matters.
As a specific example, we do not expect
the lead agency, the Department of
Commerce, to control all program fund-
ing. For example, some program funds
will continue .to be sought directly by the
mission agencies under their existing
authorities. Of course, any such budgeted
funds would be Included in the unified
budget of the climate program, and the
activities should be 'included in the 5-
year plan. Further, we expect that the
Department of Commerce will.conduct a
planned passthrough program by which,
as lead agency, it will support with pass-
through funds, certain program activities
in the appropriate mission agencies.
Mr. Speaker, I think you can see that
we have put a great deal of thought and
work into this bill and that it is address-
ing in a unique way a major national
need. For this reason, and for all the rea-
sons enumerated above, I urge adoption
of this conference report.
Mr. WALKER. Mr. Speaker, will the
gentleman yield?
Mr. BROWN of California. I will be
happy to yield to the gentleman from
Pennsylvania whose participation, and
support has contributed greatly to the
development of this legislation.
Mr. WALKER. Mr. Speaker, I'have a
question about section 5(e) (1) of the
bill, which provides for an advisory com-
mittee. I support the idea that the Sec-
retary should seek advice on the conduct
of the program from outside the Federal
Government, and that she should specifi-
cally look to users of climate data, infor-
mation and services in securing this ad-
vice. However, Mr. Speaker, I do have a
question about the permissive authority
for the Secretary to compensate members
of the committee at the daily rate for
GS-16 of the general schedule for each
day in which they are engaged in the
actual performance of their committee
duties. I understand that this compen-
ation would be in addition to the travel
xpenses and per diem in lieu of sub-
stence. I raise this question in part be-
cuse similar language was stricken by
a endment in the Science Committee
an I want to insure that the intention
of t e House has not been lost on this
poin I also raise this question because
I bel ve in general that it is broadly
signifi nt to advisory committees
throug ut Government.
First, note that the authority given
the Secre ry is permissive.
Mr. BR WN of California. That is cor-
rect. The cretary is under no obliga-
tion to pr vide this compensation to
members oft e committee.
Mr. W R. Then I take it that this
compensation only to be paid in cases
when a partic r individual Is not able
to participate wl out such pay and when
such an individ 1 would stand to lose
personal income b participating in com-
mittee activities.
In other words, if understand you cor-
dividuals-or there fight be some in-
dividuals-who wool be only able to
participate in this pro ram and partici-
pate on the Advisory ommittee if the
Secretary could provide ditional incen-
tive in the form of pay ent to secure
their participation?
Mr. BROWN of Californl . Yes; that is
our Intention.
We did consider the pos ion of the
House that compensation sh Id not be
paid at all. As you remembe the lan-
guage that was stricken in th Science
Committee would have called fo anda-
tory payment of compensation y the
Secretary. That would not hav been
right. However, because we are s eking
broad Involvement in this advisory om-
mittee, specifically the involvemen of
representatives of users of climate n-
formation, we thought that the Sec
tary should have the authority to ma
such payments in order to secure par
ticipation of people whose advice would
make for a stronger program and who
would suffer financial hardship in par-
ticipation without pay.
Mr. WALKER. Mr. Speaker, we have
established that the authority is strictly
permissive, but I would like to inquire
as to the frequency with which you an-
ticipate it will be exercised?
Mr. BROWN of California. I antici-
pate that this authority will be used in-
frequently-only in rare and extraord-
inary circumstances.
I would expect that almost everyone
whose advice would be sought on this
advisory committee would be able to
participate without this compensation.
Most would find that their employer
would be happy to pay their salary while
they were participating on such an im-
portant committee. Indeed, some in-
dividuals might be willing to participate
at their own expense just because of the
honor of serving on such a committee.
For this reason, I would expect that the
authority would be used only in rare and
extraordinary circumstances.
1
Further, I am prepared to send a let-
ter to Secretary Kreps explaining the
points that have been made and request-
ing that she keep us fully and currently
informed on this matter. I would spe-
cifically request that she inform us when-
ever some individual declines to serve on
the committee because he is not going to
be paid" for his services. I will include
the letter in the RECORD.
Mr. WALKER. Thank you very much,
Mr. Speaker.
Mr. BROWN of California. Mr. Speak-
er, I include the following material:
COMMITTEE ON SCIENCE AND TECH-
NOLOGY, HOUSE OF REPRESENTA-
TIVES,
Washington, D.C.
Hon. JuANrrA KREPS,
Secretary, Department of Commerce,
Washington, D.C.
DEAR SECRETARY KREPS: As Chairman of
the Subcommittee on the Environment and
the Atmosphere I have been deeply involved
in the evolution of the Climate Act, H.R.
6669, which has just been reported by a
Committee of Conference. As one of the
House Conferees on this legislation I want
to ensure that there Is no confusion as to
the Congressional intent of Section 5(e) (1)
of the Act.
Included in Section 5(e) (1) is permissive
authority for the Secretary of Commerce to
provide compensation at the daily rate for
GS-16, of the General Schedule for members
of the Advisory Committee foreach day en-
gaged in the. actual performance of their
duties. Similar language, which was manda-
tory in nature, was included in the flr$t draft
of this legislation and was removed by the
Committee on Science and Technology at the
time the Committee considered the bill., That
position was later sustained when the bill
was passed by the House of Representatives.
It is the intention of the House Conferees
that this permissive authority is provided
for use only in rare and extraordinary cir-
cumstances. We realize that there may be oc-
casions in which the participation of par-
ticular individuals may be highly advanta
geous to achieving the goals of the Act and
that these particular individuals would suf-
fer financial hardship if they accepted ap-
pointment without compensation. However,
we expect that such' circumstances would
be few and far between.
The Subcommittee on the Environment
and the Atmosphere requests that you no-
tify the Chairman and the Ranking Minority
ember of any utilization of this permissive
uthority and the circumstances which jus-
t y such use. A number of Members of the
S committee have expressed the opinion-
th they believe that most citizens are will-
ing o contribute their time and talent to
nati al advisory -committees and that they
consi r the public honor of being invited
to par cipate sufficient to compensate them
for the time. Therefore, we also request
that you rovide us with the particulars con-
cerning a y prospective member of this ad-
visory co ittee who indicates that he is
unwilling o accept appointment based
solely on th lack of daily compensation.
For the Co mittee I want to express my
deep apprecia on for your cooperation.
Sincerel
GEORGE E. BRowN, Jr.,
Chairman, Subcommittee on the Envi-
ronment an& the Atmosphere.
Mr. BROWN % of California. Mr.
Speaker, I have nor,further requests for
time, and I yield back the remainder of
my time.
The SPEAKER. The question Is on the
conference report.
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H 9102 CONGRESSIONAL RECORD-HOUSE September 6, 1978
The conference report was agreed to. H. Ras. 1266
A motion to reconsider was laid on the Resolved, That upon the adoption of this
-GENERAL LEAVE
Mr. BROWN of California. Mr.
Speaker, I ask unanimous consent that
all Members have 5 legislative days in
which to revise and extend their remarks
on the conference report just agreed to.
The SPEAKER. Is there objection to
the request of the gentleman from Cali-
fornia?
There was no objection.
PROVIDING FOR CORRECTION IN
THE ENROLLMENT OF H.R. 6669,
NATIONAL CLIMATE PROGRAM
Mr. BROWN of California. Mr.
Speaker, I call up the Senate concurrent
resolution (S. Con. Res. 103) to correct
the enrollment of H.R. 6669 and ask
unanimous consent for its immediate
consideration.
The Clerk read the Senate concurrent
resolution as follows:
S. Cox. RES. 103
Resolved by the Senate (the House of Rep-
resentatives concurring), That In the enroll-
ment of the bill (H.R. 6669), to establish a
national climate program, and for other pur-
poses, the Clerk of the House of Representa-
tives shall make the following correction:
In section 5(b) (1), strike "(8)" and insert
In lieu thereof "(9) ".
The SPEAKER. Is there objection to
the request of the gentleman from Cali-
fornia?
There was no objection.
The Senate concurrent resolution was
concurred in.
A motion to reconsider was laid on the
table.
REPORT. ON RESOLUTION PROVID-
ING FOR CONSIDERATION OF H.R.
13471, FINANCIAL INSTITUTIONS
REGULATORY ACT OF 1978
Mr. BOLLING, from the Committee
on Rules, submitted a privileged report
(Rept. No. 95-1536) on the resolution (H.
Res. 1333) providing for consideration
of the bill (H.R. 13471) to strengthen
the supervisory authority of Federal
agencies which regulate depository in-
stitutions, to prohibit interlocking man-
agement and director relationships be-
tween financial institutions, to amend
the Federal Deposit Insurance Act, to
restrict conflicts of interest involving offi-
cials of financial supervisory agencies, to
control the sale of insured financial in-
stitutions, to regulate the use of cor-
respondence accounts, to establish a
Federal Bank Examination Council, and
for Other purposes, which was referred
J FOREIGN INTELLIGENCE SURVEIL-
LANCE ACT OF 1978
'R`nT.T.TT-JM Mr
to the House Calendar and ordered to be
printed.
tion of the Committee on Rules, I call
up House Resolution 1266 and ask for its
immediate consideration.
resolution It shall be in order to move that
the House resolve itself into the Committee
of the Whale Howse on the State of the
Union for the consideration of the bill (H.R.
7308) to amend title 18,. United States
Code, to authorize applications for a court
order approving the use of electronic sur-
veillance to obtain foreign intelligence in-
formation. After general debate, which shall
be confined to the bill and shall continue
not to exceed three hours, one and one-half
hours to be equally divided and controlled
by the chairman and ranking minority mem-
ber of the Permanent Select Committee on
Intelligence and one and one-half hours
to be equally divided and controlled by the
chairman and ranking minority member of
the Committee on the Judiciary, the bill
shall be read for. amendment under the five-
minute rule. It shall be in order to consider
the amendment in. the nature of a substiute
recommended by the Permanent Select Com-
mittee on Intelligence now printed in the
bill as an original bill for the purpose of
amendment, said substitute shall be read
for amendment by titles instead of by sec-
tions, and an points of order against said
substitute for failure to comply with the
provisions of clause 5, rule XXI are hereby
waived. No amendment-to said substitute
shall be in order except germane amend-
ments printed in the Congressional Record
at least three legislative days before their
consideration, pro forma amendments for
the purpose of debate, and amendments re-
commended by the Permanent Select Com-
mittee on Intelligence. It shall be in order
to consider en bloc amendments to said sub-
stitute printed in the Congressional Record
of July 17 by Representative McClory of I11i-
nois. At the conclusion of the consideration
of the bill for amendment, the Committee
shall rise and report the bill to the House -
with such amendments as may have been
adopted, and any Member may demand a sep-
arate vote in the House on any amendment
adopted in the Committee of the Whole to the
bill or to the committee amendment in the
nature of a substitute, The previous question
shall be considered as ordered on the bill and
amendments thereto-to final passage without
intervening motion except one motion to
recommit with or without instructions..
After passage of H.R. 7308, the Committee on
the Judiciary shall be discharged from the
further consideration of the bill S. 1566; and
it shall then be In order in the House to
move to strike out all after enacting clause
of said Senate bill and insert in lieu thereof
the text of H.R. 7308 as passed by the House.
The SPEAKER pro tempore (Mr.
BROWN of California). The gentleman
from Missouri (Mr. BOLLING) is recog-
nized for 1 hour.
Mr. BOLLING. Mr. Speaker, I yield 30
minutes to the gentleman from Ohio
(Mr. LATTA), and pending, that I Yield
myself such time as I may consume.
Mr. Speaker, those Members who lis-
tened to the reading of the rule will know
that this rule provides for 3 hours of
general debate, 11/2 hours to be equally
divided and controlled by the chairman
and ranking minority member of the
permanent Select Committee on Intel-
ligence and 11/2 hours to be equally di-
vided and controlled by the chairman
and ranking minority member of the
Committee on the Judiciary. The com-
mittee amendment in the nature of a
substitute will be read by titles for the
purpose of amendment.
The only amendments to be allowed
the RECORD at least 3 days in advance of
their offering. The so-called McClory
amendments which appear in the July 17
RECC;Rn may be considered en bloc. A
motion to recommit, with or without in-
structions, is in order, and then the mat-
ter will be sent to conference with the
Senate bill.
Mr. Speaker, I know there is contro-
versy over the matter that will' be
brought up by this rule, but I do not have
the feeling that there is opposition as
such to the rule. Therefore, I reserve the
balance of my time.
Mr. LATTA. Mr. Speaker, I yield my-
self such time as I may consume.
(Mr. LATTA asked and was given per-
mission to revise and extend his re-
Unarks) .
Mr. LATTA. Mr.. Speaker, I would like
to point out to the House that this is
a very, very important piece of legisla-
tion, because it deals with foreign intel-
ligence matters, and the security of this
Nation might at some time in the future
be jeopardized by what we may or may
not do here.
As a matter of fact, when the matter
was before the Committee on Rules, I
raised the question as to whether or not
there was any provision in this legisla-
tion which would allow the President of
the United States to authorize warrant-
less electronic surveillance during times
of war, and I found out that there was
not, and that the President would, the
way this legislation is written, have to
come back to the Congress to have an
amendment drafted along those lines.
So thinking into the future, I have
discussed the matter with the gentle-
man from Illinois (Mr. MCCLORY), who
has had a considerable amount to do
with this legislation and who is to be
commended for his efforts, and we have
drafted an amendment which I will pro-
pose, which would allow the President to
authorize warrantless electronic surveil-
lance for periods of up to 1 year dur-
ing times of war or national emergency.
Hopefully, when this matter is being de-
bated under the 5-minute rule, we will
see fit to give the President and the Na-
tion this particular safeguard.
Mr. Speaker, this rule provides 3 hours
of general debate for the consideration
of H.R. 7308, the Foreign Intelligence
Surveillance Act of 1978. The time will
be equally divided between the Perma-
nent Select Committee on Intelligence
and the Committee on the Judiciary.
The rule makes in order an amend-
ment in the nature of a substitute recom-
mended by the Permanent Select Com-
mittee on Intelligence. In order to pre-
serve the normal amending process, the
substitute is made in order as an original
for the purpose of amendment.
Points Of order are waived against the
substitute for failure to comply with
clause 5 of rule XXI, which prohibits
appropriations on a legislative bill. The
bill provides that funds appropriated
for the Department of Justice may be
used for the operation of the Special
Court and the Special Court of Appeals
set up by this legislation. Technically
this constitutes an appropriation on leg-
islation, and therefore the waiver is
The Clerk read the resolution, as are committee amendments and those The rule does contain limitations on
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September 6, 1978 CONGRESSIONAL RECORD-HOUSE
meats will be in order except, first, ger-
mane amendments printed in the CON-
GRESSIONAL RECORD at least 3 legislative
days. before their consideration; second,
committee amendments and; third, pro
forma amendments for the purpose of
debate.
The rule also makes it in order to con-
sider en bloc amendments to be offered
by the gentleman from Illinois (Mr.
MCCLORY)
Finally in order to expedite a confer-
ence, after passage of the House-passed
bill, it will be in order to insert the
House-passed language in the Senate bill
number.
Mr. McCLORY. Mr. Speaker, will the
gentleman yield to me?
Mr. LATTA. I am happy to yield to the
gentleman from Illinois.
Mr. McCLORY. Mr. Speaker, I thank
the gentleman for yielding.
Mr. Speaker, I rise not in opposition
to the rule, but only to explain that the
rule does limit and does restrict the
Members with regard to offering amend-
ments to this extremely controversial and
complex legislation. In other words,
Members who have not drafted amend-
ments and had them placed in the REC-
ORD and printed for at least 3 days prior
to this date are going to be excluded from
offering amendments.
To that extent I think this is a very
unfair rule. It is not an open rule. it is a
rule subject to that kind of limitation
and restriction. On this very complex leg-
islation which was brought before the
Committee on the Judiciary and the
Permanent Select Committee on Intel-
ligence, it seems to me that it is ex-
tremely unfair and unfortunate that
we have this kind of a situation.
As a matter of fact, one of the reasons
why the Committee on the Judiciary did
not, take up this subject was because
members of the Committee on the Judi-
ciary represented that we would not mark
up the bill before the committee because
we would have an opportunity when the
bill came up on the floor of the House
of Representatives to mark it up at that
time. We heard that same, kind of argu-
ment when we were in the Permanent
Select Committee on Intelligence in the
markup stage. The members said that
this would all be done by action on the
floor.
We are now in a situation where, if
we have not already put our amendments
in the RECORD and they have not been
printed, we are not going to have an op-
portunity to offer amendments to this
bill.
I think it is important for the Members
at this stage to realize that the extent of
this legislation is very far-reaching. This
legislation is unprecedented. It is un-
precedented in our entire legislative and
judicial history. There has never been
an instance of a special court provided
which would be able to pass upon the
exercise of executive authority with re-
gard to national security or. foreign af-
fairs matters.
As a matter of fact, it goes precisely
against the constitutional authority
which is reposed ,in the President. If this
measure passes, the President will not
hereafter be authorized to exercise his
Rmecutive authority with respect to
securing national security intelligence
information. And I am talking now about
information. I am not talking about
espionage, or anything else. I am talking
just about intelligence information gath-
ering. And the President would not be
authorized to secure this information
unless it is approved by the judge, a
member of a special court that is estab-
lished-by this legislation.
This special court itself is unprece-
dented. The secret hearings are unprece-
dented. The secret record is 'unprece-
dented. This is all part of what is called
a very carefully crafted piece of legisla-
tion. I think the word "crafted" may be
a very apropos word, because it may be
craftily put together. In fact, the Mem-
bers will find that there is a tremendous
input here, not only on the part of the
Intelligence Committee, the Department
of Justice, and others, but a very sub-
stantial input insofar as the American
Civil Liberties Union is concerned, as far
as other agencies are concerned, whose
interests are not our national security,
but whose interests are entirely some-
thing else.
So I think it is well for the Members
to have in mind that there is a compro-
mise made with regard to our national
security intelligence-gathering capability
in this legislation, a compromise made
with the ACLU, a compromise made with
Morton Halperin, a compromise made
with those who are looking out not for
the intelligence-gathering capability but
who, in many instances, would like to
have this capability eliminated entirely.
There are a great many who feel that-we
should have no intelligence capability
with regard to clandestine or secret or
private investigations or activities. And
with regard to. those persons, why, of
course, this would be entirely satisfac-
tory. But insofar as providing support
for our intelligence agencies, the Mem-
bers will find that all of the former in-
telligence officers, the entire organiza-
tion, is opposed to this legislation, and
many others who are knowledgeable on
the subject. It is legislation which has
not been considered at the markup stage
by the Committee on the Judiciary, has
not come before the full Committee on
the Judiciary, although it was assigned
and referred to the Committee on the
Judiciary, and it has not received the
consideration with respect to constitu-
tional issues that are concerned, legal
issues that are concerned, or, in my
opinion, many of the practical subjects
that are concerned with regard to this
legislation.
Let me say that the Intelligence Com-
mittee did accept one amendment. It
accepted one substantial amendment. So
in this respect, the measure is substan-
tially different from the measure which
was passed over in the Senate. It is not
the same bill. When people say that they
support the bill that was passed in the
Senate by a wide margin, they are not
talking about the same bill. This is a
different bill. I think this bill should be
considered on its own merits, and I think
that each and every amendment offered
should be considered-and there will be
a great many amendments offered.
H 9103
Mr. BOLAND. Mr. Speaker, will the
gentleman yield?
Mr. LATTA. I yield to the gentleman
from Massachusetts.
Mr. BOLAND. I thank the gentleman
for yielding.
Mr. Speaker, I was wondering whether
or not the gentleman from Illinois (Mr.
MCCLORY), who has worked long and
hard on this bill-as a matter of fact, i
would even go so far as to say that this
is "Bob McClory Day, because the gen-
tleman has done a good job on the bill-
I am wondering whether or .not, if we
presented the Senate bill, would the gen-
tleman vote for the Senate bill, if we
presented the bill here today.
Mr. McCLORY. No. I would say the
Senate bill is worse than the bill we have
today. We have made asubstantial im-
provement over the Senate bill. We have
made many, many additional improve-
ments. I think it is unfortunate, and it
must be embarrassing to the other body
that passed a bill 95 to 1 that this coos-.
mittee on both sides of the aisle rejected,
in the sense that we adopted a substan-
tial amendment in the committee which
is now a part of the bill. And I commend
the committee for that amendment.
Mr. BOLLING. Mr. Speaker, I yield 5
minutes to the gentleman from Kentucky
(Mr. MAZZOLI).
Mr. MAZZOLI. Mr. Speaker, I rise in
support of H.R. 7308, and particularly I
rise to commend my distinguished col-
league, the gentleman from Wisconsin
(Mr. KASTENMEIER).
Mr. KASTENMEIER was responsible,
in my judgment, for the way the distin-
guished House -Committee on the Judi-
ciary, and particularly his Subcommittee
on Courts, Civil Liberties, and Adminis-
tration of Justice, has handled this bill.
I am a member of the House Intelligence
Committee, as well as the Judiciary Com-
mittee, although not a member of Mr.
KASTENMEIER'S own subcommitee.
Mr. KASTENMEIER was kind enough,
however, to allow me to sit in with his
subcommittee during the hearings on
H.R. 7308. Having sat with his subcom-
mittee and having appeared before it
as a witness, I can state with assurance
that the 3 days of hearings which Mr.
KASTENMEIER'S committee .held on H.R.
7308 were comprehensive and complete.
The subcommittee heard a full range of
views in the subject of foreign intelli-
gence surveillance. Also, the subcommit-
tee drew upon past-year hearings and on
the extensive record compiled by .the
House Intelligence Committee.
While some members of the subcom-
mitee had reservations about H.R. 7308,
and I think no thoughtful person can
have other than some reservations about
certain provisions, the subcommittee
decided, following careful study, that
H.R. 7308 was worthy of being discussed,
debated, and voted upon by the full
House.
The subcommittee acted in recognition,
also, of the little time remaining in this
session of the Congress. Further delays
awaiting full Judiciary Committee action
have led to the demise of the bill.
Mr. KASTENMEIER. Mr. Speaker,
will the gentleman yield?
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.CONGRESSIONAL RECORD-HOUSE September 6, 1978
Mr. MAZZOLI. I yield to the gentle-
man from Wisconsin.
Mr. KASTENMEIER. Mr. Speaker, the
gentleman from Kentucky accurately
states the situation, and I want to ex-
press my thanks to him for making that
explanation. We were very pleased to
have his testimony and have him sit with
the subcommittee, along with our col-
league from Illinois (Mr. MCCLORY), who
was also not only present and testified
before my subcommittee, but was able
to suggest witnesses for us as we delib-
erated this question.
Mr. Speaker, again I want to express
my appreciation for the gentleman's
statements.
Mr. MAZZOLI. Mr. Speaker, let me
first say that I think the gentleman
from Wisconsin, in his truly modest way,
never gives himself full credit. It was a
very difficult situation; it was a very
difficult parliamentary situation; it was
a very difficult tactical, situation, and I
thought the gentleman handled it with
real aplomb and gave full and complete
hearings to the matters, and I think he
has produced a good bill.
Mr. McCLORY. Mr. Speaker, will the
gentleman yield?
Mr. MAZZOLI. I yield to the gentle-
man from Illinois.
Mr. McCLORY. Mr. Speaker, I just
want to acknowledge that there were
some hearings, and the gentleman in the
well and I did testify. However, I would
also like to emphasize that there was
no markup session by either the sub-
committee or by the full committee; so
that this was, in a way, window dressing.
This was a concession to me, I ,guess,
because I had requested hearings, but
when the subcommittee moved to table
and the motion to table succeeded, then
in effect the subcommittee decided that
the bill would remain In the Judiciary
Committee without being considered by
that committee.
So, it Is not appropriate to bring this
bill to the floor with any suggestion or
representation that it has received full
Judiciary Committee consideration, be-
cause it has received none in so far as the
markup stage is concerned.
Mr. MAZZOLI. I would like to state to
the gentleman, having sat with the sub-
committee as I did, and having heard
the gentleman himself as a witness, and
having heard some of his witnesses testi-
fy to the defects as they perceived theif
in the bill, having listened to the debate
and the colloquies that raged in that
committee room for 3 days, I would have
to say that the committee record which
the gentleman has on the table is com-
plete and contains information sup-
porting the gentleman's position that
certain changes should be made in the
bill.
So, while there may not have been
technically the kind of markup that a
committee usually conducts where
amendments are offered and argued, cer-
tain assertions were made during the
committee hearing chaired by the gentle-
man from Wisconsin, which will be re-
ferred to by the gentleman from Illinois
in support of his position that HR. 7308
needs to be amended.
Mr. Speaker, the subcommittee's ac-
tion-and I think this is important to
note-the subcommittee that is headed
by the gentleman from Wisconsin (Mr.
KASTENMEIER), its action on H.R. 7308
in no way waives the Judiciary Commit-
tee's right of jurisdiction over foreign
intelligence electronic surveillance or
any other related subject matters, so,
what is done today waives in no way or
in no sense preempts the Judiciary
Committee from taking action on this
type of bill or any other kind of bill in
the future.
And while the Judiciary Committee in
this instance, Mr. Speaker, graciously
agreed to let the full House work its will
on this bill, the committee in the years
ahead will play a vital and vigorous role
in overseeing the provisions of H.R. 7308.
I urge therefore that the House pass the
bill, a measure to regulate foreign in-
telligence electronic surveillances, and
again let me commend the gentleman
from Wisconsin (Mr. KASTENMEIER).
Mr. BOLLING. Mr. Speaker, I yield 5
minutes to the distinguished gentleman
from Illinois (Mr. MTURPHY) .
(Mr. MURPHY of Illinois asked and
was given permission to revise and ex-
tend his remarks.)
Mr. MURPHY of Illinois. Mr. Speaker,
with regard to the rule today, the gen-
tleman from Illinois, my colleague on the
committee states that this is an unfair
rule. Let me tell my colleagues that this
rule was issued on July 12. The gentle-
man said there was not enough oppor-
tunity for amendments to be offered. Let
me tell my colleagues there are over 50
pending amendments' to this piece of
legislation, so anybody who feels he has
been short changed has not been reading
the RECORD. My colleague, the gentleman
from Illinois, has been lobbying almost
every Member on both sides of the aisle
with regard to this bill and his opposi-
tion to this bill. He h4s had two oppor-
tunities before the House Select Commit-
tee on Intelligence where he was given
every chance to bringwitnesses support-
ing his point of view. He cross-examined
every head of every intelligence agency
of the United States. He was given the
same opportunity, and the same wit-
nesses appeared, before, the House Judi-
ciary Committee.
I would like to read to my colleagues
today a letter I received from Attorney
General Griffin B. Bell:
OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C., September 6, 1978.
Hon. MORGAN F. MURPHY,
U.S. House of Representatives,
Washington, D.C.
DEAR CONGRESSMAN MURPHY: The President
today Issued the enclosed statement in sup-
port of the passage of the Foreign Intelli-
gence Surveillance Act (H.R. 7308). I join the
President in his belief that this bipartisan
effort of the Executive Branch and Congress
will strengthen the capability of our intelli-
gence agencies to deal with foreign espionage
and international terrorism while also safe-
guarding the privacy rights of Americans-.
The bill Is scheduled for a vote in the
House of Representatives this week. The Di-
rector of Central Intelligence, the Secretary
of Defense, the Director of NSA and the Di-
rector of the FBI join me in strongly sup-
porting this legislation.
Yours sincerely,
GRIFFIN B . BELL,
Attorney General.
Mr. Speaker, I would like also to read
the President's message, issued today:
STATEMENT BY THE PRESIDENT
The House of Representatives is scheduled
to vote this week on the Foreign Intelligence
Surveillance Act, one of the most significant
legislative initiatives involving our intelli-
gence agencies in the last three decades.
This Act will establish the nation's first
legislative controls over foreign intelligence
surveillance conducted by the United States
Government. Most importantly, those con-
trols will be established so as to protect both
the strength of our nation's intelligence
agencies and the privacy rights of our
citizens.
American citizens will be assured that the
intelligence agencies. so vital to protecting
our security will be table to perform their
tasks fully and effectively. The bill also as-
sures intelligence officers who serve our coun-
try that their proper activities in this field
will be authorized by statute.
By providing clear statutory standards, this
legislation will help strengthen the ability
of our intelligence agencies to deal with
foreign espionage and international terror-
ism. The strong support of this legislation
by every intelligence agency clearly reflects
this fact.
The passage of this legislation is also a
major step toward eliminating the potential
for abuse of electronic surveillance by the
Federal Government. Americans will now be
afforded the safeguards of a judicial war-
rant procedure for any electronic surveillance
which might affect their rights.
This legislation has been carefully devel-
oped over several years, by Executive and
Congressional leaders of both parties. The
kind of bipartisan cooperation needed to
develop legislation in the intelligence area,
which Is so important to the defense of our
nation, was demonstrated earlier this year
by the overwhelming Senate vote, 95-1, pass-
ing the bill.
I urge the Members of the House to vote
for passage of this legislation, so that we
can promptly begin to implement this well-
balanced, long-overdue initiative.
Mr. Speaker, I urge my colleagues to
vote for the passage of this rule.
Mr. LATTA. Mr. Speaker, I yield 5
minutes to the gentleman from Arizona
(Mr. RUDD).
(Mr. RUDD asked and was given per-
mission to revise and extend his re-
marks.)
Mr. RUDD. Mr. Speaker, as a Member
of this body who served for 20 years as a
special agent for the Federal Bureau of
Investigation, with many years in the
area of foreign intelligence, I will tell
you that this proposed legislation is
fatally flawed.
It will have the effect of seriously
weakening any effective intelligence-
gathering capability by our Government.
Such effective intelligence-gathering
is entirely dependent upon speed and
confidentiality of sensitive sources. Both
of these factors would be severely com-
promised by the warrant provisions, and
the involvement of the judicial branch.
in the area of authorizing electronic
surveillance.
First, let me say that legislation just
because it contains a warrant provision
will not provide a special shield against
prosecution for the loyal FBI agent or
othe' , Government official who is in-
structed to conduct electronic surveil-
lance.
Any law which would guarantee im-
munity from criminal prosecution or
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September 6, 1978 CONGRESSIONAL RECORD-HOUSE
civil suit to a government officer or em-
ployee conducting such surveiflance au-
thorized by the Attorney General would
provide such a shield.
In fact, the warrant provision will
destroy the FBI's ability to collect intel-
ligence on the movement and plans of
known terrorists in an emergency situa-
iton, as one major example of this bill's
defects.
As a result of the Kearney case, and
the current indictment of three other
major FBI officials who were involved in
the surveillance of people under author-
sty of the Attorney General, in order to
locate and apprehend fugitive members
of the Weather Underground terrorist
organization, a chilling effect has already
been imposed upon the legitimate Intel-
ligence function of the FBI and other
agencies.
The destructive nature of the Kearney
case and what has followed will be
severely compounded if a warrant re-
quirement is imposed for foreign intelli-
gence purposes that do not necessarily
Involve an American person in a crime.
Here we have a situation where the
current administration has set a prece-
dent that loyal FBI subordiiates may be
prosecuted and, if convicted, Imprisoned
for carrying out instructions of their
superiors, authorized by the Attorney
General and even the President him-
self, if those instructions are later con-
sidered to be wrong.
So what happens in an emergency
situation under this bill, if the FBI is in-
formed by border officials at the Canada-
Vermont border that a suspected mem-
ber of the German terrorist Baader-
Meinhof Gang has just passed into the
United States? Such a circumstance oc-
curred just last month.
There is no firm evidence that the
foreign citizen, who has a passport and
a visa is a member of this terrorist group.
But the possibility is strong, and some
very valuable intelligence information
could. be gained by having this person
followed and electronically surveilled at
any stopping point, even including the
home of some collaborator or contact.
within the United States along the way.
In this situation, time is of the essence.
Even minutes lost could mean that ? a
dangerous terrorist would be on the loose
among our own people, and that valua-
ble intelligence about that person's ob-
jectives or domestic-contacts and sources
of support would remain unknown to
our Government.
Under this proposed legislation, what
do our intelligence officials-what does
the FBI do?
Right now, there is no question about
what would be done. The Attorney Gen-
eral would be alerted. He could instruct
the FBI to follow the individual and to
conduct electronic and other surveillance
at every possible point, in order to collect
intelligence that is essential to. the Gov-
ernment for the protection of our people.
If any criminal activity is Indicated, a
warrant would be sought for further au-
thority to collect evidence by electronic
surveillance and other means.
But under this bill, before any crimi-
nal activity is evidenced and an investi-
gation for that purpose can be started,
H9105
nothing could be done to collect vital in- it is inevitable that American citizens
telligence information, maybe leading to' and resident aliens will call such embas-
prevention of harm to the public. sies. Even with minimization procedures
The warrant provision for foreign in- required by this bill, such surveillance to
telligence purposes is the reason that determine domestic contacts and sup-
nothing would probably be done in the porters of Communist government goals
precious-few minutes and hours at the and activities in the United States would
outset, when the most valuable intelli- require a warrant. And under the Free-
gence could be obtained. dom of Information Act and through
Yes, there is a supposed 24-hour emer- other means, this information provided
gency grace period under this bill, where to the court to obtain necessary war-
electronic surveillance can be conducted rants would inevitably wind up in the
while a warrant is being sought for such hand of the wrong people.
surveillance. Take the case of Orlando Letelier, who
But what FBI special agent will be will- was Chile's ambassador to the United
ing to conduct this surveillance during States during the Marxist regime of Sal-
the 24-hour period without a warrant, vadore Allende. Letelier made contacts
once a warrant is required, under the risk and friends among leftists in our own
that the judge may not approve the war- country=even in the Congress.. Letelier
rant? was a close friend and comrade of Fidel
Under the Kearney precedent, the Castro and his allies.
loyal FBI agent would be out on the end When the Allende regime ended,
of the proverbial tree limb, after the Letelier sought and obtained asylum in
judge has sawed it oft. the United States and worked full-time
The good information and good judg- until his death in pro-Communist causes
ment of this FBI agent's superiors, and in our country.
even the Attorney General himself, will Evidence obtained from his briefcase
not save the FBI subordinate from the when he died showed that Letelier was
spector of prosecution in such a case- receiving financial support from the Cas-
and most certainly from the probability tro government through Allende's daugh-
of civil suit if the parties involved be- ter, who was living in Cuba. This evidence
come aware of what has happened, which also showed that Letelier used these
they will under this bill. funds to pay for his lobbying and intel-
And so this bill-despite its supposed ligence gathering activities in the United
24-hour warrantless foreign intelligence States. He developed extensive contacts
electronic surveillance-will prevent the with U.S. Government and congressional
possibility that any FBI agent or other officials.
official can prudently, in his own best Under this bill, in order for our intel-
interests, conduct such surveillance and ligence officials to follow up on such evi-
remain protected from later possible dente, and to inform the President and
recriminations. other Government officials of the rela-
For the public, this means that hun- tionship and support between American
dreds, maybe thousands of situations citizens and hostile foreign governments,
such as the one involving alleged mem- judicial warrants will be required.
bers of the terrorist Baader-Meinhof Sensitive information such as that I
Gang coming into the United States to have described involving Letelier and
meet up with comrades in the United highly placed officials will then, by law,
States will go by the boards in their ini- be required to be made part of the court
tial stages, where the most valuable in- record.
telligence work against foreign. threats These records, either legally under the
must be done. Freedom of Information Act, or through
Let us make no mistake about the time litigation, or as the result of leaks to the
that will be lost in such a situation. Uh- news. media and other illegal methods,
der current procedures, top-level author- will inevitably be publicized and com-
ity for electronic surveillance within the promised through disclosure.
executive branch must already be The only way to prevent disclosure of
obtained. sensitive intelligence information is to
This includes authority from the At- severely restrict access to It. Under this
torney General himself and maybe at the bill, It will be required that such sensitive
Presidential level as well, which can be information and documentation be
obtained immediately. turned over to a special new court-may-
Under this bill, in addition to these be two courts-involving 17 judges, their
procedures, a Federal judge must give clerks, reporters, bailiffs, and so forth. It
his approval. This will involve additional is inevitable that our most sensitive,
administrative preparation, time lost lo- highly classified, and explosive intel-
cating and appearing before the judge ligence information will be compromised
and in obtaining his decision. Here we and disclosed publicly under such an un-
are only talking about the problems con- reasonable arrangement.
fronting our intelligence community in If for no other reason than the highly
an emergency situation. This does not important news value of such court files
even consider the serious mistake of in- to our energetic, probing news media,
volving the judicial branch in the execu- who of necessity are always digging for
tive's foreign intelligence gathering func- the best story, this intelligence informa-
tion in the first place. tion will be perpetual game for leaking
Mr. Speaker, under this bill a war- and publication.
rant would be required to conduct wire- We cannot afford to allow such a
taps to collect foreign intelligence in thing to happen. We cannot allow a law
every instance. Even surveillance of the to be passed that will destroy the speed,
Soviet and other Communist government the sureness, and the confidentiality of
embassies would require a warrant. our intelligence gathering capability
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H 9106 CONGRESSIONAL RECORD-HOUSE September 6, 1978
that is so essential to the President's Second. The rights of our citizens can hours of the initiation of the surveil-
responsibility as our Commander in best be protected by requiring a judicial lance.
Chief and top foreign policy officer. warrant for such surveillance undertak- Third, surveillance solely for the pur-
I implore my colleagues to defeat H.R. en in the United States. . Poses of testing equipment, training per-
7308. If ,legislation is needed in this H.R. 7308 is based on these conclusions sonnel, or "sweeps" to discover unlawful
area, the McClory substitute is cer- and will insure that both legitimate intel- electronic surveillance are authorized
tainly the only prudent way to accom- ligence activities and the privacy inter- without a warrant under rigorous con-
plish that objective. ests of our people are furthered. H.R. trols to insure that no information con-
Mr. BOILING. Mr. Speaker, I move 7308, as amended, would enact a new cerning United States persons is im-
the previous question on the resolution. law entitled the "Foreign Intelligence properly used, retained, or disseminated.
The previous question was ordered. Surveillance Act of 1978." The purpose The bill would authorize the Attorney
The resolution was agreed to. of the bill is to provide a statutory pro- General to make applications to the spe-
A motion to reconsider was laid on the cedure authorizing the use of electronic cial court for a court order approving
table. surveillance in the United States for the use of electronic surveillance. Ap-
Mr. MURPHY of Illinois. Mr. Speaker, foreign intelligence purposes. The pro- proval of an application under the bill
I move that the House resolve itself into cedures in the bill would be the exclu- would require a finding by a judge that
the Committee of the Whole House on sive means by which electronic surveil- the target of the surveillance is either a
the State of the Union for the considera- lance, as defined, could be used for for- "foreign power" or an "agent of a foreign
tion of the bill (H.R. 7308) to amend title eign intelligence purposes. The following power," terms defined in the bill, and
18, United States Code, to authorize ap- techniques of electronic surveillance that the facilities or places at which the
plications for a court order approving the would fall within the bill's prescriptions: surveillance is directed are being used or
use of electronic surveillance to obtain First. The acquisition of a wire or radio are about to be used by a foreign power
foreign intelligence information. communication sent to or from the or agent of a foreign power. Where offi-
The SPEAKER. pro tempore (Mr. United States by intentionally targeting cial foreign powers are the target of a
BROWN of California). The question is a known United States person in the surveillance, the standards for obtaining
on the motion offered-by the gentleman United States under circumstances in a warrant are less strict than for other
from Illinois (Mr. MURPHY). which the person has a reasonable ex- surveillances, and both the amount of
The motion was agreed to. pectation of privacy and a warrent would information provided the judge and the
IN THE COMMITTEE OF THE WHOLE be required for law enforcement pur- findings he must make are reduced.
Accordingly the House resolved itself Poses; A "foreign power" may include a for-
Into the Committee of the Whole House Second. A wiretap in the United States eign government, a faction of a foreign
on the State of the Union for the con- to intercept a wire communication, such government, a group engaged in inter-
sideration of the bill H.R. 7308, with Mr. as a telephone or telegram communica- national terrorism, a foreign-based polit-
YATES in the chair. tion; ical organization, or an entity directed
The Clerk read the title of the bill. Third. The acquisition of private radio and controlled by a foreign government
By unanimous consent, the first read- transmissions where all of the communi- or governments. An "agent of a foreign
ing of the bill was dispensed with. cants are located. within the United power" includes nonresident aliens who
The CHAIRMAN. Under the rule, the States; or act in the United States as officers, mem-
gentleman from Illinois (Mr. MURPHY) Fourth. The use in the United States bers, or employees of foreign powers or
will be recognized for 45 minutes, the of any electronic, mechanical or other who act on behalf of foreign powers
gentleman from Illinois (Mr. MCCLORY) surveillance device to acquire informa- which engage in clandestine intelligence
will be recognized for 45 minutes, the tion other than from a wire communi- activities in the United States contrary
gentleman from Wisconsin (Mr. KASTEN- cation or radio communication under to the interests of this country. U.S. per-
METER) will be recognized for 45 minutes, circumstances in which the person has a sons meet the "agent of a foreign power"
and the gentleman from Virgina (Mr. reasonable expectation of privacy and a criteria if they engage in certain activi-
BUTLER) will be recognized for 45 warrant would be required for law en- ties on behalf of a foreign power which
minutes. forcement purposes. involve or may involve criminal acts.
The Chair now recognizes the gentle- H.R. 7308, as amended, creates a spe- The court would also be required to find
man from Illinois (Mr. MURPHY). cial court in Washington, D.C., composed that procedures proposed in the applica-
of at least one judge designated by the tion adequately minimize the acquisi-
Mr. MURPHY of Illinois. Mr. Chair- Chief Justice from each of the judicial tion, retention, and dissemination of in-
man, I yield myself such time as I may circuits and a special court of appeals formation concerning U.S. persons con-
consume. composed of six judges designated by the sistent with the need of the United
(Mr' MURPHY of Illinois asked and Chief Justice from the greater Wash- States to obtain, produce, and dissemi-
was given permission to revise and extend ington, D.C. area. nate foreign intelligence information.
his remarks.) The bill would require a prior judicial Every application for an order must
Mr. MURPHY of Illinois. Mr. Chair- warrant for all electronic surveillance contain a certification or certifications
man, H.R. 7308, as reported by the per- for foreign intelligence purposes with made by the Assistant to the President
manent Select Committee on Intelli- three limited' exceptions. First, where for National Security Affairs or an exe-
gence, is the culmination of over 4 years certain types of electronic surveillance cutive branch official or officials desig-
of detailed inquiry by two administra- are targeted against certain types of for- nated by the President from among
tions and six congressional committees eign powers, under circumstances where those executive officers with responsibili-
into the unique area of foreign intelli- it is extremely unlikely that a United ties for national security or defense who
gence electronic surveillance. It has, States person's communication would be are appointed by the President with the
with its predecessor from the Ford ad- intercepted, no warrant is required. In- advice and consent of the Senate. Those
ministration been the subject of hearings stead, Attorney General approval is re- officials would be required to certify that
on seven different occasions over 3 years, quired. Parenthetically, I would note that any information sought by the surveil-
and of five different markups and five this exception, to the warrant require- lance relates to, and If concerning a U.S.
committee reports. . ment was suggested by my colleague person Is necessary to, the national de-
This inquiry was conducted against the from Illinois (Mr. MCCLORY). It was fense or the conduct of foreign affairs of
backdrop of both the abuses revealed by agreed to by the Intelligence Commit- the United States or the ability of the
the Church and Pike committees and tee in a spirit of compromise. I and a United States to protect against grave
the 'recognition that an efficient intel- majority of my colleagues on the com- hostile acts or the terrorist, sabotage, or
ligence collection capability is vital to mittee made a good faith effort to obtain clandestine intelligence activities of a
the national interest. the support of the gentleman for the bill. foreign power. The court would be re-
Two basic conclusions have been Obviously, we have not succeeded. quired to review each certification for
reached: Second, emergency surveillance with- surveillance of a U.S. person and to
First. Electronic surveillance is a neces- out a warrant would be permitted in determine that the certification is not
sary and proper means of. collecting limited circumstances, but a warrant clearly erroneous.
foreign intelligence information; and would have to be obtained within 24 The court could approve electronic
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September 6, 1978 CONGRESSIONAL RECORD HOUSE
surveillance for foreign intelligence pur-
poses for a. period of 90 days or, in the
case of surveillance of a foreign govern-
ment, faction, or entity openly controlled
by a foreign. government, for a period
of up to 1 year. Any extension of the sur-
veillance beyond that period would re-
quire a reapplication to the court and
new findings as required for the original
order.
H.R. 7308 requires annual reports to
the Administrative Office of the U.S.
Courts and to the Congress of statistics
regarding applications and orders for
electronic surveillance, The Attorney
General is also required, on a semian-
nual basis, to inform the House Per-
manent Select Committee on Intelli-
gence and the Senate Select Committee
on Intelligence fully concerning all elec-
tronic surveillance under the bill; and
nothing in the bill restricts the authority
of those committees to obtain further in-
formation related to their congressional
oversight responsibilities.
This, admittedly, is a short outline of
a very complex and detailed piece of leg-
islation. Its very complexity, however,
is evidence of the attention the Intel-
ligence Committee has given to the im-
portant national security and civil liber-
ties issues involved.
As introduced, H.R. 7308 was fully
supported by the administration and, to
a lesser extent, supported by the intelli-
gence community. The bill was opposed
by civil liberties groups. The Intelligence
Committee worked hard on the bill, in-
volving in discussion both civil liberties
groups apd officials of the intelligence
community. The result is a getter bill
from the perspectives of both civil liber-
tarians and intelligence officials. It is a
good bill, albeit a very complex and con-
fusing one, because it assures that the
abuses of the past cannot be repeated,
while at the. same time preserving, and
in certain respects, improving, the nec-
essary collection of foreign intelligence
important to this Nation's security.
This is not to say that it is a bill about
which reasonable men and women may
not differ. Some believe on the basis of
moral principle that electronic surveil-
lance simply is wrong and can never be
justified, except perhaps if it were essen-
tial to the continued existence of our
country. Others believe, again on the
basis of moral principle, that judges
should never be involved in the approval
process for foreign intelligence elec-
tronic surveillances. Obviously, the bill is
not responsive to either of these posi-
tions. . '
Rather, the majority of the House In-
telligence Committee was convinced on
the one hand that the electronic sur-
veillances which would be regulated by
H.R. 7308 can be, and often are, impor-
tant to the national security. On the
other hand, the majority of the commit-
tee was equally convinced that these im-
portant surveillances could be conducted
in a manner which would fully protect
the legitimate privacy rights of Ameri-
cans. The bill as reported by the com-
mittee, I believe, authorizes and facili-
tates those important surveillances, while
protecting the rights of those involved,
and prohibits those illegitimate surveil-
lances which were the abuses of the past.
A red, white, and blue herring that has
been raised is a so-called threat to the
national security. No intelligence com-
munity witness before the House Intelli-
gence Committee suggested that H.R.
7308, as introduced or as reported,
threatened the national security. No in-
telligence community witness has ex-
pressed any reservation about the bill, as
reported, impeding legitimate intelli-
gence collection. No intelligence commu-
nity witness suggested that the bill's pro-
cedures would threaten whatever speed
is necessary for foreign intelligence sur-
veillances. Only two witnesses expressed
a reservation concerning risks of disclo-
sure with respect to the bill as intro-
duced. Those witnesses were Admiral
Murphy of the Defense Department and
Admiral Inman of NSA. Today, both Ad-
mirals Murphy and Inman support H.R.
'7308, as reported, without reservation.
It is alleged that reams of classified
material will be given to large numbers
of judges and court personnel: This is
nonsense. An application is made to one
judge, not many, and the bill explicitly
allows for executive branch personnel to
serve as any necessary court support.
Another herring that is dragged across
the trail is that judges, are unequipped
to make subtle political and operational
decisions necessary in the foreign intelli-
gence field. The bill recognizes this fact
full well and does not allow judges to
make such decisions. Much of the bill's
complexity arises from the need to
specify exactly what the judges' duties
and powers are under the bill. Those
duties and powers are of the same nature
as currently exercised under the law reg-
Mating law enforcement surveillances;
that is, applying facts to a statutory
standard.
The vehicle that keeps judges from
second-guessing the executive's political
judgments is the certification which
must accompany each application for
a warrant. That certification must be
signed by ~a high executive branch offi-
cial with responsibility for intelligence
or foreign affairs matters. It will con-
tain statements by that official that the
object and the purpose of the surveil-
lance is to obtain a particular type of
"foreign intelligence" as defined, that
this foreign intelligence cannot be other-
wise obtained and it will provide the
basis for the official's belief that such in-
-formation will result from the surveil-
lance. Such a certification can only be
questioned if these statements are clearly
erroneous on their face.
The so-called "criminal standard" is
also a herring to the extent that anyone
suggests that it will impede legitimate
intelligence collection. The presence of
the criminal standard does not mean
that the purpose of the surveillance is
prosecution, or only to gather evidence
of a crime, and there is certainly no lim-
itation in the bill that would so restrict
such surveillances. Nor was the so-called
criminal standard adopted because of
any belief that the Constitution required
it. Rather, it. was adopted as a matter of
policy and principle, that this Govern-
ment should not target electronic surveil-
lance against, individual Americans ab-
H 9107
sent probable cause to believe that they
at least may be involved in a violation of
law. If this principle had any negative
impact on the collection of necessary
intelligence, a debate over this criminal
standard might be called for, but the
Director of the FBI has indicated in the
strongest possible terms that the crimi-
nal standard in H.R. 7308, as reported,
will not impede the FBI's intelligence,
collection by, means of electronic
surveillance.
Finally, it has been suggested that
congressional oversight is a more proper
check on the executive than a judicial
warrant. But, it is clear to me at least
that congressional committees are sim-
ply not equipped to conduct oversight
of the day-to-day operation of electronic
surveillance, and it is also clear to me
that the executive will not provide us the
information to do the job even if we were
in a position to do it, Such uncertain,
after-the-fact oversight is-no substitute
for prior approval of these surveillances.
The benefits of H.R. 7308, as reported,
and its improvements over current prac-
tice both from national security and
civil liberty viewpoints are substantial.
It is not a bill designed to punish the
intelligence community.
It is not a bill that was hastily written
in response to media pressure.
And, it is not a bill that will hamstring
the intelligence agencies now or in the
future.
Rather, it is a much needed piece of
legislation that will remove the existing
uncertainties as to what are proper in-
telligence activities while protecting the
rights of our citizens.
It will enable the dedicated and patri-
otic men and women of our intelligence
agencies to go about their important
business secure in the knowledge that
their endeavors are supported by the
Congress and the people and that their
actions will not subject them to public
scorn and ridicule
Mr. KASTENMEIER. Mr. Chairman,
will the gentleman yield?
Mr. MURPHY of Illinois. I yield to the
gentleman from Wisconsin.
Mr. KASTENMEIER. I thank the
gentleman for yielding, and 'I want to
commend him, and particularly, the
chairman of the full committee, the gen-
tleman from Massachusetts--(Mr, Bo-
LAND), and the entire Intelligence Com-
mittee for the work they have done on
H.R. 7308.-
I know, from having grappled with
this vexatious issue in my own commit-
tee, how difficult it is. One of the difficul-
ties in the bill, perhaps not a major one,
but nonetheless one I would like to ask
the gentleman from Illinois about, is as
follows :
I notice that the directive language
contained in section 102(a) (3) (A) and
in section 105(b)(2)(B) of H.R. 7308
provides that common carriers shall fur=
nish information, facilities or technical
assistance necessary to accomplish the
electronic surveillance, and here are the
important words, "in such a manner as
will protect its secrecy". That language
is different from the directive language
of title III of the Omnibus Crime Con-
trol Act of 1968 where common carriers
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CONGRESSIONAL RECORD-HOUSE September 6, 1978
are required to provide information, fa- that spy was using, he would adopt a yield further, I can understand Admiral
cilities and technical assistance "neces- different method or he would leave the Inman's enthusiasm because we have
sary to accomplish interception unob- country, leave the jurisdiction. That is eliminated, we have exempted, his opera-
trusively". My question is this, what is the reason for it. tion from the scope of this legislation,
the difference between "in such a man- Mr. KASTENMEIER. I thank my col- But, I question that we have done any-
ner as will protect its secrecy" and "un- league for his explanation. thing with respect to Admiral Murphy. I
obtrusively" in the two statutes? Is it Mr. McCLORY. Mr. Chairman, will do not think we have affected his opera-
the intent of the drafters of the language the gentleman yield? tions in any way.
that the Government is authorized to re- Mr. MURPHY of Illinois. I yield to Mr. MURPHY of Illinois. We have ex-
quest different or more information, the gentleman from- Illinois. empted Admiral Inman in one specific
facilities or technical assistance under Mr. MCCLORY? I thank the gentle- operation that we are prohibited from
H.R. 7308 than is authorized under title man for yielding to me. talking about in public, and the gentle-
III and if such is intended, what is the Mr. Chairman, I just want to say man is fully aware of it, but it is not his
nature of that additional or different co- that I commend the gentleman for his whole operation.
operation which may be required? administration of our subcommittee, and Every operation of the NSA which
Mr. MURPHY of Illinois. Let me say I do not have any complaints as far as falls under the definition of electronic
to the gentleman that he is correct in the opportunity to present evidence there surveillance, as defined in the bill, is
that a court order or an Attorney Gen- is concerned. The evidence presented by covered by the bill.
eral's order obtained under this bill may, a former deputy attorney, Laurence Sil- It was suggested to the committee in
direct an officer, employee, or agent of berman, I thought was rather persuasive, the testimony of representatives from the
a communications common carrier to and we had other testimony as well. Department of Defense and from the
provide certain assistance to Govern- However, the gentleman states that National Security Agency that some
ment agents implementing those orders. Admiral Inman, who originally objected very sensitive activities need not require
The nature and scope of such as- to the bill, now no longer has any ob- a judicial warrant under the bill, because
sistance is intended to be identical to that jection. I understand that we have ex- they would not involve the interception
which is authorized by section 2518(4) empted his operation from the coverage of communications of U.S. persons.
(e) of chapter 119 of title 18 of United of this legislation. The committee considered this ap-
States Code, commonly referred to as However, Admiral Murphy-no rela- proach very carefully and eventually
title III of the Omnibus Crime Control tion to the gentleman in the well-who agreed to an amendment offered by the
Act of 1968, as amended. The reason that testified, I think, in January of this gentleman from Illinois (Mr. MCCLORY)
the language of H.R. 7308 in the sections year before our committee, said that the effect of which was to exempt from
to which the gentleman refers is differ- there was a very high risk and very the warrant requirement, but not from
ent than the language of title III is be- limited benefit for the rights of Ameri- the other provisions of the bill, and cer-
cause the drafters and the committee cans were we to require a warrant with tainly not from Attorney General ap-
wished to make very clear that these regard to the targeting of foreign agents proval, those operations which would by
electronic surveillances which seek to and foreign powers. definition not involve U.S. persons.
collect foreign intelligence information What if anything did we do in this Members will understand why I am re-
in this country are extremely sensitive in bill in order to get him to change his luctant to discuss the particulars of the
nature and must be protected from dis- mind about this legislation? very sensitive surveillances that are in-
closure in the strictest possible fashion. Mr. MURPHY of Illinois. I think it volved.
These electronic surveillances are dif- was the gentleman's amendment, the However,, it certainly can be said that
ferent from wiretaps authorized by title amendment offered by the gentleman those operations which constitute elec-
III where the law requires that notice from Illinois (Mr. MCCLORY), which tronic surveillance but which are
eventually be given to the subjects of satisfied both Admiral Inman and Ad- handled under section 102 (a) of the bill,
those wiretaps. H.R. 7308 makes clear miral Murphy. As the gentleman will that section which permits Attorney
that no notice will be given the subjects recall, there were members of the com- General authorization of these particular
of electronic surveillance as defined un- mittee who objected to his amendment, surveillances are of a . segregable class
der the bill because of the important na- but as chairman of the Subcommittee about which it can be said with certainty
tional security interests to be protected. on Legislation I supported his amend- that U.S. persons will not be intercepted.
Accordingly, the language of the statute ment, as did Mr. BOLAND, chairman of The committee felt that adopting the
reads "in such a manner as will protect the full committee, and other Democrats. amendment ofiered by the gentleman
its secrecy." In a spirit of cooperation I thought from Illinois did no violence to the prin-
This does not seek to authorize in some we would be able to bring this bill to ciples which underlie H.R. 7308.
indirect fashion a different kind of co- the -floor, as the Senate did, in a bi- It was felt that this legislation was
operation than is currently authorized partisan manner. The Senate passed it introduced and'has received the support
to be requested under title III, but sim- by a vote of 95 to 1. Senators on both that it has because it did not attempt to
ply to create a statutory obligation to sides of the political continuum, both in any way dismember or destroy intelli-
keep such surveillances as secure from political philosophies-I will not men- gence operations.
disclosure as is humanly possible. tion their names because we are not sup- However, it does attempt, and I think
In other words, if an application is posed to do that-but both spectrums does a very good job at it, to protect U.S.
made to the special court and an order is were covered fully, and they passed this persons whenever they become inadvert-
issued approving the application, and bill, in an hour after years of debates ently involved in electronic surveillances
the surveillance is then undertaken, the and hearings. in this country that seek to collect for-
agents in the field go out to the common I thought when the gentleman offered eign intelligence information.
carrier and ask for their cooperation, his amendment and we adopted it, then Therefore, the different treatment pro-
and that common carrier, as it would we would come to the floor to our col- vided under the bill for surveillances
have to under title III of the Omnibus leagues with the same bipartisan effort. which do not Involve U.S. persons is at-
Crime Control and Safe Streets Act, Admiral Inman and Admiral Murphy tuned to the fundamental principle of
might, if asked, notify the subject of the both have written me, and say that not the legislation to protect innocent U.S.
surveillance that his wire is being only do they support the legislation, but persons.
'tapped. I am. sure they would not have used the The committee found a happy mar-
To protect the secrecy of these surveil- words "enthusiastically support It" If riage between security concerns and pro-
lances, we are not requiring that. The they had any qualms at all. Admiral In- tection of U.S. persons and stands by its
reason for that is simple. It is because If man, as the gentleman knows, has called judgment in adopting that amendment.
we went out and told a Russian spy that Members of Congress asking them to This is not to say, however, that the
the FBI's Counter'ntelligence Division, pass this legislation. He is the man in NSA is in any way exempt from this bill.
which conducts these surveillances for charge of probably the most sensitive of NSA operations remain covered by its
our national security, was tapping his all the operations taking place today in provisions, although different treatment
wire, I do not have to tell the gentleman the area of electronic surveillance. may be given to different types of opera-
what would happen. Whatever system Mr. McCLORY. If the gentleman will tions.
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September 6, 1978 CONGRESSIONAL RECORD-HOUSE H 9109
This, however, is fully consistent with
the legitimate interests which have
driven the drafting and consideration of
this legislation in its present form.
Mr. McCLORY. If the gentleman will
yield for this further comment, I do
not want there to be any misunderstand-
ing as far as the amendni nt I offered in
the committee. The amendment I pro-
posed to offer. in the committee, would
have been an amendment which would,
if accepted, have provided an opportunity
to bring this measure to the floor under
an agreement. That amendment would
have exempted from the warrant re-
quirements all foreign powers and agents.
I do not believe we should be required
to have a judicial warrant to have elec-
tronic surveillance over foreign powers
and agents.
Mr. MURPHY of Illinois. The gentle-
man is aware that if a U.S. citizen calls
an embassy and requests information
about some foreign event in the United
States, that his conversation will not be
used politically against him. The Church
committee and the Pike committee un-
covered clear evidence that past Execu-
tive practices have intercepted Ameri-
cans' conversations with foreign embas-
sies, which have been disclosed and used
politically against these citizens.
Mr. McCLORY. If the gentleman will
yield further, that is the purpose of the
minimization procedure which I would
offer.
Mr. MURPHY of Illinois. The mini-
mization procedures would not have come
into being had there been warrant proce-
dures; and they would not have been
.abused as they have been in the past had
there been a warrant procedure.
Mr: McCLORY. Mr. Chairman, I yie}d
7 minutes to the ranking minority mem-
ber of the Intelligence Committee, the
gentleman from California (Mr. BOB
WILSON).
Mr. BOB WILSON. Mr. Chairman, the
permanent Select Committee on Intelli-
gence has the responsibility to carry out
the mandate of the House expressed in
House Resolution 658. This responsibility
is particularly heavy at this time, as the
committee brings to the House the first
substantive policy bill to emerge from
our examination of, the intelligence
community. This bill-the Foreign Intel-
ligence Surveillance Act of 1978-will, in
whatever form it takes, impact our intel-
ligence organizations now and in the fu-
ture with respect to their ability to fur-
ther the national security interests of
this country and its citizenry.
The work of this committee, and par-
ticularly the Subcommittee on Legisla-
tion, has been difficult. We are dealing in
a complex matter, with very sensitive
subjects. The issues have centered on the
balance between our country's national
security requirements, and the individual
rights and liberties of our citizens. Our
hearings, the testimony we have received,
and the debates which have occurred in
comrlrittee, have not provided clear, un-
equivocal guidelines upon which we could
all agree. Throughout this long and diffi-
cult period, the committee chairman, the
distinguished gentleman from Massa-
chusetts (Mr. BOLAND) has guided our
efforts to ensure this most serious matter
was not examined as a partisan issue,
nor an issue between liberals and con-
servatives, but rather as an important
matter of genuine, general concern. I
would especially like to express my
warmest appreciation for his even-
handed and fair treatment of controver-
sial areas _ and issues, and particularly
for his very fair treatment and unfailing
courtesy to those of us on the minority
side.
The bill before the House today is im-
portant for, first, the subject matter is
important, because the evidence has been
overwhelming that electronic surveil-
lance within the United States for for-
eign intelligence collection is vital to the
national security interests of the United
States, and to the continued freedom and
well-being of our citizens.
This bill is important, because it will
establish a precedent for other delibera-
tions of this body as we undertake our
responsibilities to 'oversee _ the intelli-
gence and intelligence-related activities
of the U.S. Government.
I am confident that responsible Amer-
icans understand the importance of ob-
taining foreign intelligence information,
both abroad and at home, against those
foreign powers whose interests and am-
bitions are inimical to our continued
freedom. We are aware that the needs
for accurate, timely foreign intelligence
information have expanded rapidly in
recent years, both in categories of in-
formation required, and in the sources
of this information. A common thread
that runs throughout foreign intelligence
deals with communications. To contrpl
agents; to task these agents against tar-
gets within the United States; and to
acquire the information gathered: All
require communications networks. Thus,
it is evident that electronic surveillance
within the United States for foreign in-
telligence collection is as necessary today
as It was when the practice was insti-
tuted'during the Roosevelt administra-
tion. In fact, it has become indispensable
to the viability of our intelligence or-
ganizations.
The first subject whichI would like to
address is the need for any legislation.
Testimony to the Congress over the past
several years has revealed several facts
about domestic use of electronic sur-
veillance for foreign intelligence collec-
tion. First, each administration since
F.D.R. has determined that such surveil-
lance was essential to the national se-
curity of the United States. Second, each
administration from President Roosevelt
through President Nixon handled the
matter of domestic electronic surveil-
lance in great secrecy. Third, in each ad-
ministration, to varying degrees, rights
of Americans were violated in the name
of national security when no national se-
curity interest was evident. In other
words, each administration engaged in
electronic surveillance in the interest of
national security; events and activities
were handled in secret, few checks and
balances existed, and some abuses oc-
curred.
Starting with the Ford administra-
tion, and continuing through the cur-
rent administration, domestic electronic
surveillance for foreign intelligence
collection has been conducted under
the strict provisions of widely public-
ized executive orders, For example,
President Carter's Executive .Order
12036 contains the following provisions
for domestic electronic surveillance for
foreign intelligence collection. First,
these activities can only be 'under-
taken as permitted by the executive.
order, under procedures established by
the agency head and approved by the
Attorney General. Second, these proce-
dures shall, first, protect constitutional
rights and privacy; second, insure that
information is gathered by the least in-
trusive means possible; and third, limit
the use of information gathered to law-
ful Government purposes. Further, elec-
tronic surveillance shall not be con-
ducted against a U.S. person without a
judicial warrant, unless the President
has authorized the type of activity in-
volved, and unless the Attorney General
has both approved the particular ac-
tivity and determined there is probable
cause to believe the U.S. person is'an
agent of a foreign power.
The net effect of Executive Order
12036, and its predecessor, Executive
Order 11095, according to all evidence
received in committee, has been a
responsive intelligence collection pro-
gram which has not impingedI on the
rights or liberties of U.S. persons. What
then is the rationale for legislation?
Much emphasis is placed on the fact
that, even though intelligence opera-
tions have not been unduly constrained,
and the rights of our citizens have been
protected, executive orders can be
changed, and that future administra-
tions might engage in domestic elec-
tronic surveillance in the name of na-
tional security to the detriment of the
American people. I do not find this a
compelling argument. First, I believe in
the power of accountability. Executive
-Order 12036 clearly defines what is per-
mitted, under what circumstances, and
establishes a chain of accountability to
officials elected by the people of the
United States.,
A second argument presented by some
witnesses concerned the apparent'un-.
certainly, and uneasiness of our execu-
tive department officials, about the
legality of these operations, particularly
as courts hear more cases in which for-
eign Intelligence electronic surveillance
is involved. But this ignores the fact that
the courts have ruled overwhelmingly
that the President has the constitu-
tional authority to authorize domestic
electronic surveillance for national se-
curity purposes.
Nevertheless, I do believe that there is
a need to pass legislation to regulate the
use of electronic surveillance for foreign
intelligence in the United States.
What type of legislation is required?
The efforts of the permanent Select
Committee on Intelligence have cen-
tered on one major area-the involve-
ment of the judiciary. But, I believe an
aspect other than involvement of the
judiciary has not received sufficient at-
tention. That aspect concerns the focus
of our efforts. We should not be draft-
ing legislation which hobbles the-
col-lection capabilities of our intelligence or-
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B[ 9110 CONGRESSIONAI. RECORD - HOUSE September 6, 1978
ganizations. During the past 20 years,
the world has grown smaller, the number
of potential adversaries has increased,
greater areas of the Earth are of vital
concern to the United States. Our poten-
tial enemies are more active in this coun-
try. More sophisticated techniques are
available to foreign agents and tech-
nology has greatly diminished time and
distance factors. Further, the Nation is
involved more frequently in crises, in
various parts of the world, crises which
develop and change rapidly. Therefore,
as our needs for intelligence increase and
become more urgent, opportunities to
collect this vital information also in-
crease. At this time, successful perform-
ance by our intelligence organizations
becomes highly dependent on their abil-
ity to react positively and quickly to col-
lection opportunities. At this time, our
national security interests become para-
mount, and legislation must provide for
an effective, efficient, legal way for our
intelligence organizations to operate.
Therefore, the legislation which
should be adopted by this distinguished
body should be balanced, and have the
following characteristics. It should:
First. Be supportive of our vital intel-
ligence organizations, and conducive to
enhancing our national security inter-
ests.
Second. Be flexible enough to provide
responsiveness in times of crisis and war.
Third. Be protective of individual
rights and liberties of U.S. persons.
Fourth. Provide for effective congres-
sional oversight.
This legislation should not:
First. Restrict the legitimate functions
and responsibilities of the intelligence
services.
Second. Overreact to abuses which ad-
mittedly are not taking place now or to
grant to foreign intelligence agents the
rights enjoyed by the American people.
Third. And finally, should not trans-
fer constitutional responsibilities for
national security and foreign policy from
the President and the Congress to the
judiciary on matters so essential to our
well-being.
I would hope then, following our con-
sideration of H.R. 7308 and the amend-
ments which will be offered, the result-
ant legislation will serve our national
security interests well, protect the rights
of U.S. citizens, and that this legisla-
tion will serve as an effective precedent
for future legislation in providing our
intelligence organizations a sound, legal
basis for their continued contribution to
our national security and the freedom of
all our people.
Mr. McCLORY. Mr..Chairman, I yield
myself such time as I may consume.
Mr. Chairman, I appreciate the very
generous remarks which have been made
here regarding "McClory Day before the
House of Representatives." However, I
would like to say that, in my view, this
is a day in which we want to consider
very carefully the national security in-
terests of our Nation, particularly the
activities of our various intelligence
agencies.
Mr. Chairman, I merely want to indi-
cate my interest in this subject in be-
half of what I believe are the best inter-
ests of our Nation in this area; and I
have no personal or individual interest
in this legislation other than to under-
take to do what :I think is in the best
interests of our Nation.
Mr. Chairman, alhough I am controll-
ing one-quarter of the time for general
debate, as ranking member of the Com-
mittee on the Judiciary, I would like to
switch hats for a moment to thank the
chairman of the other committee, on
which I sit, and l: might say that I am
controlling the time for the Select Com-
mittee on Intelligence, and say that the
distinguished gentleman from Massa-
- chusetts must be commended for both
his outstanding ability and for his
sincere interest in this and other legis-
lation and in the other activities of our
committee.
Also, as I said bef ore, I want to com-
mend the gentleman from Illinois (Mr.
MURPHY), with whom I worked in this
subcommittee. Both of these men have
devoted a great deal of time to the con-
sideration of this very complex issue or
the number of issues which are encom-
passed in this legislation. While we have
different opinions, I am sure we are all
looking toward the same end in what we
are doing here.
Mr. Chairman, In my view, what we
should undertake to do is to repose re-
sponsibility and accountability in the
executive branch of Government and not
permit that responsibility or accounta-
bility to be transfered to the Judiciary.
H.R. 7308 would prevent our Intelli-
gence agencies, operating on the Presi-
dent's constitutional mandate to protect
our national security, from taking timely
and direct action to obtain vital foreign
intelligence information. The bill would
require the President, on the other hand,
to abstain from securing this informa-
tion or exercising his responsibility in
this area until after he first secured a
warrant from a newly established special
court. It is true that there is a 24-hour
leeway there, which is authorized in
cases of emergency. However, what if
during the 24-hour period the President
should decide he wants to have this au-
thority exercised, and at the end of that
24-hour period the court says, "No, you
cannot exercise that authority!" Then
what happens? It all of a sudden comes
to a stop; and of course, the President
has been doing, something which the
court says he never should have been
authorized to do in the first place.
Mr. Chairman, this business of re-
posing all this authority in a special
court is an extreme overreaction to the
so-called Watergate period and to the
abuses which occurred during a period
of some 2, 3, or.4 years ago, and perhaps
during a long period of time prior to
that.
As a matter of fact, in recent years,
the intelligence agencies have been op-
erating under Executive order, a}i Ex-
ecutive order first issued by President
Ford and, subsequently an Executive
order issued by President Carter. There
is no evidence, no evidence whatsoever,
in the testimony before the Committee
on the Judiciary or before the Intelli-
gence Committee which would indicate
any violation of any individual rights or
any abuses by any of the Intelligence
agencies during this period.
Therefore, what is it which we are try-
ing to correct through this legislation?
It is not abuses which are now occurring.
I defy anyone to suggest that there are
such abuses occurring now. What we are
trying to correct apparently are some
abuses which have occurred some time
ago and which have been corrected by
the Executive orders which are being
complied with.
This whole area of foreign intelligence
information securing and the entire field
of foreign affairs is not appropriately
vested in the judiciary in any sense.
Mr. Chairman, as Justice Jackson said
in the Chicago Southern versus Water-
man Steamship C. case- 0
Issues involving the national security are
delicate and complex and involve large ele-
ments of proficiency. They are and should
be undertaken only by those directly re-
sponsible to the people whose welfare they
advance or imperil.
Mr. Chairman, the persons referred
to by Justice Jackson are the elected of-
ficials of the people, the President of the
United States and the Members of Con-
gress, that is, those of us in this Cham-
ber and in the other ,body and down on
Pennsylvania Avenue in the White
House. The persons referred to by Jus-
tice Jackson are not members of the ju-
dicial branch of Government, who are
pot elected by the people.
Let us take, for instance, the question
of the abuse of authority by the judici-
ary in this area. Who takes care of that
kind of abuse? No one. There is no disci-
pline, no discipline in this legislation or
anywhere, with respect to the judiciary.
Mr. DRINAN. Mr. Chairman, will the
gentleman yield?
Mr. McCLORY. I yield to the gentle-
man from Massachusetts.
Mr. DRINAN. Mr. Chairman, I want
to commend the gentleman from Illinois
(Mr. MCCLORY) on that statement and
I agree with him, perhaps for somewhat
different reasons than those which the
gentleman from Ilinois has expressed.
I wonder if the gentleman would spec-
ulate on, this. Assuming that this bill
passes and becomes law and then we
have reason to feel that some Federal
judges are too lax in giving out the judi-
cial warrant, does the gentleman feel
that there is any way by which we as a
legislative branch could even question
these judges?
Mr. McCLORY. I do not know of any
existing machinery by which we could
take any disciplinary action against the
court. I might say one of the reasons
given for vesting this kind of authority
in the judiciary is, that while we have
had the warrant requirement with re-
gard to so-called title III provisions of
the omnibus crime bill, with regard to
domestic security, and with regard to
organized crime, and the charge is made,
or the statement is 'made, well, the
courts have given warrants in all except
three cases. What that indicates to me
is that maybe those who are in support
of this special court feel that the, court
is going to be some kind of a patsy for
the Executive who might in the abuse of
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September 6, 1978 CONGRESSIONAL RECORD--HOUSE H 9111
authority be able to fall back on the
judicial imprimatur and sagr, "Well, I
have abused my authority, but it is OK
because the judge said it is OK."
Mr. DRINAN. If the gentleman would
yield further, under the bill it is pro-
vided that Federal judges may hire peo-
ple from the executive branch. People
from the CIA, in other words, will pre-
sent the case, and people who will even
be law clerks, so to speak. Does the gen-
tleman think under this bill they could
resist any questioning by the Congress,
saying that "We are actually court offi-
cers. After all, we are paid for by the
executive branch"?
Does the gentleman think that is a
further barrier to adequate oversight by
the Congress of what the courts will do?
Mr. McCLORY. From the gentleman's
statement, of course, it demonstrates
that we are venturing forth in an en-
tirely unexplored area, We are estab-
lishing for the first time in our history
a body of secret law. Some people have
referred to this kind of secret court
proceeding as a star chamber proceed-
ing. I would not want to characterize it
in that way, but I would say it is unprec-
edented that the personnel in the court,
if they are going to be part of the judi-
ciary, are going to pose additional risks.
If they are not part of the judiciary,
then we are implanting in the judiciary
another branch of Government in a sort
of hybrid system that I say is unprece-
dented, and for which I say there is no
constitutional authority.
Mr. DRINAN. I agree with the gentle-
man from Illinois. We are doing some-
thing totally unprecedented in the whole
history of Anglo-Saxon jurisprudence.
Mr. McCLORY. I just want to say to
conclude my remarks that I do not see
the role that I or others who are object-
ing to this legislation have as engaging in
any flag waving or being superpatriots
here today. It seems to me that what we
are doing is trying to respect the judg-
ment of those who are the most experi-
enced in this field. When I speak as I do,
I 'speak in the interest of a statement
which the chairman of the subcommittee,
the gentleman from Wisconsin (Mr. KAS-
TENMEIER) has received from a former
Director of the CIA, William Colby, who
says that this warrant requirement
should not be extended to include foreign
powers and foreign. agents, but should be
limited to American citizens, and I will
be offering an amendment in that regard.
I likewise am referring to the support for
my position on this legislation which has
been expressed by John S. Warner, for-
mer General Counsel, Central Inteli-
gence Agency; John M. Maury, former
Legislative Counsel, Central Intelligence
Agency and former Assistant Secretary
of Defense for Legislative Affairs; Law-
rence R. Houston, former General Coun-
sel, Central Intelligence Agency; Walter
L. Pforzheimer, former Legislative Coun-
sel, Central Intelligence Agency; Ray S.
Cline-a well known individual-former
Deputy Director of Intelligence, Central
Intelligence Agency; and Daniel O. Gra-
ham-Gen. Daniel O.,Graham, retired-
former Director of the Defense Intelli-
gence Agency. All of those persons have
expressed themselves forcefully in oppo-
sitioii to this legislation and in support
of the position I am advancing.
(Mr. McCLORY asked and was given
permission to revise and extend his re-
marks.)
Mr. LAGOMARSINO. Mr. Chairman,
will the gentleman yield?
Mr. McCLORY. I yield to the gentle-
man from California.
(Mr. LAGOMARSINO,asked and was
given permission to revise and extend his
remarks.)
Mr. LAGOMARSINO. Mr. Chairman,
I ask my colleagues to join with me in
opposition to H.R. 7308, Foreign Intelli-
gence Surveillance Act of 1978, and in
support of the McClory amendment.
On June 25 of this year, the New York
Times carried a story entitled "CIA Re-
fuses Foreign Bids For Anti-Terrorist
Help." The article goes on to relate that
out of fear of violating legal prohibitions
against engaging -in covert activities
abroad, the CIA refused a request from
the Italian Government for a psychia-
trist trained in terrorist matters, and for
sophisticated eavesdropping equipment
to help deal with the Red Brigade's kid-
naping of Aldo Moro. I submit that
this timorous attitude has been g n-
erated by harsh and unrelenting dombs-
tic criticism of the Agency, which ap-
parently is made without considering
the effect such criticism has on the
Agency's ability to function. Now it seems
that the effectiveness of the CIA is se-
verely impaired. And in this context, the
result of this proposed legislation might
well be to administer a coup de grace
to the CIA.
It is difficult to think of a more inap-
propriate and misguided policy to adopt'
toward our Nation's intelligence agen-
cies than that embodied in this bill,
which would impose judicial processes
and standards on the surveillance of
the activities of foreign agents operating
in this country. The measure of sound
policy is that the principles which are
choosen to govern action should be suited
to the particular circumstances in ques-
tion. A recent example of the inappro-
priate application of principles to cir-
cumstances, was the debate over Cuban
involvement in the invasion of Zaire's
Shaba Province. Critics of the adminis-
tration's evidence of Cuban involvement
were not persuaded because the admin-
istration's evidence was largely circum-
stantial. But is that not all one can rea-
sonably expect given the difficulties of
acquiring information about covert ac-
tivities conducted in a faraway land?
Did the critics believe we could have is-
sued subpenas, and given the rebels court
appointed counsel?
Thus we can see that the surveillance
of foreign agents operating in this coun-
try, by its nature requires secrecy and
speed of execution-characteristics of
the executive branch of government. As
Justice Robert Jackson wrote in the
Court's decision in Chicago & South-
ern Air Lines, Inc. against Waterman
Steamship Corp., the judiciary is not
equipped to deal with matters concern-
ing foreign intelligence:
The President, both as Commander-in-
Chief and as the nation's organ for foreign
affairs, has available intelligence services
loose reports are not and ought not to be
published to the world. It would be intoler-
able that courts, without the relevant in-
formation, should review and perhaps nul-
lify actions of the Executive taken on in=
formation properly held secret. Nor can
courts sit in camera in order to be taken
into executive confidences. put even it
courts could require full disclosure, the very
nature of executive decisions as to foreign
policy is political, not judicial. Such deci-
sions are wholly confined by our Constitu-
tion to the political departments of the
government, Executive and Legislative.
They are delicate, complex, and involve
large elements of prophecy. They are and
should be undertaken only by those directly
responsible to the people whose welfare they
advance or imperil. They are decisions of
a kind for which the Judiciary has neither
the aptitude, facilities nor responsibility
and which has long been held to belong in
the domain of political power not subject
to judicial intrusion or inquiry.
Furthermore, as Justice Jackson's
opinion implies, not only is this legisla-
tion inappropriate and unwise, but that
it may well be unconstitutional to in-
volve the judicial branch in matters left
by the Constitution to the executive and
legislative branches.
Primarily as a result of the machina.
tions of those minions of the Kremlin,
the KGB, international politics largely
resembles the state of nature described
by Thomas Hobbes as the "war of all
agianst all," in which life is "nasty,
bruttish, and short." Faced with such an
inexorable and grim necessity, prudence
dictates that we resort to whatever
measures are necessary to insure our own
existence. The means which would be
shackled by H.R. 7308 are merely defen-
sive in nature, and thus constitute the
necessary, but by no means, sufficient
conditions of national survival. Is it real-
ly necessary for this Nation to unilater-
ally disarm its intelligence agencies?
What possible principle can justify the
extension of the protections of the Bill
of Rights to cover the KGB?
I urge the support of the McClory
amendment.
Mr. McCLORY. Mr. Chairman, I
agree with the statement of the gentle-
man from California (Mr. LAGOMAR-
sINO).
Mr. Chairman, I might just add that
if we do involve the judiciary in this
area, what we are doing is involving all
three branches of Government in na-
tional security and intelligence matters,
because we already have the two com-
mittees of the House and the Senate ex-
ercising extensive oversight, plus the ex-
ecutive. And now to involve the judici-
ary means that we have all branches of
Government in this one area.
I want to emphasize that opposition
to this legislation is-certainly not in any
way a partisan effort. There is strong
bipartisan opposition to this legislation,
as many of the Members know who have
received "Dear Colleague" letters. I
think one was signed by 21 Democratic
Members of the House and 16 Republi-
can Members of the House. There are
strong objections to this legislation on
both sides of the aisles, and -there are
amendments that will be offered by
Members on both sides of the aisle.
One gentleman who has raised objec-
tions and made very strong statements
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CONGRESSIONAL RECORD-HOUSE September 6, 19M
in the printed report of the Committee petition for every file and every wire=
on the Judiciary and who questions tapping conducted today. That is what
some of this legislation is the gentleman is being done.
from Pennsylvania (Mr. ERTEL), and I Furthermore, there have been suits
now yield to the gentleman from Penn- brought against agents who conducted
sylvania. these surveillances, and we cannot get
Mr. ERTEL. Mr. Chairman, I thank our counterintelligence agents to conduct
the gentleman from Illinois (Mr. Mc- surveillances today because they have no
CLORY) for yielding. statutory protection as,exists in this pro-
Mr. Chairman, I would like to direct posed bill.
a couple of questions to the gentleman. Mr. McCLORY. I am certainly not op-
In relation to the comments offered posed to any statutory language which
by the gentleman from Massachusetts would supplement the existing guidelines.
(Mr. DRiNAx), I note he asked: What do As the gentleman knows, I have offered
we do if they Issue warrants lackadaisi- that kind of legislation, which would be
cally or without purpose and easily? If as full and complete protection as would
warrants are issued, how do we know be these judicial procedures with all its
whether or not the courts are in fact faults.
issuing these warrants on a rather reg- Mr. ERTEL. Mr. Chairman, will the
ular and routine basis without really gentleman yield?
examining them? How would we ever Mr. McCLORY. I yield to the gentle-
know that if this is a secret court. man from Pennsylvania.
Mr. Chairman, could the gentleman Mr. ERTEL. I thank the gentleman for
answer that question? yielding.
Mr. McCLORY. Mr. Chairman, the If in fact a warrant is Issued for a per-
only way I could answer that is to say son's communications, or there is an
that we will continue to have our House electronic bug placed in his home and no
and Senate Intelligence Committees useful national security information
operating, and we will continue to ex- comes out of it in any way, shape or form,
ercise oversight. But with respect to in- and there is no threat to national se-
formation that is supplied to the court, curity, is there any provision in this law,
I question that we would be able to delve as it is being proposed, to advise that
Into the secret proceedings of the court. individual that he has been tapped, that
I think the court would have to control he has been investigated, and there may
that, so in a way our Intelligence Com- have been an entry into his residence,
mittee would be further limited in over- even after they have determined there is
sight by whatever the court decided. absolutely unwarranted invasion of his
Mr. ERTEL. Mr. Chairman, would we privacy?
in fact be able to go back and try to Mr. McCLORY. Mr. Chairman, I would
determine whether there was in fact answer the gentleman from, Pennsyl-
justification based upon the written re- vania by saying no. I know the gentle-
ports by the Executive to the judiciary? man has an amendment that he proposes
Mr. McCLORY. I doubt that we could to offer along that line, and I guess I
do that. However, the measure provides would consider that subject at that time.
for the retention of records, and I assume [Mr. KASTENMEIER addressed the
this means the retention of records by Committee. His remarks will appear As I said, that was before Judge Bell
the judge or by the court, for 10 years, hereafter in the Extensions of Remarks.] became Politician Bell.
That again suggests that there is very
apt to be extensive litigation following Mr. BUTLER. Mr. Chairman, I yield The second thing I would like to point
the enactment of this legislation, if it 5 minutes to the gentleman from Ohio out is that my friend and colleague, the
ever gets enacted. because those records (Mr' ASBBROOx), a member of the full gentleman from Wisconsin, indicated
could be made available to a person who committee. there was a unique coalition here. Well,
might suspect that he was the subject _ (Mr. ASHBROOK asked and was given I think it is a unique coalition. The only
of an electronic surveillance. permission to revise and extend his thing unique about it is the way you de-
remarks.) know as the Attorney Gen- fine "coalition." It reminds me of the
As aril we now knows, and , d a judge who wants in- Mr. ASHBROOK. Mr. Chairman, first, columnist, Dorothy Thompson, who,
I would like to say that we have had some 30 years ago, referring to a lover of
formation can subject a person to all several unique arguments here. a great writer-I will not mention his
kinds of proceedings. I might say that Page 101 of the report indicates that name-and indicated that his emotions
the city of Chicago is now under a very section 201(e) would repeal 18 United ran the alphabetical gambit from A to C.
serious attack because of an action by States Code, section 2511(3), which That is about the way this coalition
the ACLU to delve into the records of the states that nothing in chapter 119 or runs. It is a coalition running the alpha=
intelligence activities carried on 10 years section 605 of the Communications Act betical spectrum from A to C. Mr. Hal-
ago. of 1934 shall limit the constitutional Perin's group, and groups of that type,
Mr. Chairman, if seems to me that get- power of the President to gather neces- run the philosophical gambit from about
ting this information into the courts' sary intelligence to protect the national A to C. Where are the other 23 letters of
jurisdictions suggests all kinds of hor- security. the alphabet? We have not heard any-
rendousinvolvements. This report goes on to say that the body mention the American Legion,
Mr. MURPHY of Illinois. Mr. Chair- Keith case held that the Congress was American Security Council, Veterans of
man, will the gentleman yield on that not really taking anything from or add- Foreign Wars, broad-based groups which
point? ing anything to the President's power, have millions of members. Oh, no. You
Mr. McCLORY, I yield to the gentle- just "merely provided that it shall not be take a little narrow group, which has
man from Illinois. interpreted to limit or disturb such power worked together on this bill, and say
Mr. MURPHY of Illinois. Mr. Chair as the President may have under the that they represent a broad consensus.
man, the gentleman from Illinois (Mr. Constitution. In short, Congress simply Unique maybe, a consensus, no.
MCCLORY) is on the Committee on the left Presidential powers where. it found Well, the thing that is unique is to call
Judiciary in the House, and he is perfect- them." it a consensus, because they started out
ly conversant with the Freedom of In- Judging from the last colloquy, there in, the same place and ended up in the
formation Act. If this were left exclusive- are a number of Members of this body same place. So, there really was not any
ly with the executive, anyone could who think that we can take that con- consensus. Nobody has talked about the
under the Freedom of Information Act stitutional power of the President, the ormer FBI agents. The Society of
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inherent power of the President, and
alter or limit it by a statute. Clearly
what we are doing, as was - pointed out
by my colleague, the gentleman from
Illinois (Mr. MCCLORY) , is to delete the
statement of the Congress in the 1968
Omnibus Crime Act, by language on page
67 which cleverly states that exclusive
means for electronic surveillance shall
be those that are in this particular
statute. This effectively removes the lan-
guage in section 2511(c) .
I do not think we can take away the
inherent power of the President. If Pres-
ident Carter wants to say, for his short
time in office, that he is not going to use
the powers, that is fine. But I do not
think President Carter can limit what a
future President does under the proper
constitutional prerogatives of that future
President. To try to end run this issue is,
I think, not only bad policy, but may very
well be unconstitutional.
Every Federal judicial circuit which
has had cause to rule on the issue has
held that the President has constitu-
tional power to order warrantless elec-
tronic surveillance to gather foreign in-
telligence information. That is, the
third, fifth, and ninth circuits. This
was also recognized in the recent Hum-
phrey-Truong spy case.
Before Judge Bell became Politician
Bell, this is what he said, as a judge on
the Fifth Circuit Court of Appeals:
Because of the President's constitutional
duty to act for the United States in the field
of foreign relations, and his inherent power
to protect national security in the context of
foreign affairs . . , The President may con-
stitutionally authorize warrantless wiretaps
for the purpose of gathering foreign intelli-
gence information. Restrictions upon the
President's power which are appropriate in
cases of domestic security become artificial
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September 6, 1978 CONGRESSIONAL RECORD-HOUSE
Former FBI Agents is opposed to the
overreach of this legislation. The Associ-
ation of Former Intelligence Officers-
CIA-opposes this bill. The only people
who are for this bill are the administra-
tion people who, as in most administra-
tions, are under the iron heel of ad-
ministration policy. They dutifully come
forward and say, "Yes, we support this
legislation."
No former director of the CIA sup-
ports it. None of the down in the ranks
officers who have worked in the field-
and I have talked to hundreds of them-
support it. I know of not one FBI agent
who supports it.
The CHAIRMAN. The time of the
gentleman from Ohio has expired.
Mr. BUTLER. Mr. Chairman, I yield
3 additional minutes to the gentleman
from Ohio.
Mr. ASHBROOK: No former FBI
agent supports it; no former CIA agent
who had the responsibility out in' the
field, who came before our committee,
who wrote or communicated to many of
us, said, "I favor this legislation."
So, when we are talking about a unique
coalit.on, a unique .consensus, we are
not really talking about that. We are
talking about a unique definition of coali-
tion and consensus because it Is basically
outside of this Congress--I do not point
the finger at Members of this Congress-
but my main complaint is that, II.R.
7308 has largely been written by people
outside this Congress, and largely-by the
anti-intelligence clique which is a part
of this so-called unique consensus.
These are many amendments which
should be offered. I will offer a number
myself. I will support the amendments
offered by my colleague, the hardwork-
ing and able gentleman from Illinois
(Mr. MCCLORY). I would hope that we
could amend this bill so, that, it would
be something that would help rather
than hinder the intelligence-gathering
operations of this country.
The bill before us today is the product
of considerable work and effort by a large
number of people in and out of govern-
ment. These range from administration
officials and former Intelligence officers
to spokesmen for anti-intelligence
groups that wish to dismantle our Intel-
ligence gathering ability. The House
Permanent Select Committee on Intel-
ligence and its dedicated staff have taken
all of the views into consideration in re-
porting out this bill.
The basic issue in H.R. 7308 is to what
extent it limits intelligence gathering,
and to what extent it authorizes it. My
concern is that too much attention has
been paid to those who would limit our
intelligence gathering ability. While pro-
tecting the rights of Americans, we
should not confer these rights on foreign
agents. Even Vice President MONDALE
when he was in the Senate, said:
As far as I am concerned, foreign spies in
this country should have no rights. Probably
that is a little crudely put, but a KGB agent
and so on-I shouldn't say it-I could care
less how we proceed to get information from
them.or influence their behavior while they
are in this country. What I am worried about
is tie application of these activities and their
effect on American citizens. That is what I
H 9113
am talking about. (Testimony before the prove to a judge that each of these per-
Senate Intelligence Committee, June 29, sons, "knowingly engages in sabotage or
1978' p. 60.) international terrorism, or activities that
I have a number of concerns about this are in preparation therefor,, for,, or on
bill. One of the main issues is the in- behalf of a foreign power." The group
troduction of the courts into the Intel- could have been targeted as "a faction
ligence gathering process. There is of a foreign nation" only if it was "not
clearly some security risk as a result of substantially composed of United States
more people having access to the infor- persons"-something difficult if not im-
mation, despite the support given to the possible to prove.
bill by the leadership of the intelligence The purpose of the surveillance would
community. Some of those leaders, who have been to determine if these people
support the bill, have indicated that they were involved with the Baader-Meinhof
do so as part of the administration team terrorist, Kristina Berster in planned
or that they can "live with the bill." On terrorism in the United States. Under
of the intelligence community have
major problems with H.R. 7308.
H.R. 13442 introduced gy the gentle-
man from Illinois (Mr. MCCLORY) would
solve the problem of the courts. This Is a
major constitutional problem. Although
the congressional proponents of the bill
argue that it takes no position on
whether the President has the inherent
-power to conduct national security wire-
taps. Common Cause, an active supporter
of H.R. 7308 argues that the bill-
Eliminates once and for all the doctrine
that the Executive Branch has inherent
power to conduct national security wiretaps.
(Letter to all Members of Congress, August 7,
1978.)
There are other problems as well. For.
example, the bill would provide criminal
penalties for FBI agents who violate the
minimization procedures. Certainly, an
administrative punishment would be suf-
ficient. What a contradiction. The anti-
intelligence extremists want to be able
to jail FBI agents while those who col-
laborate with hostile foreign govern-
ments could not even be surveilled. We
must make sure that this bill does not
accommodate either of these desires. It
should instead set standards for the. in-
telligence gathering so vital to our
national security.
This legislation has been referred. to
as a bellweather for future restrictions
on the intelligence community. A bill
proposed by the. ACLU and other ex-
tremist groups such as the Committee for
Public Justice and the Center for Na-
tional Security Studies would require
warrants for informants and undercover
agents. The proposed bill is aptly titled
"A Law to Control the FBI." A warrant
for informants and undercover agents
is the ridiculous but logical continuation
of a requirement for a warrant to elec-
tronically surveil a foreign embassy or
agent.
Ironically surveilled to obtain this in-
formation.
I have amendments to propose to this
bill, and I will support amendments that
will be introduced by some of our col-
leagues.
The House Permanent Select Commit-
tee on Intelligence has already amended
this bill. A significant amendment which
was passed by voice vote by the commit-
tee was one which I had proposed. This
amendment added the word "member"
to the definition of agent of a foreign
power. Just as some "foreign powers"
have employees, others such as terrorist
groups or foreign based political organi-
zations have members. Of course not
every foreigner who falls under this defi-
nition would be surveilled, but it would
be possible to do so if necessary.
It will be a difficult job, but this Con-
gress. should pass a bill that will au-
thorize intelligence gathering against
hostile foreign powers and terrorists,
without violating the rights of the Amer-
ican people. That is the kind of bill that
I could support. I ask my colleagues to
join with me In amending H.R. 7308 so
that it is consistent with the needs of
this country and its people. The first duty
of the Congress is to provide for the
safety and security of the American peo-
ple against their enemies, both foreign
and domestic. A bill that does less than
that does not deserve our support.
Mr. MURPHY of Illinois. Mr. Chair-
man, will the gentleman yield?
Mr. ASHBROOK. I yield to the gen-
tleman from Illinois.
Mr. MURPHY of Illinois. Mr. Chair-
man, I would just like to indicate one
organization which supports this bill, the
American Bar Association. Will the gen-
tleman concede that it is a broad-based
organization?
Mr. ASHBROOK. It is at least broad.
Mr. MURPHY of Illinois. As a member
of the Pike committee, I had before me
Let us take a real case, and see what at that time former members of the
this bill would do. On July 16, 1978; CIA. When we asked' them why the
Kristina Berster, a member of the abuses occurred they said, "We had no-
Baader-Meinhof terrorist gang, was ap- body to go to. There was no statutory
prehended trying to cross the U.S. border standard by which we could refuse an
from Canada. She was in possession of executive who was requesting and order-
a stolen and altered Iranian passport. ing us to engage in improper activities."
Investigation revealed that she had Mr. ASHBROOK. I agree with the
been in close association with three other gentleman 100 percent. I agree that they
people while in Canada. These people all need a charter. I must observe that the
claimed to be U.S. persons. They are-now charter should be enacted before we
under indictment. come along with this bill, but I doubt
Under this bill, neither the individuals if my colleague, who is a very honest and
nor the groups could have been electron- very able colleague, could say that they
ically surveilled even with a warrant. The supported the provisions in this bill.
Attorney General would have had to Mr. MURPHY of Illinois. The gentle-
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CONGRESSIONAL RECORD-HOUSE September 6, 1978
man was also present in our hearings
when we discussed the FBI, and the At-
torney General said that agents, were
hesitant to go into the field today and
conduct'needed intelligence surveillances
because they were being sued all over
the United States, including himself, the
Attorney General. They needed some
statutory protection in this matter, and
this is what this bill gives them.
Mr. ASHBROOK. This bill gives them
that and a lot more.
Mr. McCLORY. Mr.. Chairman, will the
gentleman yield?
Mr. ASHBROOK. I yield to the gentle-
man from Illinois.
Mr. McCLORY. Mr. Chairman, I would
say that certainly we should provide the
FBI with statutory protection, but to
create a new special court to divest the
executive of responsibility and .account-
ability in this area in order to protect
FBI agents seems to me to be an over-
reaction. What we should do is provide
further protection through legislation.
We do provide it in the substitute bill
I have offered, but not through this
mechanism.
The CHAIRMAN. The time of the
gentleman from Ohio has again expired,
Mr. BUTLER. Mr. Chairman, I yield
1 additional minute to the gentleman
from Ohio.
Mr. McCLORY. I would like to point
out that I saw this letter from the presi-
dent of the American Bar Association.
I do not know what kind of survey of the
members of the American Bar Associa-
tion was made. I will say that this bill
before us now is substantially different
from the bill that was over in the Senate.
It is a far reach from the legislation just
considered in the subcommittee headed
by Mr. KASTENMEIER 2 or 3 years ago, at
which time they considered mass cover-
age and all kinds of other subjects; so
that it seems to me that that kind of a
statement must be a statement which is
not based on knowledge of what this
legislation undertakes to do, or what it
provides.
Mr. ASHBROOK. I thank my col-
league, and I agree with him completely.
. Mr. BUTLER. Mr. Chairman, I yield
myself 3 minutes.
(Mr. BUTLER asked and was given
permission to revise and extend his
remarks.)
Mr. BUTLER. Mr. Chairman, I think
the points which I would have made in
my formal statement have been covered
very well by the gentleman from Ohio
(Mr. Asxsaoox) and the gentleman from
Illinois (Mr. MCCLORY), as well as the
other Members who have spoken. So, at
the risk of repeating myself or repeating
what has been said, I will not return to
those points except to say that I share
the reservations about the constitution-
ality of what we are about to undertake.
But one thing that has not been
touched on is a matter which I would
like to mention, because it did come up
in the Senate debate.
H.R. 7308 represents a bill that may
well prove unconstitutional, while at the
same time severely undermine and en-
danger the Nation's security. Moreover,
the bill, in light of recent events, is un-
necessary and a prime example of con-
gressional overkill.
My . principal concern is that the bill.
raises serious constitutional questions, in
that it may violate article II of the Con-
stitution. H.R. 7308 denies the existence
of any inherent authority on the part of
the Executive to conduct warrantless
electronic surveillance by vesting Federal
courts. with the jurisdiction to author-
ize-or to refuse to authorize, through a
warrant procedure, foreign intelligence
gathering activities. In Presidential pow-
er to conduct foreign intelligence sur-
veillance arises under the President's
article II powers as Commander in Chief
of the Armed Forces of this country and
as the officer primarily responsible for
the conduct of our foreign affairs. This
Executive power to conduct warrantless
electronic surveillance for foreign intelli-
gence purposes has been asserted by
every President at least since Franklin
D. Roosevelt.
The judicial warrant, approach in the
administration's bill is premised on the
proposition that the fourth amendment
to the Constitution presumptively re-
quires a warrant for every search. The
underlying reasoning for this assertion is
the Supreme Court's holding in the Keith
case, where it ruled that a warrant is
required for electronic surveillance em-
ployed for domestic security purposes.
However, the warrant requirement in the
Keith case was limited to domestic secu-
rity cases, as the Court made it clear that
they were in no way addressing the issues
involved in foreign intelligence electronic
surveillance. By the same token, the cir-
cuit courts that have considered the issue
of the inherent constitutional right of the
President to authorize warrantless elec-
tronic surveillance have held that such
power does exist.
Coupled with the judicial recognition
of the inherent power of the President to
authorize warrantless electronic surveil-
lance, is the fact that there is no existing
case authority for vesting the Federal
courts with jurisdiction to authorize or
refuse to authorize foreign intelligence
gathering activities as proposed in H.R.
7308. Tke U.S. Supreme Court rejects
such authority in Chicago & Southern
Air Lines Inc. v. Waterman Steamship
Corp., 333 U.S. 103, 111 (1948) holding:
It would be intolerable that courts,
without the relevant information should re-
view and perhaps nullify actions of the
Executive taken on information properly held
secret. Nor can courts sit in camera in order
to be taken into executive confidences. But
even if courts could require full disclosure,
the very nature of executive decisions as to
foreign policy is political, not judicial. Such
decisions are wholly confided by our Consti-
tution to the political departments of the
Government, Executive and Legislative. They
are delicate, complex, and involve large ele-
ments of prophecy. They are and should be
undertaken only by those directly responsible
to the people whose welfare they advance or
imperil. They are decisions of a kind' for
which the Judiciary has neither aptitude,
facilities nor responsibility and which has
long been held to belong in the domain of
political power not subject to judicial intru-
sion or inquiry.
The constitutionally questionable pro-
visions of HR. 7308 culminate for the
express purpose of protecting the privacy
of Americans against their own intelli-
gence agencies. This bill comes at a time
when the Soviet Union and other hostile
foreign governments are enjoying in-
creased opportunities for espionage in
this country. During the Senate debate of
S. 1566, Senator MOYNIHAN stated that-
I would not be surprised if upwards of one
million American citizens were, at this mo-
ment, having their telephone calls listened
to by the KGB, the committee of state secu-
rity of the Soviet Union. They are overheard
by receivers on the top of the Soviet Em-
bassy here in Washington.
A new Soviet Embassy soon to be built on
a hill in Washington will, for this purpose
no doubt, be even better situated for the
interception of the telephone calls of anyone
on this floor, or in the gallery, or who will
read this Record. . . .
Given this present state of events, I
believe the proper focus of legislation
should be in the direction of protecting
the American people and our country
from the espionage activities 'of foreign
governments. Instead, we will be unduly
restricting our foreign intelligence capa-
bilities by this bill, and as a result, need-
lessly subjecting the American people to
the increasing espionage activities of
foreign intelligence agencies.
Closely aligned with the fact that we
should be legislating to protect the
American people from foreign intelli-
gence operations, is the fact that H.R.
7308 ignores the experience of the past
few years under Executive orders issued
by Presidents Ford and Carter.
The guidelines contained in the Exec-
utive orders have, according to all the
evidence, rendered the gathering of for-
eign intelligence by U.S officials abuse-
free. This given situation further
illustrates that there is no need for H.R.
7308. Accordingly, I urge my colleagues
to reject H.R. 7308.
Mr. McCLORY. Mr. Chairman, will
the gentleman yield?
Mr. BUTLER. I yield to the gentleman
from Illinois (Mr. MCCLORY).
Mr. McCLORY. Mr. Chairman, I
would point out I think it is important
that we have legislation which spells out
in statutory form the very explicit and
very appropriate guidelines that are
contained in the Executive orders of
former President Ford and now Presi-
dent Carter, and that this kind of control
is extremely important and we should
retain congressional oversight, as we do
retain substantial congressional over
sight in the Senate and House Intelli-
gence Committees.
But by establishing a special court
and involving the Judiciary is unique. As
a matter of fact, it is unique in the
world. There is no other nation in the
world that imposes a restriction on the
Executive such that there is here of
transferring to the Judiciary the deci-
sion as to whether or not electronic sur-
veillance should or should not take place.
So it seems to me what we are propos-
ing to do here, we are doing not only to
ourselves but also with respect to our sur-
-veillance of foreign agents and foreign
powers in our country, something that
no other country imposes on itself with
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September 6, 1978 CONGRESSIONAL RECORD-HOUSE II 9,11.5
respect to its own citizens or with respect
to the electronic surveillance of others.
Mr. MURPHY of Illinois. Mr. Chair-
man, I yield 5-minutes to the gentleman
from Kentucky (Mr. MAZZOLI) .
Mr. MAZZOLI. Mr. Chairman, I thank
my chairman, the gentleman from Illi-
nois (Mr. MURPHY), for yielding me this
time.
(Mr. MAZZOLI asked and was given
permission to revise and extend his
remarks.)
Mr. MAZZOLI. Mr. Chairman, first of
all I would like to bring to the attention
of the committee the fact that in this
,morning's paper, the Washington ,Post,
there was, I think, a very appropriate
and solid editorial in behalf of passage
of the bill before this body, and I would
like to read the last paragraph, because
I think It succinctly states the case:
The proposed legislation-
Which, of course, is the legislation
that is now before us, H.R. 7308-
would put a stop to abuses-
And that refers to abuses of electronic
surveillance--
of that kind without hampering legitimate
national security investigations. It would
simply put an impartial arbitrator-in the
person of a judge-between every citizen's
privacy and the desire of the government to
penetrate It. That would not be a new role
for Federal judges; they serve copstantly as
buffers between the government and the in-
dividual. But it would provide a new kind
of protection that events of the recent past
have shown is sorely needed.
I think that is an important editorial.
Also, Mr. Chairman, I would like to
mention that on June 29, the New York
Times-which was still publishing
then-had an editorial in behalf of H.R.
7308 which was, at that time, before the
subcommittee chaired by the gentleman
from Wisconsin (Mr. KASTENMEIER). In
the Times editorial it was stated that
this bill, notwithstanding its problems,
was still an important bill which should
pass. The case is, succinctly stated in the
final paragraph of that editorial:
The Foreign Intelligence Surveillance Act
Is a wise solution to a problem that for years
looked politically impossible to solve. To lose
it now would turn a potential model of legis-
lation into a travesty of the legislative
process.
Mr. Chairman, I would like to make
one comment. It was discussed earlier In
the debate between the gentleman from
Illinois (Mr. McCLoRY), the gentleman
from Wisconsin (Mr. KASTENMEIER), and
the gentleman from Pennsylvania (Mr.
ERTEL) that the President does possess a
unique power, an Inherent power to con-
duct foreign intelligence wire tapping,
and that there is no way that the Con-
gress can limit this constitutional power.
I think that the gentleman from Wis-
consin (Mr. KASTENMEIER) in his discus-
sion with the gentleman from California
(Mr. EDWARDS) described the reason why
Congress can, indeed, circumscribe that
power.
But I think that the Committee on In-
telligence, In its report on page 18, and
the pages which ensue, is also worth
reading. It shows that no holding of the
Supreme Court has confirmed that the
President has this inherent power to
wire-tap. The Keith case just -simply
passed on that point and left the final
determination to another day and
another court. And so, without a specific
holding, I think this is certainly an op-
portune time to legislate on the issue of
a President's inherent right to elec-
tronically surveil.
And as the gentleman from Wiscon-
sin (Mr. KASTENMEIER) said, if there is
a future President who orders a wiretap
without -a specific court order, that
President would be walking in the face of
what this Congress will have said is the
proper mode of conduct. This certainly
guarantees that there will be a challenge
taken to the highest court In the land.
So, Mr. Chairman, I think it would
serve the Members well to read pages 18,
19, and 20 of the Intelligence Commit-
tee's report. I think they are very in-
structive on this point.
Mr. Chairman, I would like to also
mention something that I believe the
gentleman from Pennsylvania (Mr.
ERTEL) brought up.
Let me say first that the gentleman
from Pennsylvania (Mr. ERTEL) has been
a- valuable member of the House Com-
mitee on the Judiciary, In his first term,
and was also a contributing member in
the subcommittee during its delibera-
tions on this bill.
The gentleman from Pennsylvania
(Mr. ERTEL) brought up the fact that the
special courts would not be writing, any
decisions and, therefore, there would be
nothing for this House nor for these two
Intelligence Committees to be looking
into to evaluate the actions of the war-
rant procedure.
But, if the gentleman would refer to
pages 95 and 96 of the Intelligence Com-
mittee report, which discusses section
108 of the bill, the gentleman would be
reasonably satisfied the intelligence
Committee, the committee chaired by
my friend the gentleman from Massa-
chusetts (Mr. BOLAND) has unequivo-
cably stated its intention and, indeed,
its determination, to play a very intimate
role in the future unfolding actions of
the special courts.
I would especially, as a matter of fact
refer to page 95 of the committee report.
The CHAIRMAN. The time of the
gentleman has expired.
Mr. MURPHY of Illinois. Mr. Chair-
man, I yield 1 additional minute to
the gentleman from Kentucky (Mr.
MAZZOLI).
Mr. MAZZOLI. Mr. Chairman, I thank
the gentleman for yielding.
I think the second full paragraph on
page 96, is important. It states:
As interpreted by the committee, the word
"fully" means--
And that "fully" refers, of course, to
full information-
that the committee must be given enough
information to understand the activities of-
And then, with some words deleted-
of all electronic surveillances. To preserve
the Intelligence Committee's right to seek
further information, when necessary, section
108 awakes clear that nothing in this title
shall be deemed to limit the authority of
those committees to obtain such additional
information as they may need to carry out
their respective functions and duties.
Mr. Chairman, I would like to assure
the gentleman from Pennsylvania (Mr.
ERTEL) that if the gentleman from
Kentucky remains on the Committee on
Intelligence, I certainly would be deter-
mined to seek from these special courts
the kind of full information which would
give us a chance to develop exactly how
they are functioning under the law. -
Mr. ERTEL. Mr. Chairman, if the
gentleman will recall the colloquy, there
is no written opinion by a court; there
,are no opinions which are recorded for
the next court to consider the next case.
There is no stare decisis. -
Does the gentleman suggest that there
are going to be written opinions to pro-
vide for stare decisis?
The CHAIRMAN. The time of the
gentleman from Kentucky (Mr. MAZ-
ZOLI) has expired.
Mr. MURPHY of Illinois. Mr. Chair-
man, I yield 1 additional minute to
the gentleman from Kentucky (Mr.
MAZZOLI). -
Mr. FOWLER. Mr. Chairman, will the
gentleman yield?
Mr. MAZZOLI. I yield to the gentle-
man from Georgia. -
Mr. FOWLER. In response to- the con-
tinued questions of the gentleman from
Pennsylvania (Mr. ERTEL), under the
special court provision of this legislation,
section 103 on pages 41 and 42 of the
bill, may I read specifically subsection
(e), beginning on line 21, as follows:
Proceedings under this title shall be con-
ducted as expeditiously as possible. If any
application to the Special Court is denied,
the court shall record the reasons for that
denial, and the reasons for that denial shall,
upon the motion of the party to whom the
application was denied, be transmitted un-
der seal to the Special Court of Appeals.
And. then subsection (f) says the
following: -
Decisions of the Special Court of Appeals
shall be subject to review by the Supreme
Court of the United States in the same man-
ner, as a judgment of a United States court
of appeals as provided in section 1254 of title
28, United States Code, except that the Su-
preme Court may adopt special procedures
with respect to security appropirate to the
case.
The CHAIRMAN. The time of the gen-
tleman from Kentucky (Mr. MAZZOLn
has again expired.
Mr. MURPHY of Illinois. Mr. Chair-
man, I yield 1 additional minute to
the gentleman from Kentucky (Mr.
MAZZOLI).
-Mr. ERTEL. Mr. Chairman, will the
gentleman yield?
Mr. MAZZOLI. I yield to the gentleman
from Pennsylvania.
Mr. ERTEL. Mr. chairman, that pro-
vision only applies to a denial of an ap-
plication. If there is a granting of the
application, there is no written opinion
stating why there is a granting of an
order. There is no setting out of the
standards which apply.
It only says, "I deny this because, one,
I do not find that there is a sufficient
evidence, period." That is it.
When an order is granted, the court
says, "Here it is; and the reasoning and
the standards are not set out,
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The bill does not profride for that in
any way, shape, or form.
Mr. MAZZOLI. I think the gentleman
is going to find that the actual practice
will be what the gentleman from Geor-
gia (Mr. FOWLER) has suggested. The
gentleman from Kentucky and the gen-
tleman from Georgia, to the extent we
remain on the Intelligence Committee,
we will attempt to see that this special
court does not become either a rubber
stamp or an impediment.
Mr. ERTEL. Is the gentleman sug-
gesting that he can demand from the
court written opinions be provided to a
legislative committee, thereby interfering
with the Judiciary?
The CHAIRMAN. The time of the gen-
tleman from Kentucky (Mr. MAZZOLI)
has again expired.
Mr. MURPHY of Illinois. Mr. Chair-
man, I yield 1 additional minute to the
gentleman from Kentucky (Mr.
MAZZOLI).
Mr. MAZZOLI. Mr. Chairman, I again
say that I support H.R. 7308, the For-
eign Intelligence Surveillance Act of
1978.
This uniquely. important-and much
needed-legislation was first proposed
by President Gerald Ford and Attorney
General Levi in 1975. It is supported
with equal vigor by President Jimmy Car-
ter and Attorney General Bell.
It has been the subject of lengthy
hearings and careful study by several
Senate and House committees, includ-
ing two committees on which I am hon-
ored to serve-the House Intelligence
and Judiciary Committees.
Drawing on this detailed record, the
House Intelligence Committee, ably lead
by Chairman BOLAND and Chairman
MURPHY, spent many hours subjecting
each of the bill's provisions to search-
ing scrutiny. Our committee heard from
all interested parties.
This is as it should be. There are no
issues of more basic importance to our
country than those involving the na-
tional security and individual civil liber-
ties.
The bill before you, then, is, in my
opinion, a product of mature reflection
and reasoned deliberation.
As reported by the InbeUfgence Com-
mittee, H.R. 7308-except in three nar-
rawly defined circumstances, not likely
to involve U.S. person:-would require
a judicial warrant for. all electronic
surveillance conducted in the United
States for foreign intelligence purposes.
Under H.R. 7308, surveillance could be
undertaken only to collect foreign in-
telligence information and could be
targeted only against foreign powers or
agents of a foreign power. Both "foreign
power" and "agent of a foreign power"
are terms carefully defined in the bill.
A U.S. person-a teen also carefully
defined in H.R. 7308-can be considered
an agent of a foreign power only if he
engages in certain activities on behalf
of a foreign power which involve or may
involve criminal acts.
To further. Protect U.S. persons, the
bill requires a judge to approve proce-
dures to minimize the acquisition, re-
tention and dissemination of informa-
tion about a U.S. person which is col-
lected as incidental result of foreign
intelligence surveillance.
H.R. 7308 establishes a national policy
that a judicial warrant authorizing for-
eign intelligence electronic surveillance
is the proper means to insure that the
rights of all persons involved are pro-
tected while, at the same time, legitimate
foreign intelligence activities are not
impeded.
Over the years, foreign intelligence
electronic surveillances have been con-
ducted at the discretion of executive
branch officials. As this House is all too
aware, this arrangement has not pre-
vented serious, abuse from occurring.
It has been argued that all of these
abuses, though unfortunate and inde-
fensible, are now past history. It is fur=
ther argued that the current guidelines
imposed by former Attorney General Levi
and refined by Attorney General Bell
effectively preclude any recurrence of
past abuses.
And so, this argument goes, there is
no need to establish a procedure calling
for issuance of a judicial warrant before
a foreign intelligence electronic surveil-
lance can take place.
The short answer here-in behalf of
the warrant approach-is that adminis-
trations come, and administrations go.
Guidelines are written and they are re-
voked: The Department of Justice may
not always be led by men and women
of character and integrity who are dedi-
cated to the preservation of fourth
amendment rights.-
The American people-for good rea-
son-have over the years been skeptical
about the commitment of the executive
branch of Government to honor their
individual liberties and- personal rights.
By contrast, the people. have demon-
strated a strong faith in the ability and
willingness of the judicial branch to,pro-
tect these cherished rights.
The American people, in my judgment,
will more readily support a national pro-
gram or foreign intelligence electronic
surveillance if they know that no sur-
veillance can take place unless a neutral,
detached magistrate has studied the case
and found that the detailed statutory
standards for a surveillance have been
met.
H.R. 7308 does not protect non-U.S.
persons and foreign agents from intelli-
gence surveillances conducted in the
United States. Nor does this warrant
protection impede necessary intelligence-
gathering activities.
H.R. 7308 carefully distinguishes. be-
tween surveillances. It requires that the
judge'make fewer specific findings and
receive less information from those offi-
cials requesting the warrant in the for-
mer case than in the later cases.
Others of our colleagues, Mr. Chair-
man, have argued against the warrant
requirement saying it would lead to a
wholesale intrusion of the judiciary into
the day-to-day operation of the intel-
ligence agencies.
With all due respect, this is simply not
the case.
As H:R. 7308 and the committee report
accompanying it make abundantly clear,
the judges of the special court estab-
lished to hear applications for foreign
intelligence electronic surveillance war-
rants will be engaged in a traditional
judicial function: Examining a set of
facts against a statutory framework and
then deciding whether the law allows or
disallows the action sought.
No special expertise in intelligence
matters is expected or required of the
special court. Furthermore, no lawful
intelligence activities will be endangered
by leaks under H.R. 7308.
Some of our colleagues, in opposing
H.R. 7308, profess to favor a warrant
requirement where a U.S. citizen is the
subject of an electronic surveillance,' but
to oppose such a warrant where non-
American citizens, ,iplomats, foreign
embassies,, and the like are targeted for
a foreign intelligence surveillance.
Mr. Chairman, I suggest that these
colleagues read the report of the Church
committee. This report is repete with
instances where U.S. Presidents-of both
party affiliations-have used embassy
surveillances as a pretext to acq wire po-
litical and personal information about
U.S. citizens.
The judicial warrant requirement es-
tablished in H.R. 7308 insures that any
future foreign embassy surveillance will
be only for the purpose of obtaining for-
eign intelligence information necessary
to the security of our Nation.
Furthermore, the judge, before issu-
ing the warrant authorizing,a surveil-
lance, has to review and approve pro-
posed minimization procedures. These
are procedures designed to minimize the
likelihood that conversations of U.S.
persons will be intercepted. If they are
intercepted, the minimization proce-
dures assure that such information will
be utilized for no other purpose than
for its foreign intelligence mission.
Under H.R. 7308, individual intelli-
gence agents will know to the letter what
is required of them. They will know
that what they `do pursuant to a war-
rant is lawful. And, they will-be protected
in the future against criminal prosecu-
tions and civil suits arising from the sur-
veillance as long as they do not exceed
their lawful authority.
Another objection raised against the
warrant provision is that it poses harm
to the national security.
The harm, it is argued, could result in
two ways: Intelligence activities could
be impeded because of redtape and court
delays; and, the court procedures estab-
lished under H.R. 7308 could result in
unintentional disclosure of sensitive in-
telligence information.
The House Intelligence, Committee
subjected both of these concerns to
lengthy and detailed inquiry.
The committee concluded on the basis
of testimony of members of the intelli-
gence community that H.R. 730.8 will not
impede or unduly complicate foreign
intelligence gathering. There will be no
excessive redtape.
As to the second situation-the danger
of disclosure and leaks of sensitive in-
formation-most of the intelligence com-
munity's concerns have been received by
the committee's decision to exempt from
the warrant requirement two particular
sensitive types of surveillance.
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CONGRESSIONAL RECORD-HOUSE H 9117
However, it cannot be denied that un-
der H.R. 7308 a judge will be involved in
the surveillance process where none is
today. There is'risk here, but is the risk
manageable?
First, an application for a warrant to
surveil is made to but one judge. At the
time the application is made, a large
number of executive branch personnel
will necessarily already know the details
of the proposed surveillance.
Information to but one -additional
person seems an acceptable risk in view
of the, protection the warrant process
offers to the American people and to the
intelligence field agent.
Second, judges are constantly ex-
posed to sensitive and volatile informa-
tion. They have not, as a class, abused
the trust placed in them. I doubt they
.would show themselves unworthy to
handle sensitive intelligence informa-
tion.
Also, the bill directs the special court
to adopt security procedures for hand-
ling the sensitive information provided
to it under H.R. 7308. These procedures
will be instituted in consultation with
the Attorney General and the Director
of Central Intelligence.
The bill also makes clear that such se-
curity procedures may include the use
of executive branch personnel-already
cleared to handle secret material-to
perform clerical duties for the court.
This would mipimize the danger of
leaks of sensitive material.
Also, It is contemplated that sensitive
intelligence material will ,be stored for
the court in facilities maintained by
cleared executive branch personnel.
Furthermore, the Attorney General,
the Director of Central Intelligence, the
Director of the National Security Agency,
and the Director of the Federal Bureau
of Investigation have all actively partic-
ipated in the drafting of H.R. 7308. They
all urge that it be passed.
These officials-charged with the sin-
gularly important mission of protecting
the security of the country-would not
support H.R. 7308 if they felt its warrant
procedure would jeopardize national
security.
In summary, Mr. Chairman, H.R. 7308
is good legislation.
It protects the constitutional rights of
American citizens and the legitimate
rights of all individuals. It does not ob-
struct or impede necessary foreign intel-
ligence collection activities.
It will enhance the effectiveness of the
intelligence field agent, who,' in most
cases, under H.R. 7308, will have a court
order to guide the agent's actions which
today is not available.
And, it should restore the public's con-
fidence in the intelligence community
since no U.S. person can be subjected to
foreign intelligence electronic surveil
lance unless a judge has previously found
probable cause that the individual is in-
volved-or may be involved-in a crim-
inal activity.
Admittedly, H.R. 7308 is a compromise
bill. Any legislation that can bring to-
,gether two administrations of differing
political philosophies, three congres-
sional committees, the Intelligence com-.
munity and most of its critics must be
the product of compromise and adjust-
ment. Thus, not every provision will be
supported with equal vigor by each inter-
ested party.
As my supplemental views to the com-
mittee report note, I voted against the
amendment adopted by the committee
which exempted certain intelligence ac-
tivities from the judicial warrant process.
I remain convinced of the necessity
and realism of an across-the-board war-
rant in foreign intelligence electronic
surveillance.
But, I am equally convinced. that H.R.
7308 should not be opposed because it is
imperfect by my standard. It is still a
bill which deserves the House's strong
support.
In closing, Mr. Chairman, let me quote
briefly two strong supporters of the judi-
cial warrant procedure for authorizing
foreign intelligence electronic surveil-
lance.
Senator BIRCH BAYH, chairman of the
Senate Intelligence Committee, said on
the Senate floor when H.R. 7308's coun-
terpart, S. 1566, was adopted by a vote
of 95 to 1:
The bill before the Senate today . . . Is
the first major intelligence reform measure
to be considered by the Congress. It will
bring an end to the practice of electronic
surveillance by the executive branch with-
out a court order in the United States. It
establishes standards for Issuing court orders
that reconcile the interests of personal pri-
vacy and national security in a way that is
fully consistent with the fundamental prin-
ciples of the fourth amendment and due
process of law.
Senator JAKE GARN was, quoted on the
same occasion:
Some have wondered what a conservative
Senator such as myself was doing co-spon-
soring what they thought was a liberal bill.
The answer is quite simple. This is not a
liberal bill. It is neither a Democratic nor a
Republican bill. The tasks of balancing cher-
ished constitutional liberties with increas-
ingly threatened national security needs is
too important to be left to partisanship.
Mr. KASTENMEIER. Mr. Chairman, I
yield such time as he may consume to the
distinguished chairman of the Commit-
tee on the Judiciary, the gentleman from
New Jersey (Mr. RODINO).
(Mr. RODINO asked and was given
permission to revise and extend his re-
marks.)
Mr. RODINO. Mr. Chairman, as the
sponsor of H.R. 73081 strongly urge its
enactment. The bill was officially re-
ported by the permanent Select Commit-
tee on Intelligence. And it reflects the
thinking of a great many individuals
other than the membership of that com-
mittee. It is important that we pass it
now.
To begin-with H.R. 7308 in its present
form is largely a product of the previous
administration. I originally introduced
the bill during the 94th Congress follow-
ing a request from the Ford administra-
tion to do so. Since that original intro-
duction the legislation has been further
scrutinized and refined. Not bne change
was made in either the Senate, which has
already passed the bill by a vote of 95
to 1, or by the House Intelligence Com-
mittee without consultation and ap-
proval by the FBI, the CIA and the NSA.
Furthermore, the American Civil Lib-
erties Union has endorsed the bill.
The measure is also supported by
working agents in the field. I have re-
ceived a letter of endorsement from the
association of Federal investigators
which attests to this fact. Perhaps one
reason such divergent groups have united
in strong common support of this bill is
because its enactment is necessary to the
continued security of our Nation. This
legislation will remove the mist of un-
certainty which envelops so much of our
intelligence collection activity today and
provide to intelligence professionals the
guidelines they need to do their job
properly. In addition, it will assure
Americans generally that -we in Con-
gress have acted to assure that the re-
sources of the Nation's intelligence
agencies will be used ethically , and in
a manner which will not threaten their
basic liberties. The bill was closely
scrutinized by the Kastenmeier subcom-
mittee. Given the sensitive and complex
nature of the subject matter of H.R.
7308, I honestly believe that it would
not be appropriate to amend it on the
floor. When amendments are. considered,
I hope they will be resisted and the bill
will be passed as reported.
Mr. McCLORY. Mr. Chairman, will
the gentleman yield to me?
Mr. RODINO. I yield to the gentleman
from Illinois.
Mr. McCLORY. I thank the gentleman
for yielding.
As the ranking minority member on
the gentleman's committee, I joined and
applauded the gentleman when he com-
municated with the Speaker advising
that it was, inappropriate to bypass the
Committee on the Judiciary with regard
to, important legislation. I notice that
this bill of which the gentleman is the
principal sponsor was referred to our
committee, and yet it was never con-
sidered by our committee in formal ses-
sion. With the very serious constitu-
tional and legal questions that are in-
volved, and the many implications that
are involved, the court decisions upon
which various provisions of the bill de-
pend, it seems to me so entirely Incon-
sistent with the gentleman's position up-
holding the prerogatives of our commit-
tee that he would not have wanted a
markup session by our committee on
this legislation, and does not want the
bill to be amended now on the floor of
the House.
Mr. RODINO. I would respond to the
gentleman by reminding him that this
legislation had been understudy by the
subcommittee, chaired by the gentle-
man from Wisconsin (Mr. KASTEN-
MEIER) for a period of time, and that
when the legislation was referred to the
Committee on the Judiciary, we consid-
ered it because of the urgency of the
matter, and we considered it important
to get the bill to the floor because, we
felt that the matter had been studied
very carefully. We consulted with the
gentleman who is now on his feet speak-
ing. There were hearings at the time,
and by a vote of 4 to 3 the subcommit-
tee decided to table any further requests
for hearings or for any action' that
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CONGRESSIONAL RECORD-HOUSE September 6, 1978
would prevent the expedition of the
legislation. We decided by that vote to
come to the floor with the work which
had been the handiwork and fine work
of the Intelligence Committee. I believe
that this is what we have now:
Mr. McCLORY. If the gentleman will
yield further, I do acknowledge that
there were hearings, but there was no
consideration given by the committee. It
was not reviewed in a markup session.
Mr. RODINO. I believe the subcom-
mittee vote speaks for itself-the sub-
committee of the Judiciary Committee-
by a vote of 4 to 3 to table any further
action.
Mr. McCLORY. If the gentleman will
yield further, those who supported the
motion to table the bill expressed them-
selves in strong opposition. to the bill,
so the bill does rest in the committee
right now.
Mr. RODINO. Mr. Chairman, I might
say to the gentleman that had those
Members decided that they wanted to
review the matter any further, they
would have voted otherwise.
We must remember that the Commit-
tee on the Judiciary does retain its over-
sight responsibility, and, therefore, we
will be able to continue to do what is
necessary in order to insure the Pest
interests of our country. But I just
wanted to point out that had those Mem-
bers had any special concern, they
would have voted otherwise.
Mr. McCLORY. Mr. Chairman, if the
gentleman will yield, let me ask, is there
any provision in the bill that says the
Committee on the Judiciary shall have
oversight?
Mr. RODINO. Mr. Chairman, the At-
torney General, when he appeared be-
fore the committee, stated expressly and
succinctly that the responsibility for
oversight would still be with the Com-
mittee on the Judiciary.
Mr. McCLORY. Mr. Chairman, if the
gentleman will yield further, the report
does not include any provisions as to
reporting, to the Committee on the
Judiciary.
Mr. RODINO. Mr. Chairman, I would
also add that in view of the inherent
jurisdiction of the Committee on the
Judiciary, we are protected by the Rules
of the House, and we will retain our
oversight and legislative responsibility
under rule X..
Mr. SANTINI. Mr. Chairman, will the
gentleman yield?
Mr. RODINO. I yield to the gentle-
man from Nevada.
Mr. SANTINI. W. Chairman, with ref-
erence to the gentleman's expressed con-
cern about the disposition of the sub-
committee, I think the gentleman's ques-
tion is a valid one. It is a question I
asked myself before making the decision
on the subcommittee to support the posi-
tion of the chairman, and if we had not
dorrke that at that time. I think the gen-
tlen3an well appreciates that this legisla-
tion to all rational intents and purposes
would be dead.
If the objective is to kill the legislation,
we could then have protected its consid-
eration in the fun committee. the full
committee consideration would have, I
think, by any reasonable assessment
killed the. bill. There simply is not the
legislative time remaining in order to get
this bill through the full Committee on
the Judiciary and to the House floor for
consideration.
Mr. Chairman, if the gentleman will
yield further, at that juncture I made a
particular point of phoning representa-
tives of the FBI and asking them this
question :
We are now postured at this juncture of
either killing the bill or, as an alternative,
passing over full consideration by the Com-
mittee on the Judiciary and getting it to
the House floor for consideration. What is
your preference as a. representative of the
entity which is going to be most emphatically
and dramatically impacted by the legisla-
tion?
The answer to my question was, em-
phatically, to "get that bill to the House
floor as rapidly as you can. We need this
bill as an investigative entity."
They are in a no man's land-excuse
me, I should say, no person's land-and
they do not know which way to turn or
how to get there. The critical issues of
national intelligence are being aban-
doned through the emasculation of inac-
tion and the situation they are placed
in.
The answer I got was this: "We have
to have that legislation if we are to act
and aggressively do the job that is as-
signed to us."
Mr. RODINO. Mr, Chairman, I want to
thank the gentleman for his remarks.
The gentleman serves on the committee,
and I believe he has made a valuable con-
tribution. He has stated the case clearly,
and I think there is nothing more I can
add.
Mr. Chairman, I yeld back the balance
of my time.
The CHAIRMAN. The time of the gen-
tleman from Wisconsin (Mr. KA:sxEN-
MEn rt) has expired.
Mr. McCLORY. Mr. Chairman, I yield
myself such time as I may consume.
(Mr. McCLORY asked and was given
permission to revise and extend his re-
marks.)
Mr. McCLORY. Mr. Chairman, I take
this time merely for the purpose of mak-
ing this statement: It was more than 6
weeks ago that this matter was before
the Committee on the Judiciary of the
House. '
There was ample time for the Com-
mittee on the Judiciary to consider this
legislation, to consider all these complex
legal and constitutional questions, and
to bring a measure to the floor which
would not be in this kind of a confused
state as we now find this legislation in.
As 86 matter of fact, it was represented
to us that if the measure was brought to
the floor, we would be able to amend it
on the floor; yet the chairman of the
full Committee on the Judiciary now
states he wants this measure passed with-
out amendment. So we are not only deny-
ing ourselves the opportunity in the Sub-
committee of the Committee on the Judi-
ciary and in the full committee of pro-
viding amendments to this legislation;
but now we are denying ourselves the op-
portunity on the floor of. the House to
entertain amendments. It seems to me
that is a tremendous disservice to our
committee and to the Members of the
House.
Mr. Chairman, I now yield 5 minutes
to the gentleman from Massachusetts
(Mr. DEINAN).
(Mr. DRINAN asked and was given
permission to revise and extend his re-
marks.)
Mr. DRINAN. Mr. Chairman, I rise
very diffidently and feeling very much
alone in opposition to this bill. I share
the misgivings just expressed by the
gentleman from Illinois (Mr. McCLOaY)
that this is being pushed through without
having thought the thing through. In
fact, the pressure is almost unbelievable,
because people think that we have to do
something about the abuses.
But everybody here is very uneasy. Mr.
Chairman, I have listened very carefully.
everyone is suspicious that this is not
the way to go about it. And I think that
they suspect, as I know, that this is a
capitulation to things that we really
should not be doing.
The basic assumption, today is that
wiretapping yields information indis-
pensable to the protection of our national
security.
I have served on the committee chaired
by the gentleman from Wisconsin (Mr.
KASTENMEIER) for 7 years and I have re-
lentlessly asked people to give informa-
tion that would prove that assumption.
But that is the unproven assumption
today.
This bill will legalize useless wiretap-
ping. It will erode the fourth amend-
ment. It will institutionalize the Nation's
worst xenophobic prejudices. The CIA
can now get a warrant if there is any
probable cause of crime. But in view ' of
the determination of the CIA and the
FBI and the intelligence community to
go on with their warrantless surveil-
lances, somehow people have come to the
conclusion that we will offer them an
unorthodox warrant. It is called a
"funny" warrant. It is not really a war-
rant. It is not a "case or controversy." It
is an abuse of the Constitution. We pre-
tend that this is, going to bring control.
The warrant that judges cannot refuse
will not clean up surveillances that we
cannot control.
H.R. 7308 does three bad things. It
imposes duties on Federal courts totally
at variance with anything that we know
as a "case or controversy." This is an
alteration of something very funda-
mental. Likewise, we will have something
that is very foreign to our courts;
namely, secret decisions.
Second, H.R. 7308 contains no require-
ment that Americans whose conversa-
tions are unavoidably recorded need be
informed of that massive invasion of
their privacy.
Third, H.R. 7308 violates the Vienna
treaty, solmnly ratified by the Senate.
That treaty guarantees that diplomatic
offices are to be "inviolable. .
Mr. Chairman, I will offer some
amendments at the appropriate time, one
.on behalf of the telephone industry that
tives not want to have its agents or any
Americans compelled to deal in the
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September 6, 1978 CONGRESSIONAL RECORD-HOUSE H 9119
clandestine wiretapping that under the powers sought by the executive branch. ? * * any person who knowingly engages
bill they will be required to do. The national experience and disclosures in clandestine intelligence activities for or
I will also propose a sunset provision of the recent past show all too clearly t esbehalf of
or foreign i voolverawv olato nivof involve of 5 years so that when we understand that Presidents and Attorneys General
that what this frightening experiment have used national security as a pretext the criminal statutes of the United states.
on our civil liberties really will do, we for snooping into the lawful activities of The bill, as amended by the Intelli-
will have the opportunity, in fact we will political opponents or persons perceived gence Committee, would insert the word
be required, to put into effect this sunset to pose a threat to their political security. "gathering" between "intelligence" and
provision. The House must weigh the value of and "activities," and would substitute the
Even if those two amendments and the need for intelligence information word "may" for "will." Insertion of the
other amendments are adopted, Mr. gathered from electronic surveillance word "gathering" arguably narrows the
Chairman, I feel very strongly that this against the intrusions into constitu- scope of the section, but replacing "will"
hill will ha .a cn1'-1"4214-
nue
capitulation to the imperious and Un- a W~ y1JpG 1 ssociation, , 11 and s sp e pe sechuch as
justified demands of the CIA and the to o beli
th
t
eve
a
any electronic surveil-
intelligence community. lance, whether approved by a court or
H.R. 7308 has a number of serious de- not, violates the Constitution because
fects and is far from the "model wiretap such interceptions of private conversa-
bill" as the New York Times asserteci in tions can never satisfy the particularity
its editorial of June 29. It permits sur- requirement of the fourth amendment.
veiilance of Americans, in certain cir- It should be recalled that, to obtain a
cumstances, without a court order. It warrant under the fourth amendment,
does not contain adequate safeguards to the applicant must submit a sworn state-
minimize the acquisition of the conver- ment, "particularly describing the place
ephone co
e
t
l
mpany employees, custodi-
ans, landlords, and others to assist,
against their wills, the CIA, the FBI
and
,
other agencies which are engaging In
electronic surveillance. And it gives no
notice to persons who are overheard that
their conversations have been recorded.
Since 1968, many observers have stud-
ied the matter of electronic surveillance
very carefully. Among others, the Judi-
ciary Subcommittee on Courts, Civil Lib-
erties, and the Administration of Justice
has conducted numerous hearings over
the past several years. Indeed this sub-
committee has successively examined
the predecessors to H.R. 7308, beginning
in 1976 with the Ford administration
bill. We received testimony which was
quite critical of the various proposals
which have been before us. While propo-
nents sought to discount such adverse
comment, they have failed, in my judg-
ment, to carry the burden of persuading
us that this bill is needed. When the
rights of Americans under the Fourth
Amendment are at stake, the Congress
should not readily agree to invade them
without evidence of the most compelling
nature. The advocates of this bill have
not adduced testimony anywhere near
that level. Based on that hearing record,
as well as my experience as a teacher of
constitutional law, I would, if given the
opportunity, seek to amend H.R. 7308
to effectuate fully the protections of the
fourth amendment.
(1) THE NEED FOR H.R. 7308
to be seized." Invariably an application
for a bug or a tap cannot be that spe-
cific; it cannot describe with particular-
ity all the persons to be overheard and
all the conversations to be recorded.
This is the real evil of electronic sur-
veillance; it is indiscriminate. It brings
within its scope conversations of the in-
nocent as well as the allegedly guilty. It
is this indiscriminate quality of elec-
tronic surveillance that is most to be
feared. Even physical surveillance, which
some find offensive, is a much more tar-
geted intelligence gathering technique
than electronic surveillance. At least
physical observation is more or less re-
stricted to the person who is the object
of the Government's interest. Electronic
surveillance does not have these inherent
limitations. Minimization provisions,
which attempt to reduce the unnecessary
intrusions into privacy, are generally in-
adequate.
H.R. 7308 does not uniformly require a
criminal standard of probable cause in
order to obtain a surveillance authoriza-
tion. That is its major deficiency, as
many witnesses have testified. Indeed the
Intelligence Committee frankly concedes
that the purpose of the bill is to .obtain
intelligence information which. is not of
a criminal nature.
Although there may be cases in which in-
formation acquired from a foreign intelli-
gence surveillance will be used as evidence of
a crime, there cases are expected to be rela-
tively few in number, unlike chapter 119
interceptions [title III of the 1968 act], the
as correct any of the premises which un- of very imiri l activity. Co immitteobtain evidence
e Report at 60.
dergird this bill. Each of the assumptions
must be examined thoroughly and with- With that purpose clearly stated, it
out any preconceived notions about the should come as no surprise that the
need for employing electronic surveil- fourth amendment probable cause stand-
lance to gather so-called foreign intel- and is not applied to all cases under this
ligence information. In testimony be ore bill. What should come as a surprise,
the Judiciary Subcommittee, the Ford though, is the major break with Fourth
administration provided very little hard Amendment doctrine that H.R. 7308
Wnr1a clay" arguably Droaciens it.
There are, to be sure, other objections
to H.R. 7308. The definitions of "foreign
intelligence information" and "foreign
power" are much too broad. For example,
"foreign intelligence information" in-
cludes any "information with respect to
a foreign power or foreign territory that
relates to and, if concerning a United
States person, is necessary, to ... the
conduct of the foreign affairs of the
United States." Section 10le(2) (B). That
definition has virtually no limits. There
are many topics of conversation which
every Secretary of State would determine
"relates" or is "necessary" to the conduct
of foreign policy.
The definition of "foreign power" is
also overly broad. It includes, among
others, foreign governments, factions of
foreign governments, foreign political
parties, and foreign military forces. This
means that a conversation between an
American citizen and an officer or em-
ployee of a foreign political party is po-
tentially a subject for surveillance. The
reach of that section is far too expansive.
The definition, in fact, raises the ques-
tion whether the bill could be used to en-
gage in surveillance involving so-called
third country disputes which spill over
into the United States. As I read the bill,
the Attorney General could obtain a
court order to overhear conversations of
persons belonging to "a faction of a for-
eign nation" even though the subject
matter only marginally related to the di-
rect interests of, the United States. In
short, the critical definitions are too
broad to be meaningful restrictions on
the Attorney General's authority, either
with or without a warrant, to engage in
electronic surveillance.
Furthermore H.R. 7308 does not ap-
pear to require any criminal standard for
agents of foreign governments who are
not U.S. citizens or resident aliens. The
bill, would impose a criminal standard in
soe circumstances, but it would not im-
pose one across-the-board. Consequently
my criticism of earlier bills that they au-
thorized surveillance without' probable
cause relating to criminal activity is
equally applicable to H.R. 7308.
It should be noted in passing that the
distinction drawn in H.R. 7308 between
citizens and resident aliens on the one
hand, and all other persons within the
United States on the other has little con-
stitutional support of which I am aware.
The protections of the Fourth and Fifth
e
ndments, for example, extend to all
ure. Official representations, both in pub- Indeed, in some respects, H.R. 7308, as Am
lic and executive sessions, amounted to reported by the Intelligence Committee persons, not merely citizens and resident
little more than generalities couched in aliens. Abel v. United States, 3
is less restrictive than the earlier bills. 2 217 (1960) 1960). . Many people in the United
terms of protecting the Nation from for- For example, the earlier version defined States are neither citizens, nor resident
eign attack. That is not a sufficient basis "agent of a foreign power" to include, aliens, nor spies. Tourists, lecturers, busi-
upon .which to authorize the. broad among others: ness people, scholars, and many others
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H 9120
regularly visit this country for purposes
unrelated to clandestine activity. As I
understand the bill they would not re-
ceive the special protection which the
proposal appears to give to citizens. and
resident aliens ("United States per-
sons"). The committee report makes
that very clear with respect to the mini-
mization provisions, for example. It
states that "only information concerning
a United States person need be mini-
mized." Id. at 57. This double standard
is constitutionally unacceptable and rep-
resents the xenophobia of a by-gone day.
In testimony before the Judiciary Sub-
committee on May 22, 1975, former Sec-
retary of, State Dean Rusk attempted to
draw a distinction between diplomatic
personnel, who are immune from crim-
inal prosecution, and all other U.S. resi-
dents. Although I reject that distinction
also, it does have some greater logic than
the distinctions drawn in H.R. 73Q8 be-
tween citizens and resident aliens and all
other persons in the United States.
H.R. 7308 does not limit the use of
overhead conversations which are unre-
lated to the purpose of the survei$ance.
In fact the bill expressly permits the use
of such acquired information in a crimi-
nal prosecution regardless of the remote-
ness of the crime from the surveillance.
Section 101(h) (3) of the hill authorizes
., * * procedures that allow for the reten-
tion and dissemination of information that
is evidence of a crime which has been, is
being, or is about to be committed and that
is to be retained or disseminated for the
purpose of preventing the crime or enforcing
the criminal law.
Thus evidence of crime, obtained acci-
dentally through a foreign intelligence
tap, may now be used to prosecute the
hapless victim of the surveillance, even
though she or he may not even have been
the "target" of the surveillance.
When Government agents obtain in-
criminating evidence through electronic
surveillance which is not intended for
that purpose, and which may be totally
unrelated to the alleged criminal activ-
ity, they should not be allowed to use it
for prosecutorial purposes. Such "fruit of
the forbidden tree" should not be avail-
able to prosecute the party for conduct
which may not be even remotely con-
nected to the object of the surveillance.
This is especially true when it is con-
sidered that the criminal standard,
where it does appear in these bills,, is not
uniformly required for obtaining a sur-
veillance warrant in the first instance.
In this same vein, H.R. 7308 makes no
provision for notifying innocent persons
whose conversations have been recorded
or overheard merely because, for ex-
ample, they called the embassy of a for-
eign country for travel information. Any
time these "foreign intelligence'" taps re-
CONGRESSIONAL RECORD-HOUSE September 6, 1978
viewed as ancillary to another proceed-
ing, the investigation and prosecution of
crime. If the information obtained
through the surveillance leads to a pros-
ecution, the . defendant will have the
opportunity to challenge, in an adver-
sarial context, the legality of the tap or
bug. If the information does not lead to
a criminal prosecution, the person who
is the subject of the surveillance is noti-
fied and given the opportunity to contest
the validity of the surveillance in a civil
suit. In either case, the initial applica-
tion for a warrant may be viewed as a
part of the case or controversy, either
civil or criminal, which ordinarily fol-
lows the granting of the surveillance au-
thorization. This is not the case under
H.R. 7308.
First, as noted earlier, H.R. 7308 is not
designed to procure information in con-
nection with any criminal proceeding. As
the committee report notes:
Although there may be cases in which in-
formation acquired from a foreign intelli-
gence surveillance will be used as evidence of
a crime, these cases are expected to be rel-
atively few in number ... Id. at 60.
of innocent parties. Since H.R. 7309 au-
thorizes ex parte applications to a special
court and permits ex parte extensions
of existing bugs or taps, some mechanism
is necessary to protect the rights of third
parties who are unwittingly caught in
the Government's dragnet surveillance.
If such an office were established, I would
have greater confidence that the privacy
of persons within the United States
would be more fully secured.
A provision for a public advocate takes
on added importance when the "renewal"
features of H.R. 7308 are examined. The
Government may seek an unlimited
number of 90-day extensions for any sur-
veillance authorized under the bill. Thus
the intrusion into the privacy of persons
in the United States could go on for
years, without anyone knowing about it.
In addition the bill also authorizes the
Attorney General to approve emergency
surveillance when a court order cannot
be obtained in the needed period of time.
The Attorney General must then submit
the normal application to the judge with-
in 24 hours. If the judge denies the ap-
plication, the bill gives the court the
discretion to notify the innocent victims
of the initial 24-hour surveillance, but
the Government, again at an ex parte
proceeding, may request that such notice
be postponed for 90 days (the original
Levi bill had a 30-day provision). There-
after, once more through an ex parte
proceeding, the court is prohibited from
serving notice if the Government has
made a further showing of "good cause."
This exception makes a mockery of the
limited notice rule in emergency surveil-
lance situations, and further supports
the need for a public advocate to be pres-
ent at all these ex parte hearings.
H.R. 7308 has been criticized because
it assigns duties to the judiciary which
are not within the traditional definition
of "judicial power." The argument pro-
ceeds from the settled doctrine that ar-
ticle III of the Constitution restricts the
exercise of judicial authority to "cases
or controversies." The Supreme Court
has explained that limitation as being
based, in part, on, the need "to assure
that concrete adverseness which sharp-
ens the presentation of issues upon which
the court so largely depends for illumina-
tion of difficult constitutional questions."
Baker v. Carr, 369 U.S. 186, 204 (1962).
If the application for a warrant is con-
ducted in secret and without the presence
of any opposing party, as is the case
under H.R. 7308, how can this constitute
a "case or controversy" within the mean-
ing of the Constitution?
Proponents of this legislation contend
that the 'warrant procedure under this
bill is no different than the warrant pro-
cedure under title III of the 1968 act.
Thus, they reason, that since the 1968
Thus the person whose conversations
have been overheard will not have the op-
portunity to contest the lawfulness of the
surveillance in any criminal proceeding.
Second, the bill does not provide any
notification to such persons, as title III
of the ' 1968 act does. Thus the victim of
unlawful surveillance under the bill may
never know of the illegality. Even a blind
request by a suspecting individual under
the Freedom of Information Act will not
determine whether the requesting person
has been the subject of a foreign intelli-
gence surveillance. Both the FOIA and
the Privacy Act contain exemptions for
records ordered by the executive branch .
"to be kept secret in the interest of na
tional defense or foreign policy." 5 U.S.C.
552(b) (1). The Privacy Act contains a
general exemption for the records of the
CIA, As I read this bill, there is no way
for an American citizen or any other
person who has been the subject of an
unlawful surveillance to find out about
the illegality. The only barrier standing
between the victim of illegal wiretapping
or bugging and a warrant is the special
courts created by H.R. 7308. And there is
no subsequent check on the behavior of
the courts or the Executive under this
bill. In the absence of the procedures,
contained in title III of the 1968 act,
which ordinarily lead to a case or contro-
versy. I think the argument that this
bill raises serious questions under article
III is substantial.
Apart from the constitutional conten-
tions against the warrant procedures
contained in this bill, I do not understand
why the judges assigned to these special
courts would not take offense ' at the
suit in the interception of conversation act is constitutional, so is H.R. 7308. duties and limitations imposed upon
unrelated to the subject of the surveil- First, it should be observed that, to my them. They are not free to examine all
lance, the innocent victim should be noti- knowledge, the warrant procedures of the evidence presented by the Attorney
fied, or the records destroyed, or both. the 1968 act have never been challenged General as they are in. the ordinary war-
The minimization provisions of H.R. on the ground that they do not present rant, application process under title III.
7308, as noted earlier, are not strong a case or controversy within the,judicial Certain critical determinations of the
enough to insure the destruction of data power of the United States. Second, the Exceutive are reviewable only on a
or recordings which are worthless or un- warrant procedures in the 1968 act are "clearly erroneous" standard. See sec-
related to the purpose of the surveillance. different in critical aspects from the tion 105 (a) (5) of H.R. 7308. All the mate-
In this context, the bill should provide procedures in H.R. 7308. rials submitted for their examinations,
for a public advocate to protect the rights The warrant process under title IH to as well as the proceeding itself, are
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wrapped in a great shroud of secrecy. It H.R. 7308 does more to sanction current The CHAIRMAN. The time of the gen-
appears that even the court clerks, re- practice than it does to Impose new and tleman from Massachusetts (Mr.
porters, and other necessary support per- sufficient protections for all persons DRINAic) has expired.
sonnel will be executive branch em- within the jurisdiction of the United Mr. McCLORY. Mr. Chairman, I yield
ployees with security clearances. Such States against unwarranted Intrusions 1 additional minute to the gentleman
procedures, I should have thought, would into privacy and doubtfully legal use of from Massachusetts (Mr. DRINAN).
be a tremendous affront to the independ- electronic surveillance. Mr. RAILSBACK. If the gentleman
ence of the Judiciary, which is a hall- Finally I should add that unsupported will yield further, what really bothers
mark of our system of democratic gov- appeals to "national security" should not me is that I am afraid that I do not
ernment. I would hope that the judges determine whether H.R. 7308 or any know of any court decision that would
would reject the commission imposed other bill becomes public law. Our na- rule it mandatory that there be a war-
upon them under this bill, just as their tional security is adequately safeguarded rant in case of a wiretap where even an
brethren did in the first days of the Re- through the use of other, less intrusive American citizen is engaged in foreign
public when Congress sought to foist methods of gathering foreign intelligence intelligence gathering. I think the gen-
upon the Judiciary duties not within the information. After all, our country did tleman in the well will agree with me
"judicial power of the United States." survive prior to President Roosevelt's au- that that in itself is bad. There is a need,
See Hayburn's Case, 2 U.S. (2 Dall.) 409 thorization of limited electronic surveil- at least to an extent, to correct what
(1792). lance for national security purposes. It happened not too long ago.
It is said that the bill establishes legal should be remembered too that the lib- Mr. DRINAN. I agree with the gentle-
standards for foreign Intelligence sur- erty of the people is at least as Impor- man that reform Is necessary. But this
veillance which are better than current tant as the marginal increment In In- is not the way to bring about reform.
law. That is hardly persuasive, in part, telligence information which we acquire Mr. MURPHY of Illinois. Mr. Chair-
for the same reason that we did not glo- through the inherently indiscriminate man, will the gentleman yield?
rify Mussolini because he made the trains method of electronic surveillance. As the Mr. DRINAN. I yield to the gentleman
run on time. Improvement is fine, but District Judge in the Pentagon Papers from Illinois.
at what price? When the myriad infirmi- case cogently observed: Mr. MURPHY of Illinois. Mr. Chair-,
ties of H.R. 7308 are added together, The security of the Nation is not at- the man, just to answer the gentleman's
what real advances have we made in pro- ramparts alone. Security also lies in the question, if he remembers, the supreme
tecting Fourth Amendment values? value of our free institutions. 328 F. Sunn.
leaves us with a secret judicial proceed- that Congress could provide for warrant
lea es us wl h under the di al pro secret ed- An integral part of our free institu- applications for intelligence purposes in d cum snducte to sanction cEt cir- tions is the security of the people from domestic surveillance, and that is all we
tive ul practices to engage current r electronic unwarranted intrusions by Government are doing here.
c
surveillance to agents in their privacy, intrusions which Mr. McCLORY. Mr. Chairman, if the
gather foreign intelli- H.R. 7308 would unnecessarily authorize, gentleman would yield further, we are
gence information. Only the self- I will oppose enactment of H.R. 7308 not involved here today in domestic sur-
restraint of the special judges, who and the unprecedented, unwarranted veillance. What the Court said in the
should be offended by this imposition of violations of our most cherished rights KEITH case Is that they were not passing
nonjudicial duties, stands between the which it sanctions. on the subject of foreign intelligence
potential victim and unbridled adminis- Mr. McCLORY. Mr. Chairman, will surveillance, which is what we are con-
trative discretion. And the victim will, the gentleman yield? 'sidering in this legislation.
under this bill, never know that she or Mr. DRINAN. I yield to the gentleman Mr. DRINAN. Mr. Chairman, I yield
he has been the subject of this extra- from Illinois. back the balance of my time.
ordinary proceeding to authorize Gov- Mr. McCLORY. I thank the gentleman Mr. McCLORY. Mr. Chairman, I yield
ernment agents to overhear conversa- -for yielding. 4 minutes to the gentleman from Illinois
tions or intercept nonverbal communi- Mr. Chairman, I want to commend (Mr. RAiLSBACK).
cations. And that, it is said, is better the gentleman on the position he has (Mr. RAILSSBACK asked and was given
than current law, taken. I do want to say, with regard to permission to revise and extend his re-
The Administration claims to support the intelligence activities that are tak- marks.)
this bill with all its heart and soul, in- ing place currently, they are in accord- Mr. RAILSBACK. Mr. Chairman and
cluding those of the intelligence cm- ance with strict Presidential guidelines. members of the committee, I can under-
munity. One has to question the sincerity. We are not dealing in any no-man's land stand why there is a great deal of con-
of that commitment when current execu- or no-person's land. If the suggestion of troversy surrounding H.R. 7308, and I
tive branch practices regarding sur- the gentleman is that intelligence ac- think it is very understandable. On this
veilance are examined. If the Carter ad- tivities or electronic surveillance are point I do want to make it very clear in
ministration Is four-square behind this being withheld until we get this legisla- pointing out that this is not this admin-
bill, why has it not adopted each and tion through and from then on we are istration's particular initiative.
every provision of it on an administra- going to have open field day for un- I remember when Attorney General
tive basis? Surely it could have adminis- limited electronic surveillance, I think it Levi summoned us to the White House
tratively adhered to the strictures of the is a more horrendous experience that we for a meeting with President Ford pre-
bill without Congress enacting any legis- are going through here today than if we paratory to introducing a bill that really
lation. That, at least, would have demon- had no legislation whatever. So I just was very similar to the legislation that
strated the good faith of the executive think the arguments in support of this we are considering. There are two major
branch's support for this bill. I suspect legislation just do not hold water at all. differences between the Ford-Levi bill
the administration has not done so Mr. DRINAN. Mr. Chairman, I agree and H.R. 7308. The Ford-Levi bill ap-
simply . because it thought Congress with the gentleman. geared to recognize the constitutionally
might begin at that point and impose Mr. RAILSBACK. Mr. Chairman, will inherent power of. the President to
greater restrictions. When one starts at the gentleman yield? authorize warrantless electronic surveil-
such a low level of protection for privacy, lance under circumstances not contem-
which is the present state of executive Mr. DRINAN. I yield to the gentleman
branch practice, it is quite easy to make from Illinois. Aplated second the bill.
the case that H.R. 7308 is better than Mr. RAILSBACK. I thank the gentle- bills standard he for between thesorveillance
current law. But that hardly meets the man for yielding. nd is that i-
e
argument that current practice is un- Mr. Chairman, what bothers me, in the crimie H.R. 7308 nal standard, while tithe o Ford Levi
authorized and unconstitutional
and absence of som
t
t
,
e s
a
ute, is that I am not bill did not. But, a letter has been sent
that the bill cotains similar deficiencies. at all convinced that what happened and received from the former president,
In urging Congress to enact this law, back in the later years of the Nixon ad- Gerald Ford, that in effect endorsed H.R.
the Administration really seeks to have- ' ministration, when there were certain 7308 in that it has the thrust of what
us approve its dubious practices involy- wiretaps executed that were warrantless the Ford administration endorsed.
ing foreign intelligence surveillance, would be corrected. In all likelihood, I will end up support-
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CONGRESSIONAL RECORD-HOUSE September 6, 1978
Ing the bill reported out by the Intelli- amendments being considered on the standards to apply.
gence Committee, but at the same time I floor, and of course that is appropriate. In fact we say to the court: "You can
do want to voice my objection to the I do not believe that I or the chairman modify an application." So what does a
manner in which the bill was handled. of the full committee should be char- court have to do? The court at that point
Beginning in 1976 with the Ford admin- acterized as believing no amendments becomes the manager of our foreign in-
istration bill, the Subcommittee on should be considered. We may believe telligence operation because they have to
Courts, Civil Liberties, and the Admin- that no amendments should be adopted, know what our intelligence people are
Istration of Justice, of which I am a but certainly not that they should not be seeking, they have to look at it, they can
member, has successfully considered the considered. consider it, and they can modify what
predecessors to this particular bill. Most Mr. RAILSBACK. I understand what they are doing through the minimization
recently, on June 22, 1978, the subcom- the chairman of the subcommittee was procedures. They become the managers
mittee began a series of three hearings on saying and I was not referring to the of our foreign intelligence operations,
the current bill. gentleman but rather to remarks I had They are not making judicial decisions.
It is clear that the subcommittee has heard earlier. I suggest to the Members that it is a
carefully studied the issue of foreign in- Let me express my hope that this does compromise of our judiciary and our
telligence surveillance. However, rather not become some kind of partisan issue. constitutional form of government. We
than utilizing their developed expertise, As has been pointed out, this at one time have the obligation to set out the sub-
the subcommittee on June 29 voted by a was a Republican initiative, although stantive guidelines-not the courts-and
margin of A to 3 to table H.R. 7308, and I there have been some changes. But I we have not done that.
happen to believe that that was a mis- hope all of us consider the bill on its Let us assumetor the moment that one
take. Inasmuch as that action was taken, merits and do not make.it into any kind judge just issues all the orders that the
I must disagree with the' comments of of partisan issue. intelligence community asks for and an-
the chairman of the full Committee on Mr. McCLORY. The gentleman does other may deny them. There are no set
the Judiciary when he indicated that he not want it to become a partisan issue. guidelines under which they perform.
thought there ought not to be any Mr. RAILSBACK. Yes. I do not want it They do not write out why they grant a
amendments considered on the floor of to become a partisan issue and I hope warrant. They do not set out any stand-
the House. I feel that way particularly that we should consider it to be a bi- ards. They do not say why they allow
because the subcommittee of the Judi- partisan issue. them to be tapped.
ciary Committee never marked up the Mr. McCLORY. Mr. Chairman, I yield What we have done, we have just es-
bill, nor did we have a chance to intro- 5 minutes to the gentleman from Penn- tablished a procedure where we have
duce any amendments. sylvania (Mr. ERTEL). sanctioned the activities of the intelli-
My feeling is that even though I may (Mr. ERTEL asked and was given per- gence community with a court order
end up supporting this. bill, even with. mission to revise and extend his re- without any particular reason being
some amendments, I think that the full marks). given by the courts.
House ought to have an opportunity to Mr. ERTEL. Mr. Chairman, the basic It seems to me we have compromised
consider amendments that may be concept of a civilized nation is the rule our judiciary, we have compromised our
offered, and particularly those offered by of law. This country is a civilized nation rule of law -and in addition to that we
members of the Judiciary Committee and we do believe in the rule of law. have compromised the intelligence agen-
who have not had an opportunity in the The Judiciary Committee has honored cy because we are setting up a special
committee this year to offer amend- that principle and has continued to work court, itself, in Washington, that is lo-
ments.' for the establishment of a viable court cated in one spot. All of this information
Mr. KASTENMEIER. Mr. Chairman, system in this Nation. It is obvious that must be funneled through that court. If
will the gentleman yield? the intelligence agencies have abused somebody wants to find out what our
Mr. RAILSBACK. I yield to the gen- their privileges and their rights in Ac- counterintelligence agency's efforts are,
tleman from Wisconsin. cordance with the Constitution and they all they have to do is to penetrate that
Mr. KASTENMEIER. I did not. say-I need to be corrected, but I do not believe one court and they will then know our
think the record bears me out-that the that this bill as written will correct the entire counterintelligence efforts in this
House ought not to consider these abuses which we have seen in the intel- country. If they can get one person in-
amendments. . ligence community before. side that court then our entire counter-
Mr. RAILSBACK. I was talking about What we are doing here is compromis- intelligence efforts are compromised.
the comments of the chairman of the ing what is basically the rule of law as No one can be seriously content that to
full committee, Chairman Ronmo. As I established in this country for 200 years. centralize all of our counterintelligence
understood Chairman RODINO, his posi- We are compromising our Constitution. collecting information at one point is a
tion was that no amendments should be In this bill for the first time in the his- sound policy-it is a bad policy.
considered. tort' of our Nation: we are setting up a It seems to me we would be better off
Maybe he said no amendments should secret body of law which no person in in setting up statutory guidelines for an
be adopted, but in any event inasmuch this Nation will know about other than intelligence community when we allow
as we precluded Judiciary Committee ac- a very select few. Decisions will be made intrusion into the affairs of American
tion, I would hope that on the floor Ju- in secret and they will continue to be citizens, or anyone else, and that the
diciary would have the opportunity to made in secret. There will be no exposure executive can present it for oversight to
amend the bill. to the public, no way to review them. No our committee of the House instead of
The CHAIRMAN. The time of the gen- one will know what has happened or how having the judiciary involved.
tleman from Illinois (Mr. time of the) has it took place. I thank the gentleman for yielding me
In fact, in this bill we do not have sub- this time.
expired. stantive guidelines as to whether or not Mr. McCLORY. Mr. Chairman, I yield
Mr. KASTENMEIER. Mr. Chairman, intelligence agencies can tap lines or 5 minutes to the gentleman from Florida
would the gentleman from Illinois (Mr. enter houses or establish electronic bugs. (Mr. SnsEs).
McCLORY) yield additional time, perhaps All we have is a procedure, how they go (Mr. SIKES asked and was given per-
1 minute to the gentleman from Illinois to a secret court and get a warrant. We mission to revise and extend his re-
(Mr. RAILSBACK) ? do not tell the court what basic stand- marks.)
Mr. McCLORY. I yield 1 additional ards they should apply. We say: "You Mr. SIKES. Mr. Chairman, in Con-
minute to the gentleman from Illinois make the decision based on the totality gress, we speak often about too much
(Mr. RAILSBACK). of circumstances,"' and we set out no government, about overlapping Federal
Mr. KASTENMEIER. I asked the gen- guidelines when they shall issue the agencies, about additional layers of bu-
tleman to yield the further time, be- amount. We set out no standards what- reaucracy, about redtape, regulations,
cause the gentleman was with me I be- soever. But yet we are saying to the and form filling. We say we are opposed
lieve when we went to the Rules Com courts: "You issue an order allowing a to all of them and just about every day
mittee, and of course we contemplated tap or an intrusion into somebody's pri- we pass new legislation that adds to each
an open rule and we contemplated the vacy," and we do not tell them what of these things we call objectionable.
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I think that is exactly what will hap- Mx. MoCLORY, Mr. Chair Ian, I yield tee, and the gentleman from Illinois has
pen if H.R. 7308 is passed today. A sur- 2 minutes to the gentleman from Massa- had some very healthy discussions with-
prising amount of pressure has been chusetts (Mr. BoLAND), the chairman of in the Committee on the judiciary with
brought on Congress in support of this the Permanent Select Committee on In- respect to -the matters that are being
bill from the administration. I- am puz- telligence. talked about today.
zled by this situation. To me, the bill, Mr. MURPHY of Illinois, Mr. Chair- I am grateful for the contribution that
beyond question, weakens America's In- man, I yield an additional 3 minutes to -the distinguished gentleman from Ne-
telligence gathering capabilities. It the gentleman from Massachusetts (Mr. vada (Mr. Sex rnn) makes on what hap-
would dilute and slow down the process BOLAND). pened with respect to action within the
of using electronic means to gather, in The CHAIRMAN. The gentleman from Committee on the Judiciary itself. I
the United States foreign intelligence In- Massachusetts (Mr. BOLAND) is recog- think he is absolutely right. We never
formation vital to our foreign policy and nized for 5 minutes. would have had this bill this year. It
security interests. It would take away (Mr. BOLAND asked and was given would have been death by delay; there
Presidential prerogative, based on sound permission to revise and extend his re- is no doubt about it. The Senate has
constitutional principles, and establish marks) moved on this bill. The Senate passed
a "special court." This special court - Mr. BOLAND. Mr. Chairman, first of it 95 to 1, and the only member of the
would be made up of people of no par- all I want to offer my congratulations Senate to vote against it was the junior
oc
la
i
t
i
b
k
u
ra
n
r
ng and
ac
ground, for de- to the distinguished gentleman from u- Senator from Virginia. So there is s:
tiding on foreign intelligence questions. linois (Mr. MVRPHY), the chairman of broad consensus of support for the bill
Apparently, the judges would alternate the legislative subcommittee of the itself.
In making decisions to authorize or re- Permanent Select Committee on Intel- As my friend, the gentleman from
fuse to authorize foreign intelligence ligence, and to the gentleman from Ken- Ohio (Mr. AsI xoox) has indicated, I
electronic surveillance. We could have tucky (Mr. MAZZOLI), who is another guess there is a broad consensus of op-
h
as many approac
es and as many dif-
ferent viewpoints on propriety as there
are judges.
Instead of this confusing approach, It
would appear to me that abuses in the
present system can be regulated by a
set of strict guidelines mandating writ-
ten authorization on the most senior
members of the executive branch plus
meaningful congressional oversight.
Without question, there could be abuses
through the operation of a special _court
just as readily, even more readily, than
the abuses that are charged today.
This subject needs sensitive treat-
ment, for we are dealing with important
intelligence and counterintelligence ac-
tivities which are vital to our foreign
policy and security interests. The unpre-
cedented injection of the courts is un-
necessary and unwise, and It could very
well unduly burden the legitimate ac-
tivities of our intelligence agencies.
Under the guise of reform, this bill is
an overreaction. In our zeal in today's
world to overregulate, we would create a
new agency and, in my opinion, the new
procedure would further weaken Intel-
ligence gathering processes. They have
already been seriously damaged by the
drive to reveal every phase of intelli-
gence operations In our country, to open
all of our secrets to the press, and to
make it more difficult for foreign nations
to cooperate with the United States for
fear that their own intelligence gather-
ing operations would be compromised.
There is no other country which re-
quires such judicial intervention before
engaging in national security electronic
surveillance. Our country does not need
it.
In summary, as I understand the bill:
It solves no known problems and cor-
rects no known abuses; diminishes the
effectiveness of intelligence; creates sub-
stantial new security hazards; does not
establish new safeguards for the rights
of Americans; injects the judiciary into
foreign intelligence in a manner incon-
sistent with the Constitution as inter-
preted by the judiciary for over 100
years; establishes a special court which
may be unconstitutional and requires a
judicial warrant be based on a criminal
standard when the purpose is to collect
foreign Intelligence.
member of that subcommittee. I also
wish to offer my congratulations to the
gentleman from Illinois (Mr. MCCLORY),
who is the ranking Republican member
on that- subcommittee, and, in fact, to
all of the Members on both sides of the
aisle who are on the Intelligence Sub-
committee for the, work they have been
putting in, not alone on this bill, but
on so many, many other matters that
have come to the. attention of that sub-
committee, the many, many hours of
briefing, the many, many hours of infor-
mation which has been given to this
committee, the many, many hours that
all of the Members, all 13 Members, have
spent in the Committee on Intelligence
to Insure that the kind of oversight
which the Congress demands in this day
and age is being obtained by the Con-
gress. I think that is so. Therefore, I am
grateful to all of the Members who have
served here on this committee.
I know that none of the members of
this committee and assuredly, the chair-
man of the subcommittee did not assume
the task of chairing this committee
lightly. I know that the members who
served with me did not assume this task
for the purpose of diluting the ability
of our intelligence community to gather
the kind of intelligence necessary to pro-
tect this Nation in the very difficult world
in which we live. it is a difficult world.
If we had a real world in which we were
all angels, I Imagine one could say that
this particular piece of legislation would
not be necessary.
Others have talked about the history
of the legislation. It has been before the
Congress now for a couple of years. The
bill itself was finally offered in the Sen-
ate and the House after a ceremony at
the White House which I attended along
with a lot of other members of commit-
tees on both sides of the Capitol.
Mr. Chairman, I must say that my
friend, the gentleman from Illinois, is
perhaps the most consistent and the
most persistent opponent of this bill of
which we are aware, and that is good. I
think he has brought to the attention
not alone of the Permanent Select Com-
mittee on Intelligence, but of the House
generally some of the problems that he
sees in the bill itself.
Mr. Chairman, we have had a rather
healthy discussion within the commit-
position to it, too. He named some of the
organizations that are opposed to it. He -
named an organization
*--I guess it is
known as the Former Intelligence Offi-
cials. But I think we have to look at
that opposition to this bill vis-a-vis:
those who We now serving as our cur-
rent . intelligence officials, those who
really have the burden today, those who
really have the job today of insuring that
the kind of Intelligence we collect will
serve" the best interests of the United -
States. I think they are the people we
have to depend upon-their judgment of
what this bill does or does not do.
Let me call to the .attention of the
members of this committee that this
bill is supported-again, it has been said
many times and I will say It again; it
deserves repetition-by the Department
of Justice, by the Attorney General of
the United States. It is supported by
the. Director of the Federal Bureau of
Investigation, Judge William Webster.
It is supported by the Director of the
Central Intelligence Agency, Admiral
Turner. It has the complete support of
perhaps the one official who is most in-
volved in the collection of foreign intel-
ligence, and that Is the Director of the
National Security Agency, Adm. Bobby
Inman. Those are all the people who are
concerned with the collection of foreign
intelligence, and they are the people
who support this bill.
I know my friend, the gentleman from
Massachusetts, my colleague, opposes the
bill, but he opposes electronic surveil-
ance in any respect, so I do not agree
that we have a strange collection of bed-
fellows here. All I am saying is that peo-
ple who oppose the bill oppose it for
different philosophical reasons. -
The gentleman from Illinois (Mr. Mc-
CLoRY) opposes the bill because he does
not want the judiciary in on determin-
ing whether or not warrants ought to
be issued in these particular cases where
we establish special courts to do it-11
judges picked from the 11 judicial dis-
tricts throughout the United States who
will be sitting here in Washington, who
will be appointed by the Chief Justice
of the United States and also the 6 mem-
bers- of the appeals court.
The gentleman from Illinois (Mr. Me-
CLORY) makes the point that no other
nation in the world-no other nation in
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H 9124 CONGRESSIONAL RECORD-HOUSE September .6, 1978
the world-has a special court to con- However, the fourth amendment,. with cases where U.S. persons-that is, Ameri-
sider this kind of .a matter and this kind regard to unreasonable searches and sei- can citizens . or permanent resident
of a problem. May I just put an adden- zures, does not apply to foreign powers aliens-would be a communicant, a war-
dum to that by saying I do not know or foreign agents, and yet what the gen- rant is required. That approach is a
of any other nation in the world that has tleman is suggesting in supporting this simple and a straightforward one. It in-
a bill of rights either. So we have the ob- bill is that in regard to foreign agents volves a basic policy choice-whether a
ligation here to protect not only the and foreign powers, in order for us to judge or some executive branch official
national security of the Nation itself; engage in electronic eavesdropping in will authorize such surveillances. H.R.
we have the obligation here of protect- regard to those entities, we would re- 7308 opts in favor of a disinterested
ing the 'constitutional rights of the peo- quire a judicial warrant. third party using a process traditional to
ple who live within our borders, U.S. It seems to me that what we are doing searches, and particularly intrusive elec-
citizens and permanent resident aliens, is we are providing something which is tronic searches-that of a judicial war-
and nobody could disagree with that. not constitutionally required and which rant.
Why is the bill here? It is here be- is, I think, something that is constitu- Nonetheless, the legislative package
cause it was supported by the Ford ad- tionaily inimical to the citizens of the before us today is a complex one. The
ministration. President .Ford supports United States under our-great Constitu- complexity results from trying to insure
this bill. it is supported by the Carter tion and our great Bill of Rights. that the role judges play is limited to
administration,. supported by everyone Mr. BOLAND. Mr. Chairman, the gen- making findings of fact under statutory
who is connected with intelligence, at tleman is stating his opinion on the mat- standards. Judges are insulated from
least on the part of Government offi- ter. That is not the opinion of a lot of foreign policy or political decisions. Fur-
elals who have anything to do with in- others, including constitutional lawyers, ther, the operation of the special court
telligence. All of the intelligence col- in this Nation, but the gentleman has a which will hear these warrant applica-
lectors who are now doing the job be- right to state his opinion. tions will be, controlled under strict Be-
lieve that the bill does not impact upon I might also state that when we were curity procedures agreed upon by the
their ability and might very well insure considering this bill in the markup-and Attorney General and the Director of
the ability of those particular agencies it was not an easy task, as all the mem- Central Intelligence.
to better collect intelligence because bers of that subcommittee would agree- The bill's draftsmen, therefore, have
there will be offered to those who collect we did come to some agreement on what gone to great lengths to provide a statu-
intelligence freedom from the fear that we ought to do with reference to changes tory basis for foreign intelligence elec-
in collecting that intelligence where they that would be made in the Senate bill. tronic surveillance. Why is it necessary?.
do not have a warrant they will be sub- ',f'he gentleman from Illinois (Mr. Mc- There are two different and in some ways
jetted to lawsuits. CLORY) knows that he sat down with me conflicting purposes that underlie H.R.
Mr. McCLORY. A&. Chairman, will the and chatted with me, and one of the im- 7308. The first grew out of the reports of
gentleman yield? porbant amendments that we offered was the Church committee. The committee
Mr. BOLAND. I will yield to the gen- one which would not require warrants to detailed the misuse of foreign intelli-
tleman in a minute. target foreign powers. gene surveillance in three areas. Be-
Mr. Chairman, I do not claim that this So, Mr. Chairman, this bill is in es tween the period of 1967-1972, 1,200
legislation satisfies every concern. I only sence a better bill than the Senate. bill, Americans were targeted by NSA "watch-
claim that it is an exceedingly reasonable and I ask for its support by the members listing" activities. Regular biweekly re-
attempt to legitimize operations that of this committee. ports, on the political opinions and ac-
have come under fire, to shield those who . Mr. Chairman, much has been said tivities of hundreds of prominent Amer-
perform them, and to protect those who about what this bill does and does not do. icans-including Members of Congress-
are innocently intercepted in the process. It is important to put this legislation in from FBI embassy wiretaps. were pro-
I believe that Senator JAKE GARN of Utah historical context. vided to the President of the United
put it best when he spoke on the Senate, President Ford first sponsored legisla- States. Finally, dozens of FBI wiretaps
floor on the day this bill's counterpart tion which required a judicial warrant were targeted at individual Americans,
was passed in the Senate. If I may, I will to perform foreign intelligence surveil- under the guise of national security, but
quote his words. lances in 1976. His Attorney General, for purely political or personal reasons.
The CHAIRMAN. The time of the gen- Edward Levi, worked closely with both This record left a strong feeling in the
tleman from Massachusetts (Mr. Bo- House and Senate in drafting a bill country-and in this House-that legiti-
LAND) has expired. which sought to balance national mate foreign intelligence collection ac
Mr. McCLORY. Mr. Chairman, I yield security concerns with protection for the tivities ought not to be prostituted like
2 additional minutes to the gentleman civil liberties of Americans. Both the that again.
from Massachusetts (Mr. BOLAND), and Senate Intelligence and Judiciary Com- Since that time, as we all know, there
later I will ask him to yield to me. rhittees favorably reported the Ford/ has been an increased scrutiny of in-
Mr. BOLAND. Mr. Chairman, I will Levi bill but the 94th Congress ended telligence agencies and their activities.
yield to the gentleman if he will just let before it could be considered by the full Civil -suits and prosecutions have re-
me finish this first. Senate. suited. Agents are afraid-and rightly so
Here is what Senator GAzw said: In the 95th Congress both committees in my view-to accept orders which they
Some have wondered what a conservative again reported out the legislation and never would have questioned years ago.
Senator such as myself was doing cosponsor- the Senate did act. It passed S. 1566, the This hesitancy has reached the highest
ing what they thought was a liberal bill. The companion bill to H.R. 7308, by a margin offices of this land and so today intelli-
answer is quite simple. This is not a liberal. of 95 to 1. In the House, the Permanent gence that perhaps should be collected
bill, it is not a conservative bill, it is neither
a Democratic nor a Republican bill. Select Committee on Intelligence held 5 is not. Even the Attorney General has
days of hearings of H.R. 7308. It went been sued. Citizens are less willing to co-
And this, Mr. Chairman, I think, is the through an extended markup of the bill operate with their Government for the
crux of his statement: that included a briefing from Attorney same reason.
The task of balancing cherished constitu- General Bell, Admiral Turner, Director All of these facts argue for legisla-
tional liberties with increasingly threatened of Central Intelligence, Admiral Inman, tion authorizing foreign intelligence sur-
be left to partisanship too important to Director of the National Security Agency, veillance. The committee agreed with
and Director Webster of the Federal Bu- the Carter administration-and the
Mr. Chairman, I are glad at this time reau of Investigation. Based on this Ford administration-that a warrant
to yield to my, friend, the gentleman briefing, the committee proceeded to ought to be required-because it would
from Illinois (Mr. McCLORY), who has final markup of H.R. 7308. The bill, as offer an'impartial finder of fact, because
done such a magnificent job in opposing amended, is preferred by the administra- it has been tradition :lly used in crim-
this bill. I am delighted to yield to him. tion over the Senate bill. inal electronic surveillance and the Gov-
Mr. McCLORY. Mr. Chairman, I What does this bill do? Very simply, it ernment thus felt comfortable with it
thank the gentleman for yielding, and I authorizes the use of electronic surveil- but principally because it was felt, that a
appreciate the constitutional. points he lance in this country to collect foreign judicial warrant would provide appro-
is making. intelligence information. In all those priate reassurance to Americans that
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September 6, 1978 CONGRESSIONAL RECORD-HOUSE H 9125
their Government would not spy on them were referring to. I thought possibly these statutes or that vital intelligence hav-
indiscriminal as It had in the hoice of a judicial warrant shas hold e of his signature, because coalition
when o I ing such as a as t Justify electronic
veillance as a method of f collection will be
will be
provoked the opposition of the gentle- read that letter, I found it did not real- lost.
man from Illinois (Mr. MCCLORY). He is ly square with what he had been saying He could not say the opposite so he
opposed to any involvement of the ju- before. Put his Positi statement in a diciary in foreign intelligence collection. As a matter of fact, on Law Day at the stance. We all know what that illust tes.
His numerous amendments will make University of South Carolina the Presi- That is about as much a signal as
that point In many ways. He is joined in dent made this statement, and I think a person can send when he is under the
his opposition by ot'Iers who oppose that anybody who knows much about it restraint of a policy of his administra-
electronic surveillance of any kind, for has to figure that when we make a tion.
whatever purpose. This combination of speech, we come a lot closer to what we He told the Senate the same thing:
strange bedfellows, who oppose the bill think than we do when somebody asks, I cannot say to you flatly that there will
for entirely opposite reasons, points out Will you send a letter supporting the not be such costs. It is-possible, for example,
the difficult task that the committee has bill?" and you say, "Yes." Here is what that the bill's definitions of foreign Intent-
faced In considering H.R. 7308. It has the former President of the United States gence information will prove to be too nar-
sought in every case that middle ground said in a speech on March 17,1978 , , when row-
where the interests of the national secu- he was talking about this precise bill: There is a signal-
rity ran parallel with those of individ- The current proposals to deal with national or will be too narrowly construed, to permit
ual privacy. security wiretaps and other forms of elec- the acquisition of genuinely significant com-
i do not claim that this legislation tronic surveillance dealing with foreign munications. It is likewise possible that
satisfies every concern. I only claim that threats is an excellent example. justified warrant applications will be denied,
it is an exceedingly reasonable attempt There he is talking about judicial or that the application papers will be mis-pos to legitimize operations that have come overkill. handled and compromised. Those they ili-
under fire, shield those who perform The risk a difficult to measure, but they are
them and protect those who are In-
Congress Administration has asked the risks. In n the end, however, I think they are
nocently intercepted in the process. Congress to pass much of that responsibility risks worth taking.
I believe Senator JAKE GARN Of Utah to the courts. The conduct of foreign policy
is not a judicial function. Moreover, after Mr. Chairman, let me point out again
put it best when he spoke on the Senate this responsibility is split, it will no longer that is about as close to getting minimum
floor the day this bill's counterpart was be possible for the American people to hold support for a bill as you can get.
passed by the Senate -95 to 1. Here are the President, his political appointees, and I am not being partisan. If Gerald Ford
his words: any involved Members of Congress responsible were in the White House and Mr. Levi
Some have wondered what a co ervative for misdeeds In this area.
were the Attorney General, we would be
ing Senator such thmyself was ought was doing s l
libercosponsor- Mr. Chairman, I saw the letter that getting precisely the same kind of gen-
The what they e quite ht not bill. a was referred to, and I know my col- eral talk.
heral bill. It !snot simple. a This
nservaiive is bill. It league, the gentleman from Illinois, They are sending signals that they
is neither a Democratic nor a Republican drafted a letter which I signed, to the really are not that much behind this leg-
bill. The tasks of balancing cherished con- President asking him in effect if he was islation. Compromise, yes. Parts of the
stitutional liberties with increasingly threat- somewhat taking leave of his senses. i H.R. 7308 needed? Yes. The whole pack-
ened national security needs is too important just read what he originally said, and age? No.
to be left to partisanship. this Is his original speech. Where the Mr. MURPHY of Illinois. Mr. Chair-
Senator Biecx BAYH, chairman of the letter came from, I do not know. man, I yield 1 minute to the gentleman
Senate Intelligence, also chose some ap- We have also had Admiral Turner from Georgia (Mr. FOWLER).
propriate words. He quoted James Madi- mentioned. I have been around a long (Mr. FOWLER asked and was given
son in the Federalist Papers thusly: time, and I know that Republican ad- Permission to revise and extend his re-
If men were angels, no government would ministrations sometimes put the heat on marks.) -
be necessary. If angels were to govern men, You, and I know that sometimes Dem- Mr. FOWLER. Mr. Chairman, .I rise
neither external nor internal controls on ocratic administrations put the heat on today in strong support of H.R. 7308, the
government would be necessary. In framing you. I know when someone under these Foreign Intelligence Surveillance Act of
a government which must be administered pressures sends out signals. I believe 1978.
by men ou over
must men, first the enable the difficulty lies In Admiral Turner and Admiral Murphy H.R. 7308 establishes statutory proce--
this: government
to control the governed; and in the next both sent out signals to us. dures to govern the use of electronic sur-
place oblige'it to control itself. A dependence Admiral Turner was saying he was for veillance in the United States for foreign
on the people is, no doubt, the primary con- the bill, but let us listen to the signals intelligence purposes. The bill contains
trol on the government; but experience has he sent out. Here is what he said before specific and precise language detailing
taught mankind the necessity of auxiliary our committee: - who may be monitored and under what
precautions. I have said before that there are certain circumstances, and sets forth long over-
Mr. Chairman, this legislation offers risks associated with the statutory ap- due procedures by which surveillances
a reasonable, carefully considered ap- proaches in these two bills. are to be authorized, approved and im-
proach to authorizing an essential Intel- Those were the risks he was talking plemented.
ligence gathering technique under con- about and the signals he was sending. This landmark legislation is the prod-
ditions which help guarantee that it is The proliferation of sensitive information uct of over 3 years of research, debate
properly used to gather foreign Intelli- always involves risks- and refinement and has involved the
gence information and nothing else. I criticism and cooperation of individuals
appeal to the commonsense of the mem- And that is the point the gentleman representing a remarkable diversity of
bers of this House to appreciate it for from Pennsylvania was making- outlook and political philosophy, and in-
that and not any of the horrors that and the statutory procedures will unques- cluding Presidents Ford and Carter, At-
its opponents have conjured up for us. tionably lead to such a proliferation. torneys General Levi and Bell, our intel-
Mr. McCLORY. Mr. Chairman, I yield That was Signal 1 he was sending to ligence agencies, and the American Civil
4 minutes to the gentleman from Ohio us. Liberties Union.
(Mr. AsHBROOK). But on balance, I believe that the risks This is as it should be, for the matters
(Mr. ASHBROOK asked and was given can be accepted. addressed by H.R. 7308 involve two of the
permission to revise and extend his re- most fundamental
marks.) - That is another signal, purposes of our Re-
Mr. ASHBROOK. Mr. Chairman, I While -compliance will be somewhat oner- public: to "`provide for the common de-
asked for this time although I had al- oust- fense, and to "secure the blessings of
ready spoken. because the name of the That was a third signal he was send- The liberty to
fourth ame ndndment to thent to theit"
former President of the United States ing- stitution rth amee Con-
has, beep. brought up. I could not help I cannot say that any The right o ct offly the p the people that-
but wonder which "Gerald Ford" they governmental purposes ill be frustrate right to be secure in
by their persons, houses, papers and effects,
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CONGRESSIONAL RECORD-HOUSE September 6, 1978
against unreasonable searches and seizures, thorize warrantless electronic surveil- tion must include: the identity of the
shall. not be violated. ;lance when the surveillance is solely Federal officer making the application;
In his dissent in the 1928 Olmstead directed at- . Presidential authorization and Attorney
case, Justice Brandeis termed this provi- (1) communications exclusively between General approval of the application; the
sion the right to be let alone-the most or among foreign powers. . ? or (ii) the identity of the target of the surveillance; fro
thgence
open a d tual wand ncirc sthe applicant of the tantial basis for fthe
m comprehensive of rights and the right propertyoor intelli
most valued by civilized man." We now exclusive control of a foreign power... belief that the target is a foreign power
know that this precious rig
50 ht has been Second, the Attorney General may au- or agent of a foreign power and that the
infringed adi for almost t rougsgh bt the 9 thorize the emergency employment of location to be monitored is being used by
praeice ctce of ad domestic nistrations, thr national ou sec electronic surveillance under certain cir- a foreign power or agent of a foreign
prvurittvey cumstances, but must obtain a warrant power; the proposed time period for the
surveillances. over The th courts and the C within 24 hours after the surveillance surveillance; information concerning
Loess have over the past 10 years moved d has begun. Finally, no warrant is required previous surveillance applications that
preme correct these am abuses. In 1967, the that when the surveillance is to be undertaken involve the same persons, facilities, or
t Fourth ruled the Katz case to to test equipment, train personnel, or de- places; and certification by a high-level
el he Fourth Amendment tdhough apply ly t to the tect unlawful electronic surveillance. In executive branch official that the pur-
C urt d is of extend this afinng lthough this case, the agency performing the war- pose of the surveillance is to obtain for-
security did not extend this 968, the Con- - rantless surveillance must adhere to eign intelligence information and that
tromp ssedity cases. In 1Crieme Control ol stringent rules to insure that no Infor- this information cannot be obtained by
gress passed the Omnibus Crime concerning U.S. citizens or per- normal investigative techniques. Also, the
Act, and Sament for j nt uddici icial which authorization tion included of a manent resident aliens is improperly dis- application must contain a statement of
requirement seminated, used, or retained. the proposed procedures for minimizing
vestigatlo s. Then, ng for criminal kof These limited exceptions were meant the acquisition, retention and dissemina-
172 the Supreme the Keith found case that a o a to provide the broadest possible protec- tion of information concerning U.S. per-
warrant Supreme Court fou tion of civil liberties without unduly sons consistent with our country's need
warrant is casered in domestic security damaging the ability of our intelligence for foreign intelligence information.
surveillance cragencies to obtain information vital to Lastly, additional information is required
ire effort rt to represents ng electronic spying c spy ofina our national defense. In commenting on concerning surveillance techniques and
this effo bring 7308, Admiral Turner of the CIA the communications to be monitored,
re-
under the rule of law by requiring a states: with the extent of the information re-
veillance conducted for in all the United electronic sues States I cannot say that any proper or necessary quired dependent on the type of target
veillance purposes will be frustrated by to be surveilled.
for foreign intelligence purposes, when the bill or that vital intelligence information, review and approve these applica-
sure are likely to be involved. It will in- having such value as to justify electronic To r
bons, vie Tan a special al court
sure that the constitutional rights of surveillance as a method of collection, will be
American citizens will not be swept lost. For these reasons I strongly urge that in Washington, D.C., made up of at least
aside, and disregarded, in the name of this legislation be enacted as soon as possible. one judge from each of the Federal judi-
national security. The criminal standard for surveillance cial circuits and a special court of ap-
However, in adcition to protecting in- of U.S. persons is perhaps the most con- peals composed of six Federal judges
from the Washington, D.C., area.
dividual rights, this legislation is also troversial, and most important, of the One of the primary criticisms of this
aimed at clearing up the legal uncer- provisions of H.R. 7308. Without it, the O
at ime is the tainty and ambiguity that has hampered bill's attempt to protect the constitution- legislation ne of h pruner judiciary in the field of
fement
U.S. intelligence gathering over the past al rights of Americans is largely mean- of the the judi he e judicial role
few years. The bill provides, for the first ingless. As the committee report states: intel
to ligenc However, we rver, , t t is the same as
time, legislative authorization and reg- A citizen in the United states should be
ulation of foreign intelligence electronic able to know that his government cannot in- is alrady the case in criminal and do
surveillance conducted within the United vade his privacy with the most intrusive mestic security warrant procedures. In
States. Ideally such intrusions into the techniques if he conducts himself lawfully. approving any kind of surveillance, the
lives of individuals would never be neces- Yet this provision was not drawn up in court does not make substantive judg-
sary, but we live in an imperfect world a vacuum divorced from the real world. ments or policy decisions as to the pro-
and we need a strong intelligence gather- Foreign spies, be they American nation- priety or need for that surveillance. What
ing capability in order to protect our als or not, employ sophisticated tech- the court does do is to decide whether
country and our society against forces niques to avoid discovery and, therefore, the facts contained in a warrant applica-
that seek to destroy them. Therefore, it it would be most difficult to meet an ordi- tion meet the statutory criteria required
is extremely significant that the directors nary criminal standard in this area. for the particular type of surveillance.
of all U.S. intelligence agencies have To resolve this difficulty, H.R. 7308 Enactment of H.R. 7308 would estab-
vigorously supported H.R. 7308. establishes a lesser standard for criminal lish congressional standards for foreign
Thus, the Foreign Intelligence Sur- conduct than the customary "probable intelligence surveillance defining what
veillance Act of 1978 is designed to strike cause that a crime is being committed." targets may be surveilled, what infor-
a balance between individual rights and In order to fall under this revised crimi- mation requirements justify a surveil
liberties on the one hand and legitimate nal standard, a U.S. citizen or perma- lance, and what controls must be applied
national security needs on the other. nent resident alien would have to know- to the information obtained. Specifically,
This legislation is necessarily the product ingly engage in: first, clandestine intelli- under this bill a judge may only rule on-
of compromise and few people will be Bence-gathering activities which do or Whether probable cause, exists that the
completely satisfied with its provisions; may violate U.S. law; second, other target is a foreign power or foreign
but, I am firmly convinced that it is clandestine intelligence activities which agent, as defined in the bill, and that the
sound legislation and that it well serves do or will violate U.S. law; third, sabo- location to be monitored is being used
our national interests. tage or international terrorism; or by a foreign power or foreign agent;
The two key principles of the bill are fourth, aiding and abetting, or conspir- Whether the proposals for minimizing
that a prior judicial warrant is required mg, with any other person engaged in the retention or distribution of informa-
for all foreign intelligence surveillance such activities. tion satisfy the statutory standards; and
in the United States, with narrow ex- H.R. 7308 also establishes the methods In the case of U.S. persons, whether
ceptions, and that a criminal standard for authorizing, approving and imple- the executive branch certification
is required in the issuance of warrants menting foreign intelligence surveillance. that the information sought is for-
directed against U.S. citizens or perma- In all cases, other than the limited ex- eign intelligence information is "clearly
nent resident aliens. ceptions noted earlier, the Attorney Gen- erroneous" or not.
The warrant requirement is waived eral must make applications to a special Thus, the judiciary will be operating
only in three cases. First, the President, court for a court order approving the use within well-defined legislative limits un-
through the Attorney General, may au- of electronic surveillance. Each applica- der the provisions of H.R. 7308. However,
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H 9127
if those limits prove to be inadequate, the
Congress has the right, and the duty, to
enact stronger and even more precise
statutory standards.
Some observers have commented that
the safeguards concerning foreign intel-
ligence surveillance that have recently
been established within the executive
branch render this legislation uneces-
sary. I would certainly acknowledge that
these new procedures have substantially
reduced the chances for abuse, but I
would also point out that both the cur-
rent administration and its predecessor
have strongly endorsed legislative safe-
guards in this area. What is done by ex-
ecutive order can be undone by Executive
order and we in the Congress have a re-
sponsibility, not only to ourselves as an
institution but also to the people who
sent us here, to fulfill our constitutional
duty and to legislate national policy.
I urge the Members of this House to
give H.R. 7308 a strong, and bipartisan,
endorsement.
Mr. MURPHY of Illinois. Mr. Chair-
man, I yield 2 minutes to the gentleman
from North Carolina (Mr. ROSE).
(Mr. ROSE asked and was given per-
mission to revise and extend his
remarks.)
Mr. ROSE. Mr. Chairman, from all of
the debate that we have heard here
today, it might appear to some that we
are about - to require the intelligence
community to go to this special court for
the gathering of all its intelligence. That
simply is not so. There is a great body of
electronic intelligence information that
is gathered constanty that will not come
anywhere close to this legislation. And
while I sincerely appreciate the concerns
been on the receiving end of some of Let me ask him this, if I may: ' In this
those signals. The signal is, "SOS." The bill, is it really thrusting a responsibility
signal is, "Help." And the signal is com- on the courts again? Are we abdicating
ing from the Director of the FBI. our responsibilities to allow the courts to
They need this bill. They need this judge whether or not we should issue a
help. That Is the signal that ultimately I warrant to assure the security of our
think anyone, on balance, would find Nation? And if that is a possibility-and
persuasive in responding to the concerns I think it is true-if it is a possibility,
that have been so well expressed by some does this then act as a buffer for the
of those in opposition to this legislation., President of the United States, the At-
I will quote now from the written SOS torney General of the United States, who
that was sent to me from William H. can then point their fingers at the court
Webster, Director of the FBI. if something goes wrong, because the
The letter follows: court did not have all the facts or was
WASHINGTON, D:c., not schooled in intelligence? Is it to give
August 9, 1978. them the responsibility for having some-
Ron. JAMES SANTINI, thin
House of Representatives, g go wrong where otherwise that re-
Washington, D.C. sponsibility should really rest with the
DEAR CONGRESSMAN SANTINI: This will con- President and the Attorney General of
firm your conversation yesterday with In- the United States?
spector John B. Hotis, concerning my posi- The CHAIRMAN. The time of the
i
tion on H R. 7308 the F
. --11 ----__
ore
g
I would like you to know that I support
the bill as reported by the Permanent Select
Committee op Intelligence. I so testified in
closed session before that Committee having
personally studied the bill in-depth. The
Agents of this Bureau involved in foreign in-
telligence activities deserve and need this
legislation in order that they can be assured
that both Congress and the courts have
sanctioned the legality and propriety of their
actions. I believe this bill represents a care-
ful and workable balance between the vital
interests of protecting the national security
and civil liberties.
For your further information, I have at-
tached a copy of a fact sheet prepared by the
Department of Justice which outlines the
purposes and general provisions of the bill.
Should you have any questions about the bill
as it affects the FBI, I or a member of my
staff would welcome the opportunity to dis-
that have been expressed by those who cuss the matter further.
oppose this legislation, I believe that the sincerelyWILLIAM H
W
E
.
EBST
R,
very strong arguments that have been Director.
made here today In support of what Now, it is ryiy hope that we in this body
those charged with the responsibility of will not find ourselves caught up In the
gathering this Intelligence say they must understandable preoccupation with the
have far outweighs the fears that some nuances and ignore the tremendous
may have that this procedure may be nuisance that is present, because of the
A. investiga-
cumbersome. existing Mr. Chairman, I urge my colleagues to tion for r the FBI impaired and the climate, CIA.
Mr. at the fact that this bill is not the
bill that passed the Senate 95 to 1. with I pursued In ct Inspector question Hotis Persona
the
as
With the- great help of many of us on Phone. I tha at on
the committee, Mr. McCLORY-and I at been I raised asked asked here, the question re-
his
his side-we passed this bill with an, !'Are you simply re-
amendment exempting, as the senate that t t ismennts ts generated tday internal within hin the strative he
day o cutivv
did not do, the activities of the National departments day in and day out?"
Security Agency. Congressman MCCLORY dt?alluded to that in his opening remarks I a not.
here today. I wish we could describe in very critical .I national ni?ed t th hraspondiat the t the FBI must
this place what has been excluded by respond to in this country, our national
that action. We cannot. I urge my col- security.
leagues to vote for this important
legislation. He urged:
Mr. MURPHY of Illinois. Mr: Chad - I hope congressman Santini will support
man, I yield 2 minutes to the gentleman this bill. Again, he stated this is both my erson from Nevada (Mr. SANTINI) . of the al conviction and the official position
(Mr. SANTINI asked and was given of the FBI.
permission to revise and extend his re- Mr. RUDD. Mr. Chairman, will the
marks.) gentleman yield?
Mr. SANTINI. Mr. Chairman, I wish Mr. SANTINI. I am happy to yield to
to speak briefly, since that is the in. the gentleman from Arizona, who I know
herent limitation of 120 seconds. I'll ad- distinguished himself in employment in
dress the specific observations of the this very agency in former times.
very able advocate from Ohio, Mr. Asti- Mr. RUDD. I thank my very distin
BROOx. He indicated that "signals" were guished barrister from Nevada for yield
being sent out. I can tell you that I have ing me this time.
1 additional minute to the gentleman
from Nevada.
Mr. SANTINI. The gentleman's. ques-
tion,is a fair one. No one on this House
floor at any time can answer that ques-
tion unequivocally one way or the other.
I would suggest that in this context I am
willing to rest my hope and expectation
and judgment in those who have the
practical responsibility of implementing
the national security needs of our Na-
tion, the FBI, and CIA. They have the
practical experience and the legislative
duty to protect our Nation. In response
to the gentleman's question, our investi-
gation agencies need help. They are
compelled to fulfill their duties in a con-
fused and hazy legal environment. The
Director of the FBI has turned to the
Senate and the House with the plea,
"Please help us," and I think this legis-
lation is that help.
Mr. McCLORY. Mr. Chairman, I yield
myself 3 minutes.
I take this time because some very
significant statements have been made
particularly by the gentleman from
South Carolina, who made reference to
the fact that this bill is substantially
different from that which was passed
over in the senate, and yet we are mak-
ing statements here today that this is a
desirable bill because it passed over-
whelmingly and with only one negative
vote, and yet the bill was so bad we un-
dertook to amend it by agreement on
both sides of the aisle, and I laud the
majority for their support of this very
extremely significant amendment.
The question I ask myself is this: Why
if this exemption is so important, to one
of the intelligence agencies, why is this
exemption not important to the other
intelligence agencies? i think that Is a
very difficult question to answer, par=ticularly when we are targeting in on a
foreign power or foreign agent, whether
it is by the FBI or CIA or NSA, or any
other of the intelligence agencies
It
.
seems to me an important question to
ask if we are desiring to secure the na-
tional security through intelligence in-
formation-and most of it is informa-
tion. Then it seems to me that the other
intelligence agencies should have the
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H 9128 CONGRESSIONAL RECORD-HOUSE September 8, 1978
same exemption as the exemption we ac- Those officials charged with conduct- relating to foreign intelligence electronic
corded to this one agency. ing our intelligence activities-Attorney surveillance once and for all.
Let me say this: We have heard refer- General Bell, Admiral Turner, Admiral It is time to enact legislation that will
ence to the Post editorial this morning; Murphy, Admiral Inman, Director Web- state clearly what can be done and what
and I think there is a great deal of mis- ster-say that the bill would help them cannot be done.
ctivities and
s no hrea
e
l
en
de
is
a
a
lig
c
r--
- --
would eatable is -
LUrlal says th
judges to intervene before we begin any harm to the national security. I take tections a judicial warrant will afford
eavesdropping or wiretapping of Ameri- them at their word. them.
scan citizens in connection with na- Of equal importance, the bill will pro- In conclusion, Mr. Chairman, I would
tional security. If that were the impact, tect the civil liberties of our citizens and say to my colleagues that the bill before
if that were what this legislation were prevent the recurrence of past abuses. the House today provides us with a
doing. I do not think I would be here Before any American citizen or per- unique opportunity to protect and fur-
opposing it. manent resident alien can be subjected ther both our civil liberties and our na-
What this legislation does is not to to electronic surveillance for national se- tional security.
merely require a judicial warrant with curity reasons, a judge must find prob- The civil liberties groups support it.
respect to an American citizen. This bill able cause to believe that he is an agent The administration supports it. The in-
requires a judicial warrant with respect of a foreign power engaged in clandes- telligence agencies enthusiastically sup-
to a foreign power, foreign entities, and tine intelligence activities, sabotage, or port it. Such a consensus is rare in these
foreign agents. terrorism and that :his activities are con- times. This opportunity to enact good
It seems to me if we want to provide nected with a violation of the criminal legislation should not be lost because of
for the protection of American citizens or statutes. the unsupported claims of a few well-
U.S: persons-and that will be the sub- Before any information concerning an meaning individuals who seem to sug-
ject of an. amendment-then we will have American citizen or permanent resident gest that their knowledge and grasp of
the opportunity to protect U.S. persons alien, derived from any foreign intelli- our intelligence collection activities ex-
against any electronic surveillance un- gene electronic surveillance, can be dis- ceed that of those intelligence commu-
less there is a warrant obtained. seminated within or without the Gov- nity officials whose daily task it is to
But then I ask the question: Well, why ernment, or used for any purpose, such protect the security of our country.
do we need this new unprecedented spe- dissemination or use must be in con- I urge that H.R. 7308, as reported by
cial court arrangement? Do we need 11 formity with procedures approved by a the Select Committee on Intelligence, be
judges gathered from all around the judge. ' passed,
country in order to sit here in Wash- No longer will it be possible for 17 Mr. McCLORY. Mr. Chairman, I yield
ington, D.C., if we are only going to seek newsmen and Government employees to myself 2 minutes.
electronic surveillance intervention of a be wiretapped at the whim of executive Mr. Chairman, I have yielded myself
court with respect to U.S. persons? officials. this time because I want to respond to
It seems to me we should do the same No longer will the Executive be able to another charge that was made and that
as we do under title III and use the dis- use an embassy surveillance as a pretext is that the FBI and the FBI agents heed
trict court. There is nothing wrong with to collect political or personal informa- this legislation in order to protect them-
that. We do not need a special court. We tion on Americans who communicate selves. Let me say we have pending
can provide for protection of U.S. per- with an embassy. before the Judiciary Committee the
sons without the presence of this im- And no longer will Americans find Federal Tort Claims Act Amendments
provised court mechanism. Therefore, themselves on a hit list that insures that which are intended to protect FBI agents
It seems to me the arguments made in their ipternationall communications will and all intelligence agents, all intel-
support of this legislation just do not be intercepted solely because they are ligence officers, all law enforcement of-
hold water insofar as U.S. persons or engaging in antiwar activities. ficers of the Federal Government, against
U.S. citizens are concerned. Some may argue that, yes, these abuses actions that are brought against them
(Mr. McCLORY asked and was given did occur, and it is regrettable; but they where they are acting in good faith and
permission to revise and extend. his re- are not occurring now, so, do we need within the scope of their authority. That
marks.) any legislation? is desirable legislation. As a matter of
Mr. MURPHY of Illinois. Mr. Chair- To this, I would reply that the times fact, that is inherent in the substitute
man, I yield 2 minutes to the gentleman and political climate will change again. bill that I have, as well, because it is true
from California (Mr. MnsETA). That change may not come tomorrow, or that we do need to translate the existing
Mr. MINETA. Mr. Chairman, I rise to next year, but it will come. It is to that executive order guidelines into appro-
voice my full support for H.R. 7308, as time, 5, 10, 15 years from now, or when- priate legislation.
reported by the House Permanent Select ever it might ever come, to which we Mr. Chairman, I would like to point
Committee on Intelligence, and to com- must also address ourselves. There must out that when the Attorney General
mend the chairman of the full commit- be a check on the unbridled exercise of testified before our committee on Janu-
tee, the chairman of the subcommittee, executive branch discretion-and the ary 10, 1978, 4he stated with respect to
and my colleagues on the committee for best check is a neutral and impartial my substitute bill:
their dedicated and statesmenlike work magistrate applying congressionally en- I have nothing against Congressman
in crafting this importing legislation. acted standards to executive requests for MCCLozy's bill. That would be an improve-
Though the legislative foundation for electronic surveillance orders. meat over the present system. The question
this bill was ably laid by the Subcommit- The bill, of course, also addresses it- is do we want to bring the Judiciary in2
tee on Legislation, I and the other mem- self to the present time, and to the capa- That is indeed the question, do we
bers of the full committee would have bility of the intelligence agencies to want to bring the Judiciary in, do we
been remiss in our duty to the House and carry out their important functions. want to have the Judiciary act as inter-
the country if we had not also subjected At the present time, there is a con- ceptors between the authority that the
this bill to searching scrutiny. - siderable amount of needed intelligence executive has, in my view, the inherent
In so doing, we conducted several days not being collected. power to exercise, and the exercise of
of markup over the period of a month. It is not being collected because of the that authority? Do we want to put that
We heard from the heads of the Intelli- uncertainties of current law and the ultimate decisionmaking authority in the
gence agencies several times both in vagaries of the political climate. intelli- Judiciary and not in the executive where
closed and open session. We were briefed gence officials and agents are constantly it has traditionally been?
by other interested parties. , subjected to civil suits and held up to I can assure the Members that the
As a result, we were able to perfect the public scorn. What was legal one day Is bill I am supporting, the substitute bill,
already solid piece of legislation reported considered unconscionable the next. In would impose that responsibility on the
to us by the subcommittee. such a climate, any sensible person would executive. It would provide the kind of
The product of our efforts is now be- be chary of performing his" duties protection that we want, so that they
fore us and it Is deserving of our sup- aggressively. can carry out these important intel-
port. Thus, it is time to settle that law ligence activities.
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September 6, 1978 CONGRESSIONAL RECORD-HOUSE
H 9129
The CHAIRMAN. The time of the talk by transferring the responsibility to the Warrantless electronic surveillance cannot
gentleman has expired. courts. At the same time the courts will cite be constitutionally justified by a mere asser-
Mr. McCLORY. I yield myself 1 ad- the Draconian penalties in HR-7308 for tion of the magic words "national security,"
ditional minute. judges who mention anything about their a vague phrase subject to differing interpreta-
Mr. Chairman, I have yielded myyself secret dealings with intelligence agents in tions.. .
this additioma time eae I no elf their chambers. The record developed by the House Ju-
that the gentleman from Virginia (Mr. have capitulated to the delusionethhat war- proceedings mit amittee d with g t vid ice o peach ach of a
lled ROBINSON) left the floor and did not rants that judges cannot refuse will clean involving "national nal security" wiretaps abuss against
have an opportunity to express himself up surveillances we cannot control, and newsmen, against past and present employees
in support of this legislation. However, I ironically most of the opposition to the very of the National Security Council and against
also want to point out that, as a member bad idea of involving a small number of fed- employees of the White House without access
al the Committee on Iat, as a me, the eras judges In the legalization of tapping to NS(r information....
foreigners' phones comes from members of We support a warrant procedure for all
gentleman from Virginia (Mr. ROBINSON) Congerss who feel that the President, the electronic surveillance, including security
is In strong support of this legislation National Security Council and the CIA have wiretaps: We are not ready to say absolutely
and, if present, he would be expressing inherent constitutional power to maintain that the specific procedures to be followed
himself,: in his own, way, in support of our national security and that this power should be the same in national security cases
the measure and In opposition to the should not be limited by judicial restrictions. as in criminal investigations. But we do feel
committee bill and in support of the The clamor for "reform" of the intelligence very strongly that there must be some system
substitute. agencies has reached such a point of hysteria of accountability, with property checks and
The CHAIRMAN. The time of the that most people do not recognize that HR- balances. As long as the President and his
ti
+a era un
es on federal courts totally at
?"Mr. WEISS. Mr. Chairman, for the variance with the "case or, controversy" al-
benefit of our colleagues in their deliber- ways hitherto required for judicial interven-
ations on H.R. 7308, the Foreign Intelli- tion.
gence Surveillance, Act, I would like to Contains no requirement that Americans
share with them an article authored by whose conversations are unavoidably or in-
our distinguished colleague, the gentle- advertently recorded be informed of the In-
man from Massachusetts (Mr. DRINAN), Violates the Vienna Treaty ratified by the
which was printed in the September 1st Senate in which this nation pledged, that
Boston Globe. diplomatic missions in this country would
The article follows: be "i,/[violallie."
[From the Boston Globe, Sept. 1, 1978] I will offer amendments: to HR-7308 on the
WIRETAP BILL AN ATTACK ON FOREIGNERS House floor. One amendment will support
(By Robert F. Drinan) the request of the telephone industry for the
deletion of a provision complelling com-
On Thursday the US House of Representa- munications employees to participate in ar-
'tives is expected to pass the Foreign Intelli- ranging a clandestine wiretap. Another will
gence Surveillance Act (H1-7308). This bill propose a sunset provision so that this
will allow the CIA and the FBI to wiretap frightening experiment on our innermost
any agent of a foreign power witha warrant thoughts will terminate after five years. As
obtained from a federal judge on the con- a House-Senate conferee. I will seek other
tention that information from the wiretap ways to improve this bill.
would be helpful in formulating US foreign Even if these amendments and Improve-
policy. ment prevail, HR-7308 will still be a per-
This measure, already passed by the Senate, version of the Fourth Amendment, a radical
is billed as a "reform" of the existing CIA departure from any established norm in
practice of clandestinely wiretapping the American jurisprudence and an abject sell-
Washington embassies of hostile nations. The out by Congress and the Administration to
Introduction of the warrant requirement is the imperious and unjustifiable demands
deemed to be an improvement in a system of the CIA and the FBI.9
of intelligence gathering alleged to be essen-
tial to national security. S Mr. SEIBERLING. Mr. Chairman, I
The dismaying fact is, however, that the support the Intelligence Committee's bill
passage of HR-7306 will be a calamity. It will and I commend the chairman (Mr. Bo-
legalize largely useless wiretaps, erode the LAND) for developing a nexcellent com-
Fourth Amendment regulating the right of promise bill which protects individual
search and seizure and institutionalize the rights without jeopardizing our legiti-
nation's worst xenophobic prejudices. mate national security interests in any
Proponents of the bill rely upon the un- Way,
proven assumption that wiretapping yields Just 2 years ago, I had the honor of
information indispensable to the protection serving as a member Of the National
ou
f ti
ment, which explains my support for the to said substitute printed in the Cox-
Intelligence Committee's bill: GRESSIONAL RECORD Of July 17 by Repre-
r na security. No evidence has Wiretap Commission. Several other mem- gene now printed in the bill as an orig-
e ver been offered to support this position Iii final bill for the purpose of amendment;
the extended hearings conducted over a pe- bet's of the Commission and I tried in said substitute shall shall be read for amend-
subcommittee. of three years by a House Judiciary vain to get the Commission to review saint by titles instead o read for ame d-
subcommittee. When pressed for specifics, in- national security wiretap practices and
telligence agents assert the sacredness of procedures. The Intelligence Committee amendment, to said substitute shall be
their secrets, has now conducted Just such a review in order except germane amendments
Confronted with this series of closed cir- and its conclusions support the views ex- printed in the CONGRESSIONAL RECORD at
cles, those who want to control the appalling pressed in the National Wiretap Commis- least 3 legislative days before their con-
abuses of the intelligence agencies conclude sion report by Mr. KASTENMEIER. Senator sideration, pro forma amendments for
that the agencies are determined to continue Asouagzx, and me, along with Commis- the purpose of debate, and amendments
their surveillance and that therefore even an signer Alan F. Westin, who is perhaps
recommended by the Permanent Select
unorthodox warrant from a court offers some Committee on Intelligence. It shall be
control of the frightening invasions of pri- the Nation's leading expert in the right in order to consider bloc amendments
vacy which are now in place. . of privacy. We made the following state-
foe of all wiretapping before and after it was
legalized for suspected criminals by Congress
In 1968, has acquiesced in the specious and
erroneous reasoning that somehow the es-
tablishment of secret court proceedings will
control clandestine eavesdropping. And yet
meaningless judicial warrant for a wiretap
the grim fact is that the requirement of a
will allow the. CIA to deepen its refusal to
sonable likelihood of abuse. Such a claim of
unbridled power is inconsistent with the
Constitution and the public interest.
Finally, we believe that national security
wiretaps may be necessary in certain circum-
stances. We believe that the concept of na-
tional security, however, has been so abused
by recent presidents tha tthe public has little
confidence when a President claims an ac-
tion-whether foreign or domestic-is based
upon national security grounds. The best
place to begin restoring public confidence, we
believe, is in the area of electronic surveil-
lance for national security purposes. Judicial
security of national security wiretaps is, in
our opinion, necessary from a constitutional
standpoint and an appropriate way to restore
public confidence in our governmental insti-
tutions.
Mr. MURPHY of Illinois. Mr. Chair-
man, I have no additional requests for
time.
The CHAIRMAN. Does the gentleman
yield back the balance of his time?
Mr. MURPHY of Illinois. I do, Mr.
Chairman.
The CHAIRMAN. Does the gentleman
from Illinois (Mr. McCLORY) yield back
the balance of his time?
Mr. McCLORY. Yes, Mr. Chairman,
I have no further requests for time.
The CHAIRMAN- All time has
expired.
Pursuant to the rule, the Clerk will
now read, by title, the substitute com-
mittee amendment recommended by the
Permanent Select Committee an Intelli-
Justice Robert H. Jackson once wrote,-"in The Clerk will read.
that many crimes are committed in its H.R. 7308
-.W. Be it enacted by the Senate and House of
"National Security" wiretapping is proba- Representatives of the United State of
bly the most easily abused area of electronic America in Congress assembled, That this Act
surveillance. The public records is replete may be cited as the "Foreign Intelligence
with abuses during the period 1968-1974..... Surveillance Act of 1978".
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 H 9130
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CONGRESSIONAL RECORD-HOUSE September 6, 1978
TABLE OF CONTENTS lation of the criminal laws of the United
TITLE I-ELECTRONIC SURVEILLANCE States or of any State, or that might involve
WITHIN THE UNITED STATES FOR FOR- a criminal violation if committed within
SION INTELLIGENCE PURPOSES the jurisdiction of the United States or any
Sec. 101. Definitions. State;
(2) appear to be intended-
Sec. 102. Authorization for electronic sur- (A) to intimidate or coerce a civilian pop-
veillance for foreign intelligence ulation;
purposes. (B) to influence the policy of a govern-
Sec. 103. Special courts. went by intimidation or coercion; or
Sec. 104. Application for an order. (C) to affect the conduct of a government
Sec. 105. Issuance of an order. by assassination or kidnapping; and
Sec. 106. Use of information. (3) occur totally outside the United States,
Sec. 107. Report of electronic surveillance. or transcend national boundaries in terms
Sec. 108. Congressional oversight. of the means by which they are accomplished,
Sec. 109. ii the persons they appear intended to coerce
Sec. 110. Civil liability. or intimidate, or the locale in which their
TITLE II-CONFORMING AMENDMENTS perpetrators operate or seek asylum.
Sec. 201. Amendments to chapter 119 of title (d) "Sabotage" means activities that in-
18, United States Code. volve or may Involve a violation of chapter
TITLE Ill-EFFECTIVE DATE 105 of title 18, United States Code, or that
might involve such a violation if committed
Sec. 301. Effective date.
against the United States.
TITLE I-ELECTRONIC SURVEILLANCE (e) "Foreign intelligence
WITHIN THE UNITED STATES FOR FOR- means-
1;:IGN INTELLIGENCE PURPOSES (1) information that relates to and, if con-
DEFINITIONS cerning a United States person, is necessary
SEC. 101. As used in this title: to the ability of the United States to protect
(a) "Foreign power" means- against-
(1) a foreign government or any com- (A) actual or potential attack or other
.ponent thereof, whether or not recognized grave hostile acts of a foreign power or an
by the United States; agent of a foreign power;
(2) a faction of a foreign nation or na- (B) sabotage or international terrorism by
tions, not substantially composed of United a foreign power or an agent of a foreign pow-
States persons; er; or
(3) an entity that is openly acknowledged (C) clandestine intelligence activities by
by a foreign government or governments to an intelligence service or network of a foreign
be directed and controlled by such foreign power or by an agent of a foreign power; or
government or governments; (2) information with respect to a foreign
(4) a group engaged in International ter- power or foreign territory that relates to and,
rorism or activities in preparation therefor; if concerning a United States person, is nec-
(5) a foreign-based political organization, essary to-
osed of United States (A) the national defense or the security of
ti
ll
y comp
a
not substan
; or the United States; or
persons
(6) an entity that is directed and con- (B) the conduct of the foreign
rit or overn- of the United States.
n--
e
f
to minimize the acquisition, retention, and
dissemination of nonpublicly available in-
formation concerning unconsenting United
States persons consistent with the need of
the United States to obtain, produce, and
disseminate foreign intelligence information;
(2) procedures that require that nonpub-
licly available information, which Is not for-
eign intelligence information, as defined in
subsection (e) (1), shall not be disseminated
in, a manner that identifies any individual
United States person, without such person's
consent, unless such person's identity is
necessary to understand foreign intelligence
information or assess its importance;
(3) notwithstanding paragraphs (1) and
(2), procedures that allow for the retention
and dissemination of information that is
evidence of a crime which has been, is being,
or is about to be committed and that is to
be retained or disseminated for the purpose
of preventing the crime or enforcing the
criminal law; and
(4) notwithstanding paragraphs (1), (2),
and (3), with respect to any electronic sur-
veillance approved pursuant to section
102(a), procedures that require that no con-
tents of any communication to which a
United States person is a party shall be
disclosed, disseminated, or used for any pur-
pose or retained for longer than twenty-four
hours unless a court order under section 105
is obtained or unless the Attorney General
determines that the information may indi-
cate a threat of death or serious bodily harm
to any person.
(I) "United States person" means 'a citi-
zen of the United States, an alien lawfully
admitted for permanent residence (as de-
fined in section 101(a) (20) of the Immigra-
tion and Nationality Act), an unincorporated
association a substantial number of members
of which are citizens of the United States
or aliens lawfully admitted for permanent
residence, or a corporation which is incor-
porated in the United States, but does not
include a corporation or an association which
is a foreign power, as defined in subsection
(a) (1), (2), or (3).
(j) "United States", when used in a geo-
graphic sense, means all areas under the
territorial sovereignty of the United States
and the Trust Territory of the Pacific
Islands.
(k) "Aggrieved person" means a person
who is the target of an electronic surveil-
lance or any other person whose communi-
cations or activities were subject to electronic
surveillance.
(1) "Wire communication" means any
communication while it is being carried by
a wire, cable, or other like connection fur-
nished or operated by any person engaged as
a common carrier in providing or operating
such facilities for the transmission of inter-
state or foreign communications.
(m) "Person" means any individual, in-
cluding any officer or employee of the Fed-
eral Government, or any. group, entity, asso-
elation, corporation, or foreign power.
(n) "Contents", when used with respect
to a communication, includes any informa-
tionconcerning the identity of the parties to
such communication or the existence, sub-
stance, purport, or meaning of that com-
munication.
AUTHORIZATION FOR ELECTRONIC SURVEILLANCE
FOR FOREIGN INTELLIGENCE PURPOSES
SEC. 102 (a) (1) Notwithstanding any
other law, the President, through the At-
torney General, may authorize electronic
surveillance without a court order under
this title to acquire foreign intelligence in-
formation for periods of up to one year if
the Attorney General certifies in writing un-
der oath that-
(A) the electronic surveillance is solely
directed at-
(I) communications exclusively between
or among foreign powers, as defined in sec-
tion 101(a) (1), (2), or (3); or
r
ore gn gov
trolled by a
(f) "Electronic surveillance" means-
merrts. (1) the acquisition by an electronic, me-
(1) "Agent of a foreign power" or other surveillance device of the
(:l) any person tither than wern a" United means-
States contents of any wire or radio communication
person, who- sent by or intended to be received by a par-
member, or acts in , or employee the United States po officer, ..ticular, known United States person who is
(B) acts for r or or on behalf aof a foreign n foreign gn power pwer or in the United States, If the contents are ac-
which engages in clandestine intelligence quired by intentionally targeting that United
activities in the United States contrary to States person, under circumstances in which
the interests of the United States, when the a person has a reasonable expectation of pri-
circumstances of such person's presence in vacy and a warrant would be required for law
the United States indicate that such person enforcement purposes;
may engage in such activities in the United (2) the acquisition by an electronic, me-
States, or when such person knowingly aids ohanical, or other surveillance device of the
or abets any person in the conduct of such contents of any wire communication to or
activities or knowingly conspires with any, from a person in the United States, with-
person to engage in such activities; Or out the consent of any party thereto, if such
(2) any person who- acquisition occurs in the United States;
(A) knowingly engages in clandestine in- (3) the intentional acquisition by an elec-
telligence gathering activities for or on be- tronic, mechanical, or other surveillance de-
half of a foreign power, which activities in- vice of the contents. of any radio commu-
volve or may involve a violation of the crime- nioation, under circumstances in. which a
nal statutes of the United States; person has a reasonable expectation of pri-
pursuant to the direction of an intelli- vacy and a warrant would be required for
(B) law enforcement purposes, and if both the
gene service or network of a foreign power, sender and all intended recipients are lo-
knowingly engages in any other clandestine cated within the United States; or
Intelligence activities for or on behalf of such
(4) the installation or use of an else-
about power, which activities involve or are tronic, mechanical, or other surveillance de-
statutes to involve a violation the criminal vice in the United States for monitoring to
statutes of the United d States; tes; acquire information, other than from a wire
(C) knowingly engages in sabotage or in- or . radio communication, under circum-
ternational terrorism, Or activities that are stances in which a person has a reasonable
in preparation-therefor, for or on behalf of a expectation of privacy and a warrant would
foreign power; or be required for law enforcement purposes.
(D) knowingly aids or abets any person in (g) "Attorney General" means the Attor-
the conduct of activities described in sub- ney General of the United States (or Acting
paragraph (A), (B), br. (C) or knowingly Attorney General) or the Deputy Attorney
conspires with any person to engage, in activi- General.
ties described in subparagraph (A), (B), or (h) "Minimization procedures", with re-
(C).., spect to electronic surveillance, means-
(c) "International terrorism" means ac- (1) specific procedures, which shall be
tivities that- adopted by the Attorney General, that are
(1) involve violent acts or acts danger- reasonably designed in light of the purpose
ous to human life that are or may be a vio- and technique of the particular surveillance,
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September 6, 1;978 ; CONGRESSIONAL RECORD --HOUSE H 91131
(ii) the acquisition of technical intent- (c) The judges of the Special Court and munications or activities to be subjected to
gence from property or premises under the the Special Court of Appeals shall be desig- the surveillance;
open and exclusive control of a foreign nated for six-year terms, except that the (7) a certification or certifications by the
power, as defined in section 101(a) (1), (2), Chief Justice shall stagger the terms of the Assistant to the President for National Se-
Or (3); and members originally chosen. No judge may curity Affairs or an executive branch official
(B) the proposed minimization proce- serve more than two full terms, or officials designated by the President from
dures with respect to such surveillance meet (d) The chief judges of the Special Court among those executive officers employed in
the definition of minimization procedures and the Special Court of Appeals shall, in the area of national security or defense and
under section 101(h); and consultation with the Attorney General and appointed by the President with the advice
if the Attorney General shall report such the Director of Central Intelligence, estab- and consent of the Senate-
minimization procedures and any changes lish such document, physical, personnel, or (A) that the certifying official deems the
thereto to the House Permanent Select communications security measures as are information sought to be foreign intelligence
Committee on Intelligence and the Senate necessary to protect Information submitted information;
Select Committee on Intelligence at least to or produced by the Special Court or Spe- (B) that the purpose of the surveillance is
thirty days prior to their effective date, un- cial Court of Appeals from unauthorized dis- to obtain foreign intelligence information;
less the Attorney General determines im- closure. (C) that such information cannot reason-
mediate action is required and notifies the (e) Proceedings under this title shall be ably be obtained by normal investigative
committees immediately of such minimiza- conducted as expeditiously as possible. If any techniques;
tion procedures and the reason for their -be- application to the Special Court Is denied, (1)) that designates the type of foreign in-
coming effective immediately. the court shall record the reasons for that telligence information being sought accord-
(2) -An electronic surveillance authorized denial, and the reasons for that denial shall, Ing to the categories described in section
by, this subsection may be conducted only upon the motion of the party to whom the 101(e) ; and
in accordance with the Attorney General's application was denied, be transmitted under (E) including a statement of the basis for
certification and the minimization proce- seal to the Special Court of Appeals.. the certification that-
dures adopted by him. (f) Decisions of the Special Court of Ap- (1) the information sought is the type of
(3) With respect to electronic surveillance peals shall be subject to review by the Su- foreign intelligence information designated;
authorized by this subsection, the Attorney preme Court of the United States in the and
General may direct a specified communica- same manner as a judgment of a United (ii) such information cannot reasonably
y States court of appeals as provided in see- be obtained by normal investigative tech-
tion common carrier to- tion 1254 of title 28, United States Code, ex- niques;
all (A)technical furnish information, facilities, cept that the Supreme Court may adopt (8) a statement of the means by which
assistance necessary to accom- special procedures with respect to security the surveillance will be affected
mash the electronic
protect ts secrecy ct its surveillance in such a appropriate to the case. (9) a statement of the facts concerning all
the e (g) The Chief Judges of the Special Court previous applications that have been made to
duce manner as willminimum pr of interference and with pro-
services that such carrier Is providing its and the Special Court of Appeals may, in the judge facilities, title involving ey of
consultation with the Attorney General and persons, places p a
Cu (B) ms; andunder security procedures Director of Central Intelligence and con- the application, and the action taken on each
(B) maintain se General and the sistent with subsection (d) - previous application;
Central Attorney Intelligence any records (1) 1) designate such officers or employees (10) a statement of the period of time for
Director approved of f the
which, the electronic surveillance is required
concerning, the surveillance or the aid fur- of the Government, as may be necessary, to maintained, and v the nature of the
nished which such carrier wishes to retain. serve as employees of the Special Court and to be Special Court of Appeals; and intelligence gathering is such that the ap-
The Government shall compensate, at the (2) promulgate such rules or administra- proval of the use of electronic surveillance
prevailing rate, such carrier for furnishing tive procedures as may be necessary to the under this title should not automatically
such aid. efficient functioning of the Special Court terminate when the described type of infor-
(b) Applications for a court order under and Special Court of Appeals. mation has first been obtained, a description
this title are authorized if the President has, of facts supporting the belief that additional
by written authorization, empowered the At- Any funds necessary to the operation of the information of the same type will be obtained
torney General to approve applications to Special Court and the Special Court of Ap- thereafter; and
the Special Court having jurisdiction under peals may be drawn from appropriations for (11) whenever more than one electronic,
section 103, and a judge to whom an applies- the Department of Justice. The Department mechanical or other surveillance device is to
Lion is made may, notwithstanding any other of Justice shall provide such fiscal and ad- be used with respect to a particular proposed
law, grant an order, in conformity with sec- ministrative services as may be necessary electronic surveillance, the coverage of the
tion 105, approving electronic surveillance of for the Special Court and Special Court of devices involved and what minimization pro-
a foreign power or an agent of a foreign power Appeals. cedures apply to information acquired by
for the purpose of obtaining foreign inteIli- APPLICATION FOR AN ORDER each device.
gence information, except that the Special SEC. 104. (a) Each application for an (b) Whenever the target of the electronic.
Court shall not have jurisdiction to grant order approving electronic surveillance under surveillance Is a foreign power, as defined in
any order approving electronic surveillance this title shall be made, by a Federal officer 101(a) (1), (2), or (3), and each of the
directed solely as described in paragraph (1) in writing upon oath or affirmation to a facilities or places at which the surveillance
(A) of subsection (a) unless such surveil- judge having jurisdiction under section 103k is directed is owned, leased, or exclusively
lance may involve the acquisition of com- Each application shall require the approval used by that foreign power, the application
munications of any United States person. of the Attorney General based upon his need not contain the Information required
. SPECIAL COIIRTS finding that it satisfies the criteria and re- by paragraphs (6), (7) (E), '(8), and (11) of
SEC. 103. (a) There is established a Special quirements of such application as set forth subsection (a), but shall contain such infor-
Court of the United States with jurisdiction in this title. It shall include- mation about the surveillance techniques
throughout the United States to carry out the (1) the identity of the Federal officer mak- and communications or other information
judicial duties of this title. The Chief Jus- Ing the application; concerning United States persons likely to
tice of the United States shall publicly desig- (2) the authority conferred on the At- be obtained as may be necessary to assess
Hate at least one judge from each of the Judi- torney General by the President of the the proposed minimization procedures.
cial circuits, nominated by the chief judges United States and the approval of the At- (c) The Attorney General may require any
of, the respective circuits, who shall be mem- torney General to make the application; other affidavit or certification from any other
bers of the Special Court and one of whom (3) the identity, if known, or a desorip- officer an connection with the application.
the Chief Justice shall publicly designate as tion of the target of the electronic (d) The judge may require the applicant
the chief judge. The Special Court shall sit surveillance; to furnish such other information as may
continuously in the District of Columbia. (4)+ a statement of the facts and circum- be necessary to make the determination re-
(b) There Is established a Special Court of stances relied upon by the applicant to jus- quired by section 105.
Appeals with jurisdiction to hear appeals tify his belief that- ISSUANCE OF AN ORDER
from decisions of the Special Court and any (A) the target of the electronic surveil- SEC. 105. (a) Upon an application made
other matter assigned to It by this title. The lance is a foreign power or an agent of a pursuant to section 104, the judge shall
Chief Justice shall publicly designate six foreign power: and enter an ex party order as requested or as
judges, one of whom shall be publicly desig- (B) each of the facilities or places at modified approving the electronic surveil-
nated as the chief judge, from among judges which the electronic surveillance is directed lance if he finds that-
nominated by the chief judges of the district is being used, or as about to be used, by a
At-
courts of the District of Columbia, the East- foreign power or an agent of a foreign (1) the President has authorized the At-
ern District of Virginia and the District of torney General to approve applicants for
Maryland, and the United States Court of power; electronic surveillance for foreign intelli-
Appeals for the District of Columbia, any (5) a statement of the proposed minimiza- gence information;
three of whom shall constitute a panel for tion procedures; (2) the application has been made by a
purposes of carrying out its duties under'this th (6) detalled description and of tthe ype nature of Federal officer and approved by the Attorney
title. of com- General;
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CONGRESSIONAL RECORD-HOUSE September 6, 1978
(3) on the basis of the frets submitted by
the applicant there is probable cause to
believe that-
(A) the target of the electronic surveil-
lance is a foreign power or an agent of a
foreign power: Provided, That no United
States person may be considered a foreign
power or an agent of a foreign power solely
upon the basis of activities protected by the
first amendment to the Constitution of the
United States; and
(B) each of the facilities or places at which
the electronic surveillance is directed is being
used, or is about to be used, by a foreign
power or an agent of a foreign power;
(4) the proposed minimization procedures
meet the definition of minimization proce-
dures under section 101(h) ; and
(5) the application which has been filed
eontains all statements and certifications
required by section 104 and, if the target is a
United States person, the certification or
certifications are not clearly erronous on the
basis of the statement made under section
104(a) (7) (E) and any other information
furnished under section 104 (d).
(b) An order approving an electronic sur-
veillance under this section shall-
(1) specify-
(A) the identity, if known, or a description
of the target of the electronic surveillance;
(B) the nature and location of each of the
facilities or places at which the electronic
surveillance will be directed;
(C) the type of information sought to be
acquired and the type of communications or
activities to be subjected to the surveillance;
(D) the means by which the electronic sur-
veillance will be effected;
(E) the period of time during which the
electronic surveillance is approved; and
(F) whenever more than one electronic,
mechanical, or other surveillance device is
to be used under the order, the authorized
coverage of the devices involved and what
minimization procedures shall apply to infor-
mation subject to acquisition by each de-
vice; and
(2) direct-
(A) that the minimization procedures be
followed;
(B) that, upon the request of the appli-
cant, a specified communication or other
common carrier, landlord, custodian, or other
specified person furnish the applicant forth
With any and all information, facilities, or
technical assistance necessary to accomplish
the electronic surveillance in such manner as
will protect its secrecy and produce a mini-
mum of interference with the services that
sucfi carrier, landlord, custodian, or other
person is providing that target of electronic
surveillance;
(C) that such carrier, landlord, custodian,
or other person maintain under security pro-
cedures approved by the Attorney General
and the Director of Central Intelligence any
records concerning the surveillance or the aid
furnished that such person wishes to retain;
and
(D) that the applicant compensate, at the
prevailing rate, such carrier, landlord, cus-
todian, or other person for furnishing such
aid.
(c) Whenever the target of the electronic
surveillance Is a foreign power,, as defined in
section 101(a) (1), (2), or (3), and each of
the facilities or places at which the surveil-
lance is directed is owned, leased, or exclu-
sively used by that foreign power, the order
need not contain the information required by
subparagraphs (C), (D), and (F) of subsec-
tion (b) (1), but shall generally describe the
information sought, the communications or
activities to be subjected to the surveillance,
and the type of electronic surveillance in-
volved, including whether physical entry is
required.
(d) (1) An order issued under this section
may approve an electronic surveillance for
the period necessary to achieve its purpose,
or for ninety days, whichever is less, except
that an order under this section shall ap-
prove an electronic surveillance targeted
against a foreign power, as defined in section
101 (a) (1), (2), or (3), for the period speci-
fied in the application or for one year, which-
ever is less.
Extensions of an order issued under this
title may be granted on the same basis as
an original order upon an application for an
extension and new findings made in the same
manner as required for an original order, ex-
cept that an extension of an order under this
chapter for a surveillance targeted against a
foreign power, as defined in section 101
(a) (4), (5), or (6), may be fora period not to
exceed one year if the judge finds probable
cause to believe that no communication of
any individual United States person will be
acquired during the period.
(3) At the end of the period of time for
which electronic surveillance is approved by
an order or an extension, the judge may
assess compliance with the minimization
procedures by reviewing the circumstances
under which information concerning United
States persons was acquired, retained, or
disseminated.
(e) Notwithstanding any other provision
of this title, when the Attorney General rea-
sonably determines that-
(1) an emergency situation exists with
respect to the employment of electronic sur-
veillance to obtain foreign intelligence in-
formation before an order authorizing such
surveillance can with due diligence be ob-
tained; and
(2) the factual basis for issuance of an
order under this title to approve such sur-
veillance exists;
he may authorize the emergency employ-
ment of electronic surveillance if a judge
designated pursuant to section 103 is in-
formed by the Attorney General or his
designee at the time of such authorization
that the decision has been made' to employ
emergency electronic surveillance and if an
application in accordance with this title is
made to that judge as soon as practicable, but
not more than twenty-four hours after the
Attorney General authorizes such surveil-
lance. If the Attorney, General authorizes
such emergency employment of electronic
surveillance, he shall require that the mini-
mization procedures required by this title
for the issuance of a judicial order be fol-
lowed. In the absence of a judicial order ap
proving such electronic surveillance, the
surveillance shall terminate when the infor-
mation sought is obtained, when the appli-
cation for the order is. denied, or after the
expiration of twenty-four hours from the
time of authorization by the Attorney Gen-
eral, whichever is earliest. In the event that
such application for approval is denied, or in
any other case where the electronic surveil-
lance is terminated and no order is issued
approving the surveillance, no information
obtained or evidence derived from such sur-
veillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or
other proceeding in or before any court,
grand jury, department, office, agency, regu-
latory body, legislative committee, or other
authority of the United States, a State, or po-
litical subdivision thereof, and no informa-
tion concerning any United States person
acquired from such surveillance shall subse-
quently be used or disclosed in any other
manner by Federal officers or employees
without the consent of such person, except
with the approval of the Attorney General if
the information may indicate a threat of
death or serious bodily harm to any person. A
denial of the application made under this
subsection may be reviewed as provided in
section 103.
(f) Notwithstanding any other provision
of this title, officers, employees, or agents
of the United States are authorized in the
normal course of their official duties to con-
duct electronic surveillance not targeted
against the communications of any particu-
lar person or persons, under procedures ap-
proved by the Attorney General, solely to-
(1) test the capability of electronic equip-
ment, if-
(A) it is not reasonable to obtain the
consent of the persons incidentally sub-
jected to the surveillance;
(B) the test is limited in extent and dura-
tion to that necessary to determine the
capability of the equipment; and
(C) the contents of any communication
acquired are retained and used only for the
purpose of determining the capability of the
equipment, are disclosed only to test per-
sonnel, and are destroyed before or imme-
diately upon completion of the test;
(2) determine the existence and capability
of electronic surveillance equipment being
used by persons not authorized to conduct
electronic surveillance, if-
(A) it is not reasonable to obtain the
consent of persons incidentally subjected to
the surveillance;
(B) such electronic surveillance is limited
in extent and duration to that necessary to
determine the existence and capability of
such equipment; and
(C) any information acquired by such
surveillance is used only to enforce chapter
119 of title 18, United States Code, or sec-
tion 605 of the Communications Act of 1934,
or to protect information from unauthor-
ized surveillance; or
(3) train intelligence personnel in the
use of electronic surveillance equipment, if--
(A) it is not reasonable to-
(1) obtain the consent of the persons in-
cidentally subjected to the surveillance;
(ii) train persons in the course of sur-
veillances otherwise authorized by this title;
or.
(iii) train persons in the use of such
equipment without engaging in electronic
surveillance;
(B) such electronic surveillance is limited
in extent and duration to that necessary to
train the personnel in the use of the equip-
ment; and
(C) no contents of any communication
acquired are retained or disseminated for
any purpose, but are destroyed as soon as
reasonably possible.
(g) Certifications made by the Attorney
General pursuant to section 102(a) and ap-
plications made and orders granted under
this title shall be retained in accordance with
the security procedures established pursu-
ant to section 103 for a period of at least ten
years from the date of the application.
USE OF INFORMATION
SEc. 106. (a) Information acquired from
an electronic .surveillance conducted pursu-
ant to this title concerning any United
States person may be used and disclosed by
Federal officers and employees without the
consent of the United States person only in
accordance with the minimization procedures
required by this title. No otherwise privileged
communication obtained in accordance with,
or in violation of, the provisions of this title
shall lose its privileged character. No infor-
mation acquired from an electronic surveil-
lance pursuant to this title, may be used or
disclosed by Federal officers or employees ex-
cept for lawful purposes.
(b) No information acquired pursuant to
this title shall be disclosed for law enforce-
ment purposes unless such disclosure is ac-
companied by a statement that such infor-
mation, or any information derived there-
from, may only be used in a criminal pro-
ceeding with the advance authorization of
the Attorney General.
(c) Whenever the Government intends to
enter into evidence or otherwise use or dis-
close in any trial, hearing, or other proceed-
ing in or before any court, department, of-
ficer, agency, regulatory body, or other au-
thority of the United" States, against an ag-
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September 6, 1978 CONGRESSIONAL RECORD -HOUSE H 9133
grieved. person, any information obtained
or derived from an electronic surveillance of
that aggrieved person pursuant to the au-
thority of this title, the Government shall.
prior to the trial, hearing, or other proceed-
ing or at a reasonable time prior to an effort
to so disclose or so use that information or
submit it in evidence, notify the aggrieved
person and the court or other authority in
which the information. is. to disclosed or used
that the Government intends to so disclose
or so use such information.
(d) Whenever any State or political Sub-
division thereof intends to enter into evi-
dence or otherwise use or disclose in any
trial, hearing, or other proceeding in or be-
fore any court, department, officer, agency,
regulatory body, or other authority of a
State or a political subdivision thereof,
against an aggrieved person any information
obtained or derived from an electronic sur-
veillance of that aggrieved person pursuant
to the authority of this tittle, the State or
political subdivision thereof shall notify the
aggrieved person, the court or other author-
ity in which the information is to be'dis-~
closed or used, and the Attorney General
that the State or political subdivision there-
of intends to so disclose or so use such
information. -
(e) Any person against whom evidence ob-
tained or derived from an electronic sur-
veillance to which he is an aggrieved person
is to be, or has been, Introduced or otherwise
used or disclosed in any trial, hearing, or
other proceeding .in or before any court, de-
partment, officer, agency, regulatory body, or
other authority of the Ucuited States, a State,
or a political subdivision thereof, may move
to suppress the evidence obtained or derived
from such electronic surveillance on the
grounds that-
(1) the information
quired; or
veillance and if disclosure would likely, pro- on such other United States persons subject
mote a more accurate determination of such, to electronic surveillance as the judge may
legality, or if such disclosure would not harm determine in his discretion it is in the inter-
the national security. est of justice to serve, notice of-
(g)..Exoept as provided in subsection (f),. (1) the fact of the application;
whenever any motion or request is made pur- (2) the period'of surveillance; and
suant to any statute or rule of the United (3) the fact that during the period in-
States or any State before any court or other
authority of the United States or any State
to discover or obtain applications or orders
or other materials relating to surveillance
pursuant to the authority of this title or to
discover, obtain, or suppress any informa-
tion obtained from electronic surveillance
pursuant to the authority of this title, and
the court or other authority determines that
the moving party is an aggrieved person, if
the Attorney General files with the Special
Court of Appeals an affidavit under oath
than an adversary hearing would harm the
national security or compromise foreign in-
telligence sources and methods and that no
information obtained or derived from an
electronic surveillance pursuant to the au-
thority of this title has been or is about to
be used by the Government in the case be-
fore the court of other authority, the Special
Court of Appeals shall, notwithstanding any
,other law, stay the proceeding before the
other'court or authority and review in cam-
era and ex parte the application, order, and
such other materials as may be necessary to
determine whether the surveillance of the
aggrieved person was lawfully authorized
and conducted. In making this determina-
tion, the Special Court of Appeals shall dis-
close, under appropriate security procedures
and protective orders, to the aggrieved per-
son or his attorney portions of the appli-
cation, order, or other materials relating to
the surveillance only if necessary to afford
due process to the aggrieved person.
(h) If the Special Court pursuant to sub-
section (f) or the Special Court of Appeals
.pursuant to subsection (g) determines the
surveillance was not lawfully authorized and
conducted, it shall,, in accordance with the
requirements of the law, suppress the evi-
dence which was unlawfully obtained or
derived from electronic surveillance of the
aggrieved person or otherwise grant the mo-
tion of the aggrieved person. If the Special
Court pursuant to subsection (f) or the Spe-
cial Court. of Appeals pursuant to subsection
(g) determines the surveillance was lawfully
authorized and conducted, it shall deny the
motion of the aggrieved person except to the
extent that due process requires discovery or
disclosure.
(I) Orders granting or denying motions or
requests under subsection (h), decisions
under this section as to the lawfulness of
electronic surveillance, and, absent a finding
of unlawfulness, orders of the Special Court
or Special Court of Appeals granting or de-
(2) the surveillance was not made in con-
formity with an order of authorization or
approval.
Such a motion shall be made before the trial,
hearing, or other proceeding unless there was
no opportunity to make snoh a motion or
the person was not aware of the grounds of
the motion. .
(f) Whenever a court or other authority is
notified pursuant to subsectiou (c) or?(d),
or whenever a motion is made pursuant to
subsection (e) and the Government con-
cedes that information obtained or derived
from an electronic surveillance pursuant to
the authority of this title as to which the
moving party is an aggrieved person is to be,
or has been, introduced or otherwise used or
disclosed in any trial, hearing, or other pro-
ceeding, the Government may make a mo-
tion before the Special Court to determine
the lawfulness of the electronic surveillance.
Unless all the judges of the Special Court are
-so disqualified, the motion may not be heard
by a judge who granted or denied an order
or extension involving the surveillance at
issue. Such motion shall stay any action in
any court or authority to determine.the law-
fulness of the surveillance. In determining
the lawfulness of the surveillance, the Spe-
cial Court shall, notwithstanding any other
law, if the Attorney General files an affidavit
under oath with the Special Court that dis-
closure would harm the national'security of
the United States or compromise foreign in-
telligence sources and methods, review in
camera the application, order, and such
other materials relating to the surveillance
as may be necessary to determine whether
the surveillance of the aggrieved person was
lawfully authorized and conducted. In mak-
ing this determination, the Special Court
may disclose to the aggrieved person, under
ap,~ppropriate security procedures and protec-
t;ve orders, portions of. the application, or-
der, or other materials if there is a reason-
able question as to the legality of the sur-
nying disclosure of applications, orders, or
other materials relating to a surveillance
shall be final orders and binding 'upon all
courts of the United States and the several
States except the Special Court of Appeals
and the Supreme Court.
(j) In circumstances involving the unin-
tentional acquisition by an electronic, me-
chanical, or other surveillance device of the
contents of any radio communication, under
circumstances in which a person has a rea-
sonable expectation of privacy and a warrant
would be required for law enforcement pur-
poses, and if both the sender and all intended
recipients are located within the United
States, such contents shall be destroyed upon
recognition, unless the Attorney General de-
termines that the contents may indicate a
threat of death or serious bodily harm to any
person.
(k) If an emergency employment of elec-
tronic surveillance is authorized under sec-
tion 105(e) and a subsequent order approv-
ing the surveillance is not obtained, the
.judge shall cause to be served on any United
On an ex parte showing of good cause to
the judge the serving of the notice required
by this subsection may be postponed or sus-
pended for a period not to exceed ninety
days. Thereafter, on a further ex parte show-
ing of good cause, the court shall forego
ordering the serving of the notice required
under this subsection.
REPORT OF ELECTRONIC SURVEILLANCE
SEC. 107. In April of each year, the Attor-
ney General shall transmit to the Administra-
tive Office of the United States Courts and
to Congress a report setting forth with re-
spect to the preceding calendar year-
(a) the total number of applications made
for orders and extensions of orders approving
electronic surveillance under this title; and
(b) the total number of such orders and
extensions either granted, modified, or de-
nied.
CONGRESSIONAL OVERSIGHT
SEC. 108. On a semiannual basis the At-
torney General shall fully inform the House
Permanent Select Committee on Intelligence
and the Senate Select Committee on In-
telligence concerning all electronic surveil-
lance under this title. Nothing in this title
shall be deemed to limit the authority and
responsibility of those committees to ob-
tain such additional information as. they
may need to carry out their respective func-
tions and duties.
PENALTIES
SEC. 109. (a) OFFENSE. A person is guilty
of an offense if he intentionally-
(1) engages in electronic surveillance un-'
der' color of law except as authorized by
statute; or
(2) violates section 102(a)(2),'105(e), 105
(f), 105(g), 106(a), 106(b), or 106(j) or any
court order issued pursuant to this title,
knowing his conduct violates such an order
or this title.
(b) DEFENSE.-(1) It is a defense to a
prosecution under subsection (a) (1) that
the defendant was a law enforcement or in-,
vestigative officer engaged in the course of
his official duties and the electronic surveil-
lance was authorized by and conducted pur-
suant to a search warrant or court order of
a court of competent jurisdiction.
(2) It is a defense to a prosecution under
subsection (a) (2) that the defendant acted'
in a good faith belief that his actions did
not'violate any provision of this title or any
court order issued pursuant to this title,
under circumstances where that belief was
reasonable.
(c) PENALTY.-An offense described in this
section is punishable by a fine of not more
than $10,000 or imprisonment for not more
than five years, or both.
. (d) JURISDICTION.-There is Federal juris-
diction over an offense under this section
if the person committing the offense was
an officer or employee of the United States
at the time the offense, was committed.
CIVIL LIABILITY
SEC. 110. CIVIL ACTION.-An aggrieved per-
son, other than a foreign power or an agent
of a foreign power, as defined in section 101
(a) or (b) (1) (A), respectively, who has
,been subjected to an electronic surveillance
or whose communication has been dissemi-
nated or used in violation of section 109
shall have a cause of action against any
person who committed such violation and
shall be entitled to recover-
' (a) actual damages, but not. less, than
liquidated damages of $1,000 or $100 per
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H 913:4 CONGRESSIONAL RECORD-HOUSE September 6, 1978
day for each day of violation, whichever is
greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other
investigation and litigation costs reasonably
incurred.
Mr. McCLORY (during the reading).
Mr. Chairman, I ask unanimous con-
sent that title I be considered as read,
printed in the RECORD, and open to
amendment at any point.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Illinois?
There was no objection.
AMENDMENTS OFFERED BY MR. M'CLORY
Mr., McCLORY. Mr. Chairman, I offer
amendments.
The Clerk read as follows :
Amendments offered by Mr. MCCLORY:
Page 39, strike out line 1 and all that
follows down through line 12 on page 41
and insert in lieu thereof the following:
AUTHORIZATION FOR ELECTRONIC SURVEILLANCE
FOR FOREIGN INTELLIGENCE PURPOSES
SEC. 102. (a) An application for a court
order under this title is authorized if the
President has, in writing, authorized the
Attorney General to approve applications to
the Special Court having jurisdiction under
section 103. A judge to whom such an ap-
plication is made may, notwithstanding any
other law, grant an order in accordance with
section 105 approving electronic surveillance
of a United States person who is a foreign
power or an agent of a foreign power for the
purpose of obtaining foreign intelligence
information.
der this subsection may be authorized for
the period necessary to achieve its purpose,
except that-
(A) if the target of the surveillance is not
a foreign power, the period of the surveil-
lance may not exceed ninety days; and
(B) if the target of the surveillance is a
foreign power, the period of the surveillance
may not exceed one year.
(3) Electronic surveillance authorized
under this subsection may be reauthorized
in the same manner as an original authoriza-
tion, but all statements required to be made
under subsection (c) for the initial issuance
of a surveillance certificate shall be based
on new findings.
(4) (A) Upon the issuance of a surveillance
certificate under this subsection, the Attor-
ney General may direct a specified communi-
cation common carrier-
(I) to furnish any information, facility, or
technical assistance necessary to accomplish
the electronic surveillance In such a man-
ner, as will protect the secrecy of such sur-
veillance and will produce a minimum of
interference with the services that such
common carrier provides its customers;' and
(ii) to maintain any records concerning
such surveillance or the assistance furnished
by such common carrier that such common
carrier wishes to retain under security pro-
cedures approved by the Attorney General
and the Director of Central Intelligence.
(B) Any such direction by the Attorney
General shall be in writing.
(C) The Government shall compensate
any communication common carrier at the
prevailing rate for assistance furnished by
such common carrier pursuant to a direction
of the Attorney General under this para-
graph.
security or national defense who were ap-
pointed by the President by and with the
advice and consent of the Senate, and shall
include-
(1) a statement-
(A) identifying or describing the target
of the electronic surveillance, including a
certification of whether or not the target Is
a foreign power or an agent of a foreign
power; and
(B) certifying that each of the facilities
or places at which the surveillance is directed
is being used or may be used by a foreign
power or an agent of a foreign power;
(2) a statement of the basis for the cer-
tification under paragraph (1) -
(A) that the target of the surveillance Is
a foreign power or an agent of a foreign
power; and
(B) that each of the facilities or places at
which the surveillance is directed is being
or may be used by a foreign power or an
agent of a foreign power;
(3) a statement of the proposed minimiza-
tion procedures;
(4) a statement that the information
sought is foreign intelligence information;
(5) a statement that the purpose of the
surveillance is to obtain foreign intelligence
information;
(6) if the targef of the surveillance is not
a foreign power, a statement of the basis for
the certification under paragraph (4) that
the information sought is foreign intelligence
information;
(7) a statement of the period of time for
which the surveillance is required to be
maintained;
(8) a statement of the means by which the
surveillance will be effected;
(9) -if the nature of the intelligence gather-
ing is such that the approval of electronic
surveillance under subsecion (b) should not
automatically terminate when the described
type of information has first been obtained,
a statement of the facts Indicating that addi-
tional information of the same type will be
obtained thereafter;
(10) a statement indicating whether or not
an emergency authorization was made under
section 105(e); and
(11) if more than one electronic, mechani-
cal, or other surveillance device is to be
involved with respect to such surveillance, a
statement specifying the types of devices
involved, their coverage, and the minimiza-
tion procedures that will apply to information
acquired by each type of device.
Page 47, strike out lines 4 through 14
and redesignate the succeeding subsections
accordingly.
Page 48, line 24, strike out ", if the target
IS a United States person,".
Page 52, strike out lines 11 and 12 and
insert in lieu thereof the following:
(2) the factual basis exists for the author-
ization of such electronic surveillance;
Page 52, beginning on line 14, strike out
"if a judge" and all that follows through the
period on line 20 and insert in lieu thereof
the following: "if the otherwise applicable
procedures of this title are followed as soon
as practicable, but not more than twenty-
four hours after the Attorney General au-
thorizes such surveillance. In addition, if the
target of such electronic surveillance is a
United States person, the Attorney General
or his designee shall. at the time of such-
authorization Inform a, judge designated pur-
suant to section 103 that the decision has
been made to employ emergency electronic
surveillance.".
Page 52, beginning on line 23, strike out
"for the issuance of a judicial order".
Page 52, line 24, insert "or surveillance
certificate" after "a judicial order".
Page 53, line 5, strike out "such" and
insert in lieu thereof "an".
Page 53, line 5, insert "or a surveillance
certificate is not issued" after "approval is
denied".
Page 53, line 6, insert "or surveillance cer-
tificate" after "order".
Page 59, line 3, strike out "application,
order," and insert in lieu thereof "application
and order or the surveillance certificate".
Page 59, line 18, strike out "applications or
orders" and insert in lieu thereof "applica-
tions, orders, or surveillance certificates".
Page 60, line 8, strike out "application,
order," and insert in lieu thereof "applica-
tion and order or surveillance certificate".
Page 60, line 14, insert "surveillance cer-
tificate," after "order,".
Page 68,'line 12, insert "or surveillance cer-
tificate" after "order".
Mr. McCLORY (during the reading).
Mr. Chairman,2 ask unanimous consent
that the amendments, with specific ref-
erence to amendment No. 2, be consid-
ered as read and printed in the RECORD.
The CHAIRMAN. Is there objection to
the request . of the gentleman from
Illinois?
There was no objection.
Mr. McCLORY. Mr. Chairman, this, it
seems to me, Is a very key amendment.
Further, it should provide an opportunity
for this chamber and for the committee
to really get at the crux of this legisla-
tion.
My amendment would modify the vir-
tual across-the-board warrant require-
ment, which is the measure which was
passed in the Senate and which some
Members do support. Assuming for the
moment the need to protect the rights of
U.S. persons, as indicated In my colloquy
with the gentleman from Masachusetts
(Mr. BOLAND), the chairman of the com-
mittee, I have serious concern over the
provision of thebill which extends a ju-
dicial warrant requirement beyond situa-
tions where U.S. persons are targeted.
While the argument has been made
that warrants are needed in all situations
in which U.S. persons are targeted or
might be incidentally intercepted, I be-
lieve that the provisions in the bill which
strictly regulate the use of incidentally
acquired information about U.S. persons
adequately protect the privacy interests
of U.S. persons. Furthermore, the bal-
ance struck by requiring a, warrant only
for U.S. persons better recognizes the role
of the executive to protect our country
from foreign aggression without undue
entanglement involving another branch
of Government, that is, the judiciary.
My belief Is that the warrant require-
ment should not be extended to electronic
surveillance directed at foreigners, and
this is based on two alternative grounds :
First, the fourth amendment does not
apply to foreigners.
Second, assuming for purposes of argu-
ment, that the fourth amendment does
apply to foreigners, it is constitutionally
reasonable to engage in electronic sur-
veillance of foreigners without a judicial
warrant or without judicial approval.
The fourth amendment to the U.S.
Constitution provides-
The right of the people to be secure ...
against unreasonable searches and seizures
shall not be violated.
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H 9135
Therefore, in addressing the issue of and foreign powers. If we wanted to all the protections and assurances pro-
warrantless surveillances of foreigners, authorize surveillance of a foreign em- vided, without endangering our security
one must-resolve who "the people" are. bassy, a foreign trade mission, or a for- or impeding intelligence collection ac-
The concept of "the people" Is used eign agent, a foreign spy-whoever the tivity.
several times in the Constitution. It is foreign element happens to be in this I, for one, agree with these officials.
used in the Preamble-"We, the people of country-it seems to me that for an in- There is no reason whatsoever to doubt
the United States"-and in several parts telligence agency to be required to go to their judgment-or their word. They are
of the Bill of Rights. a judicial body and to get a warrant be- concerned about today's intelligence col-
Long ago, the Supreme Court declared fore such an electronic surveillance lection, not last year's or that of 5 years
in the Civil Rights Cases that "The could take place is so absurd as to not ago.
words `people of the United States' and even require our serious. consideration They are concerned about the problems
'citizens' meant the same thing, both here today. facing today's field agents, not with how
describing the political body who, accord- I am hopeful that we will have over- easy things were 5 years ago.
ing to our republican Institutions, form whelming and resounding support for They must also look to the future, and
the sovereign people and a constituent this amendment. prepare for it with the insights today's
member of this sovereignty." Mr. MURPHY of Illinois. Mr. Chair- vision provides, not with yesterday's
First, since the rights afforded by the man, I rise in opposition to the amend- slogans.
Bill of Rights do not protect the States as ments. These officials, unlike some of those
States, as held in South Carolina Mr. Chairman, I strongly oppose tile whose letters we have recently read, bear
against Katzenbach, such are surely not gentleman's amendments. the present responsibility for protecting
available to foreign nations as foreign No administration or intelligence agen- our security. Retirement does afford the
nations. cy official has requested it, nor do any of opportunity to spout slogans and holler
This view is shared, by the Department them support it. half-truths. But that opportunity has
of Justice. While some of the lower Its adoption would not only eliminate not come yet for those with today's re-
courts appear to feel that the amend- most of the protections afforded the pri- sponsibilities.
ment applies to aliens as individuals, the vacy rights of our citizens, it would also In short, those intelligence officials
Supreme Court has not only not repudi- deal a severe blow to one of the bill's presently running our intelligence agen-
ated its earlier statements, but it seems primary purposes, which is to provide cies support the warrant requirement of
to have gone out of its way to avoid de- needed assurances to intelligence field H.R. 7308.
claring the amendment applicable to agents. The Intelligence Committee has They and I oppose the gentleman's
aliens. Note that in United States against already cut back on the warrant require- amendment.
United States District Court, the Keith ment; to reduce it any further would be [Mr. STRATTON addressed tale Com-
case, the terminal- case in this area, the counterproductive. mittee. His remarks will appear here-
Supreme Court stated: The arguments raised against elimi- after in the Extensions of Remarks.]
Different standards may be compatible nating the warrant requirement alto- Mr. MAZZOLI. Mr. Chairman, I move
with the Fourth Amendment if they are gether are equally compelling here. to strike the requisite number of words.
reasonable both in relation to the legitimate Neither myself, nor the Intelligence Com- Mr. Chairman, I rise in opposition to
need of government for intelligence infor- mittee, nor the Senate, nor the adminis- the McClory amendment.
mation and the protected rights of our cats- tration wishes to protect foreign spies, It is my privilege to serve on the Com-
zens. For the warrant application may vary diplomats, governments, or what have mittee on the Judiciary and also my fur-
according to the government interest to be
you. enforced and the nature of citizen rights y ther privilege to serve on the Select
are entitled to protection: Americans, subcommittee headed by the gentleman
In those cases where the fourth permanent resident aliens, and Intelli- from Illinois (Mr. MURPHY), the chair-
amendment applies, its single consistent gence agents trying to do their job. man of the subcommittee which produced
demand is that Government searches The best way to insure their protection this piece of legislation. During its very
and seizures be reasonable. In some cases is with H.R. 7308's warrant process. They laborious and, indeed, painstaking pro-
it will demand compliance with the war- deserve the best protection. ceedings, our committee went over this
rant clause. However, in other cases the Americans and permanent resident . bill with a fine-tooth comb. We dis-
legality of a particular search or seiz- aliens are in constant contact with for- cussed a number of amendments pro-
ure can be established without reference eign businessmen, tourists, and athletes, posed in good faith by the gentleman
to the warrant clause-the true test is and with foreign embassies, trade mis- from Illinois (Mr. McCLORY), including
reasonableness. sions, corporations, and political organi- this particular amendment.
As Mr. Justice Black noted in Collidge zations. The warrant requirement will I would ask my chairman, the gentle-
against New Hampshire: insure that surveillance of the foreign man from Illinois (Mr. MURPHY), to re-
The fourth amendment does not require person or entity is for the proper pur- spond to this question.
that every search be made pursuant to_ a pose of obtaining foreign intelligence in- Mr. Chairman, is it not the case that
warrant. It prohibits only "unreasonable formation and not an attempt to acquire the Senate bill, which,. if my memory is
search and seizures." The relevant test is personal or political information about correct, was passed 95 to 1 by the Sen-
not the reasonableness of the opportunity Americans. ate, contains a warrant procedure, awar-
to procure a warrant, but the reasonableness The warrant requirement will also in- rant requirement, covering the very
of
The the seizure under all the circumstances. sure that information lawfully acquired kinds of cases that the gentleman from
by per test
se rules; achi cases mcannot be fixed ust be decided about Americans will only be dissemi- Illinois (Mr. MCCLORY) would seek to
on its own facts. nated for foreign intelligence purposes. exempt?
The warrant requirement will further in- Mr. MURPHY of Illinois. That is
We know of many instances of border sure that agents performing a surveil- correct.
crossings, and even in some investigative lance will not be later held up to scorn Mr: MAZZOLI. And is my statement
cases, of concerns where we have ad- and ridicule or worse and will be able to correct, Mr. Chairman, that that bill
ministrative bodies handling them that perform their duties effectively and ag- passed the Senate 95 to 1?
there is no requirement to secure a war- gressively. It should be noted that the
rant in order to search or seize. So it plaintiffs in the current suit against they Mr. MURPHY of Illinois. The gentle-
seems to me that with regard to collect- Attorney General and FBI personnel, man is correct.
ing electronic surveillance, whether it is arising out of the Truong/Humphrey - Mr. MAZZOLI: Would that vote in-
by radio or television or whatever other case, are not those who were the targets dicate that the Senate, which is a very
means, there should, be no requirement of the surveillance; rather, they are important deliberative body, *as satis-
to go to a court and secure a warrant. American citizens whose communications fled that the warrant requirement which
So in effect all that this amendment were incidentally overheard pursuant to the gentleman from Illinois (Mr. Mc-
does, is to exclude from the warrant re- the targeting of Truong and Humphrey. CLORY) seeks to exempt would not cause
quirement electronic surveillahce au- According to the intelligence agencies any danger to national security?
thority with respect to foreign agents officials, all of these things can be done, Mr. MURPHY of Illinois. That is cor-
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CONGRESSIONAL RECORD -HOUSE September 6, 1978
rect. It covers every political philosophy Mr. MAZZOLI. I think the Gulf of
in the Congress. Tonkin resolution is not apposite to what
Mr. MAZZOLI. Let me ask the chair- we are doing today.
man this further question: Is it not true Mr. McCLORY. Mr. Chairman, will
that if this exemption were to be ordered the gentleman yield?
by the committee that this would mean Mr. MAZZOLI. I yield to the gentleman
that there would be situations where from Illinois.
American citizens would be surveilled
without protection of the warrant which
currently is afforded American citizens
under the present bill, H.R. 7308?
Mr. MURPHY of Illinois. That is right.
Not only that, but the Pike and Church
committees uncovered abuses which could
still occur under the very exception Mr.
MCCLORY Is trying to make in this
amendment. For instance, an American
citizen talking to an embassy; a perma-
nent resident alien talking to a foreigner
within the domestic borders of this coun-
try could be surveilled without the pro-
tection of a warrant. That is why Mr.
STRATTON'S reference to those two books,
"Ultrasecret" and "A Man Called In-
trepid" has no application to this
endment whatsoever.
This bill is confined directly to U.S.
borders. What happens overseas, NSA
counterintelligence or the CIA, as Mr.
Ross aptly pointed out earlier, it is open
season and anything can be done.
Mr. MAZZOLI. So we are dealing only
with electronic surveillance.
Mr. MURPHY of Illinois. Foreign in-
telligence electronic surveillance within
the borders of the United States.
Mr. MAZZOLI. I thank the gentleman.
I think that is an important point to
make.
Let me make this further point: If we
go along with the McClory proposed ex-
emption, this does in a sense remove the
protection which we seek to afford to
American citizens. The protection is the
existence of a warrant before that per-
son's conversations or activities can be
surveilled. That would be removed if the
gentleman's amendment prevails.
Mr. ERTEL. Mr. Chairman, will the
gentleman yield?
Mr. MAZZOLI. I yield to the gentle-
man from Pennsylvania.
Mr. ERTEL. Mr. Chairman, I was curi-
ous about the gentleman's comments
that this passed the Senate by a vote of
95 to 1. and by the implementation that
since the Senate passed it by 95 to 1,
then obviously this House ought to fol-
low the Senate's proposal.
Mr. MAZZOLI. I think the gentleman
misunderstands me.
Mr. ERTEL. What did the Gulf of Ton-
kin resolution pass the Congress by?
Mr. MAZZOLI. My point in asking
that question of the chairman of our
committee was that when the Senate
passed its wiretap bill by 95 to 1, and
d
th
ll h
b
Mr. McCLORY. Mr. Chairman, I would
like to point out that the 95-to-1 vote in
the Senate included the material we have
already excluded from this bill.
The CHAIRMAN pro tempore (Mr.
EVANS of Colorado). The time of the
gentleman from Kentucky has expired.
(At the request of Mr. MCCLORY and by
unanimous consent, Mr. MAZZOLI was
allowed to proceed for 2 additional
minutes.) k
Mr. McCLORY. 11 the gentleman will
yield further, as the gentleman from
North Carolina (Mir. Rose) pointed out,
we have excluded it substantial part of
the intelligence-gathering activities un-
der the amendment which both sides
have agreed upon, but which was con-
taiped in the bill which the Senate passed
by a 95-to-1 vote. In other words, we are
rejecting what the Senate has done be-
cause we find it inconsistent with our
best national security interests. Let me
also point out that this amendment we
are now discussing was before our sub-
committee, and it lost on a 6-to-6 tie
vote-the precise amendment I am offer-
ing now.
Mr. MAZZOLI. If I could reclaim my
time momentarily, I think the gentleman
is also aware that after the amendment
was more fully explained-there was
some early lack of complete appreciation
of the significance of the gentleman's
amendment-I think the vote was
different.
Mr. McCLORY. I think there may have
been some other pressures applied, but I
know that in the course of our hearings
we had Mr. Morton Halperin in the room,
and I said, "This amendment would only
apply if we were targeting in on, for in-
stance, the Soviet Embassy."
But then he said, "Yes, but what if I
am telephoning the Soviet Embassy?"
I said, "I am very sorry about that,
Mr. Halperin, but I would like to point
out that we still, in this amendment,
minimize prosecution so that if some-
body makes an unrelated call to the
Soviet Embassy, that is minimized even
if we adopt the amendment."
Mr. MAZZOLI. I am not so sure as the
gentleman, because how would it be
minimized? There is no minimization
procedure.
Mr. McCLORY. Oh, Yes. I would just
say there are minimization procedures
and they would be required and they
would be imposed. As far as the "Man
e-
the Senate bi
as across-
oar war- Called Intrepid" is concerned, the head-
r'ants for foreign intelligence surveil-
quarters was right in the RCA Building
lance the Senate must have felt that in New York City, N.Y.
warrants pose no potential harm to the
national security: The House is supposed Mr. VOLKMER. Mr. Chairman, will
to pass our own bill, but I am just saying the gentleman yield?
that the other body clearly indicated that Mr. MAZZOLI. I yield to the gentleman
they had no qualms with warrants. from Missouri.
Mr. ERTEL. I suggest that the Senate Mr. VOLKMER. Mr. Chairman, I
has been wrong before, and by how many would like to know how under the bill
votes did the Gulf of Tonkin resolution the warrant process' works.
pass? I would suggest that was wrong The CHAIRMAN. The time of the
also. gentleman from Kentucky has expired.
(On request of Mr. VOLKMER, and by
unanimous consent, Mr. MAZZOLI was al-
lowed to proceed for 2 additional min-
utes.)
Mr. VOLKMER. Mr. Chairman, if the
gentleman will yield further, how, under
the warrant process, will my telephone
call be protected to a foreign embassy
that is being electronically surveiled?
Mr. MAZZOLI. That will be protected
ab initio, because when the Chief Execu-
tive or the delegate of the Chief Execu-
tive, the Attorney General, goes to court
to seek the warrant, in the first place he
or she has to make a listing of exactly
what information is to be gathered and
what minimization procedure will be
followed. This is all done before the tap
is ever installed, before the warrant is
ever issued.
Mr. VOLKMER. But wait a minute. My
telephone call is going to be picked up.
They will not shut it off as soon as I call.
So how will it be protected?
Mr. MAZZOLI. If the court is satisfied
that the kind of tap which is asked for
would routinely pick up American citizen
calls those conversations could be mini-
mized away sufficiently.
Mr. VOLKMER. The gentleman is say-
ing the court probably would not permit
a wiretap by telephone on a foreign em-
bassy? Is that what the gentleman is
saying?
Mr. MAZZOLI. No.
Mr. VOLKMER. That is the case with
any embassy.
Mr. MAZZOLI. I am not so sure, be-
cause when we have such an embassy as
the Soviet embassy which has trade mis-
sions and economic missions and educa-
tion missions they would have all kinds
of calls.
Mr. VOLKMER. Take South Yemen,
for instance.
Mr. MAZZOLI. But it would all come
to the judges ahead of time for their
determination.
Mr. VOLKMER. Does it say the judges
will take that into consideration? In
what section?
Mr. MAZZOLI. I am not sure what sec-
tion, but it has a full series.
The-CHAIRMAN. The time of the gen-
tleman from Kentucky (Mr. MAZZOLI)
has again expired.
(By unanimous consent, Mr. MAZZOLI
was allowed to proceed for 2 additional
minutes.)
Mr. MAZZOLI. I will yield to the gen-
tleman from Arizona in a moment if I
may finish my point to the gentleman
from Missouri.
There is a whole series of material and
data which have to be submitted on the
application for the warrant.
Mr. VOLKMER. But I do not find any-
thing in there which would say if the
electronic surveillance would pick up
any number or amount or percentage
of U.S. persons' conversations, that it
should be denied. I do not find that in
there.
Mr. MAZZOLI. No.
Mr. MURPHY of Illinois. Mr. Chair-
man, will the gentleman yield?
Mr. MAZZOLI. I yield to the gentle-
man from Illinois.
Mr. MURPHY of Illinois. Mr. Chair-
man, the situation the gentleman refers
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to, if he calls an embassy and he asks
when is their ballet or circus coming to
town, and it has nothing to do with for-
eign intelligence, there are provisions in
this bill that provide that telephone call,
that this conversation will be struck.
Mr. VOLKMER. That is not in the
gentleman's amendment, I believe. I be-
lieve the gentleman has the same mini-
mization procedure.
Mr. MAZZOLI. Mr. Chairman, let me
reclaim my time and I yield to the gen-
tleman from Arizona (Mr. RUDD).
Mr. RUDD. Mr. Chairman, I thank the
gentleman for yielding, but I think the
point we are trying to make Is whether
or not a U.S. citizen's rights would be
infringed on, and I would like to put an
example. Supposing a U.S. citizen does
call the Soviet Embassy, or whatever em-
bassy, and he has a legitimate request.
No one wants to infringe on his rights
end obviously this would be taken care
of because the person would be identified
and interviewed and if he said `he wanted
a visa, it would be dropped. But on the
other hand, let us take a person who has
been in deep cover,for 15'years and he
has not been activated and he has been
wondering why he has not been contacted
by the embassy espionage network, then
the only way for him to go is to the prin-
cipal, the Soviet Embassy to be acti-
vated.
The CHAIRMAN. The time of the
gentleman has again expired.
(By unanimous consent, Mr. MAZZOLI
was allowed to proceed for j additional
minute.)
Mr. RUDD. Mr. Chairman, if the
gentleman will continue to yield, let me
say that in that way there would be iden-
tification of a network of Soviet spying
activities.
Mr. MAZZOLI. Let me try to answer
the gentleman's question.
Mr. RUDD. This does not Infringe on
the rights of citizens, all it does is secure
the Nation in a time of grave circum-
stances.
Mr. MAZZOLI. I would like to answer
the gentleman in two ways. One is that
I do not think that people who call up
the Russian Embassy to ask about the
Bolshoi ballet will be picked up for inter-
viewing. Such a call would be routinely
expunged from the record, and would
never be brought to anyone's attention.
Second, any bill Congress would pass
Is going to be imperfect. You cannot
cover every hypothetical concern. Al-
though I did not support the gentleman
from Illinois' amendment, the committee
accepted it in order to craft the best
possible bill and the most passable bill.
Anything like this is imperfect. But I do
think, all things considered, we have
written a very good bill which deserves
the support of the committee.
Mr. ASHBROOK. Mr. Chairman, I
move to strike the requisite number of
words, and I rise in support of the
amendments.
(Mr. ASHBROOK asked and was given
permission to revise and extend his
remarks.)
Mr. ASHBROOK. Mr. Chairman, I
want to quote from a very knowledgable
expert in this field,
Admiral Murphy, spoke very directly to
this bill, and I will read specifically from
his testimony. Like Admiral Turner, he
said, "I am in favor of H.R. 7308," and
then you start getting the "buts" and
the "ifs." Here is the statement, which
I am going to read:
In the comments set out below, the depart-
ment outlines a number of significant
problems ...
And I am going to read it:
. with the bill not to indicate a lack
of support, but to demonstrate to the com-
mittee that the compromise represented by
H.R. 7308 has been reached at substantial
risk to the department's intelligence
operations.'
I spoke a little bit earlier in the debate
about witnesses sending me a telegram.
That is about as great a telegram as you
can get. He said in effect that there was
a compromise reached by people outside
of the Defense Department. He said in
effect that the Defense Department is
constrained to support H.R. 7308, but we
think you ought to know that it has been
reached at substantial risk to the De-
partment's intelligence operations. That
is what he is clearly saying.
Let me go on and quote his testimony
to you :
This overall approach has two distinct
weaknesses. First, the extension of coverage
beyond American citizens, corporations and
associations adds substantially to the risks
of compromise of important intelligence
sources and methods without any conoami-
tant benefit for Americans. It is important
that Americans have the assurance that
when intelligence agencies seek information
through electronic surveillance of Americans,
there will be a judgment made by someone
outside the Intelligence Community as to
the importance, relevance and necessity of
that surveillance to foreign intelligence pur-
poses. However, when the intellignece agen-
cies seek information through electronic sur-
veillance of foreigners who are agents of for-
eign intelligence services or foreign entities
that are directed and controlled by foreign
intelligence services, there is no benefit to
Americans from requiring such a judgment
from someone outside the Intelligence Com-
munity.
That is the key. He is distinguishing
between Americans and foreign entities,
foreign sources, something which the
gentleman from Illinois (Mr. MCCLORY)
is trying to do in his amendment.
He went on to say this, and this is all
one quote :
In many cases, the means of communica-
tion used by these foreigners' and foreign
entities are totally devoted to their intelli-
gence work against the United States and
Americans would have no access to them in
any case.
The primary reason for extending coverage
beyond American citizens and corporations
to reach these foreign Intelligence agents and
the totally foreign organizations to which
they belong or which they use is an attempt
to provide an alternative to the use of the
President's inherent power under the Consti-
tution to conduct electronic surveillance
without a.warrant. If the bill covered only
Americans, the President could exercise his
inherent power, as consistent with the bill,
with respect to foreigners. But by covering
foreigners as well, the bill creates an alterna-
tive with a high risk and a very limited bene-
fit for the rights of Americans.
H 9137
Extension of the bill to cover foreigners
carries with it very substantial risks of com-
promise of important and highly productive
intelligence sources and methods.
The CHAIRMAN. The time of the
gentleman from Ohio (Mr. ASHBROOK)
has expired.
(By unanimous consent, Mr. ASHBROOK
was allowed to proceed for 1 additional
minute.)
Mr. ASHBROOK. Mr. Chairman, that
is probably a statement from the most
knowledgeable official working in the
field, Adm. Daniel J. Murphy.
Mr. MURPHY of Illinois. Mr. Chair-
man, will the gentleman yield?
Mr. ASHBROOK. I yield to the gentle-
man from Illinois.
Mr. MURPHY of Illinois. Mr. Chair-
man, I would like to read to the gentle-
man an additional statement from the
most knowledgeable admiral in the field.
The statement to which the gentleman
referred was given when the subcommit-
tee was considering the bill. Since then,
we amended it; we adopted the McClory
amendment.
Here is the admiral's language after
the adoption of the McClory amendment,
from the "Most Knowledgeable Man in
the Field," to use the gentleman's own
words :
When I appeared before the Legislation
Subcommittee of your Committee, I testified
that the Department of Defense supported
H.R. 7308, as introduced. I also expressed our
reservations about particular provisions
which, in my view, posed risks to security
which were not outweighed by the potential
benefits to civil liberties that might be pro-
vided by those provisions.
In the course of your Committee's consid-
eration of H.R. 7308 changes were made not
only to the provisions I mentioned in my
testimony but also to others. These changes
minimize risks to security and effect impor-
tant improvements in the system under
which the Department of Defense would be
required to operate. I have reviewed the billy
reported by your Committee and wholeheart-
edly support its- passage. The bill would di-
rectly facilitate certain intelligence activities
of the Department of Defense while at the
same time protecting the privacy rights of
United States citizens.
Sincerely,
DANIEL J. MURPHY,
Admiral, USN (het.)
Mr. ASHBROOK. Admiral Murphy, I
would say to my colleague from Illinois,
was opposing it on January 10.
Mr. MURPHY of Illinois. He was
speaking, in the instance cited by the
gentleman from Ohio, before we adopted
the McClory amendment.
Mr. ASHBROOK. Before the wagon
circled.
Mr. MURPHY of Illinois. Now it is be-
fore the wagons circled. However, before
the gentleman said that the admiral was
the most knowledgeable man in the field..
Mr. ASHBROOK. He is still the most
knowledgeable, but the most knowledge-
able man in the field is constrained by
policy, and adminjstration policy very
clearly, is involved in this bill. His orig-
inal statement is very clearly in favor of
the McClory amendment. The gentleman
is right. Once the wagons circled, he took
that stand. In his letter, he retracted
nothing, of his January 10 statement. It
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CONGRESSIONAL RECORD-HOUSE September 6, 1978
still stands. The amendment we adopted
in committee only went part way.
Mr. MURPHY of Illinois. We adopted
the McClory amendment in committee,
and this is Admiral Murphy's subsequent
statement. In the gentleman's own words,
he is the last word on this subject.
Mr. ASHBROOK. I still think he is the
most knowledgeable man in the field.
Mr. MURPHY of Illinois. If the gentle-
man is going to talk about the full circle,
include his final letter on it.
Mr. ASHBROOK. I think that is only
fair. That is right. What the admiral is
saying, however, is that only a part of
that gap was closed. If he had his way,
he would not have warrants for surveil-
lance of foreigners in this country. He
was not satisfied before, and I think his
statement stands. This is what the ad-
miral says, as I say, before the circle was
formed 'on the wagons.
Mr. FISH. Mr. Chairman, I move to
strike the requisite number of words.
(Mr. FISH asked and was given per-
mission to revise and extend his
remarks.)
Mr. FISH. Mr. Chairman, I rise in sup-
port of the amendment, offered by the
gentleman from Illinois (Mr. McCLOwY),
to limit court issued warrants to U.S.
persons.
I share the reservations expressed by
my colleagues today with regard to H.R.
7308 and disagree with the administra-
tion's belief, in the words of the Attorney
General, that H.R. 7308:
Will strengthen the capability of our
intelligence agencies dealing with foreign
espionage.
On the contrary, Mr. Chairman, I be-
lieve that this measure as written will
dangerously impede the progress of our
foreign 'intelligence activities.
In the deliberations of the Republican
Policy Committee, it was determined that
the intrusion of the judicial system in
the intelligence community is totally in-
appropriate. This is particularly true
with respect to foreign spies. The provi-
sion in H.R. 7308, calling for a special
Federal court to exercise primary over-
sight of the use of electronic surveillance,
is a radical departure from the consti-
tutional and legal precedents which have
governed our intelligence activities up to
now. There is no evidence of case law em-
powering the Federal courts to authorize
or reject foreign intelligence gathering
activities as proposed by the committee
bill. The security of sensitive material
would be seriously threatened by this un-
precedented move and the resultant un-
necessary delay and, more importantly,
the unnecessary disclosure of sensitive
information are problems which need not
plague our intelligence activities.
the constitutional authority of the exec- tection for foreigners, spies, embassies,
utive branch In its responsibility to pro- trade missions, travelers, et cetera. Inci-
tect our nation from foreign aggression. dentally the kind of protection that our
It also recognizes the appropriate con-. Government agencies and citizens do not
gressional role in oversight by pro- enjoy when in foreign countries.
viding for the Inspection of records by Mr. Chairman, there is absolutely no
the House and Senate Intelligence justifiable reason to extend the judicial
Committees. warrant requirement beyond situations
Deterrents to abuse are an integral where U.S. persons are targeted. To quote
part of this amendment which calls for from the official position of the Depart-
surveillance approval in writing from the ment of Defense submitted to the Com-
Attorney General and executive branch mittee on this matter:
officials where a non-U.S. person is the The extension of coverage beyond American
target of an investigation. The McClory citizens, corporations and associations adds
amendments assure responsible action substantially to the risks of compromise of
on the part of those empowered to important intelligence sources and methods
authorize foreign intelligence electronic without any concomitant benefit for Ameri-
surveillance. cans. I
Mr. RUDD. Mr. Chairman, I move to If the bill covered only Americans, the
strike the requisite number of words. President could exercise his inherent power
Mr. Chairman, I: rise to support this with respect to foreigners.
important amendment. Accordingly, I ask your support of the
I agree with our colleague from Illi- gentleman's amendment.
nois (Mr. MCCLORY) that -intelligence- Mr. BOLAND. Mr. Chairman, I move
gathering involving; only foreign citizens to strike the requisite number of words,
associated with a foreign government and I rise in opposition to the
should not be tied to a judicial warrant amendment.
requirement. Mr. Chairman, the administration op-
The minimization procedures involv- poses this amendment. I know of no
ing U.S. persons are more than adequate one in the intelligence-collecting agen-
to protect the privacy and the rights of cies of the Government who favors the
our own people. amendment. This amendment was con-
It makes absolutely no sense whatso- sidered in the committee, and it was
ever for our intelligence personnel to defeated.
be. required to obtain judicial warrants What this amendment would do would
to conduct electronic surveillance against be to delete the warrant requirements
foreigners visiting our country-when for .all targets except-except U.S. per-
those persons might have known or sus- sons. It sounds great; does it not? Most
pected ties to Communist governments of the abuses, or a great number of the
or terrorist organizations, and are pos- abuses, which occurred some years ago-
sibly involved in clandestine activities and there is no sense in rehashing those
about which the President must be fully Years and that period, as I am sure all
informed on a highly classified basis. of us are familiar with it-a number
I am sure that most Americans would of those abuses occurred, because it was
consider it "unreasonable" to involve the possible to survey embassies, foreign em-
courts in such a sensitive intelligence bassies without warrants, pick up the
function with solely foreign policy im- names of American citizens, pick up
portance to the President and the exec- information on them when they were
utive branch of Government. communicating with these foreign
I urge adoption of the amendment. powers and foreign embassies.
History shows and the record proves
Mr. BOB WILSON. Mr. Chairman, I that oftentimes the information which
move to strike the requisite. number of was collected under the guise of sur-
words, and I rise in support of the amend- veilling foreign powers, foreign embas-
ment. ., sies, and consulates was used against
Mr. Chairman, let's face it, from its American citizens. That is the reason
very inception HA.. 7308 was never in- why we have an across-the-board war-
tended to facilitate the legitimate activi- rant in this bill. That is one of the rea-
ties of the intelligence community. In the sons why it has been asked for not alone
.words of one witness who testified in by the Carter administration but by the
favor of the bill he summarized its pur- Ford administration. That is the reason
pose by saying, why it is contained in the Senate bill,
The basic intention underlying H.R. 7303 is and that is the reason why the distin-
to minimize, not encourage electronic sur- guished chairman of the Committee on
veillance. the Judiciary, the gentleman from New
The purpose for this Foreign Intelli- Jersey (Mr. ROniNO) came in here un-
- der a lot of personal pressure to voice his
gence Surveillance Act was and is to pro
his support of this b
opi
and
supo
In my judgment, the President is mis- tect the rights of U.S. persons against
support
That is
the
taken when he states that H.R. 7308 will future abuses. It is only recently that the this bill, to . protect the why constitutional
establish the Nation's first legislative advocates have realined their priorities of American at
controls over foreign intelligence sur- to now argue that the underlying purpose the rights n citizens and td so so that
h pretext of gathering information
veillance. It will establish artificial and is to help the intelligence agencies by without warrants could not be used in
unprecedented judicial controls over eliminating doubts about legality. the future.
politically sensitive decisions related to- Mr. Chairman, the truth is we could I would think that those of us who re-
intelligence gathering. all support H.R. 7308 if it had limited it- call history and who are familiar with
The totality of this amendment which self to providing protection for U.S. per- what happened in the past ought to re-
will be offered by the gentleman from sons, those who had allegedly been abused member, and so, Mr. Chairman, on that
Illinois is a responsible and effective ap- by illegal wiretaps. But no-the bill has basis I think this committee ought to
proach to foreign surveillance reform. been broadened with onerous judicial reject the amendment offered by the
The amendments. recognize and respect procedures to provide extraordinary pro- gentleman from Illinois (Mr. MCCLORY).
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The amendment has been gone over
thoroughly by this committee. It has
been studied by the subcommittee
chaired by the distinguished and able
gentleman from Wisconsin (Mr. KASTEN-
MEIER), and it has been gone over care-
fully by many others, including those
who are in the intelligence-collection
business of our Government itself and
who are interested In gathering the best
Intelligence to protect our national se-
curity and who are concerned with our
national interests. They do not favor this
amendment. Does that not say some-
thing to us? It says something to me.
Mr. McCLORY. Mr. Chairman, will the
gentleman yield?
Mr. BOLAND. Of course, I will yield
to the gentleman from Illinois.
Mr. McCLORY. Mr. Chairman, I thank
the gentleman for yielding.
I do not know of any abuses that have
occurred with respect to U.S. ciitzens in
the last couple of years. I think the
references the gentleman makes are to
Joseph Kraft and Mortimer Halpern, and
t lose were not cases in which we were
eavesdropping on foreign powers or for-
eign agents. They were indeed violations
of existing guidelines at that time; they
were abuses.
But we always hark back to the wire-
taps In the cases of Joseph Kraft and
Mortimer Halpern and one or two others
that occurred more than 2 or 3 years
ago but which are wholly unrelated to
the subject of my amendment at this
time.
Mr. BOLAND. Mr. Chairman, in re-
sponse to my friend, the gentleman from
Illinois (Mr. MCCLORY), let me say I am
not aware of any abuses which occurres
over the last couple of years. I think
people have learned something from
history.
But I am sure that gentleman Is
familiar with the abuses that have oc-
curred, not over the last couple of years,
but maybe over the last 10 or 12 years
or so, all of which have been emphatically
,delineated by the Church committee and
by the Pike committee, and all of those
Involved matters in this area. Certainly
the gentleman is familiar with those
abuses. A lot of those abuses came as a
result of .tapping or surveilling foreign
embassies or consulates of foreign
powers.
Mr. McCLORY. Mr. Chairman, if the
gentleman will yield further, it is pos-
sible that information might come with
respect to intercepting communications
from foreign powers which are exempted
here.
Mr. BOLAND. That is what we are
trying to do, ~ will say to the gentleman
from Illinois (Mr. MCCLORY). The very
fact is that when we are surveilling for-
eign powers or foreign embassies or for-
eign consulates or what-have-you, and
some American citizens are involved and
their names are brought out, they are
caught in the trap, they are caught in
the sweep of the surveillance, and they
ought to be protected. This bill protects
them.
The CHAIRMAN. The time of the gen-
tleman from ~sachusetts (Mr. Bo-
LAND) has expired.
-(On request of Mr. STRATTON, and by Mr. BOLAND. That is right.
unanimous consent, Mr. BOLAND was al- Mr. VOLKMER. Or the hearing of
lowed to proceed for 3 additional min- them by some agent at a later time. We
utes.) are talking about the use of them, the
Mr. STRATTON.. Mr. Chairman, if dissemination and the destruction of
the gentleman will yield, the gentleman's them.
and I have no quarrel to make with the
committee's performance in that con-
nection.
But the gentleman said a moment ago
that some of the active intelligence of-
ficers were in support of this bill. I re-
call having the opportunity at the gen-
tleman's invitation to sit in on the meet-
ings, and when we had the heads of.
these intelligence agencies up in the
gentleman's secure quarters discussing
this bill, frankly, the impression I got
leas not one of enthusiasm.
What they said, the situation we are
in now ,is chaotic because anytime any-
body goes out to try to nail some foreign
agent he gets arrested and has to go to
court for violating some law.
Mr. BOLAND. We do not need a bet-
ter argument than you are making here
for the warrant. The FBI wants this.
Mr. STRATTON. If the gentleman will
yield further, certainly this situation is
better than what they are faced with
now. But I think we need the best pos-
sible intelligence, and I do not think we
will get it under this kind of an ar-
rangement.
Mr. BOLAND. What we are trying to
do is correct the situation with which
we are faced now. We are losing, I think,
some important Intelligence, because we
do not have this kind of legislation. And
all of the intelligence community leaders
agree with that.
Mr. STRATTON. We are trying to
.prevent the evils of the past, but we are
forgetting about the problems of the
future.
Mr. BOLAND. Let us correct the evils
of the past, because they might very well
be the evils of the future.
Mr. VOLKMER. Mr. Chairman, will
the gentleman yield?
Mr. BOLAND. I yield to the gentleman
from Missouri.
Mr. VOLKMER. I thank the gentleman
for yielding.
Mr. Chairman, is the gentleman saying
that, under the provisions of the bill,
the conversation that an American citi-
zen may have with a foreign national,
whether it be a consul, embassy, or
wherever, will not be recorded by what-
ever type of electronic device is being
used, because there is a warrant being
used, they are not going to be recorded,
is that what the gentleman is saying?
Mr. BOLAND. Oh, yes, they are picked
up and they will be recorded.
Mr. VOLKMER. They will be recorded,
wherever that occurs.
The CHAIRMAN. The time of the gen-
tleman . from Massachusetts (Mr. Bo-
LAND) has expired.
(On request of Mr. VoLKMER and by
unanimous consent, Mr. BOLAND was al-
lowed to proceed for 2 additional min-
utes.)
Mr. VOLKMER. Then the protection
that we are talking about is not pre-
venting the recording of them?
Mr. BOLAND. That is right.
Mr. VOLKMER. The difference be-
tween the two the gentleman really ob-
jects to is the fact that the McClory
amendment does not provide for that de-
struction or the nonuse thereafter, not
the actual recording?
Mr. BOLAND. The gentleman had dis-
cussions with the gentleman from Ken-
tucky.
Mr. VOLKMER. Yes. I agree with that.
The difference is that that is exactly the
minimization by the court. There is a
difference. And that is basically the
problem the gentleman sees with the
McClory amendment; is that right?
Mr. BOLAND. That is right.
Mr. VOLKMER. The question then is
that if the McClory amendment provided
for a certification like he has, but a min-
imization procedure like the gentleman
has, then the gentleman would have no
objection to it; is that correct?
Mr. BOLAND. Oh, no. I object to the
McClory amendment because, as I have
Indicated, he would delete the warrant
requirement for all targets except,U.S.
persons. die would require a warrant
which would surveil U.S. persons. He
would eliminate a warrant requirement
for the surveillance of aliens, foreign
powers, foreign embassies, consulates, or
what have you. But the real problem oc-
curs when information concerning U.S.
persons Is picked up. If it is a sweeping
surveillance of foreign powers, foreign
agencies, that is where the information
with respect to U.S. persons is picked up,
and that is where the damage is done.
The CHAIRMAN. The time of the gen-
tleman from Massachusetts (Mr. Bo-
LAND) has again expired.
(On request of Mr. VOLKMER and by
unanimous consent, Mr. BOLAND was al-
lowed to proceed for 2 additional min-
utes.)
Mr. VOLKMER. Is the gentleman say-
ing, then, that warrants will not be per-
mitted in areas where U.S. citizens' con-
versations are involved-because 50 per-
cent of them will be by U.S. citizens or
foreign national here as permanent resi-
dent aliens-is the gentleman now say-
ing that those warrants will not be is-
sued? That is what I got from the gentle-
man from Kentucky, if he were the
judge. I am afraid a wiretap on the
telephone where there are quite a few
conversations, or, let us say, a bugging
device, transmitting device, is put in the
reception room in the embassy where
they had a lot of traffic of U.S. citizens., If
he were the judge the gentleman from
Kentucky would say no warrant under
this policy.
Mr. MAZZOLL Mr. Chairman, will the
gentleman yield?
Mr. BOLAND. I yield to the gentleman
from Kentucky.
Mr. MAZZOLI. I thank the gentleman
for yielding.
Mr. Chairman, what the gentleman
from Kentucky was endeavoring to say,
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H 9140 CONGRESSIONAL RECORD -HOUSE September 6, 1978
perhaps lamely, from the floor a moment
ago, was the fact that if the judge, hav-
ing received the warrant application,
finds there is going to be a succession of
American citizens' calls or surveillances'
which occur, in a sense, incidental to the
issuance of the main warrant, then I
think the judge would have to sit down
and say, "Well, you are really actually
targeting American citizens under the
guise of targeting a third party, so you
better come back and tell me why you
do not target American citizens directly
and tell me how you intend to minimize
these surveillances and what informa-
tion you are looking for."
I think there is an essential differ-
ence here as to the gentleman from Il-
linois' amendment. There, I believe any
minimization to be at the sufferance of
the Attorney General. Here, we are talk-
ing about court approval for minimiza-
tion, which means that if the court does
sense that if there is a ruse being perpe-
trated it can expose that ruse.
Mr. McCLORY. Mr. Chairman, will the
gentleman yield?
Mr. BOLAND. I yield to the gentle-
man from Illinois.
Mr. McCLORY, I think it should be
pointed out that the minimization ap-
plies whether the McClory amendment
is adopted or not. The minimization is
established and is put in place by the
executive. It does, under the warrant re-
quirement, require approval by the judge.
In other words, a judge is going to decide
whether or not minimization procedures
are adequate. If he decides they are not
adequate, they could go back and maybe
reprogram the whole system with regard
to minimization. This seems to be an
absurd position.
Mr. ERTEL. Mr. Chairman, I move to
strike the requisite number of words, and
I rise in support of the amendment.
I would like to.make a couple of points
for clarification, and perhaps Mr. Mc-
CLORY could clarify these for me.
As I understand the bill, if we are tar-
geting foreign nationals such as a for-
eign embassy, a trade mission, or an
agent of a foreign government, .we must
have a warrant which is not based on
probable cause, but on some other slip-
pery sort of concept where the court
would authorize a wiretap or bug or elec-
tronic surveillance of that embassy or
foreign mission. In that procedure we
would have minimization so that if an
American citizen were encountered as a
participant in a phone conversation or
In a room of a trade mission, it would
be minimized as far as the extent of
knowledge of his activities were con-
cerned, and there would be a destruc-
tion order and it could not be used. Is
that correct?
-Mr. McCLORY. Exactly. If it is unre-
lated that would apply, whether they
have a warrant or do not have a warrant.
Mr. ERTEL. Under the gentleman's
amendment, as I understand It, his
amendment says that instead of going
to the court to get a warrant which is
'based on a concept we are not really sure
of because the bill does not set it out,
that the Attorney General will actually
Issue a surveillance certificate saying
they can surveil that foreign trade mis-
sion or embassy; or a building a foreign
government owns, and. he will set out in
that surveillance certificate minimiza-
tion procedures. He will also destroy in-
formation from American citizens; is
that correct?
Mr. McCLORY. Yes; the Attorney
General is an executive officer who is re-
quired to be confirmed by the Senate.
Mr. ERTEL. The only question then is,
practically everything is basically the
same, except that you need a warrant
when you are targeting foreign citizens
under the committee bill?
Mr. McCLORY. Exactly.
Mr. ERTEL. `What we are doing then
is giving the foreign embassies, the for-
eign trade missions, the foreign citizens,
rights under our Constitution which our
citizens may not, and in fact in most
countries in the world, do not enjoy in
those countries.
Mr. McCLOR 7. The gentleman is pre-
cisely right. What we are doing under
this legislation, unless my amendment is
adopted, is requiring a judicial warrant
to issue before we could engage in any
kind of electronic surveillance. This could
be by telephone, by radio, by microwave,
or by telephone interception. We would
require the executive department, spe-
cifically the Attorney General, to ask a
.judge to decide whether or not such
electronic surveillance should take place.
Mr. ERTEL. Can the gentleman tell
me anyplace in the world where there
are American citizens receiving this
kind of protection from the intercep-
tion of their communications when they
are in a foreign country?
Mr. McCLORY. There is no such com-
parable situation throughout the rest of
the world. I might say that foreign
powers in this country will not be sub-
jected to this kind of restriction. We will
have Americans subjected to surveillance
by foreign agencies in this country, even
though the Americans will not be en-
abled to engage in electronic surveillance
of foreign agents of foreign powers with-
out judicial approval.
We will be in a completely absurd situ-
ation unless we adopt the McClory
amendment which would exclude foreign
powers and foreign agents from this war-
rant requirement.
Mr. ERTEL. I ask one further question,
if the gentleman will be good enough to
respond. Under the procedure set out by
the Executive order today, do we not have
basically the same thing rights with
respect to the American citizens? We
have to as provided in your amendment
for foreign citizens have certification of
the Attorney General to surveil American
citizens do we not?
Mr. McCLORY. Yes; we do have that.
Mr. ERTEL. So what we are doing by
this legislation is giving foreign nationals,
if we do not adopt this amendment, the
rights American citizens have today. We
are really protecting foreign nationals,
foreign people in the United States,
contrary to the exclusion of rights the
American people have in foreign coun-
tries?
Mr. McCLORY. We are :according by
statutes to the foreign nationals rights.
which they constitutionally do not have,'
and we are giving rights to foreign agents
and foreign powers which are superior
to the rights of U.S. persons.
Mr. ERTEL. In other words, what we
are doing today is expanding the fourth
amendment type protection of the Amer-
ican Constitution, as interpreted by the
circuit courts, and extending it to pro-
tect foreign nationals.
Mr. McCLORY. Exactly.
Mr. ERTEL. I support the. gentleman's
amendment. I think it makes sense not
to extend those protections to foreign
citizens which may work to the detri-
ment of the American people.
Mr. MURPHY of Illinois. Mr. Chair-
man, I rise in opposition to the amend-
ment and I move to strike the last word.
The CHAIRMAN. Without objection
the gentleman from Illinois is recognized
for 5 minutes.
There was no objection.
Mr. MURPHY of Illinois. I cannot, Mr.
Chairman, let that statement go by, that
the fourth amendment only applies to
American citizens. The Justice Depart-
ment and the Attorney General in a
number of instances have stated that the
fourth amendment applies to everybody
within the borders of the United States.
Mr. BOLAND. If the gentleman will
yield, in fact the Supreme Court has said
that very thing, that the fourth amend-
ment does apply to people in the United
States, to foreign visitors, teachers,
athletes, and everybody else.
Mr. ERTEL. Does it apply to foreign
embassies in the United States?
Mr. MURPHY of Illinois. To every
person within the borders of the United
States.
Mr. ERTEL. The foreign embassies I
do not believe are considered to be Amer-
ican property.
Mr. LIVINGSTON. Mr. Chairman, I
move to strike the requisite number of
words, and I rise in support of the
amendments.
(Mr. LIVINGSTON asked and was
given permission to revise and extend his
remarks.)
Mr. LIVINGSTON. Mr. Chairman, I
only want to point out at this time that
I am just appalled by this discussion and
amazed that this matter is before the
floor, such as it is.
I sincerely support the amendment of-
fered by the gentleman from Illinois.
Being a lawyer, and a former prose-
cutor with about 6 years experience and
having also worked as a defense attorney
in several cases, I think one of the most
important things that faces the future
of this country is certainly our national
security. What we have before us right
now is a bill that would threaten that
security.
We can talk about it all we want, but
essentially we are saying the United
States will play by the Queensberry rules
when our opponents will have all the
weapons available to them that they
might want to throw at us. I think that
flies In the face of all reason and com-
monsense, and I think this amendment
would rectify that problem.
Mr. RHODES. Mr. Chairman, will the
gentleman yield?
Mr. LIVINGSTON. I yield to the geY-
tiemanfrom Arizona.
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Mr. RHODES. Mr. Chairman, I shale
the gentleman's amazement that this bM
was even brought to the floor. I do not
know any other nation in the world that
has legislation like this to protect foreign
nationals.
I might ask the gentleman from Illi-
nois, If he will respond to the question:
Is there any other nation in the world
that has legislation whereby the foreign
agents in that nation are protected by
the laws of that nation?
Mr. McCLORY. Mr. Chairman, if the
gentleman will yield, let me say there is
a great deal of concern about the privacy
and the protection of individuals. This.
is also a concern of a number of. other
nations, especially in Western Europe.
Through our laws at the present time we
have provided for the protection of the
interests of-'Privacy and provided for
minimization of any incidental intercep-
tion which applies with respect to U.S.
persons. But there is no nation in the
world which requires the Executive to
go to a special court or anything resem-
bling that in order to exercise what is
an executive function. The gentleman
is exactly right.
Mr. LIVINGSTON. Mr. Chairman, if
I might recapture my time,, might I ask
the gentleman from Illinois: Is there
anything in this amendment which
would detract from the rights of a per-
son under the Constitution of the United
States, the fourth amendment, or any
other amendment of the Constitution of
the United States?
Mr. McCLORY. No. My amendment
only applies to foreign agents or foreign
powers. Even if that provision is retained
in the bill, a warrant will be required
when there is a desire to engage.in elec-
tronic surveillance of a U.S. person.
Mr. LIVINGSTON. And certainly the
exclusionary rule of 'evidence would
apply to a U.S. citizen, would it not?
Mr. McCLORY. It would, yes.
Mr. ZABLOCKI. Mr. Chairman, I
move to strike the requisite number of
words.
(Mr. ZABLOCKI asked and was given
permission to revise and extend his
remarks.)
Mr. ZABLOCKI. Mr. Chairman, I rise
in support of H.R. 7308, as reported by
the Intelligence Committee.
H.R. 7308 as pointed out by the chair-
man is a complex piece of legisla-
tion carefully designed to deal with an
ever more complex problem. The mem-
bers of the Intelligence Committee and
the Judiciary Committee and all those
who had a hand in its drafting deserve
our commendation and thanks. The bill
as reported deals with perhaps the most
important task facing this Congress-
how to reconcile the often competing in-
terests of ? civil liberties and national
security.
Mr. Chairman, H.R. 7308 is a bill that
accomplishes both objectives. Further-
more it is, a bill that legitimizes much
needed but often maligned intelligence
collection activities while being respon-
sive to the privacy interests of the
American people. I have come to this
conclusion, although at one time, as our
colleague, the gentleman from Illinois
(Mr. MCCLORY), I had some reservations
about the legislation.
Mr. Chairman, H.R. 7308 is also a bill
that has drawn the support of the White
House, the Justice Department, and the
U.S. intelligence agencies, the American
Bar Association, Common Cause, the
American Civil Liberties Union, the
New York Times, the Washington Post,
and the Chicago Tribune.
If, nothing else, this broadbased sup-
port from such divergent groups demon-
strates the deliberate care taken in draft-
ing this legislation.
Because such care was taken, we now
have before us a bill that in my opinion
strikes precisely the right balance in fur-
thering both privacy interests and se-
curity interests.
Though it is the proper balance, it is
a delicate balance, and any tampering
with it could result in the collapse of the
whole structure. The bill's opponents
should know this. They also know that
as we rush toward adjournment, the time
of the House is precious. We are thus
faced with approximately 50 proposed
amendments to a bill that has already
been subjected to several years of de-
tailed study by the Congress.
No more than a handful of' these
amendments contain any substance, and
even these few, if passed, would impair
the balance-without contributing to the
national security.
I would implore the committee-to keep
this fact in mind when debating and
amending this bill. Let us not throw away
this chance to pass good legislation. Let
us not tell American people that this
House cannot. resolve the crucial issues
facing it.
This is not a partisan bill. It is a good
bill that will strengthen our intelligence
collection capabilities. It is worthy of our
support and I urge my colleagues to re-
ject crippling amendments and vote aye
on H.R. 7308.
Mr. McCLORY. Mr. Chairman, will the
gentleman yield?
Mr. ZABLOCKI. I yield to the gentle-
Mr. MoCLORY. Mr. Chairman, I thank
the gentleman from Wisconsin (Mr. ZA-
BLOCKI) for yielding to me. I appreciate
the statement the gentleman has made.
I might say that the precise amendment
that I am offering now is an amendment
for which the gentleman voted favorably
in the committee. I just wondered what
has transpired to change the gentle-
man's mind so that he now finds him-
self in opposition to the amendment?
Mr. ZABLOCKI. Yes, I voted for the
gentleman's amendment. I am sure the
gentleman will agree with me that con-
sistency is,the hobgoblin of little minds.
It is not necessarily a virtue to stand
fast and hold to a position and not to
be pliant and change one's views or one's
mind. After further study and consider-
ation of the effect of the gentleman's
,amendment I changed my mind.
Mr. BOLAND. Mr. Chairman, if the
gentleman, will yield, before we put this
particular amendment to bed I would
just like to remind the members of the
committee who are here that the war-
rant requirement for foreign embassies,
or for trade missions, consulates or for
whatever, that requirement which is in
this bill-and I hope the -members of the
committee do not lose sight of this fact-
is for the protection of American citi-
zens too. I repeat, it is for the protection
of American citizens.
Someone here asked whether there is
any other country on the face of the globe
that makes this sort of requirement?
Probably not. Is there any other country
on the face of the globe that has a Bill
of Rights? England does not have one.
They do not even have a Constitution,
and a lot of the other countries do not.
I think we ought to keep our minds on
the fact that the legislation requires a
warrant for embassies and foreign pow-
ers where there is a likelihood that Am-
ericans will be involved, because they
ought to have the protection that a war-
rant offers. So I hope we keep our eye
on the ball.
That is precisely the reason that this
bill requires a warrant for foreign em-
bassies or trade missions or foreign pow-
ers where the likelihood of an American
citizen's interests being involved is not
present.
The CHAIRMAN. The question is on
the amendments offered by the gentle-
man from Illinois (Mr. MCCLORY)_.
The question was taken; and the
Chairman announced that the noes ap-
peared to have it.
RECORDED VOTE
Mr. ASHBROOK. Mr. Chairman, I
demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic de-
vice, and there were-ayes 178, noes 176,
not voting 78, as follows:
[Roll No. 727]
AYES-178
-
Alexander
de la Garza
Kemg
Ambro
Derwinskt
Kindness
Anderson, Ill.
Devine
Lagomarsino
Andrews, N.C.
Dingell
Latta
Andrews,
Duncan, Tenn.
Leach
N. Dak.
Edwards, Ala.
Lent
Applegate
Edwards, Okla.
Livingston
Archer
Emery
Lloyd, Calif.
Ashbrook
English
Lloyd, Teiin.
Badham
Ertel
Lott
Bafalis
Evans, Del.
Lulan
Bauman
Evans, Ga.
Luken
Beard, Tenn.
Evans, Ind.
McClory
Bennett
Fish
McCormabk
Blanchard
Flynt
McDade
Bowen
Fountain
McDonald
Breaux
Frenzel
McEwen
Brinkley
Fuqua
McKay
Broomfield
Gephardt
McKinney
Brown, Mich.
Gilman
Madigan
Brown, Ohio
Glickman
Mann
Broyhill
Goldwater
Marlenee
Buchanan
Goodling
Marriott
Burgener
Gradison
Martin
Burleson, Tex.
Grassley.
Mathis
Butler
Gudger
Michel
Carter
Guyer
Milford
Cederberg
Hagedorn
Miller, Ohio
Clausen,
Hammer-
Mitchell, N.Y.
Don H.
schmidt
Mollohan
Cleveland
Heckler
Montgomery
Cohen,
Heftel
Moore
Coleman
Hightower
Moorhead,
Collins, Tex.
Hillis
Calif.
Conable
Holt
Mottl
Conte
Horton
Murphy, Pa.
Corcoran
Hubbard
Myers, Gary
Coughlin
Icbord
Myers, John
Crane
Jenkins
Nedzi
Cunningham
Jenrette
O'Brien
D'Amours
Jones, N.C.
Poage
Daniel, Dan
Jones, Tenn.
Pritchard
Daniel, R. W.
Kazen
Quayle
Davis
Kelly.
Rahall;?;
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CONGRESSIONAL RECORD-HOUSE September 6, 1978
-
Regula Smith, Nebr. Walker
Rhodes Snyder Walsh
Risenhoover Spence Wampler
Robinson Staggers Watkins
Rousselot Stangeland White
Rudd Stanton Whitehurst
Runnels Steed Whitley
Ruppe Stockman Whitten
Saresin Stratton Wilson, Bob
Satterfield Taylor Wilson, Tex.
Sawyer Thornton Winn
Schulze, Treen Wolff
Sebellus Trible Wylie
Shuster. Vander Jagt Yatron
Sikes Volkmea Young, Fla-
Skelton Waggonner Young, MO.
Slaty Walgren
NOES-176
Addabbo Fowler Neal
Akeka Gammage
Anderson, Gaydos
Calif. Glaimo
Annunzio Ginn
Aspin Gonzalez
AuCoin Gore
Baldus Green
Barnard Hall
Baucus Hampton
Beard, R.I. Hanley
Bedell Hannaford
BeDfamin Harkin
Biaggi Harris
Bingham Hefner
Blouin Holland
Boggy Hollenbeck
Boland Holtzman' Pursell
Bolling Howard Raileback
Bonor Hughey Rangel
Bonker Jacobs Reuss
Brademag Johnson, Calif. Rinaldo
Breckinridge Jones, Okla, Rodino
Brodhead Jordan Roe
Brooks Kastenmeier Rogers
Brown, Calif. Keys Roncallo
Burlison, Mo. Kildee Rose
Burton, John Kostmayer Rosenthal
Burton, Phillip Krebs Roybat
Carney LaFalce Russo
Carr Le Fante Ryan
Collins, Ill.
Conyers
Carman
Cornell
Cotter
Danielson
Delaney
Dellums
Dent
Derrick
Dicks
Dodd
Downey
Long, La.
Long, Md.
Lundine
McCloskey
McFall
McHugh
Maguire
Mahon
Markey
Marks
Mattox
Mazzoli
Drinan, Meeds
Early Metcalfe
Eckhardt Meyner
Edgar Mikulski Van Deerlin
Edwards, Calif. Mints, Vanik
Eilberg Minish Vento
Fary Mitchell, Md. Waxman
Fenwick Moakley Weaver
Findley Moffett Weiss
Fisher Moorhead, Pa. Whalen
Fithian Murphy, Ill. Wright
Fl.oria Murtha Yates
Foley Myers, Michael Zablocki
Ford, Tenn. Natcher Zeferetti
NOT VOTING-78
Abdnor Flowers Pepper
Ammerman Ford, Mich. Pettis
Armstrong Forsythe Pressler
Ashley Fraser Quie
Beilenson Frey Quillen
Bevill Garcia Richmond
Burke, Calif. Gibbons Roberts
Burke, Fla. Hansen Rooney
Burke, Mass. Harrington Rostenkowski
Byron Harsha Shipley
Caputo Hawkins Sisk
Chappell Huckaby Skubitz
Chisholm Hyde Smith, Iowa
Clawson, Del Ireland Steiger
Clay Jeffords Stump
Cochran Johnson, Colo. Symms
Cornwell ' Kasten Teague
Dickinson Krueger Thong
Diggs Leggett Tsongas
Messrs. BREAUX, DINGELL, and
BRINKLEY changed their vote from
no" to -aye."
So the amendments were agreed to.
The result of the vote was announced
as above recorded.
AMENDMENT OFFERED BY MR. MURPHY
OF ILLINOIS
Mr. MURPHY of Illinois. Mr. Chair-
man, I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. MURPHY of
Illinois: On page 38, after line 24 add the
following:
(o) "State" means any State of the United
States, the District of Columbia, the Conn-
monwealth of Puerto Rico, the Trust Terri-
tory of the Pacific Islands, and any territory
or possession of the United States.
Mr. MURPHY of Illinois. Mr. Chair-
man, this is essentially a technical
amendment intended to correct an omis-
sion in the language of the committee
reported bill.
The bill contains several references to
"state", but the term was nowhere de-
fined therein. A definition is necessary
since the District of Columbia, Puerto
Rico, and territories and possessions are
not usually encompassed by the word
"State".
It is my understanding that the gen-
tleman from Illinois (Mr. McCLoRY)
does not oppose this amendment.
Mr. McCLORY. Mr. Chairman, will the
gentleman yield?
Mr. MURPHY Of Illinois. I yield to my
colleague from Illinois.
Mr. McCLORY. Mr. Chairman, we have
examined the amendment. It is a tech-
Weal amendment, as the gentleman
states, and there is no objection to the
amendment.
Mr. MURPHY of Illinois. I appreciate
the gentleman's remarks.
The CHAIRMAN. The question is on
the amendment offered by the gentleman
from Illinois (Mr. MURPHY).
The amendment was agreed to.
AMENDMENT OFFERED BY MR. M'CLORY
Mr. McCLORY. Mr. Chairman, I offer
an amendment.
The Clerk read as follows: -
Amendment offered by Mr. MCCLORY: Page
33, strike out lines 4 through 25 and insert
in lieu thereof the following:
(2) any person who-
(A) knowingly engages in clandestine In-
telligenee activities for or on behalf of a
foreign power under circumstances which in-
dicate such activities are or may be con-
trary to the foreign policy or security in-
terests of the United States;
(B) knowingly engages in sabotage or In-
ternational terrorism, or activities in prepa-
ration therefor, for or on behalf of a foreign
power; or
(C) conspires with or knowingly aids or
abets any person to engage in any activity
described in subparagraph (A) or (B).
Mr. McCLORY. Mr. Chairman, what
this.amendment does Is to eliminate the
This amendment, is important not only
because it strikes from the bill wording
which could negatively impact on our in-
telligence agencies' abilities to gather
foreign intelligence information, but also
because it would modify the tone of the
bill so that it would be in keeping with
its purpose-that is not to enforce Fed-
eral. criminal statutes, but rather to
regulate the use of electronic surveil-
lance to gather foreign intelligence in-
formation.
Just as with the warrant procedure,
the need for a criminal standard is no-
where to be found in the Constitution
when the Government seeks to gather
foreign intelligence information. The
Supreme Court has recognized as recent-
ly as this past term in a case involving
OSHA searches-Marshall against Bar-
olws, Inc.-that the fourth amendment's
probable cause provision does not require
that all warrants be based on a finding of
probable criminal activity.
Therefore, if a warrant is not required
for this type of electronic surveillance-
as the proponents of H.R. 7308 appar-
ently admit-and if, as the Supreme
Court has recognized-and as Attorney
General Bell has testified-a warrant
without a criminal standard can com-
port with the fourth amendment, then
including in this bill a warrant require-
ment with a criminal standard is simply
piling one overprotection and unneces-
sary requirement on top of another.
One very puzzling aspect of the gen-
esis of the criminal standard in this bill
is that when the other-body was con-
sidering this bill's companion-S. 1566-
in its Judiciary Committee Attorney
General Bell testified that he opposed
the criminal standard and posited six
hypothetical situations in which it was
the position of the Justice Department
that a criminal standard would preclude
the otherwise legitimate use of foreign
intelligence electronic surveillance.
Judge Bell also testified against the
criminal standard before the other
body's intelligence Committee:
When a ..United States person furtively,
clandestinely collects or transmits informa-
tion or material to a foreign intelligence
service pursuant to the direction of a foreign
intelligence service and where the circum-
stances surrounding this activity indicate
that the transmission of the material or in-
formation would be harmful to our security
or that the failure of the government to be
able to monitor such activity would be harm-
ful to the security of the United States,
then I believe that whether or not that
activity is today a violation of our criminal
statutes, the Government has a duty to
monitor that activity to safeguard the secu-
rity and welfare of the Nation. There is a
certain danger in extending the criminal
law, the purpose of which is to prosecute,
convict and normally incarcerate the per-
petrator, merely to satisfy the principle that
electronic surveillance should not be under-
taken absent a criminal violation.
criminal standard with respect to Intel- Apparently the Justice Department
ligence-gathering activities, and to sub- now supports a criminal, standard
stitute language which provides that though I am unaware of-any public
where a person is engaged in clandestine statement made by the Department that
intelligence activities, whether he is a its past statements were in error.
U.S. person or not, under circumstances if a criminal standard was unwise
Duncan, Oreg. Mikva Wiggins which would Indicate that his activities then because it precluded under certain
Erlenborn Miller, Calif.. Wilson, C. H. would be contrary to the foreign policy
Evans circumstances the legitimate use of
, Colo. Moss Wirth
Fascell Murphy, N.Y. Wydler or security interests of the United States, foreign intelligence electronic surveil-
Flippo Nichols Young, Alaska that nevertheless he can be subjected to lance, then it seems to me that it is
Flood Pattison Yo ng, T Ax el Lt~gl~%1 ~~1 u' =RDP80S01268A db1 X40006-9
Approved or elease U
Nix
Nolan
Nowak
Oakar.
Oberstar
Obey
Ottinger
Panetta
Patten
Patterson
Pease
Perkins
Pickle
Pike
Preyer
Scheuer
Schroeder
Seiberling
Sharp
Simon
Solarzr
Spellman
St Germain
Stark
Steers
Stokes
Studds
Thompson
Traxler
Tucker
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September 6, 1978 CONGRESSIONAL RECORD-HOUSE H 9143
Now, it is clear to those who under- were just as adamant, and again rightly ing probable cause that the activity may in-
stand intelligence activities and ca- io, in their belief that a rigid criminal volve a crime would allow surveillance in
pabilities that most intelligence relates standard would prevent the FBI from such cases. Therefore, I support the new
not to criminal activities, but solely to conducting much of the investigatory standard because it provides enough flex-
the subject of gathering information work which is so essential in counter- ibility u dri cellig the real investigations. faced
which may be useful to our Nation. This intelligence activity. in with my olllt a gu ihathe standard
s. I
agree with my colleagues that the stkind of information may relate to the This issue came to a head just as the is intended to deal with what we tradition-
condition of the crop year or the harvest House and Senate Intelligence Commit- ally call spying activities.
in some foreign country. It may relate tees were preparing to begin markup on This point is further elaborated in the
to the development of some kind of a this legislation. After several weeks and language of the report of the House
foreign aircraft or a new type of arms. many hours of discussion among the At- Intelligence Committee, and again, I
It does not necessarily relate to any torney General, the FBI, the House and quote:
criminal activity. Consequently, all that Senate Intelligence and Judiciary Com- This "may involve" standard replaces the
this amendment does is to eliminate the mittees, and civil liberties groups, con- previous noncriminal standard which ap-
criminal standard with respect to elec- sensjs agreement was reached, one that peared in H.R. 7308, as introduced. Both the
tronic surveillance. It seems to me this in my judgment strikes that elusive and former provision, and the "may involve"
is essential for the conduct of our in- delicate balance between protecting in- standard, address the same problem, The
telligence activities, and that this is an dividual liberties and giving our intel- committee has concluded that it is neces-
amendment that should be adopted by ligence agencies the tools they need to sary in order to permit the Government to
the committee. protect our country. That agreement is investigate adequately in cases such as those
I know that the subject of a criminal reflected in the committee reported lan- w"meets" or "dr" here Federal agents have witnessed
standard is one that Is sought by some of guage. It is language which is accept- eign ntelligencep officer twand a citizen who
the civil liberties groups. They feel that able to civil liberties groups and which might have access to highly classified or
no intelligence activity should be carried is preferred by the FBI. similarly sensitive information; information
on unless a crime has been committed The provision contains two sections. is being passed, but the Federal agents have
or is about to be committed. If we defer The first section deals with U.S. persons been unable to determine precisely what
all intelligence gathering until somebody who are engaged in "clandestine intelli- information is being transmitted. Such a
Is about ready to commit a crime, we are lack of knowledge would of course disable
Bence .gathering activities," meaning the Government from establishing that a
going to be left without information espionage. As the Intelligence Committee crime was involved or what specific crime
which we need for Our own national pro- report notes: was being committed. Nevertheless, the
tection. It seems to me this is a vital Probably the most critical term in this Committee believes that the circumstances
amendment, which will make this a much provision is "clandestine intelligence gather- might be such as to indicate that the activ-
better bill. ing activities." it is anticipated that most ity may involve a crime. The crime involved
I might say the amendment we have clandestine intelligence gathering activities might be one of several violations depend-
the former Director of the CIA, Bill O1b1101" uireculy or oy ranure to register.... In addition to the espionage and the
Colby, and many others who have The term "clandestine intelligence gather- foreign agent registration laws, other
given tog activities" is Intended to have the same
attention to this subject. The fact that meaning as the word espionage in normal criminal laws whose possible connection
we will not require a warrant with re- parlance, rather than as a legal term denot- to the U.S. person's activities would
gard to the targeting of foreign embus- ing a particular criminal offense. The term justify a wiretap under the "may"
sies and foreign powers is an intelligent also includes those activities directly sup- standard are the interstate transporta-
decision for this body to make, and it portive of espionage such as maintaining tion of stolen property statute and the
would likewise be intelligent for us to_ a "safehouse," servicing "letter drops," run- Export Administration Act. Thus, those
nine
decide not to require a criminal stand- ing an funds, "accommodation recruiting new agents, infiltrating hnfiltrating unting engaged in collecting industrial or tech-
ard in order to gather intelligence infor- or. exfiltvating agents under cover, creat- nological information which, if dis-
mation which might be useful to our own ing false documents for an agent's "cover," closed to a -foreign power, might present
protection. or utilizing a radio to receive or transmit a threat to the national security, could
(Mr. McCLORY asked and was given instructions or information by "burst trans- be wiretapped.
permission to revise and extend his mission." The second section of the "criminal
remarks.) To authorize the wiretapping of U.S. standard" deals with U.S. persons en-
Mr. MANN. Mr. Chairman, I rise in op- persons suspected of engaging in such gaged in "other clandestine intelligence
position to the amendment. activity, the Judge must find probable activities," that is, activity other than
(Mr. MANN asked and was given per- cause to believe that the activity "may those connected with spying or espio-
mission to revise and extend his involve" a criminal violation. This is- a nage. As has been pointed out, these
remarks.) - it deal less than the probable cause other activities are meant to include
Mr. MANN. Mr. Chairman, I rise in required to obtain a law enforcement covert actions, propaganda, lobbying
opposition to the gentleman's amend- search warrant. There is no require- and other actions designed to influence
ment. The so-called criminal standard ment that the person be actively en- events in this country. As was noted by
contained in H.R. 7308 represents a rea- gaged In the commission of a crime, or former Director Colby in his testimony
sonable and proper solution to a com- even that he is about to be so engaged. before the Judiciary Committee, this is
Alex problem, a problem which at one , What type of criminal might be en- a gray area where it is sometimes difii-
time seemed insoluble. Compassed in this standard? cult to distingush between legitimate
As introduced, both in the Senate and This is what led Senator GARN to note activity protected by the first amend-i the House, this legislation would have the following during Senate floor debate erators. aand unprotected. the star and
authorized a judge to approve the wire- on S. 1566, and I quote: - her For this reason, the standard
tapping of American citizens and per- Mr. President, many of us have been con- probable higher, and the judge must find
manent resident aliens even thought no cerned that the adoption of a criminal pro cause that the actions of the
connection whatsoever with possible standard would make it impossible for the U.S. Person "involve or are about to in-
criminal activity had been demon- FBI to get a court order for surveillance volve" a criminal violation.
strated. This provision was adamantly of people oplle activity. obviously engaged iti al Obviously, this standard would be
opposed, and rightly so, by those who For example the FBI might more difficult to meet. However, the FBI
observe someone making "drops," and then has repeatedly stated that it has no ob-
either felt that it was unconstitutional known Soviet intelligence agents coining jection to this provision. The Bureau is
or felt as a matter of principle that along and picking up what was dropped. almost totally concerned with intelli-
there should be a higher standard for This is traditional spying tradecraft, but gence gathering and the lower standard
searching American citizens and per- the FBI cannot determine what information
On the other hand, both Attorney Bence agents. That is the kind of case where the area of greatest need for counter
General Levi oand ther , Attorney General Attorney a judge might not find probable cause that espionage coverage.
y Bell, a specific crime is about to be, or will be, In summary, I believe that the crimi-
as well as many Members of Congress, committed. However, the standard requir- nal standard as reported by the Intelli-
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 H 9144
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CONGRESSIONAL, RECORD-HOUSE September 6, 1978 11
gence Committee, as does the whole bill, lance. The Government may spy if It and intrusive power which H.R. 7308
fully protects both our civil liberties and musty but it, does not have the right to grants the intelligence agencies.
our national security, and I oppose any force private citizens to help. Mr. MURPHY of Illinois. Mr. Chair-
attempt to change it. The Bell Telephone System strongly man, I rise in opposition to the
The CHAIRMAN. The question is on objects to this open-ended Government amendment.
the amendment offered by the gentleman authority to force private individuals (Mr. MURPHY of Illinois asked and
from Illinois (Mr. MCCLORY). and corporations to provide assistance in was given permission to revise and ex-
The amendment was rejected. surveillance activities. The Bell System tend his remarks.)
AMENDMENT OFFERED BY MR. DRINAN has. stated: Mr. MURPHY of Illinois. Mr. Chair-
Mr. DRINAN. Mr. Chairman, I offer Certain language in the pending Senate man, it is no secret the gentleman who
an amendment. and House bills could be interpreted to re- offers this amendment considers elec-
The Clerk read as follows: quire greater telephone company involve- "tronic surveillance of any kind to be
Amendment offered by Mr.. DRINAN: Page ment such as: the placing of all cross con- "dirty business." He has said this on
40, strike out lines 9 through 23 and insert nections; the furnishing of monitoring many occasions. His position is well
in lieu thereof the following: equipment; the use of telephone company known. He now offers what he calls a
(3) (A) The Attorney General may not re- identification cards to gain access to cus- conscience clause to this legislation.
quire any communication common carrier to tome" premises; or even the use of telephone
company personnel. We feel that such a di- In effect, he has put the decision as to
provide the Government with any informs- rect role in electronic surveillance is in whether or not foreign intelligence in-
respect to any electronic surveillance tion, facilities, or technical areillancau- with drastic conflict with our responsibility for formation will be collected not with the
thorized under this subsection. safeguarding the privacy of our customers. President, not with the judge but with
(B) Any communication common carrier As presently worded, section 102 of private telephone companies or land-
voluntarily providing any such information, H.R. 7308 gives the intelligence agencies lords or other people who have been
facilities, or technical assistance- a blank check with which they can elicit ordered to cooperate with the Govern-
(s) shall maintain any records concerning any kind of assistance they desire from ment. It should be. self-evident that if
the surveillance or any such assistance which
such common carrier wishes to retain under private citizens. This is in contrast with common carriers or other persons can-
security procedures approved by the Attorney the kind of authority which the Govern- not be compelled to help the Government
General and the Director of Central Intel- went possesses in Its domestic electronic in conducting lawful foreign intelligence
ligance; and surveillance. There, the Government can surveillances, such needed intelligence
(ii) shall be compensated for providing require the provision of information as will not be collected in this country. That
such information, facilities, or technical as- to cables and terminals and, when re- result is not in the interest of the Gov-
sistance by the Government at the prevailing quested by the Government, a private ernment nor of the individuals which
rate. line channel from the terminal serving this amendment purports to protect nor
Page 50, strife out lines 3 through 21 and the telephone line under investigation to of the protection of civil liberties.
insert in lieu thereof the following:
(B) that any communication common car- a terminal serving the listening post Taking the last point first, the Gov-
rier, supplier of communications facilities used by law enforcement personnel. The ernment cannot be assured of the coop-
or devices, landlord, custodian, or other per- same standard applies to foreign intelli- eration of common carriers and others
son voluntarily providing to the Government gence surveillance,. based upon author- under this amendment. The result will
any information, facilities, technical assist- izations by the Attorney General. be many more inadvertent interceptions
ance, or access to premises with respect to Section 102 would give the intelligence as agents search for the right wire.
the electronic surveillance shall maintain agencies the power to compel telephone That is exactly what the gentleman seeks
any records concerning the surveillance or
any such assistance which such person company personnel, private security offs- to avoid, among other things.
wishes to retain under security procedures cers, or others to actually install, con- Mr. Chairman, the telephone company
approved by the Attorney General and the nect, and operate the electronic listen- and others have not asked for this
Director of Central Intelligence; and ing devices. The Bell Telephone Co. amendment. They are willing to cooper-
(C) that any such communication common clearly does not wish to become an active ate with the Government on the basis of
carrier, supplier of communications facili- partner with the intelligence agencies. a statutory warrant. The bill gives them
ties or devices, landlord, custodian, or other Their objections to the language of sec-' immunity if they cooperate under the
person voluntarily providing to the Govern- tion 102 of H.R. 7308 cannot be terms of a court order or Attorney Gen-
ment any information, facilities, technical eral's order. If, however, they are given
assistance, or access to premises with respect discounted.
to the electronic surveillance shall be com- In a more general sense, there is seri- the opportunity to determine whether
pensated therefor by the Government at the ous doubt as to the need for the broad they will cooperate or not, can it be said
prevailing rate. authority to compel assistance from pri- that they retain their immunity since
Page 55, after line 22, insert the following vate citizens which H.R. 7308 provides to, they cooperate, if at all, under their own
new subsection: the government. An individual or corpo- volition? Further, this amendment re-
(h) An order under this section authorizing ration which objects on moral or other moves any directive language from an
electronic surveillance may not require any grounds to a request by the government order under the bill. Yet, the immunity
communication common carrier, supplier of for aid in the establishment or operation clause is tied to the order. It just does
communications facilities or devices, land- of a wiretap should, if at all possible, be not make sense.
lord, custodian, or other person to provide the able to refuse. In most instances, the Mr. Chairman, this amendment also
Government with any information, facilities, Government could find another indi- eliminates the requirement that surveil-
technical assistance, or access to premises to
accomplish the authorized surveillance. vidual to provide the needed assistance. lances under this bill be accomplished in
The only exception which comes to mind such a manner as to protect their se-
Mr. DRINAN. Mr. Chairman, this is the telephone company, which has al- crecy. I am.sure that there is no doubt in
amendment removes those provisions of ready demonstrated its willingness to the minds of Members that these sur-
Ii.R. 7308 which grant to the government help in the provision of access to cables veillances involve very sensitive national
the unprecedented authority to compel and terminals. Removal of the compul- security matters which must be safe-
private citizens and corporations to pro- sory nature of section 102 would not guarded from compromise. Eliminating
vide unlimited assistance to intelligence seriously jeopardize the ability of the this language puts in doubt whether or
agencies in all electronic surveillance Government to conduct surveillance, but not they will remain secret and must be
related to foreign intelligence. it would remove a potentially dangerous opposed.
This amendment is commonly referred capability to force citizens to aid in Mr. Chairman, the effect of this
to as a "conscience clause," as it will wiretapping. amendment is not to significantly im-
permit any individual or corporation to Mr. Chairman, we are all familiar with prove any rights or privileges for U.S.
follow its conscience and refuse to pro- the very strong feeling by the American citizens. On the contrary, what it really
vide assistance to the Government in its people that Government has become too does is make it possible that inadvertent
surveillance activities. While every citi- large and too intrusive into their lives. surveillances of U.S. persons will occur
zen owes some degree of loyalty to the if we are really serious about limiting and that important foreign intelligence
U.S. Government, it is inconceivable that unnecessary intrusions by the Federal information will not be collected. That
this loyalty extends so far as to embrace Government, we will adopt this amend- combination is a very objectionable one,
all matters related to electronic surveil- ment and remove the very objectionable and on those grounds, I urge its defeat.
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 Mr. MAZZOLI. Mr. Chairman, will the rent No. I," which also appeared In
gentleman yield? the August 2, 1978, CONGRESSIONAL
Mr. MURPHY of Illinois. I yield to the
gentleman from Kentucky.
Mr. MAZZOLI. I thank the gentleman
for yielding.
I would just like to commend the gen-
tleman on his statement. I think he made
a series of very important points in op-
position to the gentleman's proposal. I
think one of the most Important is the
immunity which is granted to these in-
dividuals, the landlords, and the tele-
phone people. It might be well for the
gentleman- to emphasize to the House
that these people, if they follow the in-
structions in the warrant, Mr. Chairman,
are exempt from any liability; am I
correct?
Mr. MURPHY of Illinois. If they per-
form their duties in good faith pursuant
to the warrant, they are protected under
the bill.
Mr. MAZZOLI. I-thank the gentleman.
The CHAIRMAN. The question is on
the amendment offered by the gentleman
from Massachusetts (Mr. DRINAN).
The question was taken; and on a
division (demanded by Mr. DRINAN)
there were-ayes 6, noes 35.
So the amendment was rejected.
AMENDMENT OFFERED BY MR. ASHBROOK
Mr. ASHBROOK, Mr. Chairman, I
offer my amendment No. 4 which ap-
peared in the RECORD on August 2, 1978.
The Clerk read as follows:
Amendment offered by Mr. ASHBROOn:
Page 33, line 3, insert "or property" after
"life"
Mr. ASHBROOK. Mr. Chairman, my
amendment would expand the definition
of "international terrorism" by describ-
ing it in terms of "acts dangerous to
human life and property." The defini-
tion, as presently written; only refers to
acts "dangerous to human life."
Terrorism is a violent act against non-
combatants for a political purpose. How-
ever, it does not have to be against a
person. Terrorism can also involve
violent acts directed toward property.
For instance, if a terrorist group threat-
ened to blow up the Washingtorr Monu-
ment unless certain actions were taken
by the U.S. Government, this activity
should be considered under the defini-
tion as "terrorism." In addition, the
group that bombs an ' empty building
today, could bomb an inhabited one
tomorrow. The intelligence agencies
should not be prevented from electronic
surveillance because no one has been
killed yet.
Mr. MURPHY of Illinois. Mr. Chair-
man, I move to strike the last word.
Mr. Chairman, the committee has ex-
amined this amendment. We have been
in consultation with members of the
Committee on the Judiciary and mem-
bers of the Permanent Select Committee
on Intelligence, and we neither support
nor oppose the amendment.
The CHAIRMAN. The question is on
the amendment offered by the gentleman
from Ohio (Mr. ASHBROOK).
The amendment-was agreed to.
AMENDMENT OFFERED BY MR. ASHBROOK
The Clerk read as follows:
Amendment offered by Mr. AsLBRoox:
Page 31, line 17, strike out "or".
Page 32, after line 3, insert the following
new subparagraph:
"(C) There is a reason to believe has in-
formation which relates to the foreign policy
or security interests of the United States; or".
Mr. ASHBROOK. Mr. Chairman, the
purpose of this amendment is to enable
our intelligence services to gather infor-
mation from foreigners who may have
information that relates to the foreign
policy or security interests of the United
States.
There is no expectation by most for-
eigners that their electronic communi-
cations are secure in their own coun-
tries, let alone this one. Positive Intelli-
gence gathering is a common practice all
over the world. There is no reason that
our country should be denied this valu-
able tool.
I am not suggesting in any of my
amendments that the intelligence agen-
cies must target everyone who falls into
a particular category. Only that they'
have the opportunity where necessary.
-I want to make sure that we do not lose
vital intelligence because the person
holding it falls through the cracks in
this legislation. Under this bill those ac-
tivities not specifically permitted are
forbidden. Therefore, the authorization
should be broad enough to cover any
eventual need for intelligence purposes.
Mr. MAZZOLI. Mr. Chairman, I rise
in opposition to the amendment.
H.R. 7308 contains two standards au-
thorizing surveillance of agents of for-
eign powers who are not U.S. persons,
neither of which requires a nexus with
criminal activity.
Section 101(b) (1) (A) page 31, lines
16 and 17-defines an agent of a foreign
power, as any non-U.S. person who acts
in the United States as an officer, mem-
ber, or employee of a foreign power. All
the court does is determine if the person
is in this status.
Section 101(b) (1) (B) -page 31, lines
18 to 25; page 32, lines 1 to 3-authorizes
surveillance of a foreign visitor if the
country for which the visitor acts en-
gages in clandestine intelligence activity
in the United States, and the foreign
visitor is in a class that in the past has
engaged in intelligence activities in the
United States, or other circumstantial or
direct evidence can show that the foreign
visitor may engage in such activities in
the United States. -No specific showing
has to be made about the activities of
the particular foreign visitor to be sur-
veilled. Thus, for example, a Soviet sea-
man entering one of the many U.S. ports
open to him could be surveilled upon no
other showing than that he is a Soviet
seaman.
The gentleman's amendment would go
further and allow surveillance by elec-
tronic means of any foreigner visiting the
United States upon no other showing
than someone's "reasonable belief" that
the visitor has information relating to
Mr. ASHBROOK. Mr. Chairman, I the foreign policy of the United States.
offer an amendment entitled "amend- This is no standard at all. What, in to-
day's world, does riot relate to the foreign
policy of the United States? Does not
every conversation a Member of Congress
has with a prominent foreign visitor re-
late to the foreign policy of the United
States?
I oppose the gentleman's amendment.
In the first place, the existing executive
branch guidelines, authored by Attorney
General Levi, do not permit such indis-
criminate surveillance of foreign visi-
tors. The FBI does not now engage in
such indiscriminate surveillances, has
not for a long time, and does not now
wish to do so. It has not asked for this
amendment. In fact, the existing lan-
guage was inserted at the insistence of
the Bureau.
Second, such surveillances are largely
nonproductive and not worth the ex-
pense and manpower involved. Any use-
ful information that the nongovernment
related foreign visitor may possess can
better be obtained by means other than
electronic surveillance conducted in the
United States.
Third, there is the basic policy issue of
whether the United States wishes to an-
nounce to all nations that any of their
citizens visiting our shores, for whatever
purpose, will be subjected to indiscrim-
inate electronic surveillance. To answer
that the Russians do it is to beg the ques-
tions, and it suggests our willingness to
suspend those attributes of our democ-
racy that in fact distinguish us from the
Russians.
'Fourth, to lower the bill's standards to
authorize a surveillance of any foreign
visitor "reasonably believed" to possess
information relating to the national se-
curity or foreign relations of the United
States is to suggest no standard at all,
and would undermine a basic purpose of
the legislation-to establish objective leg-
islative standards to guide the actions of
both executive officials and judges.
The amendment is not necessary.
It runs counter to bill's purpose to help
restore integrity to actions of intel-
ligence agencies.
Finally, as was the case in the Senate,
the existing provision was written in di-
rect response to FBI testimony.
Mr. KASTENMEIER. Mr. Chairman,
will the gentleman yield?
Mr. MAZZOLI. I yield to the gentle-
man from Wisconsin.
Mr. KASTENMEIER. I thank the gen-
tleman for yielding, and I asked the gen-
tleman to yield so that I could ask him
a question, actually, because, tracking
the Ashbrook amendment with the re-
cently adopted McClory amendment, the
recently adopted McClory amendment
takes non-U.S. persons out of foreign
protection, throws them in this category,
in any event, and I suspect that this is a
totally meaningless, useless addition to
the language of the bill.
Mr. MAZZOLI. Mr. Chairman, I think
that is an interesting point which the
gentleman brings up. I think it makes a
further case. To sum up my time, Mr.
Chairman, we have tried-and the gen-
tleman from Ohio was there-to draft a
bill which would leave the judges in the
Apeciai court in a position where they
had severe and understandable and fo-
cused guidelines to which they could re-
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 Approved For Release 2005/11/23 : CIA-RDP80SO1268A000500040006-9
H 9146 CONGRESSIONAL RECORD-HOUSE September 6, 1978
fer in determining the status of an in- them in a position of having to know would hope that the amendment would
dividual, foreign power, U.S. person, visi- what they are going to get before they be accepted by the majority.
tor, what have you. I think the gentle- get it. Intelligence quite often is some- Mr. Chairman, a serious flaw exists in
man would expand that to sort of a sub- thing that comes about piece by piece, the definition of "agent of a foreign
jective situation rather than the objec- and I do not think we can require that power" in that officers and employees of
tive situation which we attempted to they absolutely know. a foreign power not so acting in the
draft in our bill. We place the judge in Mr. McCLORY. Mr. Chairman, I move United States are excluded from the
the position of trying to crawl inside his to strike the requisite number of words, definition. In the Intelligence Commit-
head to find out what he is in America and I rise in support of the amendment. tee's report on the definition, it is clearly
for, and I think it makes it much more Mr. Chairman, I think one of the most spelled out that this omission is deliber-
di cult for the judge on the special court significant statements that has been ate, as noted on page 34:
to do his job. made and one of the most important ef- The definition excludes persons who serve
Mr. ASHBROOK. Mr. Chairman, will forts which has been undertaken, at least as officers or employees or are members of a
the gentleman yield? as expressed by the majority of the tom- foreign power in their home country but do
Mr. MAZZOLI. I yield to the gentleman mittee, is that this a carefully crafted not act *in* that capacity in the United
from Ohio. and a very carefully wormed out piece of passes Iig is not intended professors, to encoec
Mr. ASHBROOK. I thank the gentle- legislation. It seems to me the amend- Curers, exchange students, e frfoo mrs, le or
man for yielding because I performers or
particularly ment offered now by the gentleman from athletes * * * The term "member" means
wanted to respond to what my very Ohio really fills an obvious defect, an an active knowing member of the group or
learned colleague, the gentleman from omission in the bill which on careful organization which is a foreign power. It does
Wisconsin (Mr. KASTENMEIER), has consideration should be included at this not include mere sympathizers, fellow
stated. There is only one problem with time, travelers, or persons may have merely at-
his argument. This was brought out very forcefully to tion.ed meetings of the group or organiza-
The>~CHAIRMAN, The time of the gen- the subcommittee chaired by the of-
tleman from Kentucky (Mr. MAZZOLI) man from Wisconsin (Mr. KASTENMEIER) This exclusion precludes executive ve
has expired. when the former Director of the CIA, Mr. ficials from collecting valuable positive
(By unanimous consent, W. MAZZOLI Colby, appeared before the committee. foreign intelligence in the United States
was allowed to proceed for 2 additional He pointed out, as the gentleman from from foreign scientists, professors and
minutes.) Ohio has pointed out, that if this is to be businessmen, and so forth. There is no
Mr. MAZZOLI, Mr. Chairman, I yield the legislation authorizing electronic evidence that any other foreign country
further to the gentleman from Ohio (Mr. 'surveillance of foreign agents and for- so limits its intelligence capabilities, and,
AsHRROOx). eign powers, as the bill is now amended, in fact, we do not so limit out capabili-
Mr. ASHBROOK. Mr. Chairman, there then of course we should include these ties abroad. .
are two tracks to the bill, one relating individuals, these officers, and these other , Former CIA Director, William Colby,
to warrants and one relating to purposes persons who otherwise are excluded from in testimony before the Subcommittee
for which there could be surveillance. the legislation. Mr. Colby stated in his on Courts, Civil Liberties, and the Ad-
The McClary amendment changed the testimony before the Judiciary Commit- ministration of Justice, pointed out that
portion which related to warrants, but tee, as follows: intelligence has the important function
you still have standing those individuals The principal responsibility of our intelli- of collecting positive information
or entities who can be surveilled, and gence services is to learn and understand through the fortuitous presence here of
that is why I aya adding this. So it cer- the political, strategic, economic, and socio- foreigners. As Mr. Colby stated:
tainly is not meaningless. Without this logical forces, factions and dynamics in the The principal responsibility of our intelli-
amendment, as I read the bill, you would world around us ... large numbers of citi- gence services is to learn and understand the
not be entitled to surveil them because zens of such nations visit the United States political, strategic, economic, and sociologi-
they ot do not come surveil the area because and have information of this type in their cal forces, factions and dynamics in the
n
minds. To the extent that these secrets are world around us * * * large numbers of citi-
you are authorized. That is the thing not available openly, I believe it only wise zens of such nations visit the United States
that bothers me most about this legisla- and prudent to endeavor to obtain such in- and have information of this type in their
tion. Anything which is not specifically formation from them clandestinely here in minds. To the extent that these secrets are
authorized is prohibited. My amendment America rather than going abroad to search not available openly, I believe it only wise
'would authorize the surveillance of for- for it. and prudent to endeavor to obtain such in-
elgri nationals where the intelligence- It is important to note that a change formation from them clandestinely here in
America rather than
gathering agency has reason to believe in the definition of "agent of a foreign going abroad to search
that they have information which re- power" to allow for it.
lates to our security interests or which gathering does not positive that ll every It is important to note that a change
relate to espionage. friendly foreign tourist or businessman in the definition of "agent of a foreign
Mr. MAZZOLI. Mr. Chairman, without would be subject to electronic surveil- power" to allow positive intelligence
predetermining what the gentleman from lance in the United States. Information gathering does not mean that every
Wisconsin might say in rebuttal, I would about free and open countries can be col- friendly foreign tourist or businessman
say that the amendment of the gentle- lected through perfectly normal means would be subject to electronic surveil-
man from Ohio might be understandable of inquiry, through publications and oth- lance in the United States. Information
to him, and I am sure it could, if he erwise, but it is only when these nations about free and open countries can be
were on the special court or in charge of engage in secreting their information collected through perfectly normal in-
these, be quite easy to apply subjectively. that we have to indulge in electronic quiry and assembly of publications, in-
But, it does seem to me that there is surveillance. volving no clandestine effort whatsoever.
some very broad language in this amend- So, that is why it is extremely impor- Thus electronic surveillance would only
ment which is subjective and which re- tant to our intelligence agencies that the be needed with respect to countries in
quire value judgments on the part of the definition of foreign agents be enlarged, which such material is held in secret.
individual who would be in charge of as the amendment offered by the gentle- It is clear that the exclusion of ofli-
the warrant process or the surveillance. man from Ohio would do, so that this cers and employees from the definition
I think that is all we endeavored to avoid. legislation may truly' assist our intelli- of "agent of a foreign power" does noth-
I think we attempted to avoid that in gence agencies. ing to protect the rights of American
the way we drew the bill, so that there It is certainly not going to adversely citizens, while it does, in fact, severely
would be very few opportunities to have affect any interest whatever of any handcuff the Nation's foreign intelli-
subjective judgments, but there would American citizen or any U.S. person. It gence gathering capabilities. I, therefore,
be a referral to the guidelines. is only directed at foreign agents, and it urge my colleagues to support the
Mr. ASHBROOK. What my colleague seems to me to limit the definition to the amendment that would allow positive in-
has said is absolutely correct. I think the extent that we might be limited from telligence gathering by the United
only problem, looking at it from the in- engaging in legitimate electronic sur- States.
telligence gathering operations view- veillance, especially with regard to im- Mr. MAZZOLI. Mr. Chairman, will the
point, is that we cannot possibly put portant information we should have. I gentleman yield?
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 September 6, roved For NA3 80 A000500040006-9 g 9147
Mr. McCLORY. I yield to the gentle- Mr. McCLORY. Mr. Chairman, I do
man from Kentucky. . not believe this amendment was offered
Mr. MAZZOLI. Mr. Chairman, I ap- in the committee. This was offered in the
preciate the gentleman yielding, and I subcommittee during the testimony of
appreciate the sincere efforts he has former Director Colby when he pointed
been making over these past few months out a defect in the bill, and that is why
at trying to write a bill, but would the the amendment was put together and
gentleman not agree virtually any. for- why it is being offered. That is my un-
eign visitor to the United States from derstanding.
any foreign land whatever would under Mr. BOLAND. Mr. Chairman, if the
the terms of the gentleman's amend- gentleman will yield, would the gentle-
ment be subject to surveillance? man from Ohio and the gentleman from
Mr. McCLORY. I would say only to Illinois agree that the existing provi-
the specific extent the definition is en- sion which is now in this bill was written
larged. It seems to me we do want to in- in direct response to the testimony of the
elude those individuals and engage in Federal Bureau of Investigation?
surveillance of them. It expands the defiMr. McCLORY. Mr. Chairman, I do
nition and enlarges the scope for the in- not know who wrote the provision. I
telligence agencies, as former Director know we had a lot of input as far as the
Colby called to our attention we should language is concerned.
do. The CHAIRMAN. The question is on
Mr. MAZZOLI. If the gentleman will the amendment offered by the gentleman
yield further, with all due regard to Di- from Ohio (Mr. ASHBROOK).
rector Colby, that is his profession, and The amendment was rejected.
I would think any intelligence officer
would want to include anybody in the
universe that he could.
Mr. McCLORY. Let me point out that
Mr. Colby is not in support of my substi-
tute bill. He would support the amend-
ment that the House has adopted but he
would support this as well.
Mr. MURPHY of Illinois. Mr. Chair-
man, I rise in opposition to the amend-
ment.
Mr. Chairman, the existing Attorney
General's guidelines do not permit the
indiscriminate surveillance of foreign
visitors that would be authorized by the
Ashbrook amendment. A 1976 Justice
Department memorandum states that
the current policy of the Attorney Gen-
eral Is to authorize warrantless elec-
tronic surveillance only when it is shown
the subjects are the active conscious
agents of foreign powers. This was the
policy of former Attorney General Levi
and it is the policy of the present At-
torney General Bell.
I oppose the amendment.
Mr. ASHBROOK. Mr. Chairman, will
the gentleman yield?
Mr. MURPHY of Illinois. I yield to
the gentleman from Ohio.
Mr. ASHBfOOK. Mr. Chairman, I am
sure. my colleague did not" mean to say
the amendment would allow indiscrimi-
nate surveillance. It is only when there is
reason to believe, and those administer-
gentleman would not think it would allow
indiscriminate surveillance.
Mr. MURPHY of Illinois. We are
afraid that this is a door we would be
opening, and the FBI does not want this.
We specifically brought this up. to them.
I think the gentleman was there. They
do not want this amendment.
Mr. ASHBROOK. Mr. Webster indi-
cated he does not want this amendment?
Mr. MURPHY of Illinois. Definitely, on
a number of occasions in discussing it
with us in the committee and subcom-
mittee..
Mr. ASHBROOK. I thank my col-
league.
As I say, I hope the gentleman does
not believe this would permit Indiscrim-
inate surveillance.
AMENDMENTS OFFERED BY MR. ERTEL
Mr. ERTEL. Mr. Chairman, I offer
amendments.
The Clerk read as follows :
Amendment offered by Mr. ERTEL
Page 41, line 2, strike out "the Special
Court having jurisdiction under section 103"
and insert in lieu thereof "a United States
district court".
Page 41, line 8, strike out "Special Court"
and insert in lieu thereof "court".
Page 41, strike out line 13 and all that
follows down through line 2 on page 44 and
insert in lieu thereof the following:
JURISDICTION
SEC. 103. (a) The United States district
courts shall have jurisdiction to receive ap-
plications for court orders under this title
and to issue orders under section 105 of
this title.
(b) Proceedings under this title shall be
conducted as expeditiously as possible. If
any application to the United States dis-
trict.court is denied, the court shall record
the reasons for that denial, and the reasons
for that denial shall, upon the motion of
the party to whom the application was
denied, be transmitted under seal to the
United States court of appeals. -
Page 62, line 14, strike out "a judge des-
ignated pursuant to section 103" and insert
in lieu thereof "a judge having jurisdiction
under section 103".
Page 55, beginning on line 19, strike out
"shall be retained" and all that follows
down through line 22 and insert in lieu
thereof "shall be retained for a period of at
procedures approved by the Director of Cen-
tral Intelligence.".
Page 68, line 16, strike out "Special Court"
Page 58, beginning on line 17, strike out
"Unless all the judges of the Special Court
are so disqualified, the" and Insert in lieu
thereof "The".
Page 58, line 23, strike out "Special Court"
and insert in lieu thereof "court".
Page 58, line 25, strike out "Special Court"
and insert in lieu thereof "court".
Page 59, line 7, strike out "Special Court"
and insert in lieu thereof "court".
Page 59, line 24, strike out "Special Court
of Appeals" and insert in lieu thereof
"United States court of appeals".
Page 60, line 11, strike out "Special Court
of Appeals" and insert in lieu thereof "court
of appeals".
Page 60, line 17, strike out "Special Court"
and insert in lieu thereof "court
Page 60, line 18, strike out "Special Court
of Appeals" - and insert in lieu thereof
"court of appeals".
Page 60, line 24, strikeout "Special Court"
and Insert in lieu thereof "court".
Page 60, line 25, strike out "Special Court
of Appeals" and insert in lieu thereof "court
of appeals".
Page 61, beginning on line 7, strike out
"Special Court or Special Court of Appeals"
and Insert in lieu thereof "district court or
court of appeals".
Page 61, line 11, strike out "Special Court
of Appeals" and insert in lieu thereof "court
of appeals".
Mr. ERTEL. Mr. Chairman, I ask
unanimous consent that the amendments
be considered as read and printed in the
RECORD.
The CHAIRMAN. Is there objection to
the request of the gentleman from Penn-
sylvania?
There was no objection.
Mr. ERTEL. Mr. Chairman, I ask
unanimous consent that ,I present this
second amendment inasmuch as it
crosses jurisdictional lines. On page 5
of the typed amendment it goes into
title III as well, in one section:
The CHAIRMAN. Is the gentleman
asking that the amendments be consid-
ered en bloc? I
Mr. ERTEL. That is correct, Mr.
Chairman.
The CHAIRMAN. Is there objection to
the request of the gentleman from Penn-
sylvania?
There was no objection.
The CHAIRMAN. The Clerk will report
the remaining amendment.
The Clerk read as follows:
Amendment offered by Mr. ERTEL: Page 68,
beginning on line 14, strike out "the desig-
nation of the chief judges pursuant to sec-
tion .103 of this Act" and insert in lieu thereof
"such date of enactment".
Mr. ERTEL (during the reading). Mr.
Chairman, I ask unanimous consent that
the remaining amendment be considered
as read and printed in the RECORD.
The CHAIRMAN. Is there objection to
the request of the gentleman from Penn-
sylvania?
There was no objection.
(Mr. ERTEL asked and was given per-
mission to revise and extend his
remarks.)
Mr. ERTEL.- Mr. Chairman, I would
like to explain so the Members will un-
derstand what has happened and that
is that the first four pages of the amend-
ment, as offered, go to title I. and page
5 of the typed amendment, inasmuch as
the operational date of the bill depends
on the establishment of the court, it
would strike the section relating to that
and make it effective upon. enactment.
That is why I made the unanimous con-
sent request. So that there are really two
different provisions, one is title I, one is
title III.
The amendment basically is to strike
from the bill the provision providing for
the special courts under the bill. We will
be establishing a special court to sit in
the District of Columbia. Each chief
judge of each circuit will designate a per-
son who will sit here on the special court
and will be here on a rotating basis and
will decide on applications for surveil-
lance or wiretapping warrants. Inasmuch
as the amendment offered by the gentle-
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H 9148 CONGRESSIONAL RECORD-HOUSE September 6, 1978
man from Illinois (Mr. MCCLORY) has
been agreed to, which eliminates the need
for the warrants for, foreign nationals
and foreign embassies and foreign trade
missions, there is no reason to have this
special court sit.
As I understand it, within the past
few years there have only been two wire-
taps on American citizens. So, for the
few events, we are creating a special
court to sit here in the District of Co-
lumbia, having a judge here at all times
who may be designated from California,
Oregon, or some other place, requiring
this 11-man court to be impaneled at
all time requiring a separatb court of
appeals, and then for having separate
appeals to the Supreme Court. It is to
have a special court for this limited
purpose.
But, that is not my major objection
to this special court, my major objec-
tion to this special court, assuming it
were used, on a regular basis, then this
special court concentrates in one point
all of our counterintelligence activities
as far as the collection of information
concerning what is happening and what
has happened in the past, thus all
warrants would have to pass through
this court. If this particular court were
penetrated by any other intelligence op-
eration in the world they would have
complete knowledge of our entire
counterintelligence operations. -
So, Mr. Chairman, it would seem to
me that one of the fundamentals of in-
telligence collection is not to concen-
trate this information but to disperse
it so that the other counterintelligence
people do not know where to concen-
trate their own efforts. Under this bill
the information would be all concen-
trated in this court, and anyone who
penetrated it would know all of our
intelligence operations.
What my amendment would do is say,
look, we have a court system, let us use
it. You go to the district judge, he puts
it under seal. He handles it secretly and
the appeals lie with the circuit court
of appeals in that district, going right
on up the line.
I am not particularly wild about this
warrant procedure that has been set up
in the bill, but if we are going to have
it, then it seems to me we should disperse
it across the Nation.
Mr. DRINAN. Mr. Chairman, will the
gentleman' yield?
Mr. ERTEL. I yield to the gentleman
from Massachusetts.
Mr. DRINAN. Mr. Chairman, I com-
mend the insight of the gentleman, now
that the McClory amendment has been
agreed to there will be very little for this
court to do. But now it is not needed,
under the changed procedure, we do not
need these courts, as the gentleman from
Pennsylvania pointed out, for foreign
intelligence or foreign powers, so, how
many Americans are going to be subject
to the CIA and the FBI only.for intelli-
gence reasons? I would add an additional
reason for abolishing the courts is be-
cause they will have very little to do for
the courts under the bill as it has been
amended.
Mr. ERTEL. I agree with the gentle-
man and thank him for his comments.
Mr. MURPHY of Illinois. Mr. Chair-
man, I rise in opposition to the amend-
ments.
(Mr. MURPHY of Illinois asked and
was given permission to revise and extend
his remarks.)
Mr. MURPHY of Illinois. Mr. Chair-
man, the special court is better than using
existing district courts for reasons of both
security and civil liberties.
By restricting, the number of judges
who are exposed to this material, it re-
duces risks. By centralizing the court in
Washington, it enables cleared executive
personnel to be present to assist the court
in clerical functions, and it enables one
secure repository for records, rather than
using the insecure facilities of ordinary
district courts and clerks around the
country. It also insures that where speed
is of the essence, a judge is immediately
available, rather than perhaps 3,000 miles
away.
From a civil liberties point of view, the
court minimizes the ability of the execu-
tive to go judge shopping. Also, because
these judges-who are existing Federal
judges, not new ones-will have some ex-
perience with these annlications. they are
not as likely to be bowled over by the
executive waving the banner of national
security in a questionable case as a judge
who has never dealt with such an appli-
cation before.
Furthermore, there is ample precedent
for such a special court. The temporary
Emergency Court of Appeals was set up
in 1970 by the Fconoinic Stabilization Act
to hear appeals from wage and price deci-
sions. It is still in existence, hearing ap-
peals from certain Department of Energy
decisions.
Mr. Chairman, this special court is
composed of Federal judges designated
by the Chief Justice.
Finally, as the committee report notes,
the establishment of a snecial court was
said to be necessary by the General
Counsel of the Administrative Office of
the U.S. Courts for jurisdictional rea-
sons.
Mr. Chairman, the FBI, the CIA, the
National Security Council, and the Ad-
ministrative Office of the U.S. Courts are
the ones who requested the special court.
The idea was to minimize any leaks that
may occur if an official from the execu-
tive department had. to travel to any out-
lying districts in the United States, in
which case we would have the question
of personnel not being cleared for secu-
rity reasons. We would have the question
of filing of papers in a clerk's office where
there was no security for the papers or
for the application for the order.
The bill would provide one court here
in Washington where we could set up
secure files in a safe and where only
certain personnel could have access to
those files. We would have one judge at
one time sitting in Washington on an
emergency basis.
Mr.' Chairman, it has been suggested
that with the adoption of the McClory
amendment, we will not have much bus-
iness here in Washington for this spe-
cial court. This may be the case, but we
will have a judge at all times.
For instance, if the FBI's Counterin-
telligence Department gets information
from the NSA or the CIA that a Russian
spy is meeting in some spot in the United
States, under the bill they are allowed
to install a surveillance for 24 hours.
However, after that 24 hours, they have
to apply to the special court if it in-
volves an American citizen.
All we are providing for with this
special court in Washington is the ac-
cessibility to that Federal judge to
cleared personnel to assist him in han-
dling the application and any secret,
sensitive material that is presented to
the court.
By dispersing this setup throughout
the land, the very thing which the gen-
tleman from Illinois (Mr. McCLORY), the
gentleman from New York (Mr. STRAT-
TON), and others have argued here to-
day about security risks in bringing these'
matters before judges who are unsophis-
ticated in intelligence affairs will be
doubled or amplified tenfold.
Mr. ERTEL. Mr. Chairman, will the
gentleman yield?
Mr. MURHPY of Illinois. I yield to the
gentleman from Pennsylvania.
Mr. ERTEL. Mr. Chairman, may I ask
the gentleman this question: Is it not
true that under the existing law, the Of-
ficial Secrets Act of 1968, I believe, we,
in fact, do issue warrants in domestic
criminal cases which remain secret and
undisclosed except when required under
that particular statute?
Mr. MURPHY of Illinois. That is cor-
rect.
Mr. ERTEL. Does the gentleman know
of any compromise of that system which
existed in the United States since the
enactment of that law?
Mr. MURPHY of Illinois. No, but it was
the FBI, the CIA, the National Security
Council, and officials in the FBI who re-
quested this setup. They had security
concerns about these matters.
Mr. ERTEL. Does the gentleman know
of any specifically?
Mr. MURPHY of Illinois. I know of
none specifically. I am just quoting their
testimony to us.
Mr. ERTEL. In fact, do they not go
to the judge and meet with him and get
the order? And is it not a fact that one
of the doctrines of intelligence gathering
is to try and disperse your information;
-do not keep your eggs all in one basket
so that you do not lose everything if you
get that one basket penetrated?
The CHAIRMAN. The time of the
gentleman has expired.
(At the request of Mr. MAZZOLT, and by
unanimous consent, Mr. MURPHY of
Illinois was allowed to proceed for 2 addi-
tional minutes.)
Mr. MAZZOLI. Mr. Chairman, will the
gentleman yield?
Mr. MURPHY of Illinois. I yield to the
gentleman from Kentucky.
Mr. MAZZOLI. I thank the gentleman
for yielding.
I would just like to make a point. I was
listening to the discussion of the gentle-
man from Pennsylvania (Mr. ERTEL) in
which he was saying that apparently the
court processes work very well in do-
mestic warrant procedures, and on the
other hand he says let us get rid of the
courts because they will not work in the
other case. In one case he is saying we
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have great confidence; there have been It also should be pointed out that in These judges to be appointed for the
no leaks and no problems in dispersing it. the Keith case it is not just contemplated special court are indeed district judges of
On the other hand, he says get rid of the by the committee itself. The Supreme general jurisdiction who are temporarily
courts. I think the gentleman cannot Court said that a warrant in intelligence assigned for this purpose. They, are ro-
have it both ways. cases need not be based on the same type tated, and when they are rotated, they
It seems to me we are saying that if of standards and procedures required for go back to their circuits. But they are
the gentleman from Illinois and I on our law enforcement. In doing so the Court not special for this purpose in any per-
side carry the day, we are saying that stated the request for prior court author- manent sense. They are temporary, and
the court procedure is a great guarantee, ization could in sensitive cases be made they are assigned to the special courts
the best one We could think of to guar- to any member of a specially designated ordinarily through general competence.
antee the rights of the American citizens court. That is what has been provided Mr. ECKHARDT. Mr. Chairman,- may
and at the same time not put any un- here. But the question of forum shopping, I reply and ask this: How long do they
necessary impediment into the path of finding a secure U.S. District court judge serve once they have been appointed, and
intelligence-gatherers. That is all we are throughout the United States of 4 or how frequently do they rotate?
saying. 500-and after the judgeship bill there Mr. MAZZOLI. Mr. Chairman, will the
Mr. MURPHY of Illinois. There is no will be far more than 500 of them-may gentleman yield?
question that security and protection for be possible, but if we are concerned about Mr. ECKHARDT. I yield to the gentle-
the intelligence community is the reason the people affected by this, such forum man from Kentucky.
that this provision is in the bill. shopping would be the last thing on the Mr. MAZZOLI. Mr. Chairman, my
Mr. ERTEL. Mr. Chairman, will the Earth that we would want done in terms understanding is that they could- serve
gentleman yield, since my name was of the Government. * for only 6 years, and they could only
mentioned? On the other hand, the Government serve two terms. They could serve no
Mr. MURPHY of Illinois. I yield to has an interest in a secure court. This more than two terms.
the gentleman from Pennsylvania. court can be provided in the District of Mr. ECKHARDT. Mr. Chairman, after
Mr. ERTEL. I thank the gentleman Columbia. Just as the White House itself 12 years, that makes a man pretty much
for yielding. and the CIA are secure presumably, so a person of a special court.
I would like to clarify, since the gen- this court will be made secure. Mr. McCLORY. Mr. Chairman, will the
tleman stated my position, quite frankly I think the formula provided by the gentleman yield?
we do have a security risk if all of our bill is a reasonable one and should be Mr. ECKHARDT. I yield to the gentle-
information is in one court. Why? supported. This is one of the particular man from Illinois.
Because they attempt to penetrate that ways in which the House committee bill Mr. McCLORY. Mr. Chairman, the
court. If it is spread over the entire is much better than that of the Senate.
nation, our security risk is less- because Mr. ECKHARDT. Mr. Chairman, I gentleman's argument is very sound, and
they do not know where to go. That is move to strike the last word, and I rise the gentleman's argument is entirely
the problem they Would have. In support of the amendments. consistent with the constitutional struc-
Secondly, you know, we have got Mr. Chairman, I am not persuaded ture under which our courts are estab-
that we need a special court because our lished.
courts estab-
had a district
pretty good because we have security e all not our
tom- existing courts are not adequate to make The gentleman from Wisconsin (Mr.
proms m
promise; but ' if we concentrate it and the decisions here involved. I think that KASTENMEIER) has a misapprehension of
give them the target-and that would one of the bulwarks of our system in this what this bill provides, because original-
be this court here in Washington, D.C.- counn1ry rests on tradition of judicial ly there was provision for the appoint-
then they will concentrate on trying to process, and I think that the reason that ment of special judges, and the adminis-
penetrate it. So I think to put it back tradition of judicial process works is be- trator of the Federal court system ad-
into the district courts is an excellent cause cases are brought before judges vised the committee that we could not
experienced in trying all types of cases. have special judges. Consequently, they
point. I understand that a special court changed the concept from a special judge
Secondly, with all the district t ct_so say court would be nominated in each of the cir- to a special court, with this kind of un-
judges, is the gentleman trying cuits, and that the ultimate selection precedented type of procedure for ap-
hut we cannot find a secure district
court judge in these United States? I then would be by the Chief Justice the pointing cuits through these 11 the judges operation from of the the 11 cir-
think we can. Supreme Court. . I see no reason why y the
Mr. MURPHY of Illinois. I am not, Government could not find at least one cial conferences in these cases which, as
trying to say that at all. I appreciate secure and dependable judge within a I understand it, have no authority what-
district of the United States. If need be, ever to designate any special members of
and respect the gentlemn's viewpoint, one could be appointed in each of those a special court.
but I respectfully disagree, circuits for the purpose, but to appoint a I do not know whether this is a title I
Mr. KASTENMEIER. Mr. Chairman, I new court, a group of persons who may or a title III court. Nobody could explain.
move to strike the requisite number of try one case within a period of a year It is provided in legislation which is re-
words, and I rise in opposition to the or two and then try no more, men who lated to the whole subject of national
amendment. I do so mindful that both are not experienced in the general security, and it seems to me that this is
the gentleman from Pennsylvania (Mr. judicial process, it seems to me, would be the other part of the bill which should
ERTEL) and the gentleman from Massa- a dangerous process. be eliminated because, as I might state
chusetts (Mr. DRINAN) are esteemed I do not like special courts. Special further, since it was- testified earlier in
members of my Subcommittee on Courts, courts throughout history have been the year that there were no Americans
Civil Liberties, - and the Administration courts which are amenable to tyranny. who were subject to electronic surveil-
of Justice. I believe that the Select Com- The thing that protects our Nation from lance, and later the Attorney General did
mittee on Intelligence has worked out a tyranny, it seems to me,, is the custom, notify our committee that one American
necessary formula for the court strut- the practice, and the experience of judges had been subjected to electronic sur-
ture to handle these applications, and I to operate within due process of law. A veillance.
am aware of the fact that they have come special court appointed for a special per- The CHAIRMAN. The time of the gen-
to learn that one of their witnesses, Carl n?-o ,- -,,??,,, ??I' ,,,, ??..a..- __ ___ +I.-.- f,...,,, me-a- rra, 1..
oaucavc W,..,,V .,,. .- .ti. -41-, who are sitting for general purposes. (On request of Mr. MCCLORY and by
that constitutional problems existed with Mr. KASTENMEIER. Mr. Chairman, unanimous consent, Mr. EcKHARDT was
respect to granting nationwide jurisdic- would the gentleman yield on that point? allowed to proceed for 1 additional min-
tion to individual judges. Drawing on the
example of the temporary Emergency Mr. ECKHARDT. Surely, I yield to the ute.)
Court of 4ppeals, it is suggested that a gentleman from Wisconsin. Mr. McCLORY. But certainly this
special court be created and vested with Mr. KASTENMEIER. Mr. Chairman, I case, or any case, for that matter, in-
the jurisdiction in Federal judges as- wish to make this point, because I think volving a U.S. person, can be adequately
signed to it, and that is what they have there is a misapprehension as to what and competently taken care of, just as
done. the bill provides. title III cases for warrants for domestic
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CONGRESSIONAL RECORD-HOUSE September 6,
surveillance are taken care of at the
present time by the district courts.
Mr. ECKHARDT. Do I understand, in
order to-clarify the terms of the bill and
some of the questions that were asked
me, that the selection may be a total of
6 years, during which time the judges
engage in this activity alone?
Mr. McCLORY. That is correct.
Mr. KASTENMEIER. Mr. Chairman,
if the gentleman will yield, that is not
the understanding 's I have been in-
formed. You have 11 judges, one selected
from each circuit, and one of them at a
time serves in the District of Columbia
on these cases. There are not that many
cases. And that judge may serve tempo-
rarily for a period of 2 months, 4 months,
and he is rotated out and another judge
comes in. So when we are talking about
a special court we should understand
what is contemplated in terms of service
of a judge. This is a judge of general
jurisdiction, a U.S. district judge from
each of the 11 circuits.
Mr. ECKHARDT. For how long a
period of time is he assigned to a court?
That is what I am trying to get at.
Mr. KASTENMEIER. He is assigned
for a period of 6 years, but during that
6-year period he will sit in Washington
by himself for a short period of time,
perhaps 2 months, 4 months, and then be
rotated off, and one of the other 10 col-
leagues would serve.
Mr. ECKHARDT. But he will be the-
exclusive judge for this purpose?
Mr. KASTENMEIER. That is correct;
for that period of time.
Mr. ECKHARDT. During the period of
6 or 1~ years. I still think that is unnec-
essary.
Mr. McCLORY. Mr. Chairman, I move
to strike the requisite number of words,
and I rise in strong support of the
amendment.
Mr. Chairman, this strikes me as being
a very important amendment for the
Committee to adopt, because if there is
a part of the bill which, it seems to me,
is not only unprecedented but undesir-
able, it is this section which provides for
the establishment of the special court.
A I indicated, there was an attempt,
first of all, to assign special judges and,
presumably, it was thought that if we
had some special judge somehow or other
they could be relied upon to provide ap-
proval for electronic surveillance such as
the intelligence agencies might request.
But then when the committee was in-
formed that there was no authority for
special judges in the Federal court sys-
tem, this concept of a special court arose.
There have been a number of variations
of this provision proposed.
Mr. DRINAN. Mr. Chairman, will the
gentleman yield?
Mr. McCLORY. I yield to the- gentle-
man from Massachusetts.
Mr. DRINAN. Mr. Chairman, I am
happy to concur in the gentleman's judg-
ment. I voted against the McClory
amendment, but I think the gentleman
from Illinois (Mr. MCCLORY) is right on
target now. This would be a total altera-
tion of the structure of the Federal
courts. I think it would be a misuse.
Mr. Chairman, I concur in the state-
ment made by the gentleman from Texas
(Mr. ECKHARDT).
Mr. BOB WILSON.. Mr. Chairman,
will the gentleman yield?
Mr. McCLORY. I yield to the gentle-
man from California.
Mr. BOB WILSON. Mr. Chairman, did
I really hear correctly the colloquy a few
minutes ago in which it was stated that
a special court would be set up here in
the District of Columbia and judges
would be brought here in rotation every
month or two?
I suppose they would have to be
brought every month or two, because
they would go stir crazy because they
have had nothing to do. They have only
had one case in the last year or 2 years to
even consider, so this is a ridiculous situ-
ation. I am fully in support of the
amendment.
Mr. McCLORY. No one has any idea
how long or how short a time they would
sit here.
Mr. BOB WILSON. Or how expensive
it would be.
Mr. McCLORY. This is a completely
new concept. There is nothing constitu-
tionally which authorizes a special court.
As the gentleman from Texas (Mr.
ECKHARDT)'pointed out, we should be
wary of special courts which have spe-
cial prerogatives. It seems to me that
when we designate by the Constitution
a district judge, we empower that district
judge to hear and entertain all types of
cases, and to say that the rest of the ju-
diciary cannot hear applications for
warrants to engage in electronic surveil-
lance of U.S. persons-except these spe-
cial judges who may be considered
patsies for some executive, it would seem
to me to be a miscarriage of justice.
Mr. ECKHARDT. Mr. Chairman, will
the gentleman yield'?
Mr. McCLORY. I yield to the gentle-
man from Texas.
Mr. ECKHARDT. Mr. Chairman, I
wish to read the language in section 103,
which is the only language in the bill
having to do with this question of spe-
cial judges and their tenure:.
There is established a Special Court of the
United States with jurisdiction throughout
the United States to carry out the judicial
duties of this title. The Chief Justice of the
United States shall publicly designate at
least one judge from each of the judicial
circuits, nominated by the chief judges of
the respective circuits, who shall be mem-
bers of the Special Court and one of whom
the Chief Justice shall publicly designate as
the chief judge. The Special Court shall sit
continuously in the District of Columbia.
Now, there is nothing in that language
that says that these judges will continue
with their duties elsewhere. I recognize
that there is some language to that effect
in the committee report, but it seems to
me that we are setting afoot at least the
possibility of a court which deals in only
this subject matter. I think that is ex-
tremely dangerous.
Mr.-; McCLORY. The gentleman is cor-
rect. Let me say that if an application
for electronic surveillance was made to
a court in some other area of the coun-
try, because it was desired there, never-
theless it would be necessary to come to
Washington, D.C., in. order to have that
application acted upon.
Mr._ BOB WILSON. Mr. Chairman, if
the gentleman will yield further, does the
gentleman know whether any testimony
1978
was submitted from the administrator of
the courts as to the costs of this special
court? How many personnel would be
there to justify the court?
Mr. McCLORY. It would be entirely
speculation on that. Nobody knows how
long or when such a special court might
sit. That would depend entirely upon how
many applications for warrants were pro-
vided for. Apparently, if the bill is only
going to apply to U.S. persons, there are
going to be virtually none.
Mr. MURPHY of Illinois. Mr. Chair-
man, I rise in opposition to the amend-
ments.
The CHAIRMAN. The gentleman has
already spoken.
Mr. MURPHY of Illinois. Mr. Chair-
man, I move to strike the requisite num-
ber of words.
The CHAIRMAN. Without objection,
the gentleman from Illinois (Mr.
MURPHY) will be recognized for 5
minutes.
There was no objection.
Mr. MURPHY of Illinois. Mr. Chair-
man, I refer the gentleman from Texas
to the language of the bill itself. It says
that the court will sit continuously, not
the judge. I think that is an important
distinction. The court will be in existence;
the judges are rotated.
That was the testimony before the
committee, that they envision the judges
sitting about a month or 2 months, and
we asked what kind of court this would
be. Would this require more than one?
The response was that in the last year or
two there have only been two cases, so I
think this is a lot to do about nothing.
The court will sit continuously; there will
be rotating judges, the remaining judges
will be hearing cases continuously back
in their districts.
Mr. MAZZOLI. Mr. Chairman, will the
gentleman yield?
Mr. MURPHY of Illinois. I yield to the
gentleman from Kentucky.
Mr. MAZZOLI. My recollection is a
little dim, but it seems to me that at some
point in our hearings we propounded
these questions to our witnesses, who
suggested that the judges should come
to the District of Columbia to sit on the
special court, which meets continuously,
and could also hear other cases. They are
competent for the jurisdiction, and they
could be asked to sit in on the District
of Columbia Appellate Court.
Mr. MURPHY of Illinois. The gentle-
man is correct.
Mr. MAZZOLI. That means-and it
might answer the charge raised by the
gentleman from California (Mr. BOB
WILSON)-the cost will be minimal, be-
cause these jurists will be doing other
work in addition to this.
The CHAIRMAN. The question is on
the amendments offered by the gentle-
man from Pennsylvania (Mr. ERTEL). '
The question was taken; and the
Chairman being in doubt, the Commit-
tee divided, and there were-ayes 74,
noes 33.
RECORDED VOTE
Mr. MAZZOLI. Mr. Chairman, I de-
mand a recorded vote.
A recorded vote was ordered .
The vote was taken by electronic de-
vice, and there were-ayes 224, noes 103,
not voting 105, as follows:
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 September 6, g[pV@Dved For F Imo. 1yA ,: Mb$QSftM? 1000500040006-9
[Roll No. 7281
AYES-224
Akaka
Gaydos
Myers, Gary
Ambra
Gilman
Myers, John
Anderson,
Goldwater
Natcher
Calif.
Gonzalez
Neal
Andrews,
Goodling
Nedzi
N. Dak.
Gore
Nowak
Applegate
Gredison
Oaker
Archer
Grasaley
Oberstar
Ashbrook
Gudger
Ottinger
AuCoin
Guyer
Panetta
Badham
Hagedorn
Pease
Befalls
Hall
Perkins
Baucus
Hammer-
Pickle
Bauman
schmidt
Poage
Beard, R.L
Hanley
Preyer
Bedell ,
Hannaford
Pritchard
Benjamin
Heftel '
Purselt
Bennett
Hulls
Rahall
Bevill
Holland
Regula
Bonker
Hollenbeck
Rinaldo
Breaux
Holt
Risenhoover
Brown, Mich.
Holtzman
Roberts
Brown, Ohio
Horton
Robinson
Broyhill
Hubbard
Roe
Buchanan
Ichord
Rousselot
Burgener
Jacobs
Roybal
Butler
Jenrette
Rudd
Carney
Johnson, Calif. Runnels
Carter
Jones, N.C.
Ruppe
Cavanaugh
Jones, Okla.
Sarasin
Cederberg
Jones, Tenn.
Satterfield
Chappell
Jordan,
Sawyer
Clausen,
Kazen
Schroeder
Don If.
Kelly
Schulze
Cleveland
Kildee
Sebelius
Cohen
Kostmayer
Seiberling
Coleman
Krebs
Shuster
Collins, Ill.
Lagomarsino
Simon
Collins, Tex.
Latta
Skelton
Conable
Le Fahte
Smith, Nebr.
Conyers
Leach
Snyder
Corcoran
Lederer
Spence
Coughlin
Lent
St Germain
Crane
Livingston
Staggers
Cunningham
Lloyd, Tenn.
Stangeland
D'Amours.
Lott
Steed
Daniel, Dan
Lujan
Stratton
Daniel, R. W.
Luken
Taylor
Davis
McCrory
Thornton
de la.Gerzea
McCormack
Treen
Delaney
McDonald
Trible
Dent
McEwen
Udall
Devine
McFall
Vander Jagt
Dicks
McHugh
Vento
Dingell
McKay
Waggonner
Drinan
McKinney
Walgren
Duncan, Tenn.
Madigan
Walker
Eckhardt
Maguire
Walsh
Edgar
Mahon
Wampler
Edwards, Ala.
Marlenee
Watkins
Edwards, Okla.
Marriptt
Weaver
Emery
Martin
Weiss
English
Mathis
White
Ertel
Michel
Whitehurst
Evans, Del.
Mikulski
Whitley
Evans, Ga.
Milford
Whitten
Evans, Ind.
Miller, Ohio
Wilson, Bob
Findley
Minish
Wilson, Tex.
Flippo
Mitchell, N.Y.
Winn
Flood
Mollohan
Wolff
Flynt
Montgomery
Wylie
Foley
Moore
Yatron
Ford, Tenn.
Moorhead,
Young, Fla.
Fountain
Calif.
Young, Mo.
Frenzel
Mottl
Zeferetti
Fuqua
Murphy, Pa.
Gammage
Murtha
NOES-103
Addabba
Clay
Fowler
Alexander
Conte
Gephardt
Annunzio
Corman
Giaimo
Aspin
Cornell
Ginn
Baldus
Cotter
Glickman
Biaggi
Danielson
Green
Bingham
Dellums
Hamilton
Blanchard
Derrick
Harkin
Blouin
Derwiuski
Harris
Boland
Dodd
Heckler
Bolling
Downey .
Howard
Bonier,
Early
Hughes
Brademas
Edwards, Calif. Jenkins
Breckinridge
Eilbergg
Kastenmeier
Brinkley
Fascel
Keys
Brodhead
Fenwick
LaFalce
Brown, Calif.
Fisher
Leggett
Burlison, Mo.
Fithian
Levitas
Burton, John
Florio
Lloyd, Calif.
Carr,
Ford, Mich.
Long, La.
Loi
AI
Patten
Spellman
Lundine
M
M
Patterson
Steers
McDade
Pike
Stokes
Mann
Price
Studds
Markey
Rangel
Thompson
Marks
Reuse
Tucker
Mattox
Rodino
Vanik
Mazzola
Roncalio
Volkmer
Metcalfe
Rose
Waxman
Mineta
Rosenthal
Whalen
Moorhead, Pa.
Russo
Wright
Murphy, Ill.
Santini
Yates
Myers, Michael
Scheuer
Zablocki
Nolan
Sharp
Obey
Solarz
NOT VOTING-105
Abdnor
Frey
Pressler
Ammerman
Garcia
Quayle
Anderson, Ill.
Gibbons
Quie
Andrews, N.C,
Hansen
Quillen
Armstrong
Harrington
Rallsback
Ashley
Harsha
Rhodes
Barnard
Hawkins
Richmond
Beard, Tenn.
Hefner
Rogers
Beilenson
Hightower
Rooney
Boggs
Huckaby
Rostenkowski
Bowen
Hyde
Ryan
Brooks
Ireland
Shipley
Broomfield
Jeffords,
Sikes
Burke, Calif.
Johnson, Colo.
Sisk
Burke, Fla.
Kasten
Skubitz
Burke, Mass.
Kemp
Slack
Burleson, Tex.
Kindness
Smith, Iowa
Burton, Phillip Krueger
Stanton
Byron
Lehman
Stark
Caputo
McCloskey
Steiger
Chisholm
Meeds
Stockman
Clawson, Del
Meyner
Stump
Cochran
Mikva
Symms
Cornwell
Miller, Calif.
Teague
Dickinson
Mitchell, Md.
Thone
Diggs
Moakley
Traxler
Doman
Moffett
Tsongaa
Duncan, Oreg.
Moss
Ullman
Erlenborn
Murphy, N.Y.
Van Deerlin
Evans, Colo.
Nichols
Wiggins
Fary
Nix
Wilson, C. H.
Fish
O'Brien
Wirth
Flowers
Pattison
Wydler
Forsythe
Pepper
Young, Alaska
Fraser
Pettis
Young, Tex.
Mr. OTTINGER and Mr. WOLFF
changed their vote from "no" to "aye."
So the amendments were agreed to.
The result of the vote was announced
as above recorded.
Mr. MURPHY of Illinois. Mr. Chair-
man, I move that the Committee do now
rise.
The motion was agreed to.
Accordingly the Committee rose; and
the Speaker pro tempore (Mr. WRIGHT)
having assumed the chair, Mr. YATES,
Chairman of the Committee of the
Whole House on the State of the Union,
reported that that Committee, having
had under consideration the bill (H.R.
7308) to amend title 18, United States
Code, to authorize applications for a
court order approving the use of elec-
tronic surveillance to obtain foreign in-
telligence information, had come to no
resolution thereon.
GENERAL LEAVE
Mr. MURPHY of Illinois. Mr. Speaker,
I ask unanimous consent that all Mem-
bers may be permitted to revise and ex-
tend their remarks, and include extra-
neous matter, on H.R. 7308, the bill just
under consideration.
The SPEAKER pro tempore. Is there
objection. to 'the request of the gentle-
man from Illinois?
There was no objection.
H 9151
PERMISSION FOR COMMITTEE ON
WAYS AND MEANS TO HAVE UNTIL
MIDNIGHT, ? MONDAY, SEPTEM-
BER 11, 1978, TO FILE REPORT,
ALONG WITH ANY SEPARATE OR
MINORITY VIEWS, ON H.R. 13750,
SUGAR STABILIZATION ACT OF
1978
Mr. VANIK. Mr. Speaker, I ask
unanimous consent that the Committee
on Weys and Means may have until
midnight, Monday, September 11, 1978,
to file a report, along with any separate
or minority views, on the bill (H.R.
13750) to implement the International
Sugar Agreement between the United
States and foreign countries; to protect
the welfare of consumers of sugar and
those engaged in the domestic sugar-
producing industry; to promote the ex-
port trade of the United States; and for
other purposes.
The SPEAKER pro tempore. Is there
objection to the request of the gentle-
man from Ohio?
There was no objection.
SALT PACT ILLUSTRATES NEED
FOR BRICKER AMENDMENT
(Mr. ASHBROOK asked and was given
permission to address the House for 1
minute.)
Mr. ASHBROOK. Mr. Speaker, the
upcoming debate on the SALT agreement
once again illustrates the need for swift
enactment of the Bricker amendment.
This important amendment which I am
sponsoring would put constitutional
safeguards on the use of executive agree-
ments in conducting foreign policy.
As you may have read, the Carter ad-
ministration is considering the possibil-
ity of submitting the SALT accord as an
executive agreement requiring only a
simple majority vote in Congress. This
would get around the two-thirds vote
needed for passage of a treaty. The goal,
of course, would be to avoid a difficult
battle for ratification such as occurred
during the recent Panama Canal debate.
That the Carter administration would
even consider this tactic is incredible.
It is a thinly disguised attempt to evade
the normal treatymakng process.
Call it what you will, the SALT agree-
ment should require a two-thirds vote for
ratification. It is too important an issue
to be handled in a cavalier manner by
President Carter.
We should call a halt to this game of
words.. Congress must not abdicate its
responsibility on a matter as crucial as
the security of our Nation.
The Bricker amendment which I have
introduced for the past several Con-
gresses would erect a safeguard for this
type of problem. An executive agree-
ment would be handled like a treaty. The
name, whether the President calls it a
treaty or an executive agreement, would
not change the necessity of receiving a
two-thirds vote.
The Bricker amendment would pre-
vent unnecessary delegation of power
by Congress to the President. It would
help restore a proper congressional role
in foreign affairs. It is time that this
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 H 9152
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CONGRESSIONAL RECORD-HOUSE September 6, 1978
important amendment was added to our
Constitution.
THE LAST CLEAR CHANCE TO AVOID
A COMMUNIST TAKEOVER IN
RHODESIA
The SPEAKER pro tempore. Under a
previous order of the House, the gentle-
man from Florida (Mr. SIKES) is recog-
nized for 30 minutes.
? Mr. SIKES. Mr. Speaker, the free
world is confronted with its last clear
chance to avert a bloodbath and a Com-
munist takeover in Rhodesia. I am con-
vinced of this. following recent talks in
that country with officials of several min-
istries and the U.S. Government.
Only the United States and Britain in
the Western World now seem concerned.
This interest still is directed more to
bringing guerrilla leaders into the coali-
tion than to helping the coalition estab-
lish an impressive' record. Confidence In
the government has deteriorated and it
now appears necessary to bring one or
both of the so-called patriotic front
movements into the government to pre-
vent a civil war which experts say could
not be won by government forces.
Obviously it is important that we de-
vote stronger efforts to shoring up the
coalition while negotiations continue
with guerrilla leaders. Nothing would
have been more painful than recognition
and an exchange of ambassadors. Appar-
ently this is not being considered.
The entire situation is much too remi-
niscent of the Vietnam experience which
Americans sadly remember.
The guerrilla leaders Mugabe, based in
Mozambique, and Nkomo, in~ Zambia,
have conducted terrorist raids in Rhode-
sia for many months. Now they are train-
ing larger forces for invasion when the
time is ripe. Both are heavily supplied
with Russian weapons. Cuban advisers
and Russian experts have been identified
as aiding them. At one time the Chinese
were involved. This is no longer certain.
The guerrillas now have infiltrated
most of Rhodesia and out of fear many
local residents are quietly supporting
them.
Rhodesian troops are effective but they
cannot be everywhere at once and ter-
rorist raids are becoming more effective,
killing, and burning. At present the coa-
lition government is not reaching the
black populace, who want more evidence
of change to black control. The people are
becoming more and more resigned to a
take-over by Nkomo or Mugabe support-
ers. Rhodesian officials feel strongly that
British and United States are to blame
for their country's problems. Some of
them still hold the view that they can
win despite today's gloomy prospects and
delay a take-over by the foreign based
blacks.
Nkomo and Mugabe are gaining con-
verts rapidly. Support is falling away
from the coalition. The government says
it is through fear of reprisal-others say
it is because of lack of action by Rho-
desian Government following the estab-
lishment of a coalition. Probably both
are contributing factors.
There is the possibility the civil war
will find the forces of Nkomo and Mu-
gabe pitted against each other as well.as
against the Rhodesian Government
forces. Such a development would leave
the country almost totally destroyed and
the white population. killed or driven out.
The black nations which fear the
spread of Communism are reluctant to
speak out against the establishment of
another black government, regardless of
its leanings.
An election to establish a new govern-
ment has been promised in December but
there has been talk of postponement. To
postpone the election would add fuel to
the cause of Nkomo and Mugabe. Delay
in writing a new constitution and sub-
mitting it to a vote will have a similar
effect.
Unless there is an early move to meet
black aspirations there will be an ex-
plosion which quickly can be destructive
to an industrious and progressive coun-
try. Many of the whites are reluctant to
accept the, inevitability of change and
are unwilling to share power.
The irony of the situation is that
neither Nkomo nor Mugabe would offer
the one man, one vote ideal of the West,
which the West has been seeking to bring
about in Rhodesia. Neither has indicated
he would provide a true majority gov-
ernment.
In summary, Rhodesia is harassed
from within by increasing terrorist at-
tacks, threatened by civil war, and pres-
sured by economic sanctions by the
United States and other nations. We
helped to create the situation and the
Russians are taking advantage of it.
We should portray the Russian in-
volvement in its true colors as another
attempt to seize territory and, control
the lives of people. There is no excuse for
U.S. ineptitude in dealing with Commu-
nist aggression. It has been demon-
strated in Rhodesia. Time is running out
for our interests. Only an immediate and
vigorous and more meaningful effort will
prevent Communist control there.*
THE MOOD OF THE 20TH
The SPEAKER pro tempore. Under a
previous order-of the House, the gentle-
man from California (Mr. GOLDWATER)
is recognized for 5 minutes.
? Mr. GOLDWATER. Mr. Speaker, I am
always gratified to return to my district
during a recess of the Congress to dis-
cuss the concerns of my constituents.
During the past 2 weeks I have had the
opportunity to talk with the people of
the 20th Congressional District in Cali-
fornia about their priorities for Congress
in these closing weeks of our term.
We have been given a tall order, Mr.
Speaker. For some time there have been
rumors that mail will not be delivered
because of a threatened strike by postal
workers. With a recently released Gallup
poll showing decided disapproval of
strikes by public service employees, Con-
gress cannot stand :idly by with such ac-
tion by labor hangingover our heads.
A Harris poll which was also taken
during the recess indicates that 3 out of
4 Americans believe that prices are ris-
ing faster now than a year ago. When
this poll was taken in 1977, less than half
of those questioned were of the opinion
that the cost of goods and services at the
marketplace were higher than In the pre-
vious year. With all the talk of pay raises
for the American worker, it is interesting
to note that better than 2 out of 3 union
members would be willing to lower their
pay hikes if there, were some assurance
that government was keeping the spiral-
ing cost of living under control. But in-
flation simply wipes out any increase in
the size of the worker's pay check.
With the results of these polls in mind,
and after talking with the residents of
my district, I certainly plan to do my best
as a Member of the House to make cer-
tain that every bill we consider is con-
sistent with a sound fiscal policy. Al-
ready, 22 States have passed resolutions
calling for a constitutional convention to
mandate a balanced Federal budget as a
constitutional requirement. As a Wall
Street Journal editorial put it so elo-
quently last Friday, what these States
are saying essentially, is that "Congress
cannot be trusted with money." I take no
sense of pride in this attitude toward the
Congress. The only way we can shake
this reputation is demonstrate our com-
mitment to a sensible plan for Govern-
ment spending.
Then too, there is the issue of ethics
in Government. I thought our experience
with Watergate a few years ago was an
example of how not to behave in public
office. But the recent disclosures of wide-
spread corruption in the General Serv-
ices Administration are infuriating the
taxpayers in my district, and making
many wonder when all of this will stop.
I even saw one report just the other day
of a worker who managed to get unem-
ployment compensation by using his
dog's name. For the Government to be
unable to detect these illegal activities
in its own house is a crime in itself.
It is no wonder that a Los Angeles
Times poll conducted while I was in my
district, revealed that at least as many
people who voted for proposition 13 last
June, are favorably impressed with its
results. By the same token, nearly 70 per-
cent of the people feel that their elected
officials are not "making an honest ef-
fort" to carry out the provisions of the
initiative.
So there is much to do as we prepare
for adjournment. The mood of the 20th
Congressional District in California re-
flects the impatience of its citizens, I
think, Mr. Speaker, their mood Is the
mood of the Nation.?
SELLING EFT SERVICES,
NOT ACRONYMS
Th SPEAKER pro tempore. Under a
previous order of the House, the gentle-
man from Illinois (Mr. ANNIINzIO) Is
recognized for 5 minutes.
? Mr. ANNUNZIO. Mr. Speaker, what do
Ginny the Green Machine, the Wizard
of Ease, Homefolk's Honey, Goldie your
Golden Teller, Girl Friday, and 24-hour
Jill have in common?
These names all represent efforts by
the banking industry to humanize the
rapidly growing system of electronic fund
transfers (EFT's) -the so-called "cash-
less, checkless society of the future."
The realities of this future society have
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