FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1977

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000500040007-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 28
• Document Creation Date: December 19, 2016
• Document Release Date: September 20, 2005
• Sequence Number: 7
• Publication Date: April 20, 1978
• Content Type: OPEN

April 20, l ~fff roved For RelMJMJa/ 3A-C ffiRP OSO1268AOE 500040007-8
the United States is base upon free enter- sentative popular government, but too
prise; and fen, A
e-.---- ,__--
-
or
are inexorably bound with r principles of realize, that the united States is also the
individual political freedom; d greatest experiment In free private en-
Whereas the belief of Am scans in the terprise-in capitalism, in the history of
essential justice of free ente rise is being the world. It is unfortunate so few people
increasingly challenged thro gllout the realize this, because as heirs to the
Resolved by the Senate and Ho%kse of Rep- economic system, Americansshould
resentatives of the United States $i America understand the basis and reasons for our
in Congress assembled, That the president current prosperity. They should under-
is authorized and requested to issu ~a pros- stand that our political freedoms and
lamation designating July 1, 1978, ate "Free our material well-being are inexorably
Enterprise Day" and calling upon the people intertwined. And they should under-
of the United States and interested g ups stand it before the
and organizations to observe such day Nth y lose it.
appropriate ceremonies and activities. Every society must resolve three fun-
The ACTING PRESIDENT pro teen', damental economic problems: First, how
much of and which goods and services it
pore. Is there objection to the immedi- shall produce; second, how shall it pro-
ate consideration of the resolution? \duce these goods; and third, who is to
Mr. ROBERT C. BYRD. Mr. Presi- eceive the benefit of these goods and
dent, the joint resolution has been ss\rvices? The United States, predomi-
cleared on this side of the aisle. We have na fitly, has solved these problems with a
no objection. system of privately determined prices
Mr. BAKER. Mr. President, reserving and "markets. By -allowing such decisions
the right to object, and I shall not ob- to be ',inade privately, under the pressure
ject, the joint resolution has been cleared of pri4e competition and consumer de-
with the ranking member of the juris- mand, we have provided for our collec-
dictional committee and we have no db- tive wel},being, as well as for our ndi-
jection to its consideration and passage. vidual fieedoms. Our capitalist free
The ACTING PRESIDENT pro tem- enterprisessystem has proven itself capa-
pore. Without objection, the Senate will ble of feedit g, housing, clothing, trans-
proceed to its immediate consideration, portng, educating, entertaining and
and, without objection, the joint resolu- freeing an e3pr-growing population at
id
d
tine will he .,.,n
s
ere
va v --- V.-U.
Mr. HARRY F. BYRD, JR. Mr, Presi-
S 5993
ample, I quote from Steward Holbrook's
"The Story of American Railroads" :
In a little more than two decades, three
transcontinental railroads were built with
government help. All three wound up in
bankruptcy courts. And thus, when James
Jerome Hill said he was going to build a
11ne from the Great Lakes to Puget Sound
without government cash or land grant,
even his close friends thought him mad.
But his Great Northern arrived at Puget
Sound without a penny of federal help, nor
did it fail.
Thank goodness this took place be-
fore the era of doctrinaire Government
intervention in the economy, and the
Government limited its involvement to
10 percent. Very soon private enterprises
built railroads which crisscrossed the
entire Nation.
Our economy has changed drastically
since then, but Government policies have
changed even more drastically. Within
the last 40 years there has been a great
deal of legislation passed by Congress
which does not accept the free market
as the basis for our economic organiza-
tion. It does not foster competition or
enhance growth. Instead it hampers
competition and promotes inefficient pro-
duction, featherbedding, inflation, and
Government regulation. All of which
means a lower standard of living and
less personal freedom for everyone.
As a result of such Government poli-
of the world, cies, our economy has been suffering from
rising unemployment and inflation, as
Among the many different things that well
- --
csponsible 4or the phenomenal
a_ num ? pe ple
tor from Oklahoma (Mr. BARTLETT) for growth in this country's wealth were vestment. Yet a large number of people
resentn
thi
n t
p
g
his country apparently want more
s joint resolution. I do an ambitious people, ountifu resources,
not know of anything more important to and a government t bat permitted Government to be a big b eThey want ro-
the economic well-being of the majority encouraged its citizen topexer exercise it vide more to or a big services, to guarantee
nof our citizens than the perpetuation of ingenuity. The Govern nt's policy, for e higher more and higher more coma d to prthe free enterprise system. the most ri higher and me incomes, and to pro-
the is under the free enterprise system capital' smpIt
us from more and more risks
The
vat
.
y
e enter- are
supported
that the overwhelming majority of the prise, competition, and e~ nt produc- are asking the Government to provide a
people of our Nation have attained the tion. people ~, utopia are an re E asking f foor a l theesee things such extent
highest standard of living of any nation se things out of
For example, in 1862, Congraks passed ignorance-ignorance of what our mar-
in the world, the Homestead Act. It gave each, person ket system means to them and ignorance
What so deeply concerns me about willing to take the risks of movirik west of the consequences of what they are
what has been going on in Washington 160 acres of land, for a small fee, If he asking for.
for so long, and what is going on in lived on and improved that land fqr 5 In an effort to provide utopia, the
Washington now, are the unsound poli- years. Subsequent acts provided land Government has grown out of control.
ties, excessive regulation, and uncon- even cheaper. The cheap land and the Last year, government at all levels em-
trolled spending which, if not checked, West's rich resources drew settlers out ployed more than 14 million people. That
will destroy the free enterprise system. in droves. The first settlers often found is about 16 percent of America's work
I am very pleased that the Senator life hard, but the resources and oppor- force. In recent years, Government em-
from Oklahoma has introduced this res- tunities for success drew more and more ployment has grown four times as fast as
olution and I am pleaseii that the Senate people west. America's industrial revolu- private employment.
appears prepared to adopt the tion led to great increases in produc- .Increasing Government regulation of
resolution. tivity for all the westward moving peo- the country's industries has distorted
Mr. BAKER. Mr. President, I associate ple. Farmers soon became involved in the price-setting mechanism of the
myself with the remarks of the distin- production for national, as well as in- marketplace. Government regulation
guished Senator from Virginia and offer ternational, markets with the introduc- has been one of the major causes of in-
my commendation to the distinguished tion of railroads.
Senator from Oklahoma for taking this creasing costs and of shortages since the
The private railroads, in fact, helped Second World d War-in housing, energy,
nergy,
initiative at this time. I think he does a make the far-flung territories of North credit, cars-the list is nearly endless.
great service to this country and to the America a nation. Yet it is an American Government control of the economy, no
Senate for bringing it, to our attention myth that our railroads were built matter on whose behalf it has ostensibly
for action at this point. I hope we can mainly through the financial help of the been undertaken, has been the primary
proceed now to its adoption. Government and would have been im- source of all the economic evils in our
?Mr. BARTLETT. Mr. President, if I possible without it. In fact, the railroads industrial history.
may briefly comment on the remarks of serve as an early example of the disas- Despite all this, many people persist in
the distinguished Senator from Virginia trous effects government control and demanding that the Government provide
and compliment him for them. Also, I participation can have on private en- more-more of everything to make life
wish to join not only with him but with terprise. Government help to the rail- easier and less risky. The problem is that
the remarks of the minority floor leader, roads amounted to 10 percent of the Government intervention does not make
Mr. President, all Americans learn at cost of all the railroads in the country, life easier; it never has and it never will.
an early a
that
the the g eat historical expUnited States Is but even iment in repre- disastrous httoolihe railroads. As an ex- and intervention inv the Government can
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CONGRESSIONAL RECORD -SENATE April 20, 1978
never possibly be sophisticated enough to I have long thought that this is one of
make the millions of decisions which de- the most remarkable achievements. in
termin.e what Americans buy, how much American history. As a newspaper cor-
they buy, and at what prices they buy respondent, I was in Berlin shortly
was to the
do market t In systeas fact, as the howeimportant cthatt airlift first
it. been n able the to free
economy becomes more complex we people of Berlin.
should. be relying increasingly on the During the 327 days that the Berlin
marketplace, not the opposite, as is the blockade was in effect, General Clay's
actual case today. The forces of demand airlift carried a total of 2,343,000 tons
f f d and coal! 2 343 000 tons of these
00
erate best, to the benefit of all, in a free
market. In addition, the free market sys-
tem is the only system in mankind's his-
tory which has affirmed the right of the
individual to make these decisions for
himself and to recognize that by so doing
we all benefit. Capitalism is the only
system of economic organization that
asserts that men are free and not just
creatures of the Government.
Mr. President, our society has faced
many dangers in its 200-year history,
but none, I believe, are so alarming as
the withering of the will to, succeed on
one's own, and the confusion into which
the moral justification for free enter-
prise has fallen. Therefore, we must
demonstrate as best we can, and cele-
brate whenever we can, the economic
efficiency and essential moral justice of
our free market capitalist system. I have
introduced the resolution calling for the
ident to set aside July 1, 1978, as
Pre
s
"Fret; Enterprise Day" and I urge all my
colleagues to support it.
The joint resolution (S.J. Res. 128)
was ordered to be engrossed for a third
reading, was read the third time, and
passed.
The preamble was agreed to.
Mr. BARTLETT. I move to reconsider
the vote by which the joint resolution
was passed.
Mr. BAKER. I move to lay that motion
on the table.
The motion to lay on the table was
agreed to.
SPECIAL ORDER
The ACTING PRESIDENT pro tem-
pore. Under the previous order, the Sen-
ator from Virginia (Mr. HARRY F. BYRD,
JR.) is recognized for not to exceed 15
minutes.
O
essential supplies were brought into Ber-
lin by air.
That is an average of some 7,000 tons
a day.
It was the spirit and the genius, the
perseverence, the determination, and the
capacity of Lucius Clay, backed by a
resolute President, Harry Truman,
which made this operation the success-
ful feat that it was.
I think the United States and the free
world and; of course, the German people,
owe General Clay a great debt of grati-
tude. I wanted to say these few words to-
day in regard to one of America's ablest
sons.
RHODESIA: WHY? WHY? WHY?
Mr. HARRY F. BYRD, JR. Mr. Presi-
dent, the Washington Star yesterday
published an excellent editorial on the
situation in Rhodesia.
This editorial points out the folly of
the present policy of our State Depart-
ment.
Our State Department is attempting
police, and a "predominant" role in the tran-
sitional. government. As for the future, Mr.
Mugabe now denounces political variety-
that is, the toleration of any political parties
other than his own-as a "luxury."
These views are unacceptable to the new
government in Salisbury, where Prime Min-
ister Ian Smith and his National Front have
set in motion a plan for majority rule,
adopted a new constitution, and released
political prisoners.
So what is the gain? The aim of the Anglo-
American plan, supposedly, is to avoid a civil
war. But its effect may ultimately be other-
wise. The other day in Nigeria, President
Carter subscribed to a communique describ-
ing the new internal government in Rhode-
sia as illegal. We are not sure what that
means. It may be illegal in the sense in
which the Continental Congress was illegal
in 1776, for whatever ice that cuts.
The heart of the matter, however, is that
Bishop Muzorewa and the other black lead-
ers inside Rhodesia have a far larger political
constituency than either Mr. Nkomo (who
has a slight one) and Mr. Mugabe (who re-
portedly has next to none). The hope of the
latter two for power in Rhodesia-other than
by shooting their way in-is kept alive today
by an unholy collaboration between the U.S.,
Great Britain, and their arms suppliers in
the Soviet Union.
If the issue is, as advertised, democratic
rule in Southern Africa, will someone please
explain to us how that objective is advanced
by continuing to abase ourselves before those
who spout anti-democratic and authoritar-
ian demands?
Mr. HARRY F. BYRD, JR. I yield back
the remainder of my time and suggest
the absence of a quorum.
The ACTING PRESIDENT pro tem-
pore. The clerk will call the roll. The as-
sistant legislative clerk proceeded to call
the roll.
Mr. KENNEDY. Mr. President, I ask
unanimous consent that the order for the
to force the three moderate black leaders
and Ian Smith, the four of whom have
reached an agreement as to majority
black rule in Rhodesia, to bring into the
new government Marxist-oriented ter-
rorist guerrillas. Our State Department
is not satisfied with a transition to black
rule under moderate black leadership,
but demands much more.
It is attempting to force Rhodesia to
include in its government Marxist-
oriented terrorists, who are fighting the
Rhodesian people from bases outside of
Rhodesia.
The Star editorial brings out, in my
judgment, a very important point in re-
gard to this Rhodesia matter. I ask
unanimous consent that it be printed at
this point in the RECORD.
There being no objection, the editorial
was ordered to be printed in the RECORD,
as follows:
RHODESIA: WHY, WHY, WHY?
quorum call be rescinded.
The ACTING PRESIDENT prd te:
pore. Without objection, it is so ordr
ROUTINE MO lIN `BUSINESS
Mr. RO RT C YR . Mr. President,
I ask unanous consen that there be a
brief pgrio or the transac, }on of rou-
A REMARKABLE AMERICAN-
GEN. LUCIUS D. CLAY
Mr. HARRY F. BYRD, JR. Mr. Presi-
dent, I rise to say a few words in regard
to a remarkable American, who died this
week.
Gen. Lucius D. Clay was one of our
country's ablest sons. General Clay served
as military governor of Germany and
then as commander of the U.S. Armed
Forces in Europe immediately following
World War II.
General Clay held that important posi-
tion in 1948 and 1949, at which time, the
Soviet Union put into effect a land block-
ade of West Berlin.
General Clay came to Washington, met
with then President Truman, and as-
serted his confidence that, given the air-
planes, General Clay could supply Berlin
indefinitely without war through what
became known as the Berlin Airlift.
The road to Dar es-Salaam, like a more
famous road, is paved, with good intentions.
And is it really less treacherous?
There, in the capital of Tanzania, an
Anglo-American diplomatic team (Secretary
Vance, Ambassador Young, and Dr. Owen, the
British foreign secretary) met again with
Joshua Nkomo and Robert Mugabe, the fire
eating leaders of the Rhodesian Patriotl,'
Front.
Afterwards, the parley was pronounced a
success, inasmuch as Messrs. Nkomo and
Mugabe said they might join an "all-party"
conference on Rhodesia's future. If this is
success, what would failure consist of? The
two guerrilla leaders haven't given an inch
on the tough program they outlined at Malta
some weeks ago. In fact, they have tough-
ened it. They still want a single-party dicta-
torship on Marxist lines in Rhodesia. They
still demand control of the army and the
T l A6I ING 1 Sir nin' pro tem-
pore. Is the rt r ornmg business?
If not, morx '1X b siness is closed.
FOREIGN INTELLIGENCE SURVEIL-
LANCF,t ACT OF 1977
The ACTING PRESIDENT pro tem-
pore. Under the previous order, the Sen-
ate will now proceed to the consideration
of S. 1566, which the clerk will state by
title.
The assistant legislative clerk read as
follows:
A bill (S. 1566) to amend title 18, United
States Code, to authorize applications for a
court order approving the use of electronic
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April 20, 1978 CONGRESSIONAL RECORD -SENATE
surveillance to obtain foreign intelligence
information.
The Senate proceeded to consider the
bill, which was reported from the Com-
mittee on the Judiciary with amend-
ments; and from the Select Committee
on Intelligence with amendments.
The ACTING PRESIDENT pro tem-
pore. Time for debate on this bill is
limited to 2 hours, to be equally divided
and controlled by the Senator from
Massachusetts (Mr. KENNEDY) and the
Senator from South Carolina (Mr.
TnURMOND), with 1 hour on any amend-
ment, with 30 minutes on any debatable
motion or appeal, and with 20 minutes
on any point of order.
Mr. BAYH. Mr. President, I ask unani-
mous consent that the following mem-
bers of my staff and the staff of the
Select Committee on Intelligence be
granted privilege of the floor during pro-
ceedings on S. 1566 and during the vote
on the bill and any amendments: Abe
Shulsky, Keith Raffel, Stan Taylor, Wil-
liam G. Miller, Earl Eisenhower, Tom
Connaughton, Angelo Codevilla, Walter
Ricks, Mark Gitenstein, Mike Epstein,
Dave Bushong, Tom Crowley, Sam
Bouchard, Patrick Norton, Edward Le-
vine, Tom Moore, David Shaw and John
Elliff.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, I ask
unanimous consent that Ken Feinberg,
of my staff, be granted privilege of the
floor.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
Mr. GARN. Mr. President, I ask unani-
mous consent that Eric Haltman, of the
Judiciary Committee, be granted privi-
lege of the floor during the debate and
votes.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
Mr. GARN. I also ask unanimous con-
sent that Bob Heppler, of Senator
HEINZ' staff, and Kay Dcvies, of Senator
D0MENICI's staff, be granted privilege of
the floor.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
Who yields time?
Mr. KENNEDY. Mr. President, I sug-
gest the absence of a quorum and ask
unanimous consent that the time not be
charged to either side.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
The clerk will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr, KENNEDY. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
Mr. KENNEDY. I yield myself such
time as I might use.
Mr. President, today the U.S. Senate
writes a new chapter in the ongoing 10-
year debate to regulate foreign intelli-
gence electronic surveillance. In consid-
ering S. 1566, the Foreign Intelligence
Surveillance Act of 1978, the full Senate
at long last has the opportunity to place
foreign intelligence electronic surveil-
lance under the rule of law. The abuses
of recent history sanctioned in the name
of national security and documented in
detail by the Church committee high-
light the need for more effective statu-
tory controls and congressional over-
sight.
Recent prosecutions in the Humphrey
and Trong cases point out the need for
this legislation. Without S. 1566 in place
serious constitutional issues are raised
in those cases: Is the warrantless surveil-
lance constitutional? and, even if it is,
may the Government use the evidence
obtained in a subsequent criminal prose-
cution for espionage? or does the Gov-
ernment, in so doing, violate the provi-
sions of title III? S. 1566 resolves these
issues and must be dealt with expedi-
tiously.
We have the major responsibility for
seeing to it that history does not repeat
itself, that civil liberties and the rights
of our citizens are not bargained away
in the name of national security.
S. 1566 benefits from broad bipartisan
support. It has the overwhelming sup-
port of both the Senate Judiciary Com-
mittee and the Senate Select Committee
on Intelligence. My distinguished col-
leagues, Senator BAYH, Senator THuR-
MOND, and Senator GARN have been par-
ticularly instrumental in the develop-
ment of this legislation. Working to-
gether we have fashioned a product
which' brings to an end the fruitless and
unsatisfactory debate of the past.
S. 1568 has been endorsed and sup-
ported not only by this administration,
but by the Ford administration as well.
Both Attorney General Bell and Attor-
ney General Levi have been most coop-
erative and helpful in the drafting of
the bill. The legislation constitutes a
major step forward in bringing needed
safeguards to the unregulated area of
foreign intelligence surveillance. It is
designed to strike a balance between
the protection of national security and
the protection of our human liberties
and rights. It is a recognition, long
overlue, that the Congress does have a
role to play in the area of foreign intel-
ligence surveillance.
S. 1566-building upon S. 3197, legis-
lation drafted in 1976 with the dedicated
help of Attorney General Levi--achieves
a major breakthrough in the long
debate over foreign intelligence elec-
tronic surveillance.. It is the culmination
of past efforts and present hopes. This
legislation would, for the first time,
substitute carefully prescribed account-
ability and oversight for the arbitrari-
ness of the past. The bill would require
that all foreign intelligence electronic
surveillance in the United States-as
well as some overseas interceptions-be
subject to a judicial warrant require-
ment based on probable cause. For an
American citizen to be surveilled, there
must be probable cause that he is an
agent of a foreign power-a citizen act-
ing for or on behalf of a foreign power-
and engaging in sabotage, terrorism, or
clandestine intelligence activities. It is
the courts, not the executive, that would
ultimately rule on whether the surveil-
lance should occur. The bill would
require that, before such surveillance
could occur, a named executive branch
S 5995
official-such as the Secretary of
Defense-certify in writing and under
oath that such surveillance is neces-
sary to obtain foreign intelligence
information.
Mr. President, these statutory pro-
visions are the very heart of the legis-
lation. They relegate to the past the
wiretapping abuses visited on Joseph
Kraft, Martin Luther King, Jr., and
Morton Halperin. They prevent- the
National Security Agency from ran-
domly wiretrapping American citizens
whose names just happen to be on a
list of civil rights or antiwar activists.
The legislation provides the type of
accountability which has heretofore not
existed. It would for the first time
expressly limit whatever inherent power
the executive may have to engage in
electronic surveillance in the United
States. In so doing, the bill ends a
decade of debate over the meaning and
scope of the "inherent power" disclaimer
clause currently found in title III.
S. 1566 would also provide civil and
criminal sanctions to those who violate
its provisions. It requires that all extra-
neous information-unrelated to the
purposes of the surveillance-be mini-
mized. And it mandates that before any
information obtained can be used at a
subsequent criminal trial. the trial court
must again find that all statutory wire-
tap procedures have been met.
Most of the concerns expressed by
some about various provisions of the
bill have been satisfactorily resolved in
the Senate committees. I and others in
the Congress shared these very concerns
over the years; thus, for example, either
the Attorney General or the Deputy At-
torney General must personally sign off
on each application; the application
must state whether "physical entry is
required to effect the surveillance,"
thereby notifying the court whether or
not a break-in is necessary in order to
install the surveillance device; use of the
information obtained by the surveillance
is further restricted-even in the case of
non-American citizens-to "lawful pur-
poses"; any testing of new electronic
surveillance equipment, tests which are
not covered by this legislation, cannot be
directed against specific American citi-
zens without their consent.
Most importantly, Mr. President the
issue of the so-called noncriminal stand-
ard has been resolved to the satisfaction
of all the parties concerned. Both S. 3197
last year, and the bill introduced this
year, retained a narrowly restricted pro-
vision allowing for electronic surveillance
in the absence of a statutory recognition
that the activity is criminal.
This provision, as originally drafted,
remained a major stumbling block to
prompt passage of the legislation. Many
were convinced that S. 1566 would estab-
lish an unfortunate precedent if statu-
tory recognition were conferred on elec-
tronic surveillance in the absence of a
showing of criminal conduct. After long
and difficult negotiations this crucial
issue has been resolved. A special tribute
is owed Senator BAYH, Senator GARN, and
the other members of the Senate Intel-
ligence Committee for developing alter-
nate language and providing for a crim-
inal standard. The bill now provides for
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CONGRESSIONAL RECORD -SENATE April 20, 1978
an explicit statutory recognition of crim-
inality, but would also call for a lower
standard of criminal conduct than the
traditional "probable cause that a crime
is being committed." Instead, the alter-
nate language would speak in terms of
probable cause that a person is engaged
in "clandestine Intelligence gathering
activities that involve or may involve a
criminal violation." All other clandestine
intelligence activities that "involve or are
jibout to involve" a criminal violation;
or sabotage, terrorism, or activities in
furtherance thereof. This latter sabo-
tage and terrorism language will hope-
fully be worked out by amendment on
the Senate floor.
This language goes a long way in strik-
ing a proper balance between the legiti-
mate interests of national security and
civil liberties. It is a criminal standard:
but the standard which must be met for
a warrant to be issued is closer to, "rea-
sonable suspicion" than evidence of an
ingoing existing criminal enterprise. It
is, :1 believe, the major breakthrough
needed to develop bipartisan legislation
in this area.
Mr. President, some might argue that
this legislation is regressive and does not
provide sufficient protection for civil lib-
erties: others might maintain that it
goes too far and will inhibit the func-
tioning of our intelligence agencies. I
disagree on both counts.
Legislation can hardly be labeled re-
gressive which for the first time places
strict statutory controls on foreign in-
telligence electronic surveillance. The
judicial warrant and executive certifica-
tion procedures guarantee the type of
external and internal controls which I
and others have long advocated. I am
not completely satisfied with every single
facet of the legislation; few people will
be. In an area as sensitive and Important
as this, it is difficult if not impossible to
support every provision. But those who
would defeat this bill, because they are
not satisfied with every section in it ig-
nore the fact that today there is no stat-
ute at all. The courts currently have no
role to play whatsoever in this area, ex-
ecutive discretion alone controls. Senate
efforts at providing any safeguards have
until today been exercises in futility.
Despite my own reservations with a few
provisions of the bill, I remain even more
uncomfortable leaving the American
people with no legislative protections
whatsoever in this area.
Nor will S. 1566 undercut the effec-
tiveness of our intelligence agencies. The
needs of our intelligence agencies in pro-
tecting the national security have been
carefully taken into account by both
Senate committees, the administration
and, perhaps most importantly, the in-
telligence community itself. The legisla-
tion. has built-in safeguards to preserve
the flexibility and secrecy of our intelli-
gence effort. For example, the notice re-
quirement is very limited, as is the power
of the court to examine the validity of
the certification in cases involving em-
bassies and certain entities controlled by
foreign governments. The requirements
of what must go in the warrant applica-
tion are similarly limited. S. 1566 is in-
applicable to most overseas and national
security agency electronic surveillances;
and, finally, the legislation differs sub-
stantially from the provisions of current
law authorizing wiretaps in domestic
criminal investigations. The pending
Senate bill now requires evidence of
criminal activity before a warrant may
be issued in foreign intelligence cases
but, as already noted, establishes a less
stringent "probable cause" standard of
criminality, thus making it easier for
the Government to secure a warrant for
these limited purposes. Other provisions
dealing with length of surveillance,
minimization of the surveillance and
congressional oversight are carefully
drafted with national security interests
paramount.
Two other criticisms have been raised
in recent weeks-that the bill provides
for too much judicial secrecy and will
diminish the responsibility and ac-
countability of the executive branch. But
the first criticism is more accurately
related to the sad state of existing law
while the second ignores completely the
theory underlying the judicial warrant
requirement.
There is no "judicial secrecy" today,
because the courts are not part of the
process at all. It is the executive branch
that exercises the secret and uncon-
trolled discretion, free from any statu-
tory restraints. And, even if a lenient
judge is quick to rubberstamp 99 out of
100 applications, the ever-present pos-
sibility that this application will be the
one rejected by the court should act as
an effective deterrent to abuse.
Mr. President, this legislation is de-
signed to strike a balance, a careful bal-
ance that will protect the security of the
United States without infringing on the
civil liberties and rights of the American
people. I believe the time has at last ar-
rived when Congress and the Executive
together can fill one of the last remain-
ing loopholes in the laws governing wire-
tapping and other electronic surveil-
lance in the United States. One should
view this bill for what it is, a major ef-
fort by the Congress, long overdue, to
place foreign intelligence electronic sur-
veillance under the rule of law.
Finally, Mr, President, as I mentioned
earlier, I acknowledge the very effective
work of my colleague on the Judiciary
Committee, Senator THURMOND, and the
strong bipartisan support we have had
throughout the fashioning of this legis-
lation.
I mentioned in my remarks the lead-
ership that was provided by President
Ford and General Levi, who worked very
closely with the committee in recent
years; this bipartisan support has con-
tinued with President Carter and Gen-
eral Bell.
Of course, I also acknowledge the very
close and cooperative relationship that
we have had in working with the Intelli-
gence Committee, with our colleague on
the Judiciary Committee, Senator BAYH,
who was tireless in the preparation and
development of this legislation, with his
excellent staff, and with Senator GARN
who was enormously helpful in the shap-
ing of this legislation.
It is a bipartisan effort, involving a
balancing of interests. I am, of course,
cognizant of the efforts of a small group
of Senators that began just after the
Keith case in 1972. We have had 7 years
of hearings, involving the great leader-
ship of Senator Sam Ervin, Senator
MUSKIE in chairing a Subcommittee of
the Foreign Relations Committee, Sen-
ator MATHIAS and Senator NELSON, who
for years have been working in this area
and, of course, our former colleague, Sen-
ator Phil Hart, who was enormously
dedicated to the approach in this bill.
He was a leader in the Senate in insur-
ing protection of the liberties of our citi-
zens.
This is the culmination of an extraor-
dinary effort by the members of those
committees, and their activity and in-
volvement should be appreciated by not
only the Senate but by the American
people.
Mr. iresident, I reserve the remainder
of my time.
Mr. GARN. Mr. President, I think it
would be appropriate if the chairman of
the Intelligence Committee spoke first.
I defer to my distinguished chairman.
The ACTING PRESIDENT pro tem-
pore. Who yields time?
Mr. KENNEDY. I yield such time as
he may need.
Mr. BAYH. Mr. President, I appreciate
the courtesy of our distinguished col-
league from Utah. We have been on the
same wave length in working together
here on this matter for some time. I am
glad to follow his lead on this matter.
Mr. GARN. I thank the Senator very
much.
The ACTING PRESIDENT pro tem-
pore. The Senator from Utah is recog-
nized.
Mr. GARN. Mr. President, for nearly 2
years, much of my time and effort as a
member of the Intelligence Committee
has been devoted to the problem of elec-
tronic surveillance for foreign intelli-
gence purposes. Particularly, as vice
chairman of the Rights of Americans
Subcommittee, I and my distinguished
colleague. Senator BAYH, have spent days
and weeks trying to balance the privacy
rights of Americans against the need of
the Government to obtain legitimate
national security information. After all,
the security of Americans in their com-
muncations is nothing without a secure
America within which those communica-
tions can take place.
This has not been an easy task. But
with the help and cooperation of Sena-
tors KENNEDY, EASTLAND, INOUYE, BAYH,
BAKER, and THURMOND with the active
interest and support of all of the mem-
bers of the Judiciary and Intelligence
Committtees; and with the valuable
contributions of the Attorneys General
of both the Ford and the Carter admin-
istrations-with the help of all of these
people we have produced a bill which for
the first time brings all electronic sur-
veillance conducted within the United
States under judicial review.
S. 1566 is unique in many ways. It re-
flects a skillful and careful blending of
the sometimes competing interests of
civil liberties and national security; it
has matured through a 2-year period of
close Senate-executive branch coopera-
tion; and its sponsorship represents a
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unique bipartisan collaboration in the
interests of national security.
Some have wondered what a con-
servative Senator such as myself was do
ing cosponsoring what they though was a
liberal bill. The answer is quite simple.
This is not a liberal bill. It is not a con-
servative bill. It is neither a Democratic
nor a Republican bill. The tasks of bal-
ancing cherished constitutional liberties
with increasingly threatened national
security needs is too important to be left
to partisanship.
This bill grew out of needs created by
two separate problems. One was the se-
rious gap which developed over the last
several years in the area of foreign in-
telligence surveillance within the United
States. In the face of increasing intelli-
gence activities in the United States by
the KBG and other foreign intelligence
agencies-much of which involves Amer-
icans in one way or another-in the face
of this, there have been very few authori-
zations for electronic surveillance of U.S.
citizens for foreign intelligence purposes
during the last 5 years. And in one of
the very few cases of such surveillances,
the current Humphrey case, the defense
has put forth the argument that the
information obtained by surveillance is
not usable since it was not authorized
by a judicial warrant. This bill will put
an end, to that. It will remove the un-
certainty and ambiguity which for the
last several years has clouded the at-
mosphere and hindered our counter-
intelligence officers from carrying out
their responsibilities. Let me assure my
colleagues that those agencies of the
Government who have responsibility for
counterintelligence activities within the
United States support this bill. They look
forward to being able to conduct legiti-
mate foreign security surveillance, when
such is needed, with the confidence that
the information they obtain will stand
up In court if prosecution is sought.
The second need which gave rise to
this bill is one with which we are all
familiar. Clearly, there have been abuses
of the so-called inherent presidential
authority in the past. These abuses were
unfortunate and should never have oc-
curred. But they did, and in reaction to
them we virtually have closed off an im-
portant source of foreign intelligence in-
formation. This bill initiates procedures
and establishes principles which, we be-
lieve, will prevent future abuses.
To those of my colleagues who are con-
cerned about bringing the judicial
branch into an area where they pre-
viously have not been involved, I wish to
remind them that when approving war-
rants against foreign powers and for-
eign officials, the judge has three re-
sponsibilities: First, he determines that
the target is in fact a foreign power or
foreign official; second, he. finds that
the procedures proposed in the applica-
tion will allow an adequate minimization
of the acquisition and retention, and pro-
hibit the dissemination, of information
concerning U.S. persons which does not
relate to national defense, foreigA affairs,
terrorism, or the activities of a foreign
Intelligence agency; and third, he re-
views a certification from the White
House that the information sought by
the surveillance relates to, and if con-
cerning a U.S. person, is necessary to the
national defense or the ability of the
United States to protect itself against
certain acts which threaten domestic
tranquility.
When U.S. citizens are to be the target
of surveillance, then the judge plays a
more expanded role. But that is as it
should be. As long as our counterintelli-
gence officers have probable cause to be-
lieve that a U.S. person's activities may
involve a violation of a criminal law,
then a judge ought to be more deeply
involved. He ought to be involved for two
reasons: To see that the rights of the
citizen are being protected and to en-
hance the possibility that information
so obtained will be usable in court pro-
ceedings.
Many who have followed this bill will
recall that when it was introduced last
year, several of us requested that the bill
include a noncriminal standard for the
authorization of warrants. The non-
crime was, or was about to be, committed
of warrants. The noncriminal standard
was necessary, in my judgment, for sev-
eral reasons: First, it is very hard to de-
termine if sophisticated, secret spying
activities involve a particular criminal
offense; second, the desire to use surveil-
lance-obtained information to uncover a
wider network of foreign agents often
prevents prosecution; and third, the
Government may not desire prosecution
since to do so would require them to re-
veal even more sensitive information in
a court proceeding. To require that a
crime was, or was about, to be committed
would have prevented the FBI from con-
ducting much of the investigatory work
which is so essential in counterintelli-
gence activities.
Thus, the earlier version of this bill
had a noncriminal standard. This bill
does not and that difference should be
explained. This bill contains a criminal
standard, but It loosens somewhat the
certainty necessary for that standard to
be reached. This bill allows a warrant to
be issued on probable cause that a U.S.
person's activities "involve or may in-
volve a violation of the criminal statutes
of the United States." The use of the
phrase "may involve" gives sufficient
flexibility and has allowed us to use the
more widely acceptable criminal stand-
ard. Officials of the FBI and the Depart-
ment of Justice have assured me that
this criminal standard is acceptable to
them.
There are some who fear that this bill
is too broad and might allow for future
abuses. There are others who fear that
this bill might preclude legitimate and
necessary surveillance. The fact that we
have worked for nearly 2 years to bal-
ance these needs convinces me of the
soundness of this legislation. I believe
that the bill protects civil liberties to the
maximum extent possible while not fore-
closing to our Government the tools it
needs to carry out counterintelligence.
Mr. NELSON. Mr. President, will the
Senator yield for a unanimous-consent
request?
Mr. DARN. I would be happy to yield
to the distinguished Senator.
Mr. NELSON. Mr. President, I ask
S 5997
unanimous consent that Peter Connelly
of my staff be permitted the privileges of
the floor during the debate and rollcalls
on this legislation.
The ACTING PRESIDENT pro tem-
pore. Without objection, It is so ordered.
Mr. GARN. The distinguished Senator
from Wisconsin interrupted me at a very
appropriate time, the end of my remarks.
I yield the floor.
Mr. KENNEDY. I ask unanimous con-
sent that Irene Emsellem and Glenn
Feldman of Senator Abourezk's staff be
permitted access to the floor during the
consideration of this legislation.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
Mr. BAYH. I ask unanimous consent
that Mr. Ira Shapiro be granted the
privileges of the floor during the debate
and rollcalls in the consideration of this
legislation.
The PRESIDING OFFICER (Mr.
NELSON). Without objection, it is so
ordered.
Mr. KENNEDY. I yield the floor at this
time.
Mr. BAYH. Mr. President, I appreciate
very much the throughtful remarks of
the distinguished Senator from Mas-
sachusetts, as well as the distinguished
Senator from Utah.
I must confess to having rather mixed
feelings as we gather together here. I
suppose in the depths of my heart, as one
who believes very strongly in the free-
doms of this country,. I am nervous when
we get involved in legislation which has
the end product of guaranteeing. and
prescribing the use of scientific and tech-
nological devices which can spy on and
pry into our lives.
I wish we were living in a world and
at a time when that was not necessary,
but I think anyone who is at all realistic
about what is going on in the world and,
Indeed, what Is going on in this country,
has to recognize that this is a utopian
view which we hope some day will come
If we all persist, but certainly Is not the
kind of time In which we are living today.
Part of my nervousness, I guess, also
goes to the recognition that this bill is
required absolutely, unqualified, because
of certain misconduct and abuse which
are almost unbelievable as far as conduct
which one likes to believe is typical of
that followed by public officials in the
United States. It is conduct where the
standards go back over a long period of
time, and there is little to be gained, it
seems to me, by rehashing those abuses
incident by incident because there is
enough blame to go around affecting
large numbers of people and all of the
political philosophies that exist in this
country.
So I think the real world has to recog-
nize a significant contribution that this
particular legislation is going to make to
the delicate balance which is necessary
In our society between protecting individ-
ual liberties, on the one hand, and yet
giving the intelligence agencies the tools
they need to protect society, on the other.
The bill before the Senate today,
S. 1566, the Foreign Intelligence Surveil-
lance Act of 1978, is the first major intel-
ligence reform measure to be considered
by the Congress. It will bring an end to
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CONGRESSIONAL RECORD -SENATE April 20, 1978
the practice of electronic surveillance by
the executive branch without 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
principles of the fourth amendment and
due process of law.
I want to make clear what kind of sur-
veillance this bill covers. The term "for-
eign intelligence surveillance" might be
misleading. It is electronic surveillance
targeted against persons who are within
the United States, for the purpose of ob-
taining foreign intelligence information.
The techniques include conventional
wiretaps and bugging devices, television
monitoring, and similar devices that in-
vade a person's reasonable expectation of
privacy.
The "foreign intelligence" obtained
from this surveillance includes two basic
kinds of information. The first is "posi-
tive" foreign intelligence about the in-
tentions and capabilities of foreign pow-
ers. That kind of intelligence information
is used by the President and the National
Security Council for the conduct of for-
eign affairs and the military defense of
the Nation. The second kind of intorma
tion is foreign counterintelligence about
spies and international terrorists. Foreign
counterintelligence information is used
by the FBI to protect against the activi-
ties of the Soviet KGB and other hostile
intelligence services, as well as to protect
against international terrorist activities.
Electronic surveillance is an essential
means for obtaining both positive foreign
intelligence and foreign counterintelli-
gence information. S. 1566 authorizes
such surveillance with safeguards to
protect constitutional rights.
This legislation has been developed
with broad bipartisan support and the
strong endorsement of two administra-
tions. Two years ago Attorney General
Edward H. Levi, working closely with
Senator KENNEDY and other members of
the Judiciary Committee, drafted the
first version of this bill. It was reported
in 1976 by the Judiciary and Intelligence
Committees, but failed to reach the floor
before adjournment.
The present bill picked up where that
bill left off. Attorney General Griffin
Bell and the Carter administration, in
consultation with both the Judiciary and
Intelligence Committees, agreed to sev-
eral major improvements in the legisla-
tion. The administration accepted the
principle that the bill would establish the
"exclusive means" for national security
surveillance in this country. The protec-
tions of the bill were broadened to in-
clude certain international communica-
tions of Americans. The new bill allowed
the judge to review all aspects of surveil-
lance of an American citizen or perma-
nent resident alien.
I note Senator KENNEDY pointed out
the bill was not perfect. Indeed, it is not.
Both he and I would like to see certain
other protections provided in it. One, we'
do not guarantee the rights of Ameri-
cans wherever they may travel. There is
legislation that has been introduced by
many of us who are supporting this bill,
both in the Judiciary and Intelligence
Committees, which is designed to pro-
vide charters for the various intelligence
agencies. In that bill we provide very
clear protections for American citizens
wherever they travel. Whether we will be
successful in reaching this goal I must
say is yet to be determined. But indeed
that is a goal that is very much before
us.
The bill as introduced with these im-
provements was a good one. But I believe
it is now better because of the careful
deliberations by the Judiciary and In-
telligence Committees during the past
Year. The members of these committees
represent a wide range of views on elec-
tronic surveillance for intelligence pur-
poses. I know that some of the mem-
bers have been fearful that any depar-
ture from strict fourth amendment law
enforcement procedures would endanger
the rights of individuals. Other mem-
bers have been equally concerned that
a court order for intielligence surveil-
lance might hamper the ability of the
Government to protect the Nation's
security.
Despite these wide differences, those
of us who have considered this bill so
long and so carefully have come to un-
derstand why this legislation is neces-
sary. We have made accommodations
along the way to make sure that the bill
accomplishes its intended purposes. The
administration, the intelligence agencies,
and interested private groups have par-
ticipated fully in these deliberations.
The final result was agreement on two
basic principles.
First is the principle that a court
order is required for all electronic sur-
veillance in the United States. The means
for carrying out this objective is the
establishment of a special court com-
posed of a limited number of designated
judges, who consider the applications for
surveillance orders. The idea of a special
court was first suggested by the Supreme
Court in the Keith case in 1972.
Only, Mr. President, by insisting on the
presence of the judiciary, both in provid-
ing authority and in providing review,
were we able, in my judgment, to remove
the temptations to which various public
officials have succumbed in the past, of
getting involved for purposes that were
very questionable, and, indeed, in many
instances, for purposes of a primarily
political nature.
The judges of the special court will,
under the bill, apply different standards
and procedures depending upon who is
the surveillance target. In the case of
foreign powers and foreign officials, the
judge's role is limited. His duty is to in-
sure clear accountability within the ex-
ecutive branch by requiring a written
certification that the surveillance is
needed to obtain foreign intelligence in-
formation. He also makes certain that
information about Americans obtained
as a byproduct is used properly. If the
surveillance is directed at an official for-
eign government establishment, the sur-
veillance may last as long as a year be-
fore a new court order is required.
On the other hand, in the case of an
American citizen, a resident alien, or a
private foreign citizen visiting this coun-
try, the judge's responsibility is greater.
He must make detailed probable cause
findings of fact and review the surveil.
lance every 90 days.
These different standards and pro-
cedures make it possible to have a court
order for all surveillance, without ex-
ception.
The second fundamental principle is
that a criminal standard is required for
surveillance of American citizens and
permanent resident aliens. Reaching
agreement on this principle took the
most careful study.
Mr. President, I think it is important
to note that probably the most contro-
versial, the most sensitive, and yet prob-
ably the most important aspect of this
legislation was that standard, the crimi-
nal standard which is required before
electronic surveillance of a more tradi-
tional kind can be targeted against
Americans in this country. It took a
great deal of persuasion and of willing-
ness to compromise on the part of all
the parties involved.
I would particularly point out the role
played by Senator KENNEDY, of course,
as chairman of the Judiciary Committee,
of Mr. Feinberg, his staff member, of
John Elliff, my staff member on the In-
telligence Committee, of Senator GARN
and his staff member, Stan Taylor, and
of all of the heads of the agencies in-
volved who were concerned. We had to
work out the wording so that it would
not deny them the tools they rightfully
required to protect us, but at the same
time we were able to establish a crimi-
nal standard, which I think was funda-
mental if we were to fulfill our
responsibilities.
The basic problem was that foreign
spies use very clever techniques to avoid
detection. This makes it hard for the
I to meet an ordinary criminal stand-
ard. However, the Intelligence Commit-
tee worked with the Justice Department,
with FBI intelligence officials, and with
civil liberties experts to develop a more
practical standard that is still linked to
the criminal laws.
These two:principles-a court order for
all surveillance in this country, and a
criminal standard for surveillance of
Americans-are critically important for
the future. They establish the legitimacy
of electronic surveillance for intelligence
purposes. They help remove the cloud of
uncertainty that has lingered too long
over agencies such as the FBI.
The Intelligence Committee is making
every possible effort to insure that our
intelligence agencies conduct themselves
properly and in accordance with the law.
And I must say that I have been heart-
ened by the kind of cooperation we have
received in the Intelligence Committee
from those who have the responsibility
of conducting the intelligence activities
of this country. I hope we can continue
to build on this rapport and this coopera-
tion, which was initiated under the
leadership of my predecessor as chair-
man of the committee, the distinguished
Senator from Hawaii (Mr. INOUYE).
Unfortunately, I think we have to rec-
ognize that the law itself is still unclear
where foreign powers and foreign agents
are concerned. That is why prompt en-
actment of this bill is vital. As long as
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the law is confused and inadequate, many
people will fear abuses.
The details of S. 1566 are sometimes
complex and hard for the ordinary citi-
zen to understand. But he will clearly
understand these two fundamental prin-
ciples. He will know that the law forbids
any U.S. intelligence agency from wire-
tapping or bugging anyone in the United
States without the approval of a Federal
court. And he will know that his privacy
is protected unless he engages in crimi-
nal activities.
That is what it takes: engaging in a
criminal activity that has sufficient quali-
ties or characteristics that a Federal
judge will grant a request for a warrant
for subsequent electronic surveillance.
The bill also sends a message around
the world. In many countries, if not most,
a visitor to that country has no protec-
tion whatsoever against being wiretapped
or bugged by the secret police: But in the
United States, where we like to feel that
we establish a higher standard, and
where we feel a high degree of sensitivity
about the rights of all human beings, the
law will protect private citizens from
abroad who visit our Nation if they-are
not involved in detrimental activity
harmful to the United States.
In some cases the protections are some-
what less than those afforded to our own
people. But the legal standard has been
carefully drafted to meet demonstrated
counterespionage needs, and not to allow
indiscriminate surveillance of foreign
visitors.
I believe the American people can take
pride in this legislation. It represents all
that we stand for as a nation with a liv-
ing Constitution that can be adapted to
new problems without sacrificing its
fundamental values. It shows that all
three branches of Government can share
responsibility for the most sensitive in-
telligence activities, so that our system
of checks and balances will continue to
work as the framers of the Constitution
intended.
As James Madison wrote in Federalist
No. 51:
If men were angels, no government would
be necessary. if angels were to govern men,
neither external nor internal controls on gov-
ernment would be necessary. In framing a
government which must be administered
by men over men, the great difficulty lies in
this: you must first enable the government
to control the governed: and in the next
place oblige it to control itself. A depend-
ence on the people is, no doubt, the primary
control on the government; but experience
has taught mankind the necessity of auxil-
iary precautions.
How wise our Founding Father was so
long ago.
Many people deserve credit for bring-
ing this bill to the Senate floor with
broad support today. Senator KENNEDY
began more than 5 years ago to question
the surveillance practices of the exec-
utive branch. He and the present Presid-
ing Officer (Mr. NxLsox) introduced pio-
neering bills in this field. Former Sena-
tor Ervin and the members of the Wa-
tergate Committee helped break through
the wall of executive arrogance that con-
cealed electronic surveillance abuses.
Senator CHURCH and the members of his
select committee investigated the other
abuses of the past and laid them out for
the public to see. Among the members of
the Church committee, the late Senator
Philip Hart, Vice President MONDALE, and
Senator Bos MORGAx helped develop the
recommendations on intelligence activ-
ities and the rights of Americans that
led to this bill.
Attorney General Levi and President
Ford made the decisions that brought
about executive branch support for the
principled of the bill. Their actions mark-
ed the end of nearly 40 years of executive
opposition to meaningful legislation in
this field.
Attorney General Bell and President
Carter carried forward this initiative and
helped refine and improve it. And I cer-
tainly think it is to President Carter's
credit that he is really the first Presi-
dent of the United States who has given
up the inherent authority that has been
claimed by his predecessor to use foreign
intelligence as a reason to invade our
privacy through various electronic proce-
dures.
Finally, there are scores of other peo-
ple-in the Justice Department and
other executive agencies, representing
the private groups interested in this bill,
and on the staffs of the committees-who
have devoted long hours over many
months to this legislation. Their con-
structive criticism and advice have made
this bill the product of many minds
working together.
This bill is a beginning, not an end.
There is much more to accomplish be-
fore we have a full legislative framework
for intelligence activities.
The Intelligence Committee has al-
ready begun its hearings on S. 2525, the
National Intelligence Reorganization
and Reform Act, which provides legisla-
tive charters for our intelligence agen-
cies and protects the rights of Americans
against improper intelligence investiga-
tions. That is our next objective.
Certainly, Senator HUDDLESTON, of
Kentucky, deserves a great deal of credit
for his leadership in this area.
I urge the Senate to pass S. 1566
and demonstrate to the people of this
country and the world that, in the United
States, liberty and national security are
partners and not enemies.
I would say one last word in conclu-
sion. I have not been involved in a piece
of legislation where the issues have been
more important and the sincere judg-
ments of the parties involved have been
arrayed expressing such a broad cross
section of agreement and disagreement.
We have had some very intense feel-
ings expressed on this legislation. If it
were not for the willingness to work to-
ward the goals of protecting the country
and protecting the rights of individuals,
we would not have been successful.
I again salute the floor manager of this
bill (Mr. KENNEDY) for his leadership.
I would like to say a word about my
colleague from Utah (Mr. GARN), who
was the ranking member of the Subcom-
mittee on the Rights of Americans of the
Intelligence Committee.
He looked at this legislation carefully.
He had some reservations about it. I think
probably he has reservations about it
where we are 'now, as I do. We recognize
S 5999
it is not a perfect piece of legislation.
But he, as well as other members of our
subcommittee and the full committee,
and, hopefully, members of the Senate
as a whole, are willing to put aside our
personal preferences and move toward a
common goal. Without that kind of te-
nacity and willingness to follow what I
believe is the setting of an example of the
legislative process that we have witnessed
throughout the past several months, we
would not be here today.
I would also like to express my thanks
to the vice chairman of the Intelligence
Committee (Mr. GOLDWATEe), who moved
in committee that we recommend S. 1566,
as amended, for enactment. No one is
more devoted than he to the defense of
the Nation, and we greatly value his
support.
Mr. THURMOND. Mr. President, I
wish to join my distinguished colleagues,
Senator KENNEDY, Senator BAYH, and
Senator GARN, in expressing my support
for the Foreign Intelligence Surveillance
Act of 1978.
This bill comes before the Senate at a
most critical point in the course of world
events. International tensions are in-
creasing and the newspapers are filled
with accounts of international terrorist
activities. We have no assurances that
the United States will be free from this
kind of activity now or in the future.
That is why it is important that definite
procedures be established to permit the
use of foreign surveillance methods.
Mr. President, this legislation strikes a
proper balance between the civil liberties
of the individual and the need for this
Nation to collect foreign intelligence in-
formation important to its security and
its conduct of foreign affairs.
In providing a warrant procedure the
American public is reassured that no
individual will be subject to electronic
surveillance unless a judicial officer has
authorized it and that the individual is
engaged or may be engaged in intelli-
gence-gathering activities on behalf of a
foreign government. The procedure will
also insure that the Government will be
able to collect foreign intelligence infor-
mation necessary for the United States
to protect itself from intelligence gath-
ering by foreign agents within the
United States.
Mr. President, this bill also provides
that a court order approving electronic
surveillance may be granted by any one
of seven district court judges publicly
designated by the Chief Justice of the
United States. In addition, there shall be
a special panel of three judges designated
to review the denial of any application
for an order approving electronic surveil-
lance. Each judge designated shall serve
for a maximum of 7 years and not be
eligible for redesignation.
There are provisions for the employ-
ment of electronic surveillance in an
emergency situation where an authorized
order cannot be reasonably obtained.
The Attorney General may authorize an
emergency wiretap for up to 24 hours,
but must within that period either ob-
tain an authorized order or terminate
the surveillance. If the appropriate au-
thorization is not obtained, no informa-
tion or evidence obtained may be used
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86000 CONGRESSIONAL RECORD -SENATE April 20, 1978
In a trial, court, or other similar Gov- the floor during the votes and proceed- executive branch, under both Presidents
ernment proceeding. ings on this bill. Ford and Carter, responded with two
Mr. President, although the case law The PRESIDING OFFICER. Without Executive orders and a series of regula-
in this area has supported or left un- objection, it is so ordered. tions promulgated by the Attorney Gen-
touched the policy of the Executive in Mr. KENNEDY. Mr. President, I make eral, to control this sort of behavior. It
the foreign intelligence area having the the same request for Mr. Jim Davidson, seems that this effort at self-regulation
constitutional power to engage in elec- of the staff of Senator MusxzE. by the executive branch has been suc-
tronic surveillance for foreign intelli- The PRESIDING OFFICER. Without cessful-so successful, in fact, that the
gene purposes and without a judicial objection, it is so ordered. . Attorney General informed us earlier
warrant, S. 1566 lays down definite con- Mr. THURMOND. Mr. President, I this year that only one U.S. citizen was
gressional guidelines for the use of for- make the same request for Eric Hult- the target of warrantless electronic sur-
elgn electronic surveillance. I support man, of the staff of the Judiciary veillance for foreign intelligence pur-
this approach because I believe that the Committee. poses this year.
failure of the Congress to act decisively The PRESIDING OFFICER. Without We now know that this particular
in this area may lead to a chilling effect objection, it is so ordered. citizen was reasonably suspected of
on the use of foreign electronic surveil- Mr. WALLOP. Mr. President, I ask passing classified Government docu-
lance in this country. The Nation needs unanimous consent that Angelo Code- ments to a foreign country, and that the
to have the kind of information provided villa, of my staff, be granted the privi- electronic surveillance involved was of
by electronic surveillance in order to leges of the floor during the considera- a particularly nonintrusive sort--a
conduct its foreign affairs, maintain its tion of this bill. videotape, with no audio recording, was
military strength, and preserve domes- The PRESIDING OFFICER. Without made of the subject's behavior in his
tic peace. objection, it is so ordered, work area in a Government office
There is no requirement in this bill, Who yields time? building.
Mr. President, that cef tain targets of The question is on agreeing to the first Some might then ask, if the wrong has
electronic surveillance be actually en- committee amendment. already disappeared, why do we need
gaged in the commission of a crime. Nor Mr. GARN. Mr. President, I suggest such a massive remedy? The first, and
should there be such a requirement for the absence of a quorum. more obvious reason, is the need for ex-
those engaged in actual spy activities. The PRESIDING OFFICER. On treme care in protecting the right of
Our espionage statutes were written whose time? privacy of our people. In fact, I have
before World War I, and the nature of Mr. GARN. I ask unanimous consent often spoken about the Incomprehen-
intelligence gathering has changed a that it be equally divided. sible fact-to which I will return in a few
great deal since that time. Much espio- The PRESIDING OFFICER. Without moments-that our Government has
nage today is directed at industrial proc- objection, it is so ordered. The clerk been neglecting a much more serious
esses and trade secrets. The gathering of will call the roll, threat to the privacy of communications
material of this nature by foreign agents The second assistant legislative clerk in this country than that theoretically
for the benefit of foreign powers who proceeded to call the roll. posed by the U.S. intelligence agencies.
are not our allies is generally not illegal, Mr. MOYNIHAN. Mr. President, I ask Nonetheless, even if the wrong has dis-
but the Government should be able to unanimous consent that the order for appeared, it makes sense to construct
discover these clandestine activities. the quorum call be rescinded. some barriers against its possible reap-
Furthermore, even activities which in The PRESIDING OFFICER. Without pearance.
their completed state would be crimes, objection, it is so ordered. But there is a second, and less obvi-
but have not reached the threshold of M. THURMOND. Mr. President, I un- ous, reason why this, or some similar,
criminal conduct, may go undiscovered derstand that the distingiushed Senator remedy is needed. As a result of the in-
unless the Government is able to collect from New York desires time. How much cessant attention and criticism focused
information about foreign intelligence time? on the intelligence agencies by the press
services working at the direction of a Mr. MOYNIHAN. I ask 10 minutes. and by a series of congressional commit-
foreign power. The retention of a non- Mr. THURMOND. On behalf of Sen- tees, and as a result of the confusion
criminal standard in the bill will allow ator KENNEDY, I yield 10 minutes to the
created by the absence of statutes in this
the Government to discover this kind -of Senator from New York. area, our intelligence agencies today
foreign surveillance activity. Mr. MOYNIHAN. I thank the Senator, very likely find themselves uncertain of
Mr. President, this bill comes before May I amend that to ask for 12 minutes? their authority and may well be in-
the Senate as the product of careful The PRESIDING OFFICER. Without creasingly reluctant to stick their necks
consideration by two committees, the objection, it is so ordered. out and take aggressive action which
Intelligence Committee and the Judi- Mr. MOYNIHAN. Mr. President, I am will later be found to have violated the
ciary Committee. As ranking member of happy to join with all my colleagues on law.
the Judiciary Committee I can assure my the Select Committee on Intelligence in This is an understandable concern on
colleagues that all aspects of this legis- supporting passage of the Foreign In- their part; while only three people have
lation have been thoughtfully considered. telligence Surveillance Act. This bill rep- been indicted for espionage in the last
The Department of Justice, the Central resents the culmination of a great deal year, five current or former officers of
Intelligence Agency, the Defense Depart- of effort, a good part of which was ex- intelligence agencies-including former
merit-all our Federal agencies with in- pended by my colleagues before I had the CIA and FBI Directors-have been in-
telligence responsibilities have been con- honor of joining them. Two successive dicted for alleged violations of law. While
sulted. Likewise, the American Civil Lib- Attorneys General, from opposite par- we can as little condone violation of the
erties Union and other public groups ties, worked closely with the committee law by Government officials as by any-
have had the opportunity to present their in the drafting of this bill, and were fully one else, we should have some sympathy
views and suggestions to improve the bill. in support of its general concept and for officials who thought their actions
Two administrations, the present one, most of its detailed provisions. fell within a widely understood and ac-
and the Ford administration, have sup- I would support the bill, if for no other cepted consensus-even if that consen-
ported this legislation. It has bipartisan reason than that it is a fitting monu- sus were tacitly rather'than explicitly
support in this body. ment to the high regard in which we accepted and transmitted to newcomers.
Mr. President, I ask my colleagues to should-and, in the main, do-hold the It now turns out that this tacit con-
judge this bill on its legislative record right to privacy of every American. sensus is recognized neither by the law
over the past few years in the Senate. We were forcefully reminded, several nor by the political process, and that
It has withstood the scrutiny of many years ago, of the necessity of vigilance officers of the intelligence agencies are
eyes and is now ready for approval. I in protecting this right by the work to be held to written legal standards. Yet
support S. 1566 and urge my colleagues of the Church committee, the distin- these written legal standards were not
to do likewise. guished chairman of which has been on drafted with the requirements of intel-
Mr. STONE. Mr. President, I ask the floor this morning. Following the ligence collection in mind.
unanimous consent that Tom Moore, of disclosure of abuses involving warrant- To make matters worse, this develop-
my staff, be granted the privileges of less wiretapping and surveillance, the merit is taking place at a time when the
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April 20, 1978 CONGRESSIONAL RECORD -SENATE
number of Soviets and Eastern European standards against which the bill is to be
diplomats, businessmen, students and measured.
even merchant seamen visiting the In this spirit, I would like to discuss
United States is rising rapidly. We know some questions which the select com-
from long experience, both our own and mittee should consider in the annual
that of nations friendly to us, that many reports it will issue on this bill.
of these visitors from Communist coun- First, are we receiving an adequate
tries are engaged in clandestine intel- amount of foreign intelligence informa-
ligence activities; for the most part this tion? Or, are we being unduly restricted
must mean inducing, by one means or in our foreign intelligence activity by
another, Americans with access to sen- this bill?
sitive information to share it with them. Second, are we able to counter foreign
While it would be nice to think that this espionage activities in the United States?
cohort of foreign agents, with one ex- To put the matter bluntly, are we catch-
ception, has been so unsuccessful as to ing Soviet and other Communist spies
obviate the need for electronic surveil- in proportion to the increasing oppor-
lance, I think we must admit that this tunities for espionage which the Soviet
is unlikely to have been the case. Union and other Communist countries
Consequently, the Judiciary and In- enjoy?
telligence Committees have introduced Third, have we made progress in pro-
56001
ing System program saw the receivers on
the top of the Soviet Embassy here. in
Washington.
So, Mr. President, last year, as I said,
in cooperation with 16 colleagues, I intro-
duced a bill entitled "The Foreign Sur-
veillance Protection Act," S. 1950. I said,
in introducing the bill on July 27, 1977:
The principle here is simple: so far as
electronic surveillance is concerned our law
defines what Americans cannot do to each
other; it is time for a law which says what
foreign governments cannot do to us.
Unfortunately, Mr. President, the Ju-
diciary Committee, to whom this bill was
referred, has not until now had the op-
portunity to consider it and to hold hear-
ings on the subject.
Yet, at this moment, when we adopt
such a major piece of legislation protect-
ing the privacy of Americans against
electronic surveillance to obtain foreign tions from hostile intelligence services? their own intelligence agencies, is it not
intelligence information, while, at the While this bill does not directly address an appropriate time to ask whether we
same time, protecting the right to pri- this question, it does define as an "agent will protect ourselves, the same Ameri-
vacy of U.S. citizens and aliens from of a foreign power," and hence as some- cans, against the activities of foreign
abuse by our own intelligence agencies. one whose communications are subject governments? Now that we are about to
In doing this, however, we are enter- to interception- enact strong statutory safeguards for the
ing virgin legislative territory. Until now, any person who-knowingly engages in protection of privacy against the activi-
no nation in the world has tried to regu- clandestine intelligence gathering activities ties of U.S. intelligence agencies, is it not
late its foreign intelligence agencies in for or on behalf of a foreign power, which
the manner in which we now propose to activities involve or may involve a violation all the more incumbent on us to provide
do. The attempt to bring a whole area of the criminal statutes of the United States. adequate safeguards against the activi-
of foreign
of heretofore unregulated behavior under Thus, the authority provided by this ties Sin
ce I introduce dg the F eign'Sur-
the strict rule of law. exposes us, to two bill is available to help protect the pri- veillance Protection Act last July, the ad-
risks: First, we may unduly restrict our vacy of Americans from the activities of ministration, as reported in the Atlanta
intelligence agencies and so endanger our foreign intelligence services. This bill Constitution of November 20, has set up
national security or the successful con- alone, however, is clearly insufficient for an interagency committee under the
duct of our foreign policy; or second, we this purpose. For this reason, 16 col- chairmanship of Dr. Frank Press, who is
may so distort the procedures and tradi- leagues joined me last summer in spon- the President's science adviser, to co-
tions of the judiciary as to weaken the soring the Foreign-Surveillance Preven- ordinate Government policy on commu-
protection it can afford Individual citi- tion Act (S. 1950). nications security. It is time for Con-
zens and aliens, to force it to make in- Accordingly, Mr. President, I should gress to assure itself that this committee
herently administrative-that is, non- like to call further attention to this is on the road to solving the problem or,
judicial-decisions, and, ultimately, to problem of the intrusion by foreign in- if it is not, to enact legislation to clarify
dissipate the high prestige in which the telligence agencies in the private com- the duty of the Government to protect
judiciary is held and on which the bill munications of American citizens. So far the privacy of communications from for-
itself so heavily relies. as one can tell, this is of an incompar- eign intelligence services, and to author-
In all candor, I must admit that I am ably greater order of magnitude than ize, if necessary, the actions by which'
unable to offer any assurances that these anything ever contemplated, much less this can be done.
risks will not materialize. The very un- actually carried out, by American intel- Mr. President, I wish to emphasize one
precedented nature of the bill should ligence agencies. thing here. I admire and trust the ad-
make us wary of accepting assurances of I recall the Attorney General's report ministration and its behavior, but I can-
this sort. to us that this year, there has been one not help but note that much of its
I do, however, wish to call attention to American citizen who has been subject present calm about this matter derives
a provision of the bill, on which we have to warrantless electronic surveillance by from its having secured its own com-
not focused our attention, but which I American intelligence agencies. munications against Soviet interception,
believe speaks to these concerns. My col- . However, I would not be surprised if not ours.
leagues and I included in the bill the upwards of 1 million American citizens Every institution comes first, and to
following provision, section 2528(b) : . were, at this moment, having their tele- Government, Government comes first,
(b) On or before one year after the effec- phone calls listened to by the KGB, the but cannot the citizenry come second?
tive date of this chapter, and on the same committee of state security of the So- In any event, it seems to me time for
day each year thereafter, the Select Commit- that this in-
tee on Intelligence of the United States Sen- Viet Union. They are overheard by re- Congress to assure itself
ate shall report to the Senate, concerning the ceivers on the top of the Soviet Embassy teragency committee is doing its job
implementation of this chapter. Said reports here in Washington. A new Soviet Em- and also to ask what should be done
shall include but not be limited to an bassy soon to be built on a hill in Wash- about governments who come to the
analysis and recommendations concerning ington, will, for this purpose, no doubt, United States and install facilities violat-
whether this chapter should be (1) amended, be even better situated for the intercep- ing the laws.
(2) repealed, or (3) permitted to continue tion of the telephone calls of anyone on The Soviet interception of American
in effect without amendment. this floor, or in the gallery, or who will telephone conversations, to my knowl-
This provision for annual review sug- read this RECORD. Telephone calls are in- edge, Mr. President, is a criminal act.
gests that we should devote some thought tercepted for the Soviet Mission to the If the distinguished Presiding Officer,
to the criteria against which the select U.N. in Manhattan and from their sky- the Senator from Wisconsin, were to set
committee should judge the adequacy of scraper in Riverdale, in New York City, up today on the roof of the University
the bill. While only the members of the again for the purpose of intercepting and Club next to the Soviet Embassy and do
select committee are charged with the sorting out by computer American tele- during the day what the soviets do dur-
responsibility of reviewing the working phone calls. This massive invasion of our ing the day, alas, the Senator probably
of the bill and making recommendations, privacy by Communist intelligence agen- would be arrested and charged with
every Senator can take part in the dis- cies is taking place daily and blatantly; criminal invasion of privacy, or whatever
cussion by which are established the viewers of a recent Columbia Broadcast- the law may be, and treated,without ap-
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CONGRESSIONAL RECORD - SENATE April 20, 1978
propriate respect by his own Government
because he would be violating the law.
But if he were a Russian intelligence
agent next door, that would be different.
The intelligence agent is different in
that he is immune from arrest in some
instances, but he is not immune from
being declared persona non grata.
In the meantime, the fourth amend-
ment rights of Americans have to be
protected.
In open hearings, I asked the coun-
sel to the CIA, who said to me, that the
fourth amendment protects us only
against violations by our own Govern-
ment, and that the fourth amendment
provides no protection against violations
by foreign governments.
If that is so, it suggests to me that a
statute is in order.
I do not want to detain the Senate
further on this matter, but I understand)
that the Chairman of our Select Com-
mittee on Intelligence, the distinguished
Senator from Indiana who has been so
much responsible for the legislation now
before us, feels that the Judiciary Com-
mittee will be in a position to hold
hearings on the legislation which we have
introduced, legislation having to do with
foreign surveillance of American citizens
in this country.
I wonder if that is not the case?
The PRESIDING OFFICER. The time
of the Senator from New York has
expired.
Mr. MOYNIHAN. May I ask for 2
additional minutes?
Mr. BAYH. I yield the Senator 2 addi-
tional minutes.
In response to the question of our
colleague from New York, I will say that
as a member of the Judiciary Commit-
tee, I will be glad to use whatever little
influence I might have on those who are
in a position to make this decision.
I think we should have hearings.
The Intelligence Committee, of which
the Senator from New York is a member,
does not have jurisdiction over this mat-
ter. However, it is certainly within reason
that we could hold hearings on the
subject.
Mr. MOYNIHAN. Yes.
Mr. BAYH. However, we would not be
permitted to hold hearings on the bill
since that is a product of the Judiciary
Committee authority. It has been re-
ferred, as the Senator from New York
is very well aware.
Mr. MOYNIHAN. What my friend sug-
gests, if I understand him is that the
Intelligence Committee will hold hear-
ings on this subject, and that it will
make its findings available to the Judi-
ciary Committee for any course it may
wish to pursue.
Mr. BAYH. That is accurate.
Mr. MOYNIHAN. Fine.
I want to thank the distinguished
Senator from Indiana and the distin-
guished Senator from South Carolina
who is listening with such courtesy, and
say that the Judiciary Committee surely
would wish to show itself as zealous to
protect Americans against eavesdropping
by Communist agents as by the FBI.
Mr. BAYH. Would the Senator per-
mit me to state one thought?
Mr. MOYNIHAN. I am happy to.
Mr. BAYH. I share his concern and I
am sure I shared his shock when we were
first made privy to the extent of this
clear invasion of the privacy of Amer-
ican citizens.
I must say, I would not want the rec-
ord to read that the issue is quite as
clearcut as it might read if we stopped
a discusion of this issue right now. I
talked to a number of people in high
places, as I am sure the Senator from
New York has, and they are concerned
about this. Hopefully, we will be able to
find a way to deal with it. Maybe his
bill is the answer.
But I think it is important to point
out that we have a problem here that is
a much stickier wicket than just the
traditional kind of diplomatic immunity.
I think the security of the questions
involved precludes any of us discussing
the details of this again. But I think it
is fair to say that the United States, and
aware of its activities elsewhere in the
world, does not put our country and
countrymen at an issue having totally
clean hands in this argument.
Mr. MOYNIHAN. The Senator is en-
tirely correct.
Mr. President, one final observation.
After Watergate, after the findings of
the Church committee, are we not
warned against people who rise and
whisper in our ears that in the interests
of national security we must violate the
constitutional rights of Americans?
When we hear that, we become alerted
to the abuses of the past and become
concerned about possible abuses of the
future.
American citizens have as much right
not to have the Russians eavesdropping
on them as not to have their own Gov-
ernment eavesdropping on them.
Mr. President, I thank the Chair, I
thank the chairman of the select com-
mittee, and I thank the Senator from
South Carolina.
The PRESIDING OFFICER. Who
yields time?
Mr. MORGAN addressed the Chair.
Mr. BAYH. I yield to the Senator from
North Carolina whatever time he wants.
Mr. MORGAN. Approximately 10
minutes..
Mr. BAYH. He is a, distinguished mem-
ber of our subcommittee and the pre-
vious committee - and is certainly well
qualified to speak on this subject.
The PRESIDING OFFICER. The Sen-
ate has 7 minutes remaining.
Mr. MORGAN. I thank my distin-
guished colleague and I will try to make
my remarks as brief as I can.
Mr. BAYH. If the Senator will permit
me, I think the time restraints permit
an hour for each amendment on the
bill, and if the Senator from North Car-
olina does not have sufficient time, we
have three or four amendments that
will not require nearly an hour to dis-
cuss, and I am prepared to introduce one
of those, if the Senator needs the time.
Mr. GARN. If the Senator will yield,
we have adequate time. We have 45 min-
utes remaining on this side of the aisle.
I would be happy to yield what time is
necessary for the Senator from North
Carolina and the Senator from Wyoming.
Mr. MORGAN. I thank my distin-
guished colleague.
The PRESIDING OFFICER. The
Senator from North Carolina is yielded
10 minutes-7 minutes from the major-
ity side and 3 minutes from the minority
side.
Mr. MORGAN. Mr. President, first,
I commend the distinguished Senator
from Indiana, who chairs the Select
Committee on Intelligence; the distin-
guished ranking minority member of that
committee, the Senator from Utah; and
the distinguished Senator from Massa-
chusetts and the distinguished Sena-
tors from South Carolina for the splen-
did work they have done on this most
difficulties piece of legislation, it really
is landmark legislation.
I am extremely interested in this sub-
ject and have been for many years. I
became interested 'n illegal and unlawful
wiretapping when I became attorney
general of North Carolina more than 10
years ago, at which time I ordered my
State bureau of investigation to cease all
wiretapping unless properly warranted.
Then, as a member of the Church com-
mittee, I say what could happen. So I
wholeheartedly endorse this bill, and I
commend my colleagues who have work
so hard on it.
Mr. President, there are several stories
behind today's consideration of the
Foreign Intelligence Surveillance Act of
1978. Not only does it mark the culmina-
tion of one of the Senate's first efforts
to place the activities of our intelligence
agencies under the rule of law, but it also
demonstrates that within this body and
the Executive there remains intact an
unalterable respect for the rights of
American citizens.
The history of wiretapping and elec-
tronic surveillance in this country is long
and vivid. The Supreme Court, in the
case of Olmstead against United States,
in 1928, held as admissible evidence
which had been obtained through the use
of a wiretap. In his famous dissent to
that decision, Justice Brandeis stated
that the makers of our Constitution
"conferred as against the Government,
the right to be let alone-the most com-
prehensive of rights and the right most
valued by civilized man." Justice Bran-
deis went on to say, speaking of tech-
niques to be used in the future:
The progress of science in furnishing the
Government with means of espionage is not
likely to stop with wiretapping. Ways may
some day be developed by which the govern-
ment, without removing papers from secret
drawers, can reproduce them in court and
by which it will be able to expose to a jury
the most intimate occurrences of the home.
Justice Brandeis' words could almost
be considered prophetic for that day has
come. Not only has the rapid develop-
ment of technology been accompanied
by an increase in the use of electronic
surveillance techniques, but we have also
seen our most valued right-to be left
alone by our Government-consistently
violated.
In the series of court cases which fol-
lowed the Olmstead decision, our law
evolved to the point where warrantless
electronic interceptions of private com-
munications were considered "unreason-
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April 20, 1978 CONGRESSIONAL RECORD-SENATE
able searches and seizures." Title 18 of
the Omnibus Crime Control and Safe
Streets Act of 1968 codified much of the
existing case law by prohibiting govern-
ment eavesdropping except to gain evi-
dence in certain cases of serious crimes
and by requiring a warrant in those
cases. Case law as well as our present
statutes have left unanswered the ques-
tion of whether an exception to the war-
rant requirement exists in cases of na-
tional security where there is the pos-
sible involvement of a foreign power.
Not only did this loophole in the law
exist, but our highest executive officers,
going back for decades, have attempted
to legitimize warrantless electronic sur-
veillance under the guise of Presidential
claims of inherent authority to do what-
ever may be necessary in the interest of
national security. In 1940, President
Roosevelt authorized the use of elec-
tronic surveillance against "persons sus-
pected of subversive activities against
the Government of the United States,
including suspected spies." Litigation
which rose out of the warrantless elec-
tronic surveillance of staff members of
the National Security Council was con-
cluded last year. And a current espionage
trial taking place at this very moment
here in Washington has as one of its
primary issues the question of whether
the President has an inherent right to
conduct warrantless electronic surveil-
lance for national security purposes.
Mr. President, I have been closely in-
volved with our Nation's intelligence
agencies, their activities, and the guid-
ance and direction they receive since I
first came to the Senate. Two lessons I
have learned which stand out very
clearly in my mind are-one, that in this
time of highly charged nationalist move-
ments and outbreaks of terrorism
throughout the world, we need and must
have the best available intelligence if
we are to continue to maintain our stat-
ure in the world, and, two, that the
activities of our intelligence agencies
must be conducted pursuant to rules of
law consistent with our Constitution.
I have found out intelligence agencies
capable of competently carrying out
their assigned tasks, and the Intelli-
gence Oversight Committee has proven
to be a workable forum for the inter-
change of ideas between the executive
branch and the Congress. The end result
in this case is the legislation before you,
which I wholeheartedly endorse.
As we. all know, there exists a direct
conflict between the ideas of a democ-
racy and intelligence which gives rise to
a distinct difficulty in drawing a balance
between what activities our Government
may participate in in order to protect
us and the protection of our ideals of
individual liberties. I feel that too often
in the past, our law enforcement agen-
cies, followed by our intelligence, agen-
cies, came down on the side of vigorous
pursuit of their activities to the detri-
ment of the American citizen. Just as
there are bad apples in every barrel,
there are those in this country who will
engage in espionage on behalf of our
adversaries. And while we must, repeat,
must be vigilant in our pursuit of these
traitors, we must remember that the vast
majority of American citizens love their
country and would not participate in ac-
tivities to its detriment, especially when
cooperation with the enemy is involved.
Because of my. faith in the American
people, I was unable to support last
year's attempt to legislate in this area.
That legislation, which would have per-
mitted electronic surveillance of persons
not involved in criminal activity, was
inconsistent not only with. the trust I
have in the American citizen,, but was
also contrary to my concept of how the
Congress should go about implementing
reform of our intelligence agencies
through legislation. The past had shown
me that even though our governmental
leaders and members of the intelligence
community may have had the best in-
tentions, there were abuses. One abuse
led to another, and another, and even-
tually we may have been faced with a
KGB or Gestapo without even knowing
it. The origins of the abuses rested in
the fact that Americans who had done
no wrong could be investigated, in the
absence of criminal conduct. Once the
investigations started, there was no
stopping point.
S. 1566 has adopted a criminal stand-
ard with which I feel comfortable. Not
only will the passage of this legislation
constitute a significant guide as we con-
sider other legislation dealing with in-
telligence, but it assures that such future
legislation and the activities of our in-
telligence agencies will be conducted in
accordance with the principles of our
Constitution.
Mr. President, there are those who say
that we cannot gain the kind of intelli-
gence we need in order to protect the
country and the people of this country
without sometimes engaging in elec-
tronic surveillance without warrants. I
would argue with these people.
As I mentioned earlier, when I came
into office as attorney general of North
Carolina, I immediately declared that
we would not engage in any kind of
illegal wiretapping or electronic surveil-
lance, except by warrant of the courts.
I found that our agents, in the State
bureau of investigation became more
proficient. They were able to do their
jobs; they did a better job.
If we establish, as we will by this bill,
that we in Government, we in the intelli-
gence agencies, we in the law enforce-
ment agencies, must live within the law,
then we will learn to do it, and we will
learn to do a better job of it.
I do not see how we can continue to
generate respect for our system of Gov-
ernment and respect for the laws of this
land when we have people in Govern-
ment disobeying these very laws.
I wholeheartedly endorse the proposed
legislation. I commend the two commit-
tees that have worked so hard and so
diligently with the members of the execu-
tive branch in coming up with a bill with
which I think most Members of the Sen-
ate feel comfortable.
The PRESIDING OFFICER. Who
yields time?
Mr. GARN. Mr. President, I yield 10
minutes to the distinguished Senator
from Wyoming.
Mr. WALLOP. Mr. President, I thank
S 6003
my colleague, the distinguished senior
Senator from Utah.
Mr. President, as is pointed out in the
committee report, there are good reasons
to pass such a bill as this. We need a
clear legal authority for electronic sur-
veillance for national security. We need
standards, and there needs to be a means,
an agency, to make certain those stand-
ards are observed.
Nevertheless, while we rush to protect
the rights of our citizens, as individuals,
in one field, I think we must take care
not to trample their rights to have their
system of government remain intact in
other fields.
The bill provides clear legal authority,
and sets out some standards. They are
arguable standards. For example, a U.S.
person working for the interests of a
hostile power may not be surveilled under
this bill unless it can be shown he is
doing what he is doing under the con-
trol of the foreign power. Freelancers
may not be surveilled. There are other
questions on standards set forth in my
additional views to the Intelligence Com-
mittee's report.
But the main issues that concern me
in the bill are of a constitutional nature.
The power to surveil for purposes of na-
tional defense and foreign affairs is
clearly part of the President's powers
over defense and foreign affairs. Yet, this
bill stipulates that before the President
exercises part of his powers over defense
and foreign affairs his actions must be.
approved by another branch of Govern-
ment.
Congress has the right to set standards
for the exercise of Presidential powers
and I have no quarrel with that. We
further have the right to demand the
President adhere to them. But do we have
the right to prevent him from acting
until a judge has approved?
Do we have the right to direct that
article III Federal judges perform func-
tions such as the ones we have in this,
bill?
The Supreme Court may well say no.
Furthermore, is it wise to bring judges
into the fields of defense and foreign
affairs? Are we so happy with the growth
of judicial power in other fields 111 recent
years that we wish to extend it?
Mr. President, I point out certain his-
torical precedents for this question in
my additional views, and I shall quote
briefly from them here. The courts them-
selves have questioned their ability in
this matter.
Heretofore the judicial branch has resisted
temptations to declare itself competent in
foreign affairs and defense. In the case of
Chicago Southern v. Waterman Steamship
Co. (333 L.S. 103, 111, 1948), the Supreme
Court acknowledged the court's incom-
petence in matters of foreign intelligence.
The substance of such matters, said the
courts "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." Such decisions are in
"the domain of political power, not subject
to judicial intrusion or inquiry."
Clearly, defense and foreign relations are
political tasks. That is to say,' they are to be
conducted subject to the people's power to
elect. The power to surveil for purposes of
defense and foreign affairs belongs to that
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CONGRESSIONAL RECORD -SENATE April ,M, 1978
branch of government empowered by the
Constitution to command the armed forces
and conduct foreign affairs. There are no
judicial criteria for interpreting whether
this or that foreign visitor is or is not an
agent of a foreign power, whether this or
that American's connection with persons who
may have some relation with the intelligence
services of a foreign power has sufficient con-
nections to warrant surveillance.
The Senate should think about such
questions before acting in haste.
Do we really want to view the process
of gathering intelligence for our protec-
tion under the rubric of criminal law?
Do we want to assume that unless a U.S.
person may be guilty of something we
cannot surveil him to gather information
we may need to safeguard ourselves from
foreign powers or from terrorists?
Will these combinations of restrictions
hamper our defense? What will the
American people say if and when the kind
of terrorism which is now ravaging West-
ern Europe hits us? Will they blame us
for this bill?
May I suggest that if these questions
are not given due attention today, a time
may come when we will wish they had
been examined more carefully.
M:r. President, the interesting thing is
that it was not the courts but Congress
who discovered the abuses of the recent
past, and who brought them to the atten-
tion of the courts. Perhaps it would be a
wiser choice for us to take that direction,
rather than to intricately intermesh the
three separate branches of our Govern-
ment. When one does that one makes it
impossible for one branch to render a
real judgment on the other. Should all
branches be involved in a decision the
time could come when injured persons
would have no one left to appeal to.
That is my basic concern, that once
the courts have entered into this field,
Americans will find it harder to redress
abuses. If a court authorizes abusive sur-
veillance Congress can finally try to do
something about it. But to overrule a
court is harder than to question a Presi-
dent's judgment.
Indeed, what we are saying here, I
guess, is that we should have faith in our
Presidents, that they will use their power
to surveil judiciously, and that we should
have faith in otlr ability as a Congress,
through the Judiciary Committee and In-
telligence Committee, to conduct such
oversight as is necessary, and to bring a
final appeal place; namely, the courts of
the United States, within the reach of
someone who may have been surveiled in
an illegal manner. But if once the courts
approve presidential decisions on sur-
veillance before the fact then, it seems
to me an individual's judgment that he
has been wrongly surveiled is his to share
in solitude, because there will be no other
place for him to pursue it.
Mr. President, I have a question that
I wish to direct to the distinguished
chairman of the Intelligence Committee
who also is on the Judicial Committee
that provides the linkages in this mat-
ter, I guess, because I think perhaps an
answer to these questions now might well
prick the attention of Congress as we
overview the results of this act in the
years to come.
I ask Senator BAYH, the chairman of
the Intelligence Committee, whether that
committee will have authority under the
bill to evaluate surveillance that a court
approves, and would the oversight com-
mittee be limited by the fact that a court
has approved that surveillance?
Mr. BAYH. No, it would not, I say to
my distinguished colleague from Wyo-
ming. The court and the oversight com-
mittee have different functions. The job
of the Intelligence Committee is to de-
termine whether the executive branch
is following, the intent of the legislation
and whether the law needs to be changed.
If the executive branch violates the in-
tent of Congress and the court misun-
derstands that intent and approves the
surveillance, then we must act. Our duty
under the bill is to recommend any
changes needed in the law. This gives us
the authority to look into all significant
aspects of the surveillance.
The PRESIDING OFFICER (Mr.
HATHAWAY). The Senator's 10 minutes
have expired.
Mr. WALLOP. Mr, President, will the
distinguished Senator from Utah yield us
another 5 minutes?
Mr. GARN. I am happy to yield 5 addi-
tional minutes.
The PRESIDING OFFICER. The Sen-
ator is recognized for 5 additional
minutes.
Mr. BAYH. Mr. President, I think the
purpose of the legislative branch or the
role of the legislative branch has been
quite appropriately emphasized by the
Senator from Wyoming, in the judgment
of the Senator from Indiana, he, indeed,
being involved not only in this particu-
lar legislation, but in trying to get char-
ter legislation passed, as the Senator
from Wyoming is very much aware is
presently before our committee. The fact
that we are saying to the agencies, "Thou
shalt not violate the rights of the indi-
vidual Americans and thou shalt go to a
judge before you undertake certain kinds
of surveillance activities," in no way
lessens our responsibility to oversee
whether the judge is doing his job or not,
or whether the whole system is working
properly.
I thing the congressional oversight
role is extremely important with or with-
out the bill.
Mr. WALLOP. If the executive branch
violates the intent of Congress in this
bill and the court misunderstands that
intent and approves a surveillance, then
who acts? Do we, Congress, act?
Mr. BAYH. Congress in its oversight
function hopefully would find the weak-
ness and then would make recommenda-
tions as to how the law should be
changed to keep that kind of weakness
from continuing.
Mr. WALLOP. This is not part of the
conversation that we have had earlier.
But would there be no way in which we
could draft legislation setting out the
standards by which and under which
wiretap surveillance or electronic sur-
veillance would be conducted, without
giving the court the yea or nay say be-
fore the pact?
Mr. BAYH. Yes, Congress could es-
tablish standards, give this authority
strictly to the executive branch, either
the Attorney General, the President, or
some designee. There are certain re-
sponsibilities that must be carried out by
executive branch in the proposed charter
legislation. There is a wider area of des-
ignated responsibility to the executive
branch. But it was the feeling of frlost of
us involved in the process that led us
where we are now that given the kinds
of abuses that have existed in the execu-
tive branch, and not just the most re-
cently advertised experiences, that we
would be wiser if we gave the judge the
authority to make that determination as
to what the purpose of the executive
branch was and whether it did indeed
meet the standards we had put in the
legislation.
Mr. WALLOP. Are we not than put-
ting the judicial branch into the execu-
tive business, giving them the decison
before the fact rather than after the
fact?
Mr. BAYH. I do not think so, I say to
my friend from Wyoming.
The executive branch initiates pro-
posals, and the way this would work, of
course, is that one of our intelligence
agencies, their personnel in the field,
would have matters brought to their at-
tention that they thought merited elec-
tronic surveillance-that the country
was about to be harmed by certain ac-
tivities or could be harmed by certain
activities.
Then they would make this application
to the Justice Department. The Justice
Department would then make the proper
request through the judge, and the
judge would look at the application to
see whether it was meritorious. If he
thought it was then he would permit,
under the limitations of the bill, the sur-
veillance to proceed.
It would, not be a procedure initiated
by the judicial branch.
Does the Senator from Wyoming have
similar concerns about the role of the
judge in granting warrants under title
3 electronic surveillance in the 1968
crime control and safe streets bill?
Mr. WALLOP. But in this particular
instance I have more concern about the
foreign affairs and intelligence affairs
than I do have as to the standards of
conduct for criminal affairs for the sim-
ple reason that the courts are less expert
in the field of foreign affairs, by their
own admission.
The PRESIDING OFFICER. The Sen-
ator's time has expired.
Mr. THURMOND. I yield 1 more
minute.
Mr. BAYH. I understand the concerns
of the Senator from Wyoming, and I ap-
preciate the fact that he has pursued
these concerns.
Our feeling was, and I think the basis
for this procedure in this bill is, first of
all, we have adequate precedent under
the Crime Control and Safe Streets Act
of 1968 where under title 3 the judicial
warrant-granting procedure has been
utilized now for almost 10 years. It has
worked very well. Even prior to that the
pursuit of judicial warrants in certain
areas like this was a well-accepted pro-
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cedure rooted in fundamental fourth
amendment principles.
The second area I think the Senator
from Wyoming should recognize-and I
am sure he does, but I would just like to
point it out in our colloquy-is that a
person who is abused under this act does
not need to wait for a judge or Congress
to recognize the error. He or she, if
abused, is certainly within his or her
constitutional rights to pursue remedies
available under this act through a court
of law under a different judge, we would
assume, where the rightness of the deci-
sion of the original judge and the execu-
tive branch would then be tested.
The PRESIDING OFFICER. The Sen-
ator's 1 minute has expired.
Mr. WALLOP. May I just respond?
Mr. THURMOND. I grant the Senator
and yield 2 more minutes.
Mr. WALLOP. I thank my friend from
South Carolina.
The only thing I would say to my
friend from Indiana is in the crime bill
there is a difference. There the issue is
very specifically crime, and the purpose
of surveillance is to bring the case to
trial, whereas in intelligence cases it is
doubtful that many of them will ever
come to trial. There is seldom a trial for
somebody who is involved in this kind
of thing. We are not trying to catch
criminals but to gather information to
protect the national interest of the coun-
try. So I perceive a difference in the
Safe Streets Act and in the use of elec-
tronic surveillance in crime as opposed
to the use of electronic surveillance to
conduct national defense and interior
defense of the country.
Mr. BAYH. I should point out to my
friend from Wyoming we established a
different criminal standard in dealing
with spies, and a noncriminal standard
for foreign officials, and certain agencies
or institutions that exist in this coun-
try, which are controlled by foreign gov-
ernments as front operations, and the
Senator is familiar with that. We estab-
lished a different standard, a different
criminal standard, than that applied un-
der title 3. So the standard is not the
same.
Mr. WALLOP. I understand that. The
only thing that worries me, and worries
me considerably, is it is drawn so tightly
that the freelancers, the guys not under
the control of the foreign government,
are not subject to control.
Mr. BAYH: I would suggest to my
friend that if that person is doing any-
thing that comes close to violating a
crime he comes close to title 3. I think
if we believe in our Constitution and how
it protects people in this country, not
just our own citizens, that a freelancer,
if he is to pursue activity that is close
to sabotage, does it at his peril, because
he then can be wiretapped under title 3,
because to commit sabotage or espionage
is to commit a crime covered by title 3.
The PRESIDING OFFICER. The
Senator's 2 minutes have expired.
Mr. BAYH. I thank my friend.
? Mr. ABOUREZK. Mr. President, the
Senate is acting today on one of the most
important pieces of legislation to come
before this body in some time.
For 40 years, Presidents have engaged
in electronic surveillance for foreign in-
telligence purposes in the United States.
Their common justification for these ac-
tivities has been some claimed "inherent
constitutional power" which somehow
superceded the warrant requirements of
the fourth amendment.
If enacted today, S. 1566 will end this
pattern. For the first time, Congress will
go on record as saying that no such "in-
herent power" exists. For the first time,
we will require that a detached magis-
trate review the requests for surveillance
activities within the United States. For
the first time, warrants will be required
in the area of foreign intelligence elec-
tronic surveillance. And for the first
time, executive branch officials will be
required to justify their requests for
these warrants on the record.
All of these factors are important.
Yet, as my colleagues know, one issue
above all others has concerned me dur-
ing the deliberations on this legislation.
That, of course, has been the standard
by which such surveillance orders may be
issued against American citizens.
I have long felt and consistently ar-
gued that any legislation which allowed
for the issuance of an order against an
American citizen on anything less than a
criminal standard would be a violation
of the fourth amendment. In my view,
our Government ought not to be allowed
to invade the privacy of its citizens in
such a massive way without a showing
of probable criminal activity.
After carefully reviewing the Foreign
Intelligence Surveillance Act, as amend-
ed, I have concluded that it meets that
basic standard. In every instance in
which a warrant can be issued against
an American citizen under the bill, the
Government must demonstrate, to the
satisfaction of a Federal judge, that a
nexus exists between the activities of the
citizen and a violation of the criminal
laws.
Mr. President, I have been involved
in the deliberations on this legislation
for over 3 years. Others, such as Senator
KENNEDY, Senator NELSON, and Senator
MATHIAS, have been involved for even
longer. There were times that I believed
that differences between the legislative
and executive branches on the intricacies
of this legislation would not be overcome.
Now, however, I wish to commend my
colleagues in the Judiciary and Intel-
ligence Committees, and the President
and Attorney General Bell, for the dili-
gent and thoughtful manner in which
these difficult deliberations have been
concluded. I believe that we have suc-
ceeded in fashioning a bill that is work-
able and worthwhile and one deserving
of support.?
Mr. BAYH. Mr. President, I ask unan-
imous consent that the committee
amendments be agreed to en bloc, and,
as agreed to, be considered original text
for the purpose of further amendment.
The PRESIDING OFFICER. Without
objection, it so ordered.
The amendments of the Committee
on the Judiciary are as follows:
On page 2, line 17, sta'ilie "a" and insert
"any";
On page 2, line 18, after "person" insert
S 6005
a comma and "knowing that such person is
engaged in activities";
On page 10, beginning with line 10; strike
through and including line 11, and insert
"or the Deputy Attorney General";
On page 10, line 15, after "and" insert
"prohibit";
On page 10, line 15, after "dissemination"
insert a comma and "except as provided for
in subsections 2526(a) and (b),";
On page 13, line 2, after "corporations"
insert "or associations"';
On page 18, line 10, after "section 2521
(b) (6)" insert a comma and "and a state-
ment whether physical entry is required to
effect the surveillance";
On page 20, beginning with line 21, in-
sert the following:
"(C) when the target of the surveillance
is not a foreign power as defined in section
2521(b) (1) (A), (B), or (C), the type of in-
formation sought to be acquired and when
the target is a foreign power defined in sec-
tion 2521(b) (1) (A), (B), or (C), the desig-
nation of the type of foreign intelligence in-
formation under section 2521(b) (5) sought
to be acquired;
On page 21, line 11, after "2521(b) (6)"
insert "and whether physical entry will be
used to effect the surveillance";
On page 25, beginning with line 19, insert
the following:
No information acquired from an elec-
tronic surveillance conducted pursuant to
this chapter may be used or disclosed by
Federal officers or employees except for
lawful purposes.
On page 26, line 9, after "States," Insert
"a State, or a political subdivision thereof,";
On page 26, line 19, after the period, strike
through and including page 27, line 18, and
insert in lieu thereof the following:
"(d) Any person who has been a subject
of electronic surveillance and against whom
evidence derived from such electronic sur-
veillance is to be, or has been, introduced
or otherwise used or disclosed in any trial,
hearing, or proceeding in or before any court,
department officer, agency, regulatory body,
or other authority of the United States, a
State, or a political subdivision thereof, may
move to suppress the contents of any com-
munication acquired by electronic surveiI-
lance, or evidence derived therefrom, on the
grounds that-
"(1) the communication was unlawfully
acquired; or
"(2) the surveillance was not made in con-
formity with the order of authorization or
approval.
Such motion shall be made before the
trial, hearing, or proceeding unless there was
no opportunity to make such motion or the
person was not aware of the grounds of the
motion.
"(e) Whenever any court Is notified in
accordance with subsection (c), or whenever
a motion is made by an aggrieved person
pursuant to subsection (d), to suppress
evidence on the grounds that it was obtained
or derived from an unlawful electronic sur-
veillance, or whenever any motion or request
is made by an aggrieved person pursuant to
section 3504 of this title or any other statute
or rule of the United States, to discover,
obtain, or suppress evidence or information
obtained or derived from electronic surveil-
lance, the Federal court, or where the motion
is made before another authority, a Federal
court in the same district as the authority,
shall, notwithstanding any other law, if the
Government by affidavit asserts that dis-
closure or an adversary hearing would harm
the national security of the United States,
review in camera and ex parts the applica-
tion, order, and other materials relating to
the surveillance as may be necessary to
determine whether the surveillance was au-
thorized and conducted In a manner that
did not violate any right afforded by the
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Constitution and statutes of the United
States to the aggrieved person. In making this
determination, the court shall disclose to
the aggrieved person portions of the appli-
cation, order, or other materials relating to
the surveillance only where such disclosure
is necessary to make an accurate determina-
tion of the legality of the surveillance. If
the court determines that the electronic sur-
veillance of the aggrieved person was not
lawfully authorized or conducted, the court
shall in accordance with the requirements
of law suppress the information obtained or
evidence derived from the unlawful elec-
tronic surveillance. If the court determines
that the surveillance was lawfully authorized
and conducted, the court shall deny any
motion for disclosure or discovery unless
required by due process.
On page 29, line 17, strike "(d) " and In-
sert " (f)
On page 36, line 24, after "that" insert
"no particular United States person shall be
intentionally targeted for testing purposes
without his consent,";
On page 38, beginning with line 25, insert
the following:
(I) Section 2518(10) is amended by strik-
ing the word -intercepted" and inserting the
words "intercepted pursuant to this chapter"
after the first appearance of the word "com-
munication".
On page 39, line 4, strike "(i)" and insert
"(j) "; %
On page 39, line 8, strike "(j)" and insert
"(k),.
The amendments of the Select Com-
mittee on Intelligence are as follows:
On page 1, line 4, strike "1977" and insert
""1978";
On page 2, line 3, following "2527. Report
of electronic surveillance." insert "2528. Con-
gressional oversight.";
On page 3, beginning with line 6, strike
through and including line 19, and insert
in lieu thereof the following:
"(A) any person, other than a United
States person, who-
"(I) acts in the United States as an officer
or employee of a foreign power; or
"(fl) acts for or on behalf of a foreign
power which engages in clandestine intelli-
gence activities contrary to the interests of
the United States, when the circumstances
of such person's presence in the United
States indicate that such person may engage
in such activities in the United States, or
when such person knowingly aids or abets
any person in the conduct of such activities
or conspires with any person knowing that
such person 1s engaged in such activities;
On page 4, beginning with line 9, strike
through and including page 5, line 10, and
Insert in lieu thereof the following:
" B) any person who--
" I) knowingly engages in clandestine in-
telligence gathering activities for or on be-
half of a foreign power, which activities in-
volve or may involve a violation of the
criminal statutes of the United States;
"`(ti) pursuant to the direction of an in-
telligence service or network of a foreign
power, knowingly engages in any other clan-
destine intelligence activities for or on be-
half of such foreign power, which activities
involve or are about to involve a violation
of the criminal statutes of the United States;
"(111) knowingly engages in sabotage or
terrorism, or activities which are or may be
in preparation therefor, for or on behalf of
a foreign power;
"(iv) knowingly aids or abets any person
in the conduct of activities described In sub-
paragraph (B) (I) through (iii) above, or
conspires with any person knowing that such
person is engaged in activities described in
subparagraph (B) (i) through (Ili) above:
Provided, That no United States. person many
be considered an agent of a foreign power
solely upon the basis of activities protected
by the first amendment to the Constitution
of the United States.
On page 7, beginning with line 5, strike
through and including page 8, line 4, and
insert in lieu thereof the following:
"(A) information which relates to. and if
concerning a United States person is neces-
sary to, the ability of the United States to
protect itself against actual or potential
attack or other grave hostile acts of a for-
eign power or an agent of a foreign power;
"(B) information with respect to a for-
eign power or foreign territory which re-
lates to, and if concerning a United States
person is necessary to--
"(I) the national defense or the security
of the Nation; or
"(ii) the successful conduct of the for-
eign affairs of the United States; or
"(C) information which relates to, and if
concerning a United States person is neces-
sary to, the ability of the United States to
protect against-
"(1) sabotage or terrorism by a foreign
power or an agent of a, foreign power, or
"(ii) the clandestine intelligence activities
of an Intelligence service or network of a for-
eign power or an agent of a foreign power.
On page 11, beginning with line 11, strike
through and including page 12, line 6, and
insert in lieu thereof the following:
and which are reasonably designed to in-
sure that information which relates solely
to the ability of the United States to pro-
vide for the national defense or security of
the Nation and to provide for the conduct
of foreign affairs of the United States, under
subparagraphs (B) and (C) above, shall not
be disseminated In a manner which identifies
any United States person, without such per-
son's consent, unless such person's identity
is necessary to understand or assess the Im-
portance of information with respect to a
foreign power or foreign territory or such
information is otherwise publicly available,
On page 13, line 2, after "powers" insert
"as defined in section ' 2521(b) (1) (A)
through (B) ";
On page 15, beginning with line 5, insert
the following:
"(d) Each judge designated under this
section shall so serve for a maximum of
seven years and shall not be eligible for re-
designation: Provided, That the judges first
designated under subsection (a) shall be
designated for terms of from one to seven
years so that one term expires each year,
and that judges first designated under sub-
section (b) shall be designated for terms of
three, five, and seven years.
On page 17, beginning with line 1, strike
through and including line 2, and insert in
lieu thereof the following:
"(A) that the certifying official deems the
information sought to be foreign intelligence
information;
On page 23, line 7, after the period, insert
"At the end of the period of time for which
an electronic surveillance is approved by an
order or an extension issued under this sec-
tion, the judge may assess compliance with
the minimization procedures required by this
chapter.";
On page 24, line 23, after "thereof" insert
a semicolon and "and no information con-
cerning any United States person acquired
from such surveillance shall subsequently be
used or disclosed in any other manner by
Federal officers or employees without the
consent of such person, except with the. ap-
proval of the Attorney General where the
information indicates a threat of death or
serious bodily harm to any person";
On page 25, line 13, after "(F)" insert "and
in accordance with the minimization proce-
dures required by this chapter" ;
On page 26, line 4, after "Government"'
insert "of the United States, of a State, or
of a political subdivision thereof";
On page 3, beginning with line 10, insert
the following:
"(g) In circumstances involving the un-
intentional acquisition, by an electronic,
mechanical, or other surveillance device of
the contents of any radio communication,
under circumstances in which a person has
a reasonable expectation of privacy and a
warrant would be required for law enforce-
ment purposes, and. where both the sender
and all intended recipients are located with-
in the United States, such contents shall be
destroyed upon recognition, except with the
approval of the Attorney General where the
contents indicate a threat of death or serious
bodily harm to any person.
On page 31, beginning with line 6, insert
the folloing:
"? 2628. Congressional oversight
"(a) On a semiannual basis the Attorney
General shall fully -inform the House Per-
manent Select Committee on Intelligence
and the Senate Select Committee on Intelli-
gence concerning all electronic surveillance
under this chapter. Nothing in this chapter
shall be deemed to limit the authority and
responsibility of those committees to obtain
such additional information as they may need
to carry out their respective functions and
duties.
"(b) On or before one year after the ef-
fective date of this chapter, and on the same
day each year thereafter, the Select Com-
mittee on Intelligence of the United States
Senate shall report to the Senate, concerning
the implementation of this chapter. Said re-
ports shall include but not be limited to an
analysis and recommendations concerning
whether this chapter should be (1) amended,
(2) repealed, or (3) permitted to continue in
effect without amendment.
"(c) In the Select Committee on Intelli-
gence of the United States Senate shall re-
port that this chapter should be amended
or repealed, it shall report out legislation
embodying its recommendations within
thirty calendar days, unless the Senate shall
otherwise determine by yeas and nays.
"(d) Any legislation so reported shall be-
come the pending business of the Senate with
time for debate equally divided between the
proponents and opponents and shall be voted
on within thirty calendar days thereafter,
unless the Senate shall otherwise determine
by yeas and nays.
"(e) Such legislation passed by the Senate
shall be referred to the appropriate commit-
tee of the other House and shall be reported
out by such committee together with its rec-
ommendations within thirty calendar days
and shall thereupon become the pending
business of such House and shall be voted
upon within three calendar days, unless such
House shall otherwise determine by yeas and
nays.
"(f) If the case of any disagreement be-
tween the two Houses of Congress with re-
spect to such legislation passed by both
Houses, conferees shall be promptly ap-
pointed and the committee of conference
shall make and file a report with respect to
such legislation within seven calendar days
after the legislation is referred to the coin-
mittee of conference. Notwithstanding any
rule in either House concerning the printing
of conference reports in the record or con-
cerning any delay in the consideration of
such reports, such reports shall be acted on
by both Houses not later than seven calendar
days after the conference report is filed. In
the event the conferees are unable to agree
within three calendar days they shall report
to their respective Houses in disagreement.".
On page 35, line 21, after the period, insert
"No communication common carrier or
officer, employee, or agent thereof shall dis-
close the existence of any interception under
this chapter or electronic surveillance as de-
fined in chapter 120, with respect to which
the common carrier has been furnished either
an order or certification under this subpara-
graph, except as may otherwise be lawfully
ordered.";
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April 20, 1978 CONGRESSIONAL RECORD - SENATE S 6007
On page 36, line 18, after "duty" insert On page 81, line 12, strike out "those com- Intelligence Activities, which it was my
"under procedures approved by the Attorney mittees" and insert in lieu thereof "the ap- privilege to chair, made the recom-
General"; propriate committees of each House of Con- mendation that no Americans be
on page 37, line 13, after "provided" insert gress". targeted for electronic surveillance ex-
"that no 'particular 'United states person Mr. BAYH. Mr. President, this amend- cept upon a judicial finding of probable
shall be intentionally targeted for such pur- ment deals with the requirement of other criminal activity. The report added:
poses without his consent," committees to have access to certain in- Targeting an American for electronic
Mr. BAYH. Mr. president, parliamen- formation. The amendment acknowl- surveillance in the absence of probable
L__ .. .. + APHPOP a crime might have been
tary inquiry.
The PRESIDING OFFICER. The Sen-
ator will state it.
Mr. BAYH. Is it the understanding
of the Chair that the bill now before us
contains the amendments added to its
original text by vote of the Judiciary
and Intelligence Committees?
The PRESIDING OF`F`ICER. The Sen-
ator is correct.
UP AMENDMENT NO. 1231
(Purpose: To clarify the intent of the bill
that information obtained from emer-
gency surveillance without a court order
may be used if the court issues an order
approving the surveillance)
Mr. BAYH. Mr. President, I send to
the desk an amendment at this time.
The PRESIDING OFFICER. The
clerk will report the amendment.
The assistant legislative clerk read as
follows:
The Senator from Indiana (Mr. BATH)
proposes an unprinted amendment num-
bered 1237:
On page 24, lines 16 and 17, strike out
"without an order having been issued" and
insert in lieu thereof "and no order is is-
sued approving the surveillance".
Mr. BAYH. Mr. President, this
amendment clarifies the intent of the
bill with respect to emergency situa-
tions where surveillance is undertaken
and the court later issues an order ap-
proving the surveillance.
We owe a debt of gratitude to our
colleague from Missouri (Mr. DANFORTH)
for pointing this out to us. The way the
bill was originally worded, even if the
emergency wiretap had been agreed to
by the court, technically, the language
of the bill as it was denied the use of the
information gathered during that
agreed-to emergency period. -
The amendment is fully consistent
with what we all had intended to have
in the bill in the first place.
Mr. THURMOND. Mr. President, we
have no objection to the amendment.
The PRESIDING OFFICER. Do the
Senators yield back their time?
Mr. BAYH. I yield back the remain-
der of my time.
Mr. THURMOND. I yield back my
time.
The PRESIDING OFFICER. Without
objection, the amendment is agreed to.
UP AMENDMENT NO. 1238
and unnecessary.
an appropriate need for information
about surveillance under this bill to carry
out their particular duties. Under the
rules of the Senate, for example, the
Judiciary Committee might need such
information.
Mr. GARN. Mr. President, will the
Senator yield for a question?
Mr. BAYH. I will be glad to yield.
Mr. GARN. Does the Senator believe
the phrase "appropriate committees of
each House" gives committees other than
the Intelligence Committees and the
Judiciary Committees of each House ac-
cess to such information?
Mr. BAYH. I thank the Senator for
bringing that up. The answer is "No."
Other committees, other than the In-
telligence Committees and the Judiciary
Committees, already have jurisdiction
over certain responsibilities set forth in
S. 1566. This amendment acknowledges
that jurisdiction, and does not decrease
it in any way. The jurisdiction of other
committees is not affected by this bill. In
passing Senate Resolution 400 in the 94th
Congress, the Senate expressed the view
that the security of sensitive intelligence
information would be enhanced if a sin-
gle select committee were authorized to
receive it. The Senator is aware of the
safety requirements under Senate Res-
olution 400, and for that reason the In-
telligence Committee plays that impor.
tant role.
Mr. THURMOND. Mr. President, in
view of the Senator's statement making
it clear that the Judiciary Committee
is included, we have no objection to the
amendment.
The PRESIDING OFFICER. Do Sen-
ators yield back their time?
Mr. CHURCH. Mr. President, will the
Senator from Indiana yield?
Mr. BAYH. Mr. President, a parlia-
mentary inquiry.
The PRESIDING OFFICER. The Sen-
ator will state it.
Mr. BAYH. How much time remains?
The PRESIDING OFFICER. On this
amendment?
Mr. BAYH. On the bill.
The PRESIDING OFFICER. The Sen-
ator from South Carolina has 24
minutes. The Senator from Indiana has
used all his time.
This bill is the first legislative effort
to enact one of the major recommenda-
tions of the Select Committee, and for
that I am most grateful.
Senators will remember that shortly
following our investigation, the Senate
did act upon our recommendation to
establish a permanent intelligence com-
mittee, which the distinguished Senator
from Indiana (Mr. BAYx), now chairs. I
think all of us recognize that was a wise
decision. The committee is functioning,
as we hoped it would, as an effective
oversight committee. It has given Con-
gress the facts and the power that are
needed to prevent abuses and excesses
done in secrecy by our intelligence
agencies.
I welcome the final debate today on
the Foreign Intelligence Surveillance Act
of 1978. It adopts the so-called criminal
standard, by requiring probable cause to
believe that an American is engaged
in clandestine intelligence gathering
activities which involve or may involve
a Federal crime.
This has been the historic method by
which we have sought to protect individ-
ual liberty against arbitrary government
in this country. I commend the Senator
most highly, and both committees most
highly, for establishing this standard in
the intelligence field.
-I would like to ask my good friend the
Senator from Indiana if it is true that
this bill, if enacted into law, would also
supercede any Presidential claim of in-
herent power to conduct electronic sur-
veillance in violation of its provisions. As
the Senator knows, in the past some
Presidents or some spokesmen for Presi-
dents have claimed that the office of the
Presidency had such an inherent power,
at least in the absence of action by the
Congress. I am interested in establishing
some legislative history that the enact-
ment of this statute would be a definitive
act of Congress in this field, and would
supersede any prior claim that the Presi-
dent or the office of the Presidency pos-
sesses an inherent power to act apart
from the provisions of this bill.
Mr. BAYH. I appreciate the question
of my friend and colleague from Idaho.
I had earlier, in my opening remarks,
pointed out that we were here today very
largely because of the stimulus provided
by the Senator from Idaho and his select
committee, and, indeed, this is the first
legislation that has followed up on its
recommendations.
I think the most important ingredient
in the bill is the ability to get all the
parties to sign off on the need, somewhat
reluctantly by some, but to go forward.
now, with the criminal standard which
is fundamental to our system of juris-
prudence in this country; and, indeed,
the Senator did cite that language in his
(Purpose: To clarify language relating to the BAYH. Before we pass this amend-
authority and responsibility of congres-Mr. sional committees to obtain information ment, I yield to the Senator from Idaho
relating to electronic surveillance) so that we may utilize the remaining
Mr. BAYH. Mr. President, I send to time on the amendment for a colloquy
the desk at this time another amend- with the Senator from Idaho.
ment. Mr. CHURCH. I thank the Senator
The PRESIDING OFFICER. The from Indiana very much.
amendment will be stated. First of all, I wish to commend him
The assistant legislative clerk read as and the other Senators on his com-
follows: mittee and on the Judiciary Committee
The senator from Indiana (Mr. BATH) pro- for having brought this bill to the floor.
poses an unprinted amendment numbered - The second volume of the final report
1238: of the Senate Select Committee on
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report to which our staff gave so much
credence.
As the Senator, who is a good lawyer,
knows, the question of inherent authority
ultimately will, of course, be decided by
the Supreme Court of the United States,
but the history of this bill indicates that
the President is prepared to waive that,
by joining in the preparation and intro-
duction of this bill; and we have legisla-
tion drafted here that is intended to take
away any inherent authority.
The Supreme Court itself in the steel
seizure case, it seems to me, gave us very
strong precedent for acting not just out
of whim or out of response to Watergate
and other abuses, but, indeed, under the
precedent established in the steel seizure
case.
Mr. CHURCH. I agree with the Sena-
tor's observation and was going to allude
to the Youngstown Steel case. I believe
the Senator is correct in assuming that
the precedent established in that case
would suggest that once the Congress has
acted and a statute has been signed into
law governing the procedures to be fol-
lowed the statute as written by Congress
would be controlling. This is true even in
the intelligence field. In the case of this
bill, we have established a criminal
standard as in ordinary criminal cases,
which will govern the use of electronic
surveillance within the United States. I
would hope that in the future Presi-
dents would abide by the law as written
by the Congress. I am certain the Su-
preme Court would sustain the validity
of the law against any attempt in the
future by a President to assert some in-
herent power.
That is why I think this is such an im-
portant historic step. I am grateful to
the leadership the Senator from Indiana
has given this legislation. I am grateful
to the other Senators present-Senator
THURMOND and Senator KENNEDY, the
ranking member of the Judiciary Com-
mittee, for their long interest in this mat-
ter. Senator KENNEDY and I joined in a
Mr. CHURCH. I agree with the Sena- very important. The amendment of the
tor. I also recognize the difficulty of Senator from South Dakota would clar-
drawing the line between the legitimate ify this. It is fully consistent with the
requirements of national security and language of both reports from the Ju-
the preservation of individual liberty. It diciary and the intelligence Committees.
is in that definition that the survival of I would urge the committee to accept it.
freedom is to be found. Mr. THURMOND. We have no objec-
Mr. GARN. Mr. President, many of us tion to the amendment, Mr. President.
have been concerned that the adoption Mr. KENNEDY. Mr. President, I think
of a criminal standard would make it it is a constructive amendment, as the
impossible for the FBI to get a court Senator from Indiana has explained it.
order for surveillance of people obvi- That is our understanding of it. I be-
ously engaged in traditional spying ac- lieve it is an improvement. I would urge
tivity. For example the FBI might ob- its acceptance. I yield back the remain-
serve someone making "drops," and then der of my time.
known Soviet intelligence agents coming Mr. THURMOND. Mr. President, I
along and picking up what was dropped. yield back the remainder of my time.
This is traditional spying tradecraft, but The PRESIDING OFFICER. The ques-
the FBI cannot determine what infor- tion is on agreeing to the amendment.
mation is being secretly transmitted to The amendment was agreed to,
the intelligence agents. That is the kind
of case where a judge might not find UP AMENDMENT (Purpose: NO. 1240
relating probable cause that a specific crime is the standard for : To modify language rto
about to be, or will be, committed. How- engaged in sabotage or terrorism for or on
ever, the standard requiring probable behalf of a foreign power)
cause that the activity may involve a Mr. KENNEDY. Mr. President, I send
crime would allow surveillance in such an amendment to the desk and ask for
cases. Therefore, I support the new its immediate consideration.
standard because it provides enough The PRESIDING OFFICER. The
flexibility to deal with the real problem amendment will be stated.
faced In counterintelligence investiga- The assistant legislative clerk read as
tions. I agree with my colleagues that the follows:
standard is intended to deal with what
pro sesm Massachusetts ( d-
we traditionally call spying activities. KENNEDY) pro The Senator
poes an unprinted amend-
Mr. BAYH. Mr. President, I am pre- ment numbered 1240.
pared to yield back the remainder of my
time. . Mr. KENNEDY. Mr. President, I ask
Mr. THURMOND. Mr. President, we unanimous consent that further reading
yield back the remainder of our time. of the amendment be dispensed with.
The PRESIDING OFFICER. The ques- The PRESIDING OFFICER. Without
tion is on agreeing to the amendment. objection, it is so ordered.
The amendment was agreed to, The amendment is as follows:
The PRESIDING OFFICER. Who On page 5, beginning with the wopd
yields time? "which" in line 25, strike out down through
The Senator from Indiana. the word "therefor" in line 1 on page 6 and
the time at which a judge may assess com- Mr. KENNEDY. Mr. President, the is-
pliance with the minimization procedures sue is what the criminal standard should
required) be for sabotage or terrorism under the
Mr
BAYH
bill
M
Th
.
.
.
r. President, I send an
e bill currently speaks In terms of
urged that the criminal standard be ob- amendment to the desk and ask for its "may." Our bill in the Judiciary spoke in
served In the intelligence field. immediate consideration. terms of "will." This amendment is a
I believe this bill represents a definite The PRESIDING OFFICER. The compromise, avoiding any reference to
Improvement over the earlier version of amendment will be stated. either word. Actually, by leaving in the
the bill that the Senate considered last The assistant legislative clerk read as words "knowingly engages," the amend-
year. follows: ed language speaks in terms of present
I want to say to Senator KENNEDY that The Senator from Indiana (Mr. BAYs), activity and not conjecture.
he has been a tower of strength in this on behalf of Mr. ABODBEZK, proposes an un- It would read, therefore, Mr. President,
effort. I am very grateful to him and to printed amendment numbered 1239. on line 24, "knowingly engages in sabo-
everyone who worked to bring this bill On page 23, beginning with the word "At" tage or terrorism or activities in further-
to the floor of the Senate today. In line 7, strike out all down through the ance thereof."
Mr. BAYH. Again let me say I appre- word "the" in line 9 and insert in lieu there- I understand it is acceptable and is
ciate the great contributions of the Sen- of "The", satisfactory to both committees.
ator :from Idaho. As he knows, the art of Mr. BAYH. Mr. President, I submit Also, Mr. President, the Intelligence
intelligence is an art and not a science. this amendment on behalf of our dis- Committee amended the bill to require
There are many gray areas. It is a nebu- tinguished colleague from South Dakota a, criminal standard for surveillance of
lous world. Of course, we all want to pro- (Mr. ABOUREZK). The purpose is to clay- Americans, beginning on page 5, line
tect our country. In structuring the ify the language relative to the judge's 11. That standard speaks of two kinds
criminal standard, we have used words ability to review compliance with mini- of clandestine intelligence aetivities-
which we feel are as close to the words ,nlzation procedures at any time. One first, clandestine intelligence gathering
of art as we can, to give flexibility to of the most important ingredients in this activities that involve or may involve a
those who need to get involved in the use bill Is the strict requirement of how in- Federal crime; second, other clandestine
of some of this technology which is now formation that Is accidentally acquired intelligence activities that involve or are
available to protect our country but to is handled. With some of this electronic about to involve a Federal crime. When
nevertheless apply that perhaps a bit surveillance, one unintentionally picks it refers to "gathering" does the bill
whicheI think Iard s basic toe oucriminal test up r system in when trying to direct it at foreign citizens
enti- mean AYH. Yes, the intent of the bill
this country, ties. The minimization procedures are Is that clandestine intelligence gathering
IUiW IW - SENATE April 20, 1978
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April 20, 1978
CONGRESSIONAL RECORD -SENATE S 6009
means what is traditionally described by
the word spying-in ordinary, everyday
language.
Mr. GARN. I have no disagreement
with that or with what Senator KEN-
NEDY has just suggested in his amend-
ment dealing with terrorist and sabotage
activities.
I have no objection to this amend-
ment.
Mr. BAYH. Mr. President, this was
a matter of some significant negotiations
among the various parties involved. I
think it is pretty well reconciled right
now.
The term "in furtherance" of sabo-
tage or terrorism is intended to encom-
pass activities supportive of acts of seri-
ous violence; for example, purchase or
surreptitious importation into the Unit-
ed States of explosives, planning for as-
sassinations, or financing of or training
for such activities. It could reasonably be
interpreted to cover providing the per-
sonnel, training, funding, or other means
for the commission of acts of terror-
ism. The "in furtherance" provision is
also adopted in order to permit electronic
surveillance at some point before the
danger sought to be prevented-for ex-
ample, a kidnaping, bombing, or a hi-
jacking-actually occurs.
It is a delicate kind of situation, when
you are talking about terrorism. In ad-
dition to apprehending the culprits after
the fact, we wanted to provide language
that would increase the chance of pre-
venting the act and thus the language
"in furtherance."
Mr. President, my distinguished col-
league from New Jersey (Mr. CASE) was
desirous of asking us to elaborate further
on this point. I should like, just for a
moment, to state his thoughts:
The question might arise whether a per-
son who engages in seemingly innocent ac-
tivities which might incidentally aid a ter-
rorist working on behalf of a foreign power
should be considered an agent of a foreign
power.
The answer is that it depends on the par-
ticular circumstances. A person can act in
furtherance of such a terrorist and thus be
considered an agent of a foreign power by
engaging in an apparently innocent activity.
For example, If a person's role in a terrorist
act is to drive another person with a bomb to
the planned bombing site, the driver could
be considered to have acted knowingly in
furtherance of terrorism and thus be con-
sidered an agent of a foreign power. On the
other hand, if the person had dropped a
friend off and had no idea that he was carry-
ing a bomb, he would not be considered to
have knowingly acted in furtherance and
thus could not be considered an agent of a
foreign power. In addition, in order for a
person to be considered acting in furtherance
of terrorism or sabotage on behalf of a for-
eign power, he must be engaged in activities
that are an integral part of the terrorist plan.
For example, a landlord who rents an apart-
ment to a person he knows might be en-
gaged in terrorism cannot be considered an
agent of a foreign power. Of course, engaging
in constitutionally protected activities can-
not be the basis for considering a person
an agent of a foreign power under S. 156G.
For example, the trial counsel of an accused
terrorist or the person who posts bail for him
cannot be considered an agent of a foreign
power even though it might be construed
that he was acting in furtherance of ter-
rorism. Nor could a member of a group which
took no action except to support terrorists
acting on behalf of a foreign government
in exercise of their constitutional rights be
construed an agent of a foreign power.
? Mr. STEVENSON. Mr. President, Sen-
ator KENNEDY's amendment changes
that section S. 1566 which defines as
an agent of a foreign power "any person
who knowingly engages in sabotage or
terrorism, or activities in furtherance
thereof." Any person who fits that con-
dition may be placed under surveillance
through the procedures described in the
bill. Senator KENNEDY'S amendment sub-
stitutes the phrase, "in furtherance
thereof" for the phrase, "which are or
may be in preparation therefor."
I do not object to that change, how-
ever, I wish to stress one point. This
change does not alter the committee's
report language even though that lan-
guage was written in explanation of the
original phrase. The new language, "in
furtherance thereof," is understood to
encompass a wide range of terrorist ac-
tivities, Including but not limited to,
knowingly funding, harboring, training,
supporting, or supplying terrorist groups.
This is meant to include activities which
may be in furtherance of terrorist acts
in general even if not in furtherance of
a particular terrorist act,
Mr. President, the threats of terrorism
are serious and will be more serious in
the future. Intelligence community offi-
cials have assured me that the stand-
ards for electronic surveillance estab-
lished by this legislation will facilitate
their efforts to identify and apprehend
terrorists and, hopefully, forestall ter-
rorist incidents.
What little attention terrorism has
attracted has been focused on crisis
management rather than prevention. I
hope this bill helps to shift that focus
and to give the intelligence community
the authorities it needs to enhance de-
tection and prevention.
The intelligence community has begun
a major study of international terrorism,
as a result of which, I am convinced that
we must prepare to more effectively pre-
vent terrorism through improved intel-
ligence collection. This bill, as amended,
is a small step In that direction and
deserves support,
Mr. THURMOND. Mr. President, I
have no objection to the amendment.
The PRESIDING OFFICER. Is all time
yielded back?
Mr. KENNEDY. I yield back my time.
Mr. THURMOND. We yield back our
time.
The PRESIDING OFFICER. The ques-
tion is on agreeing to the amendment.
The amendment was agreed to.
UP AMENDMENT NO, 1241
(Purpose: To clarify the requirement for
identifying the target of electronic surveil-
lance in an application for an order ap-
proving electronic surveillance and in an
order approving such surveillance)
Mr. KENNEDY. Mr. President, I send
an amendment to the desk and ask for
its immediate consideration,
The PRESIDING OFFICER. The
amendment will be stated.
The assistant legislative clerk read as
follows :
The Senator from Massachusetts (Mr.
KENNEDY) proposes unprinted amendment
No. 1241.
On page 16, line 1, after the, word "iden-
tity" insert ", if known,".
On page 20, line 16, after the word "iden-
tity" insert ", if known,".
Mr. KENNEDY. Mr. President, the
language is added to make clear that if
the identity of the target of surveillance
is known to the Government, It does not
have the discretion to refuse to identify
the target and just give a description.
The amendment language mandates that
the identity of the target must be speci-
fied If known. If not known, it is per-
fectly permissible to give a description.
This is at the top of page 16. .
Quite clearly, if the target is known,
the identiy of the individual or the target
should be given.
This is just clarifying language, con-
sistent with the spirit of the legislation.
it is a matter of concern to the Senator
from South Dakota (Mr. ABouaEZIS). I
urge its adoption.
I yield back the remainder of my time.
Mr. THURMOND. Mr. President, we
have no objection to the amendment. I
yield back my time.
The PRESIDING OFFICER. All time
having been yielding back, the question
is on agreeing to the amendment.
The amendment was agreed to.
UP AMENDMENT NO. 1242
(Purpose: To permit persons whose commu-
nications or activities have been Illegally
subjected to electronic surveillance to
move to supress the contents of any com-
munication acquired by such surveillance)
Mr. KENNEDY. Mr. President, I send
an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The
amendment will be stated.
The assistant legislative clerk read as
follows:
The Senator from Massachusetts (Mr.
KENNEDY) proposes an unprirnted amendment
numbered 1242.
Mr. KENNEDY. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The amendment is as follows:
On page 27, line 19, strike out "a subject"
and insert in lieu thereof "the target".
On page 27, line 20, after "surveillance" in-
sert "or whose communications or activities
have been subject to electronic surveillance".
Mr. KENNEDY. Mr. President, this
amendment is actually technical in na-
ture. The bill now speaks in terms of "the
subject." This is vague; what is meant is
"the target" or the person who was over-
heard. This language makes that clear
and conforms to the remainder of the
statute. It makes it clear who has stand-
ing to raise this issue. It is basically a
technical matter, one of clarification.
If there is no objection, I am prepared
to yield back the remainder of my time.
Mr. THURMOND. Mr. President, I do
not believe the word "subject" is used
anywhere else in the bill so, in order to
make it uniform, it seems that this would
be a proper step to take. Therefore, we
do not object to the amendment.
We yield back our time.
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S 6010 CONGRESSIONAL RECORD -SENATE
The PRESIDING OFFICER. All time
having been yielded back, the question is
on agreeing to the amendment.
The amendment was agreed to.
UP AMENDMENT NO. 1243
(Purpose: To eliminate the statutory re-
quirement that amendments proposed by
the Select committee on Intelligence of the
Senate to the new chapter (added to title
18, United States Code, by the bill) be ex-
pedited for consideration in each House)
Mr. KENNEDY. Mr. President, I send
an, amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The
amendment will be stated.
The assistant legislative clerk read as
follows :
The Senator from Massachusetts (Mr.
KENNEDA) proposes unprinted amendment
No. 1243.
Mr. KENNEDY. I ask unanimous con-
sent that further reading of the amend-
ment be dispensed with.
The PRESIDING OFFICER. Without
objection, it Is so ordered.
The amendment is as follows:
On page 31, line 22, strike out "amend-
ment." and insert in lieu thereof "amend-
ment.'." On page 31, beginning with line 23,
strike out all down through line 4 on page 33.
Mr. KENNEDY. Mr. President, this
eliminates the statutory requirement that
future amendments of the bill be con-
sidered under very strict time limitations.
I understand the proponent of this lan-
guage in the intelligence committee (Mr.
NAraawAY) has no objection to deleting
these requirements. The language is
drawn from the 1976 version of the bill,
where it was considered necessary be-
cause of the noncriminal standard. Since
we have changed that to a criminal
standard, there is no need for the lan-
guage. Obviously, if an emergency arises
necessitating prompt consideration of
amendments to the law, I trust that the
Senate would give a top priority to the
amendments.
With that information, Mr. President,
if there is no objection, I am prepared to
yield back the remainder of my time. I
urge the adoption of the amendment.
Mr. THURMOND. Mr. President, as I
understand it, the amendment will strike
sections (c), (d), (e), and (f).
That is correct, is it not?
Mr. KENNEDY. The Senator is correct.
Mr. THURMOND, Mr. President, we
have no objection to the amendment.
We yield back our time.
The PRESIDING OFFICER. Is all time
yielded back?
Mr. KENNEDY. I yield back my time.
The PRESIDING OFFICER. All time
having been yielded back, the question
is on agreeing to the amendment.
The amendment was agreed to.
? Mr. PAUL G. HATFIET D. Mr. Presi-
dent, I rise in strong support of S. 1566,
a bill which would, at long last, establish
fair and uniform procedures for the pro-
curement of warrants by the executive
branch to conduct electronic surveillance
in the United States when it finds that
the security of our Nation Is at stake. I
would like to commend my distinguished
colleagues on the committee, especially
the Senator from Massachusetts (Mr.
KENNEDY), who spearheaded this effort,
and the Senator from Indiana (Mr.
BAYH), who, as chairman of the Select
Committee on Intelligence, lent his ex-
pertise to this endeavor, for their pa-
tience and persistence in finally bringing
to legislative fruition the need to balance
the rights of our citizenry from unrea-
sonable intrusions into their privacy and
the need for our Government to protect
all of us from dessication of our precious
liberties from abroad. This bill is also a
fitting tribute to the late Senator from
Arkansas, John L. McClellan, whose con-
cern in this area was well known.
It goes without saying that our Gov-
ernment must have a strong capability
to be able to identify those who, by sur-
reptitious means, are bent upon weaken-
ing our Nation's foundations from within.
Few would dispute the fact that we live
in a dangerous world in which hostile
Intelligence activities are still carried on,
often right under our noses, to our detri-
ment. Realism demands that those whose
mission it Is to ferret out threats to our
security be equipped with legal tools suf-
ficient to. do the job.
But, Mr. President, we are a free peo-
ple, and it is our strong desire to remain
free which has not only protected us and
our institutions from collapse but
has also kept us us from enslaving our-
selves behind barricades designed to pro-
tect us from others. It is testament to our
collective desire to live free that we have
emerged from recent disclosures of do-
mestic attacks on our freedoms even
more determined and confident than be-
fore. The revelation of those abuses was
like a cleansing fire-they did not
weaken and threaten us, they forged a
new purpose. We understand that elec-
tronic surveillance, if co-opted by the
lawless for abusive ends, is a threat to
our freedom and cannot be permitted.
We are strong enough, however, to un-
derstand that electronic surveillance is
a useful detection and enforcement tool
and can be used, within sufficiently clear
and narrow legal constraints, as a
weapon against the unscrupulous. As the
Select Committee on intelligence has
pointed out-
Electronics surveillance techniques have
understandably enabled (our intelligence)
agencies to obtain valuable information rele-
vant to their legitimate intelligence missions.
Use of these techniques has provided the
Government with vital intelligence, which
would be difficult to acquire through other
means, about the activities and intentions of
foreign powers and has provided important
leads in counterespionage cases.
I do not discourage skepticism, I invite
it. Jefferson once said that a healthy
skepticism of government's self-pro-
fessed capacity for protecting us from
ourselves and our enemies is the main
ingredient of democracy and, as the
elected servants of the people, we ought
never to forget it. So we must always be
skeptical when the Government proposes
to protect us and study such a proposal
carefully to assure ourselves that our
individual freedoms do not fall before
April 20, 1978
the need for collective security. The Sen-
ator from Massachusetts (Mr. KENNEDY)
stated the dilemma well:
The complexity of the problem must not
be underestimated. Electronics surveillance
can be a useful tool for the Government's
gathering of certain kinds of information;
yet, if abused, it can also constitute a par-
ticularly indiscriminate and penetrating
invasion of the privacy of our citizens. My
objective over the past six years has been to
reach some kind of fair balance that will
protect the security of the United States
without infringing on our citizens' human
liberties and rights.
Mr. President, I have studied this
proposal carefully and have read, with
skepticism, the testimony of the wit-
nesses and the reports of the committees.
I am satisfied that the proper balance has
been struck. I am satisfied that the right
of the people to be secure in their per-
sons, houses, papers and effects, secured
by the fourth amendment to the Consti-
tution, will be protected. I am satisfied
that electronic surveillance in the name
of national security will have to pass
the judicial muster envisioned by the
framers when they drafted that amend-
ment. I am satisfied that the need to
move swiftly against those engaged in
clandestine, subversive activity on behalf
of a foreign power will not suffer as a
result of the imposition of these proce-
dures. Finally, I am satisfied that enact-
ment of this bill will end the ability of
surveillers to convert the principle of
"national security" to perverse purpose.
The bill provides external and internal
checks on the executive. The external
check is found in the judicial warrant
procedure which requires the executive
branch to secure a warrant before en-
gaging in electronic surveillance for pur-
poses of obtaining foreign intelligence
information. Such surveillance would be
limited to a "foreign power" and "agent
of a foreign power." U.S. citizens and
lawful resident aliens could be tar-
gets of electronic surveillance only if
they are: First, knowingly engaged in
"clandestine inteligence activities which
involve or will involve a violation" of the
criminal law; second, knowingly en-
gaged in activities "that Involve or will
involve sabotage or terrorism for or on
behalf of a foreign power"; or third,
"pursuant to the direction of an intel-
ligence service or intelligence network of
a foreign power" are knowingly or
secretly collecting or transmitting for-
eign intelligence in a manner harmful
to the security of the United States, All
other persons-such as illegal aliens or
foreign visitors-could also be targets if
they are either officers or employees of
a foreign power or are "knowingly en-
gaging in clandestine intelligence acti-
vities for or on behalf of a foreign power
under circumstances which indicate that
such activities would be harmful to the
security of the United States." For such
surveillance to be undertaken, a judicial
warrant must be secured on the basis
of w showing of "probable cause" that
the target is a "foreign power" or an
"agent of a foreign power." Thus, the
courts, for the first time, will ultimately
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April 20, 1978 CONGRESSIONAL RECORD -SENATE
rule on whether such foreign intelligence the means of protection an enemy to
surveillance should occur. their liberty. Mr. President, I urge my
Before a warrant can be requested, a colleagues in the Senate to support S.
designated executive branch official 1566 as reported.*
must first certify in writing to the court, 40 Mr. NELSON. Mr. President, S. 1566,
that the information sought to be ob-
tained Is "foreign intelligence informa-
tion" as defined, and that the purpose
of the surveillance is to obtain such in-
formation. Moreover, the Attorney Gen-
eral is required to make a finding that
the requirements for a warrant applica-
tion have been met before he authorizes
the application. These provisions provide
an internal check on applications for
electronic surveillance by establishing
a method of written accountability with-
in the executive branch.
Other, procedural safeguards assure
that the Government will not engage in
illegitimate eavesdropping or misuse of
information so acquired. The bill requires
that each order include a detailed pro-
cedure to minimize the extraneous or
irrelevant information that might other-
wise be obtained. Information required
concerning U.S. citizens or lawful resi-
dent aliens can be used and disclosed
only for foreign intelligence purposes
or in connection with the enforcement
of the criminal law; ever if the target
is not a U.S. citizen or lawful resident
alien, information acquired can only be
used for "lawful purposes." Detailed pro-
visions safeguard the right of the crimi-
nal defendant to challenge the validity
and propriety of the surveillance. If the
target is an individual or a specified type
of foreign power, the application for a
warrant must state the means by which
the surveillance will be effected. When
the target is an "official" foreign power,
as defined, the application must still
designate the type of electronic surveil-
lance to be used and whether or not
physical entry will be used to effect the
surveillance. Finally, the Attorney Gen-
eral is required to transmit to the Con-
gress annually certain statistics concern-
ing the surveillances engaged in during
the preceding year.
It must also be emphasized that war-
rant orders issued subject to the bill's
procedures would not be "open-ended."
Electronic surveillance could be con-
ducted against persons other than a spe-
cial foreign power for 90 days or the
period necessary to achieve the order's
purposes, whichever is less. When the
special class of "official" foreign powers
is targeted for surveillance, such surveil-
lance cannot exceed 1 year without
specific reauthorization. The special
court would always retain the right to
review the minimization procedures
under such orders to insure that, during
the course of the surveillance, sufficient
steps are taken to protect the rights of
collateral parties who may be surveilled
during that period.
Let us serve notice on potential ene-
mies that we are strong enough to safe-
guard our people and their servant in-
stitutions in a manner consistent with
the Constitution. Let us show our people
that we are deserving of their confidence
because we have found a way to protect
them from our enemies without making
the Foreign Intelligence Surveillance
Act is landmark legislation. From Water-
gate and the Church committee report,
we learned that warrantless electronic
surveillance had been used by every ad-
ministration from Roosevelt to Nixon.
This legislation responds by bringing
this most intrusive investigative techni-
que under the rule of law, worked out
painstakingly by Members of Congress
and two administrations. The legisla-
tion sensitively balances civil liberties
and national security, preserving both.
It is a singular achievement.
It is the culmination of years of effort
by concerned citizens both within and
outside the Congress.
I first introduced legislation to curb
warrantless national security electronic
surveillance in December 1973. Since that
time I have worked continually with Sen-
ators KENNEDY, MATHIAS, other Members
of Congress and two administrations in
an effort to legislate curbs on warrant-
less electronic surveillance. Before the
Church committee was established by
Congress I met with then Attorney Gen-
eral Saxbe in an effort to persuade the
administration to agree to legislation
subjecting national security taps and
bugs through a judicial warrant proce-
dure. Subsequently, Senators MATHIAS,
KENNEDY, and I met with Attorney Gen-
eral Levi on the same issue. Ultimately,
these meetings and other cooperative ef-
forts led to the Ford administration's
initiative in this area, S. 3197, the pred-
ecessor to the bill before us today.
Throughout these efforts my premise
has been that national security electronic
surveillance, like any other electronic
surveillance, must be subject to the
fourth amendment's prohibition or un-
reasonable searches and seizures. Two
principles have guided these legislative
efforts. First, the fourth amendment de-
mands that before the privacy of an in-
dividual is invaded, a judicial warrant
based on probable cause must be ob-
tained. The amendment states:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures shall not
be violated, and no warrants shall issue, but
upon probable cause, supported by oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
For some years, every American
President has asserted that he was not
bound by the fourth amendment require-
ment of probable cause when the "na-
tional security" of the United States was
in question. They asserted an "inherent
authority" to wiretap persons who they
subjectively believed to present threats
to the national security of the United
States without any prior approval by a
judge.
The abuses reported by the Church
committee occurred because for 40 years
Presidents asserted, unchallenged, the
"inherent" power to authorize warrant-
S 6011.
less electronic surveillance for foreign
intelligence when they deemed it neces-
sary. I believe that there is no inherent
authority to disregard the fourth amend-
ment in the name of national security.
If anything, we now know that the need
for judicial warrant procedure is particu-
larly acute when national security is in-
volved because first amendment rights of
speech and association are often impli-
cated, along with fourth amendment
rights. The entire premise of the fourth
amendment is that those involved in fer-
reting out crime or responsible for pro-
ducing foreign intelligence cannot be
trusted to judge the reasonableness of the
searches they propose.
The second principle has been that no
American should be the target of elec-
tronic surveillance unless and until a
judicial finding is made that there is
probable cause to believe that the person
may be involved in criminal conduct.
This criminal standard asserts the tradi-
tional protections of the fourth amend-
ment and provides the fullest possible
guarantee that constitutionality pro-
tected rights will not be jeopardized by
electronic surveillance in the future in a
way that they have in the past.
In the 94th Congress I joined with
Attorney General Levi, Senator KENNEDY
and others in the cooperative effort which
produced S. 3197. That legislation repre-
sented the first time that an administra-
tion expressed the willingness to submit
its national security wiretapping to a
judicial warrant procedure. It was. a vital
step for which President Ford and Attor-
ney General Levi deserve great credit.
However, by the end of the Congress I
was forced to note my opposition to the
bill in the form that it had finally taken.
The legislation contained a careful, lim-
ited, but troublesome departure from the
criminal standard for American citizens.
It also contained a section which sug-
gested the continued existence of inher-
ent Presidential power to authorize war-
rantless electronic surveillance in the
United States in "unprecedented circum-
stances."
S. 1566 represents a continuation of the
effort started by the Ford administration.
However, two principal issues which have
concerned me and other Members of
Congress have been resolved. This legis-
lation contains no reservation of, or ref-
erence to, inherent Presidential power.
Once enacted, it would represent the sole
authority for national security electronic
surveillance in the United States. Wheth-
er the target is a U.S. citizen, foreign visi-
tor, or foreign embassy, the judicial war-
rant must be obtained. Additionally, the
legislation guarantees that an American
citizen could not become the target of
electronic surveillance without a judicial
finding of probable cause to believe that
that citizen may be involved in criminal
activities. Along with the existing statute
dealing with criminal wiretaps, this legis-
lation blankets the field. If enacted, the
threat of warrantless electronic surveil-
lance will be laid to rest.
The Church committee noted that a
root cause of the Intelligence abuses it
uncovered was our complete failure to
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S 6012 CONGRESSIONAL RECORD -SENATE
apply the constitutional system of checks
and balances to intelligence operations.
One of the strongest features of this bill
is that it fully reasserts our faith in our
basic constitutional system. Congress'
failure with. respect to intelligence oper-
ations has been twofold: First, we have
failed to enact statutes which told the
intelligence community what was per-
mitted and what was prohibited. Second,
we have failed to conduct meaningful
oversight of intelligence operations,
with a sensitive eye to their constitu-
tional implications. The passage of this
legislation marks a first step toward pro-
viding the intelligence community with
clear, written legislative guidance. The
inclusion in the statute of stringent
oversight provisions reflect the Intelli-
gence Committee's commitment to con-
tinue to assure that this statutory scheme
operates as Congress has intended, meet-
ing legitimate national security needs
while protecting constitutional rights.
In addition to the central role played
by the judiciary, consistent with the
commands of the fourth amendment, a
frequently overlooked but vital feature
of this legislation is that it insures ex-
ecutive accountability. Before electronic
surveillance can take place, a high rank-
ing official In the national security on
foreign relations area must certify its
necessity in writing. The Attorney Gen-
eral must also approve every applica-
tion before it comes before the judge.
This is a striking departure from the
pattern of the past in which "deniabil-
ity" was often built into the system to
insure that responsibility for intelligence
abuses could not be traced.
The flagrant abuses of warrantless
wiretaps in the past will be doubly pre-
vented. Not only can the court reject
applications which are not consistent
with the statutory requirements, but few
executive officials will sign an applica-
tion unless they can personally assert
that the electronic surveillance proposed
is in line with the statutory authoriza-
tion. In sum, the legislation assigns to
each branch of government a clear, re-
sponsibility, appropriate to the experi-
ence and talents of that branch. It is
consistent with fundamental principles.
Recent events underscore the need for
this bill. We know that this administra-
tion authorized electronic surveillance of
Ronald Humphrey, a USIA employee sus-
pected of conspiring with the North Viet-
namese citizen to commit espionage. This
electronic surveillance was conducted
pursuant to the claimed inherent power:
Presidential authority to proceed with-
out a warrant in the foreign intelligence
area.
Without prejudging the outcome of the
Humphrey case, I note that the case
raises substantial national security is-
sues. If this legislation had been in ef-
fect, a warrant could undoubtedly have
been obtained to conduct this electronic
surveillance. But the incident should re-
mind us of potential dangers inherent in
the current process. If this legislation
does not pass, it is easy to predict the
course of future events.
With passing time, perhaps in periods
of internal discord, the memory of re-
cent abuses will fade. Future Attorneys
General will be lessscrupulous about re-
quiring proof that the proposed target
of electronic surveillance is actually the
agent of a foreign power. The required
showing of collaboration will degenerate,
and people will again be surveilled be-
cause of their social relationships with
foreign citizens,- or simply because their
views are unpopular. Constitutionally
protected activity will again be jeopard-
ized. Legislation is needed to place the
final decision about where national secu-
ity electronic surveillance is justified, not
rity electronic surveillance is justified,
not in the executive branch, but in the
judiciary consistent with what the fourth
amendment commands.
The position of the Carter administra-
tion has been straightforward. They
have supported this legislation, and will
adhere to It as the sole authority for
electronic surveillance in the United
States. However, until it is passed, they
will rely on their Executive order, and
where necessary, in inherent power to
proceed without a warrant. Quite clearly,
the solution for Congress is to enact this
legislation and resolve the issue.
The passage of this legislation is im-
portant in its own right, but it is also
vital for what it signifies for the future.
This legislation could not have been writ-
ten and passed without extraordinary
contributions by the Justice Department;
the national security community, the
Judiciary and Intelligence Committees
and the civil liberties communities, and
an impressive commitment to compro-
mise on the part of everyone concerned.
The -same principals will face other for-
midable tasks in the future: most nota-
bly, the crafting of legislative charters
for the FBI and the CIA. While this leg-
islation will not be easily achieved, what
we are accomplishing today carries with
it the possibility of future successes as
well. We have demonstrated that it is
possible to react to the Church commit-
tee's revelations without overreacting; to
balance the conflicting claims of nation-
al security and civil liberties.
This legislation serves our country
well.*
a Mr. DOLE. Mr. President, I would like
to commend the members of the Ju-
diciary and Intelligence Committtees for
their work in putting together a reason-
able answer to the many problems en-
countered in regulating foreign intelli-
gence wiretaps. S. 3197, a bill very simi-
lar to this one, has been reported out
of committee during the 94th Congress
but was never considered by the full
Senate. This bill reflects that earlier ef-
forts as well,as additional study and
further refinements by both committees.
A COMPROMISE
Of course, S. 1566 is a compromise be-
tween a number of Senators who hold
somewhat different views on the regu-
lation of wiretapping in the foreign In-
telligence area. However, all parties seem
to agree that reform and clarification of
the law in this area is badly needed and
I believe that this bill is a reasonable re-
form. As such, I support the bill.
The basic thrust of this legislation is
found In the requirement that warrants
April 20, 1978
be issued for all wiretaps made in con-
nection with U.S. foreign intelligence
operations. The bill both sets up the
judiciary machinery for issuing such
warrants and lays out the standards for
their issuance. I trust that this legisla-
tion will provide an expeditious pro-
cedure for granting such warrants while
limiting their use and protecting people
from unwarranted violation of privacy.
The fourth amendment has been the
principal legal bulwark protecting pri-
vacy-related rights in this country.
However, Interpreting its prohibition on
"unreasonable searches and seizures"
has not been a matter free of difficulty.
Of course, the fourth amendment was
adopted long before the telephone and
long before the need for intensive foreign
intelligence operations became apparent.
The fourth amendment is very near the
heart of our American structure of rights
and freedoms. While highly relevant to
contemporary intelligence operations, it
does not itself provide the detailed pro-
hibitions and restrictions which are
needed if we are to best protect privacy
while maximizing the effectiveness of
our intelligence efforts. Hopefully, more
effective regulation will be provided un-
der S. 1566.
PROTECTING THE FOURTH AMENDMENT
In regulating wiretaps we need to stay
within the meaning of the fourth amend-
ment, which remains the conceptual bul-
wark and the literal foundation of pri-
vacy-related rights in this country. This
legislation is within the fourth amend-
ment requirements and should always be
interpreted in a way that will keep it
there.
However, this Senator does have some
reservations about this bill. This bill is a
compromise in a very difficult area-and
so it can be predicted that many of us
would not view this as a perfect bill.
Therefore, I would encourage my col-
leagues to keep their eye on the use of
wiretaps in the future, in case additional
reforms or refinements are needed.
THE RESPONSIBILITY OF THE EXECUTIVE BRANCH
I hope that the establishment or judi-
cial machinery for granting warrants will
not lessen the degree of responsibility of
the executive branch to examine care-
fully the need for such wiretaps prior to
asking for them. The stamp of judicial
approval should not be used to sanction
an abdication of the responsibility of the
executive branch in protecting the pri-
vacy of Americans.
I would also hope that the language
incorporated into the standards for is-
suance of wiretaps will not be too restric-
tive. For instance, before a warrant can
issue in certain cases, the standards re-
quire that the subject of the wiretap have
"knowingly" engaged in the activity
prompting the wiretap request.
As a former county attorney charged
with the prosecution of criminal offenses,
I recognize the difficulties inherent in a
burden of proof incorporating the word
"knowingly." These difficulties become
very obvious in the court room, and I
hope that they will not prove too bur-
densome in the sort of ex parte hearing
anticipated by S. 1566. Certainly, I hope -
a reasonable interpretation will be given
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April 20, 1978 . CONGRESSIONAL RECORD -SENATE
to that word, and that it will not cause
problems in obtaining wiretaps for ap-
propriate intelligence efforts.
Once again, let me reiterate my sup-
port for this legislation and let me ex-
press my hope that it will work to the
satisfaction of those, like myself, who
are concerned about protecting privacy-
related rights while providing for an
effective foreign intelligence surveillance
system for this country.?
? Mr. MATHIAS. Mr. President, I rise
to speak in support of S. 1566, the For-
eign Intelligence Surveillance Act of
1978.
A few years ago, I joined with some
of my colleagues in an effort to enact
legislation to provide clear guidelines re-
garding the use of eleotronio surveillance
in foreign intelligence cases. We knew
we faced a long, uphill struggle. We
knew we faced a formidable task In con-
vincing both a majority of our colleagues
and the intelligence community of the
need for such statutory guidelines.
Momentum was slow in building. Re-
grettably, support for this concept began
to mushroom only after it became clear
that numerous abuses in the use of elec-
tronic surveillance in foreign intelligence
cases had already occurred. These abuses
were carefully and comprehensively doc-
umented in the final report of the Select
Committee on Intelligence, on which I
served.
Much to their dismay, the American
people learned that beginning with
President Franklin Roosevelt, every ad-
ministration has asserted the right to
conduct, and has conducted, warrantless
wiretapping and bugging of Americans
in foreign intelligence cases.
These revelations shocked the con-
science of the American people. Ameri-
cans demanded prompt, effective reme-
dial action by the Congress and the ex-
ecutive branch. These calls for reform
were not ignored.
In the 94th Congress, I joined with a
bipartisan group of Senators and Rep-
resentatives in sponsoring S. 3197, the
first bill ever supported by a President
and an Attorney General to require judi-
cial warrants in foreign intelligence
cases. Although S. 3197 was not enacted,
it laid the groundwork for the bill be-
fore us today.
President Ford and his Attorney Gen-
eral, Edward Levi, deserve great credit
for breaking with the long-standing tra-
dition of the executive branch and sub-
mitting S. 3197 to the Congress. Presi-
dent Carter and Attorney General Bell
deserve similar credit for fulfilling
their pledges to strongly support S. 1566.
Enactment of S. 1566 would assuredly
be a milestone in our Nation's history.
It would the a ringing reaffirmation of
America's commitment to the funda-
mental liberties embodied in our Con-
stitution. Above all, it would insure that
electronic surveillance in foreign intel-
ligence cases would be conducted in con-
formity with the principles set forth in
the fourth amendment. It would require
an Impartial magistrate outside the ex-
ecutive branch and the intelligence com-
munity to authorize such wiretaps. As
the Supreme Court properly noted In
the Keith case:
The Fourth Amendment contemplates a
prior judicial judgment, not the risk that
executive discretion may be reasonably exer-
cised. This judicial role accords with our
basic Constitutional doctrine that Individual
freedoms will best be preserved through a
separation of powers and division of func-
tions among the different branches and
levels of government. (United States v.
United States District Court, 407 U.S. 297
"(1972).)
At the time S. 1566 was introduced last
year, I expressed my concern over cer-
tain provisions in the bill, especially the
section allowing for electronic surveil-
lance of an American citizen who is not
involved in criminal activity. I urged the
appropriate committees to scrutinize this
issue and to consder amending this pro-
vision to bring it into conformity with the
recommendations of the Senate Select
Committee on Intelligence calling for a
criminal standard in foreign intel-
ligence cases. -
This issue was - a subject of intense
debate in both the Judiciary and Intel-
ligence Committees. And, the bill has
now been amended in response to con-
cern such as my own. As drafted at pres-
ent, S. 1566 requires that U.S. citizens
and resident aliens not be subjected to
electronic surveillance unless they en-
gage in intelligence-gathering activities-
which involve or may involve violations
of the criminal laws of the United States.
I support this important change. in
my view, it is consonant with recommen-
dations of the Church amendment and
strikes an appropriate balance between
the intelligence-gathering needs of the
United States and the constitutional
rights of Americans. -
In moving promptly to enact this bill,
Congress can take an important step
toward restoring the balance between
the legislative and executive branches
contemplated in the Constitution. For
the past several decades, Congress has
abdicated its responsibility to establish
by law the framework in which executive
power is to be discharged. As the select
committee found, this abdication con-
tributed to many of the abuses of power
it uncovered.
Unless this bill is enacted, there will
continue to be no statute whatever regu-
lating the executive's conduct in the area
of foreign intelligence. This situation
must be corrected. It would resolve once
and for all the debate over executive
-power to order electronic surveillance in
national security cases-a debate that
has heated up dramatically since the
disclosure of the Humphrey case.
I urge my colleagues to join me in
supporting this important legislation.?
? Mr. BIDEN. Mr. President, enactment
of S. 1566, the Foreign Intelligence Sur-
veillance Act represents the culmination
of an arduous but productive legislative
process. It is a reaffirmation. of the
principle that it is possible to protect
the national security and at the same
time the Bill of Rights. This legislative
process has produced a bill which effec-
tively accommodates the first and fourth
amendment rights of our fellow citizens
with the needs of our national security
community to protect our liberties from
enemies foreign and domestic.
S6013
Foreign intelligence surveillance was
the very first matter on the agenda of
the newly created Intelligence Committee
when I joined it in May of 1976. For al-
most 2 years we have struggled with this
ancient dilemma of our democracy-
whether we must risk our liberty in or-
der to protect it. Although this process
of drafting and redrafting, endless
meetings and negotiations with all levels
of the executive branch has taken what
appears to be an inordinate amount of
time. It is indeed rewarding to find that
it is not necessary to compromise civil
liberties in the name of national security.
It is for that reason that I rise in support
of S. 1566.
There have been times during the past
2 years when representatives of the ex-
ecutive branch, and indeed, even some
of my colleagues, surely have been im-
patient with me and other critics of
earlier proposals. There have been times
when we have appeared to allow our
doubts about the wisdom of- such legis-
lation to lead to a "nitpicking" approach
to the legislative process. However, I am
convinced that this careful analysis of
the legislation born of considerable
doubt about how to accommodate these
interests has led to legislation which does
not compromise either national security
or civil liberties.
In the words of our Founding Fathers,
"eternal vigilance is the price of liberty."
They intended we be vigilant of enemies,
foreign and domestic, and equally vigi-
lant of those who claim the necessity to
sacrifice liberties in the face of those
enemies. As long as we are willing to
invest our energies in this pursuit, we
can preserve our democracy and the Bill
of Rights.
For the last four nights we have been
witness through the NBC program "Hol-
ocaust" to the terrifying, consequences of
the failure to honor the principle of
vigilance. On the last night of that pro-
gram my 9-year-old son asked me,
"Daddy, will this ever happen in our
country?" I thought a moment and then
told him no it will not, as long as we are
willing to put in the time and energy to
seek an accommodation of national secu-
rity with civil liberties and insist that
neither principle be compromised, we will
never grant to the state the horrifying
powers the Germans delegated to their
leaders. So in a sense it is poignant that
on the day following this presentation
we should enact legislation which re-
stricts the power of the executive branch
to spy on its citizens in the name of na-
tional security. It is a testament to the
fact that a police state is less likely in
our country than any other in the world.
Finally, it is important to remember
that legislation as comprehensive and
complicated as S. 1566 is also the product
of political courage and the investment
of many manhours of work. Many Mem-
bers of this body and their staffs deserve
much credit for the enactment of this
legislation but none more than the senior
Senator from Massachusetts and the
senior Senator from Indiana. As repre-
sentatives of the two committees pri-
marily responsible for this legislation,
they invested literally thousands of hours
of work in developing this bill and they
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CONGRESSIONAL RECORD -SENATE April 2,0, 19 7.8
deserve our thanks and congratula-
tions.?
The PRESIDING OFFICER. Who
yields time?
Mr. KENNEDY. Mr. President, I shall
ask for the yeas and nays on passage, so
I suggest the absence of a quorum, the
time to be evenly divided.
The PRESIDING OFFICER. The time
will have to come out of the time of the
Senator from South Carolina.
Mr. THURMOND. That is fine. I have
no objection.
fine PRESIDING OFFICER. Without
objection, it is so ordered.
The clerk will call the roll.
The assistant legislative clerk pro-
ceeded to can the roll.
Mr. KENNEDY. Mr. President, I ask
unanimous consent that the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. KENNEDY. Mr. President, I ask
for the yeas and nays on passage of the
bill.
The PRESIDING OFFICER. Is there a
sufficient second? There is a sufficient
second.
The yeas and nays were ordered,
Mr. KENNEDY. I ask for third reading,
Mr. President.
The PRESIDING OFFICER. If there
be no further amendments to be pro-
posed, the question is on the engrossment
and third reading of the bill.
The bill was ordered to be engrossed
for a third reading and was read the
third time.
Mr. KENNEDY. Mr. President, I sug-
gest the absence of a quorum on the time
of the Senator from South Carolina.
Mr. THURMOND. I have no objection.
The PRESIDING OFFICER. The clerk
will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Does the Senator from South Caro-
lina yield back his remaining time?
Mr. THURMOND. Mr. President, I
yield back my time and suggest we have
a vote on the bill.
The PRESIDING OFFICER. The ques-
tion is, Shall the bill pass? The yeas and
nays have been ordered and the clerk
will call the roll.
The assistant legislative clerk called
the roll.
Mr. CRANSTON. I announce that the
Senator from Colorado (Mr. HASKELL),
the Senator from New Hampshire (Mr.
MCINTYRE), and the Senator from Ohio
(Mr. METZENBAUM) are necessarily ab-
sent.
I further announce that, if present and
voting, the Senator from Ohio (Mr.
METZENBAUM) and the Senator from New
Hampshire (Mr. MCINTYRE) would each
vote "yea."
Mr. STEVENS. I announce that the
Senator from Idaho (Mr. MCCLURE) IS
necessarily absent.
The result was announced-yeas 95,
nays 1, as follows:
Irbstlcall vote " . 3',28 "Lag.l
Abourezk Glenn
Allen Goldwater
Anderson Gravel
Baker Griffin
Bartlett Hansen
Bayh , Hart
Bellmon Hatch
Bentsen Hatfield,
Biden Mark 0.
Brooke Hatfield,
Bumpers Paul G.
Burdick Hathaway
Byrd, Hayakawa
Harry F., Jr, Heinz
Byrd, Robert C. Helms
Cannon Hodges
Case Hollings
Chafee Huddleston
Chiles Humphrey
Church Inouye
Clark Jackson
Cranston Javits
Culver Johnston
Curtis Kennedy
Danforth Laxalt
DeConcini Leahy
Dole Long
Domenici Lugar
Durkin Magnuson
Eagleton Mathias
Eastland Matsunaga
Ford McGovern
Garn Melcher
Morgan
Moynihan
MuSkle
Nelson
Nunn
Packwood
Pearson
Pell
Percy
Proxmire
Randolph
Ribico$
Riegle
Roth
Sarbanes
Sasser
Schmitt
Schweiker
Sparkman
Stafford
Stennis
Stevens
Stevenson
Stone
Talmadge
Thurmond
Tower
Wallop
Weicker
Williams
Young
Zorinsky
NAYS-1
Scott
NOT VOTING-4
Haskell Metzenbaum
McClure McIntyre
So the bill (S. 1566), as amended, was
passed, as follows:
S. 1566
Be it enacted by the Senate and House
of Representatives of the United States of
America in Congress assembled, That this
Act may be cited as the "Foreign Intelligence
Surveillance Act of 1978".
SEc. 2. Title 18, United States Code, is
amended by adding a new chapter after
chapter 119 as follows:
"Chapter 120.-ELECTRONIC SURVEIL-
LANCE WITHIN THE UNITED STATES
FOR FOREIGN INTELLIGENCE PUR-
POSES
"Sec.
"2521. Definitions.
"2522, Authorization for electronic surveil-
lance for foreign intelligence pur-
poses.
"2523. Designation of judges authorized to
grant orders for electronic surveil-
lance.
"2524. Application for an order.
"2525. Issuance of an order.
"2526. Use of information.
"2527. Report of electronic surveillance.
"2528. Congressional oversight.
2621. Definitions
"(a) Except as otherwise provided in this
section the definitions of section 2510 of this
title shall apply to this chapter.
"(b) As used in this chapter-
"(1) 'Foreign power' means-
"(A) a foreign government or any com-
ponent thereof, whether or not recognized
by the United States;
"(B) a faction of a foreign nation or na-
tions, not substantially composed of United
States persons;
"(C) an entity, which is openly acknowl-
edged by a foreign government or govern-
ments to be directed and controlled by such
foreign government or governments;
"(D) a foreign-based terrorist group;
"(E) a foreign-based political organiza-
tion, not substantially composed of United
States persons; or
"(F) an entity which is directed and con-
trolled by a foretgn government or govern-
ments.
"(2) 'Agent of a foreign power' means-
"(A) any person, other than a tfnited
States person, who-
"(1) acts in the United States as an officer
or employee of a foreign power; or
"-(11) acts for or on behalf of a foreign
power which engages in clandestine intelli-
gence activities contrary to the interests of
the United States, when the circumstances of
such person's presence in the United States
indicate that such person may engage in
such activities in the United States, or when
such person knowingly aids or abets any per-
son in the conduct of such activities or con-
spires with any person knowing that such
person is engaged in such activities;
(B) any person who-
"(1) knowingly engages in clandestine in-
telligence gathering activities for or on be-
half of a foreign power, which activities in-
volve or may involve a violation of the
criminal statutes of the United States;
"(ii) pursuant to the direction of an in-
telligence service or network of a foreign
power, knowingly engages in any other clan-
destine intelligence activities for or on be-
half of such foreign power, which activities
involve or are about to involve a violation
of the criminal statutes of the United States;
"(iii) knowingly engages in sabotage or
terrorism, or activities in furtherance
thereof, for or on behalf of a foreign power;
"(iv) knowingly aids or abets any person
in the conduct of activities described in sub-
paragraph (B) (1) through (iii) above, or
conspires with any person knowing that
such person is engaged in activities described
in subparagraph (B) (1) through (iii) above:
Provided, That no United States person may
be considered an agent of a foreign power
solely upon the basis of activities protected
by the first amendment to the Constitution
of the United States.
"(3) 'Terrorism' means activities which-
"(A) are violent acts or acts dangerous to
human life which would be criminal under
the laws of the United States or of any State
if committed within its jurisdiction; and
"(B) appear to be intended-
"()) to intimidate or coerce the civilian
population,
"(ii) to influence the policy of a govern-
ment by intimidation or coercion, or
"(iii) to affect the conduct of a govern-
ment by asassination or kidnaping.
"(4) 'Sabotage' means activities which
would be prohibited by title 18, United States
Code, chapter 105, if committed against the
United States,
"(5) 'Foreign intelligence information'
means-
"(A) information which relates to, and if
concerning a United States person is neces-
sary to, the ability of the United States to
protect itself against actual or potential at-
tack or other grave hostile acts of a foreign
power or an agent of a foreign power;
"(B) information with respect to a for-
eign power or foreign territory which relates
to, and if concerning a United States person
is necessary to-
"(i) the national defense or the security
of the Nation; or
"(ii) the successful conduct of the foreign
affairs of the United States: or
"(C) information which relates to, and
if concerning a United States person is nec-
essary to, the ability of the United States
to protect against-
"(I) sabotage or terrorism by a foreign
power or an agent of a foreign power, or
"(ii) the clandestine intelligence activities
of an intelligence service or network of a
foreign power or an agent of a foreign power.
"(6) 'Electronic surveillance' means-
"(A) the acquisition by an electronic,
mechanical, or other surveillance device of
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April 20, 1978 CONGRESSIONAL RECORD --SENATE S 6015
the contents of any wire or radio communica- "(10) 'United States' when used in a geo- quire the approval of the Attorney General
tion sent by or intended to be received by a graphic sense means all areas under the ter- based upon his finding that it satisfies the
particular, known United States person who ritorial sovereignty of the United States, the criteria and requirements of such applica-
is in the United States, where the contents Trust Territory of the Pacific Islands, and the tion as set forth in this chapter. It shall sn-
are acquired by intentionally targeting that Canal Zone. elude the following information-
United States person, under circumstances in "? 2522, Authorization for electronic surveil- "(1) the Identity of the Federal officer
which a person has a reasonable expectation lance for foreign intelligence making the application;
of privacy and a warrant would be required purposes "(2) the authority conferred on the At-
for law enforcement purposes; "Applications for a court order under this torney General by the President of the
"(33) the acquisition by an electronic, cha ter are authorized if the President has, United States and the approval of the At-
mechanical, or other surveillance device, of p tarns General to make the
application; the contents of any wire communication to by written authorization, empowered the At- y
or from a person in the United States, with- torney General to approve applications to "(3) the identity, if known, or a descrip-
out the content of any party thereto, where Federal judges having jurisdiction under sec- tion of the target of the electronic sur-
such acquisition occurs in the United States tion 2523 of this chapter, and a judge to veillance;
while the communication is being trans- whom an application is made may grant an "(4)' a statement of the facts and cir-
mitted by wire; order, in conformity with section 2525 of this cumstances relied upon by the applicant to
"(C) the intentional acquisition, by an chapter, approving electronic surveillance of justify his belief that,
electronic, mechanical, or other surveillance a foreign power or an agent of a foreign "(A) the target of the electronic surveil-
device, of the contents of any radio 'com- power for the purpose of obtaining foreign lance is a foreign power or an agent of a
munication, under circumstances in which a Intelligence Information. foreign power; and
person has a reasonable expectation of pri- "? 2523. Designation of judges authorized to (el the facilities or the place at which
vacy and a warrant would be required for law grant orders for electronic surveil- the electronic surveillance is directed are
enforcement purposes, and where both the lance foreign being used, or are about to fobe by a
reign used, w :
sender and all intended recipients are located aostatement or n agent
o of the a o a power-
within the United States; or shall l publicly " Chief
designate seven ce the United
of the proposed mini-
district States
?
court ( (5) b) mization a procedures;
(D) the installation or use of an elec- judges who shall constitute a special court, "(6) when the
targtronic, mechanical, or other surveillance de- each member of which shall have jurisdiction not a foreign power e as idethe fined in surveillance
vice in the United States for monitoring to to hear applications for and grant orders 2521(b) (1) (A), (B), or (C), a detailed
acquire information, other than from a wire approving electronic surveillance anywhere description of the nature of the information
or radio communication, under circumstances within the United States under the proce- sought;
In which a person has a reasonable expects- dures set forth in this chapter, except that "(7) a certification or certifications by the
tion of privacy and a warrant would be re- no judge designated under this subsection Assistant to the President for National Se-
qulred for law enforcement purposes. shall have jurisdiction of the same applica- curity Affairs or an executive branch official General' means ney "(7) 'Attorne
of yhe United States the Acting tion for electronic surveillance under this or officials designated by the President from
Attorney General) Ur the Deputy Attorney chapter which has been denied previously by among those executive officers employed in
General, another judge designated under this sub- the area of national security or defense and
"(6) 'Minimization procedures' means pro- section. If any judge so designated denies an appointed by the President with the advice
oedures wnimi are rprocedure designed pro- application for an order authorizing elec- and consent of the Senate-
tronic surveillance under this chapter, such -A minimize the acquisition and retention, and ( ) that the certifying official deems the
prohibit the dissemination, except as pro- judge shall provide immediately for the rec- information sought to be foreign intelii-
vided for in subsections 2526 (a) and (b) of ord a written statement of each reason for Bence information;
his decision and, on motion of the United
any information concerning United States
States, "(B) that the Purpose
intelligence the infll ma-
persons without their consent that does not sealthe record shall be transmitted, under is to obtain foreign infora
relate to the ability of the United States- seal, to the special court of review established tion;
"relate to
protect itself against actual or s - in subsection (b). "(C) that such information cannot rea-
"(b) The Chief Justice shall publicly desig- sonably be obtained by normal investigative
tea(A) to rk or other grave hostile acts Of
a foreign power or an a ant of a fore! nate three judges, one of whom shall be pub- techniques;
power; g gn licly.designated as the presiding judge, from "(D) including a designation of the type of
"(B) to provide for the national defense the United States district courts or courts of foreign intelligence information being sought
or security of the Nation; appeals who together shall comprise a spe- according to the categories described in
cial court of review which shall have jurisdic- section 2521 b) (5) ;
"(C) to provide for the conduct of the for- ( ) ( ),
sign affairs of the United States; tion to review the denial of any application "(E) when the target of the surveillance
(D) t poftehe against ttates; by a for- made under this chapter. If such special is not a foreign power, as defined in section
eign power or an agent of a foreign power; court determines that the application was 2521 (b) (1) (A), (B) or (C), including a
"(E) to protect against sabotage by a for- properly denied, the special court shall im- statement of the basis for the certification
alga power mediately provide for the record a written that-
(F) to protect r agent against a power; for-
or statement of each reason for its decision and, "(1) the information sought is the type
te"(F) to proteties of t the foreign clandestine e n- on petition of the United States for a writ of foreign intelligence information desig-
telligence t a foreign of an intelligence an service f I agent ce ?f certiorari, the record shall be transmitted nated; and
ofre n under seal to the Supreme Court, which shall
power; have jurisdiction to review such decision. be obtainsuch ed byinformationnormal l inves cannot reasonably
and which are reasonably designed to insure "(c) Proceeds tigative tech-
and information which relates solely to the ngs under this chapter shall piques;
ability of the United States to provide for Tconducted as expeditiously as possible. - when the target a the surveillance
the national defense or security of the Na- ter, record ecord of proceedings under this and chap- a foreign power, (B), defined to In section
n the
tion and to provide for the conduct of for- ranted, shall be applications e and orders 2 period) of time (f (wh or
the surveillance the
eign affairs of the United States, under sub- der security ty measures sealed as ed and maintained a established thun- e period d required to obe for which the surveillance is
paragraphs (B) and (C) above, shall not be der by the maintained;
pragr p a manner which Identifies Chief Justice in consultation with the At- "(8) when the target of the surveillance
any Unit is miat dtInes manner without such per-
torney General and the Director of Central Is not a foreign power, as defined In section
son's consent, unless such person's Identity Is Intelligence. 2521 (b) (1) (A), (B), or (C), a statement of
necessary to understand or assess the impor- "(d) Each judge designated under this the means by which the surveillance will be
tans of information with respect to a for- section shall so serve for a maximum of effected, and when the target is a foreign
eign power or foreign territory or such infor- seven years and shall not be eligible for re- power, as defined in section 2521(b) (1)
mation is otherwise publicly available. designation: Provided, That the judges first (A), (B), or (C), a designation of the type
designated under subsection (a) shall be of electronic surveillance to be used accord-
"(9) `United States person' means a citizen designated for terms of from one to seven ing to the categories described in section
of the United States, an alien lawfully ad- years so that one term expires each year, and ca2521 l entry (6), and a statement whether physi-
mitted for permanent residence (as defined cal entry is required to effect the surveil-
in section 101(a) (20) of the Immigration and that judges first designated under subsec- lance;
associa n and tion (b) shall be designated for terms of
Nationality Act), an unincorporated io
tion a substantial number of members of three, five, and seven years. all ? "(pa statement of the facts concerning
which are citizens of the United States or "12524. Application for an order made previous
to any ge under this hat have been
judge chapter inces
aliens lawfully admitted for permanent rest- "(a) Each application for an order ap- ing any any of the persons, , facilities, , or places
deuce or a corporation which is incorporated proving electronic surveillance under this specified in the application, and the action
in the United States, but not including cor- chapter shall be made by a Federal officer taken on each previous application; and
porations or associations which are foreign in writing upon oath or affirmation to a
powers as defined in section 2521(b) (1) (A) judge having jurisdiction under section 2523 is r not ot a when foreign the pow target of the surveillance
through (E). power, as defined in section
of this chapter. Each application shall re- 2521(b)(1) (A), (B), or (C), a statement
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CONGRESSIONAL RECORD-SENATE April 20, 1978
of the period of time for which the electronic "(B) that, upon the request of the appli- terminated and no order is issued approving
surveillance Is required to be maintained. cant, a specified communication or other the surveillance, no information obtained
if the nature of the intelligence gathering common carrier, landlord, custodian, con- or evidence derived from such surveillance
is such that the approval of the use of tractor, or other specified person furnish the shall be received in evidence or otherwise dis-
electronic surveillance under this chapter applicant forthwith any and all Information, closed in any trial, hearing, or other pro-
should not automatically terminate when facilities, or technical assistance, necessary ceeding in or before any court, grand jury,
the described type of information has first to accomplish the electronic surveillance in department, office, agency, regulatory body,
been obtained, a description of facts sup- such manner as will protect its secrecy and legislative committee, or other authority of
porting the belief that additional informa- produce a minimum of interference with the the United States, a State, or political subdi-
tion of the same type will be obtained services that such carrier, landlord, custo- vision thereof; and no information concern-
thereafter. dian, contractor or other person is providing ing any United States person acquired- from
"(b) The Attorney General may require that target of electronic surveillance; such surveillance shall subquently be used or
any other affidavit or certification from any "(C) that such carrier, landlord, custo- disclosed in any other manner by Federal
other officer in connection with the applica- dian, or other person maintain under secu- officers or employees without the consent of
tion. rity procedures approved by the Attorney such person, except with the approval of the
"(c) The judge may require the applicant General and the Director of Central Intelli- . Attorney General where the information in-
to furnish such other Information as may be gence any records concerning the surveil- dicates a threat of death or serious bodily
necessary to make the determinations re- lance or the aid furnished which such person harm to any person. A denial of the applica-
quirecl by section 2625 of this chapter. wishes to retain; tion made under this subsection may be
"$ 2525. Issuance of an order "(D) that the applicant compensate, at reviewed as provided in section 2523.
"(a) Upon an application made pursuant the prevailing rate, such carrier, landlord, "? 2528. Use of information
to section 2524 of this title, the judge shall custodian, or other person for furnishing "(a) Information concerning United States
enter an ex parts order as requested or as such aid. ..(c) An order Issued under this section persons acquired from an electronic sur-
modified approving the electronic surveil- surveillance not veillance conducted pursuant to this chapter
lance if he finds that- may approve o an electronic ssued rvth foreign power, as defined may be used and disclosed by Federal officers
"(1) the President has authorized the At- targeted against a and employees without the consent of the
in section 2521(b) (1) (A), (B), or (C), for
torney elects General to approve applications for the period necessary to achieve its purpose, United States person only for purposes speci-
electronic surveillance for foreign intelli- or for ninety days, whichever is less; an fled in section 2521(b) (8) (A) through (F)
gence information; under this section shall approve an and in accordance with the minimization
"(2) the application has been made by a order electronic surveillance targeted against a procedures required by this chapter, or for
Federal officer and approved by the Attorney the enforcement of the criminal law if its
foreign power, as defined in section 2
General; (1) (A). (B) or (C), for the period specified use outweighs the possible harm to the na-
"(3) on the basis the facts submitted in the certification required in section 2524 tional security. No otherwise privileged com-
b; the applicant there re 1s probable cause to (a) (7) (F), or for one year, whichever is less. munication obtained in accordance with, or
believe that- Extensions of an order issued under this in violation of, the provisions of this chap-
"(A) the target r electronic surveil- chapter may be granted on the same basis ter shall lose its privileged character. No
lance is a foreign ign power or an agent t of a
as an original order upon an application for information acquired from an electronic sur-
foreign power; and an extension made in the same manner as veillance conducted pursuant to this chap-
" place at which the
B the facilities or being required for an original application and after ter may be used or disclosed by Federal offi-
electronic surveillance is directed are new findings required by subsection (a) of cers or employees except for lawful purposes.
used, or are about to be used, by a foreign this section. In connection with applications "(b) The minimization procedures re-
power or an agent of a foreign power; for extensions where the target is not a for- quired under this chapter shall not pre-
" (4) the proposed minimization procedures sign power, as defined in section 2521 (b) (1) dude the retention and disclosure, for law
meet the definition of minimization pro- (A), (B), or (C), the judge may require the enforcement purposes, of any information
cedures under section 2521 (b) (8) of this applicant to submit information, obtained which constitutes evidence of a crime if such
title; pursuant to the original order or to any disclosure is accompanied by a statement
"tai the description which ert been filed r previous extensions, as may be necessary to that such evidence, or any information de-
certifications, cethe description and certification or make new findings of probable cause. The rived therefrom, may only be used in a
(7) nd, ifspecified i is section 25udge may assess compliance with the mini- criminal proceeding with the advance au-
person. and, the e certification the targetification o or a United certifications States tr are mization procedures required by this chap- thorization of the Attorney General.
pe ter "(c) Whenever the Government of the
not clearly erroneous on the basis of the "(d) Notwithstanding any other provision United States, of a State, or of a political
statement made under section 2524(a) (7) of this chapter when the Attorney General subdivision thereof intends to enter into
(E) and any other information furnished reasonably determines that- evidence or otherwise use or disclose in any
under (b)seAnoo der4(approving an electronic "(1) an emergency situation exists with trial, hearing, or other .poed or , be
surveillance under this section shall- respect to the employment of electronic sur- any court, department, y
" specify- veillance to obtain foreign intelligence in- or other authority of the United States, a
(1) formation before an order authorizing such State, or a political subdivision thereof, any
"(A) the identify, if known, or a descrip- surveillance can with due diligence be ob- Information obtained or derived from an
tion of the target of the electronic surveil- tained, and - - electronic surveillance, the Government
lance; "(2) the factual basis for issuance of an shall prior to the trial, hearing, or other
(B) the nature and location of the i order under this chapter to approve such proceeding or at a reasonable time prior to
ties or the place at which the electronic c surveillance exists, he may authorize the an effort to so disclose or so use the informa-
surveillance will be directed: emergency employment of electronic sur- tion or submit it in evidence notify the court
"(C) when the target of the surveillance veillance if a judge designated pursuant to in which the information is to be disclosed
is not a foreign power as defined in section section 2523 of this chapter Is informed by or used or, if the information is to be dis-
2521(b) (1) (A), (B), or (C), the type of in- the Attorney General or his designate at the closed or used in or before another authority,
formation sought to be acquired and when time of such authorization that the decision shall notify a court in the district wherein
the target is a foreign power defined in sec- has been made to employ emergency elec- the information is to be so disclosed or so
tion 2521(b) (1) (A), (B), or (C), the desig- tronic surveillance and if an application in used that the Government intends to so dis-
nation of the type of foreign intelligence in- accordance with this chapter Is made to that close or so use such information.
formation under section 2521(b) (5) sought judge as soon as practicable, but not more "(d) Any person who has been the target
to be acquired; than twenty-four hours after the Attorney of electronic surveillance or whose eommu-
"(D) when the target of the surveillance General authorizes such acquisition. If the nications or activities have been subject to
is not a foreign power, as defined in section Attorney General authorizes such emergency electronic surveillance and against whom
2521 (b) (1) (A), (B), or (C), the means by employment of electronic surveillance, he evidence derived from such electronic sur-
which the electronic surveillance will be ef- shall require that the minimization pro- veillanee is to be, or has been, introduced
fected, and when the target is a foreign. cedures required by this chapter for the is- or otherwise used or disclosed in any trial,
power, as defined in section 2521(b) (1) (A), seance of a judicial order be followed. In hearing, or proceeding in or before any court,
(B), or (C), a designation of the type of elec-. the absence of a judicial order approving department officer, agency, regulatory body,
tronie surveillance to be used according to such electronic surveillance, the surveillance or other authority of the United States, a
the categories described in section 2521 (b) shall terminate when the information sought State, or a political subdivision thereof, may
(6) and whether physical entry will be used is obtained, when the -application for the move to suppress the contents of any com-
to erect the surveillance; and order is denied, or after the expiration of munication acquired by electronic surveil-
"(E) the period of time during which the twenty-four hours from the time of au- lance or evidence derived therefrom, on the
electronic surveillance is approved; and thorization by the Attorney General, which- grounds that-
"(2) direct- ever is earlier. In the event that such appli- "(1) the communication was unlawfully
"(A) that the minimization procedures be cation for approval is denied, or in any other acquired; or
followed; case where the electronic -surveillance is "(2) the surveillance was not made in
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conformity with the order of authorization eral shall report to the Administrative of- and by striking the period at the end thereof
or approval. fice of the United States Courts and shall and adding the following: "or engage in
Such motion shall be made before the trial, transmit to Congress with respect to the electronic surveillance, as defined in chapter
hearing, or proceeding unless there was no preceding calendar year- 120: Provided, however, That before the in-
opportunity to make such motion or the `(1)the total number of applications made formation, facilities, or technical assistance
person was not aware of the grounds of the for orders and extensions of orders approv- may be provided, the, investigative or law
motion., ing electronic surveillance; and enforcement t-offcer shall furnish to the ofil-
"(e) Whenever any court is notified in ac- (2) the total number. of such orders cer, employee, or agent of the carrier either-
cordance with subsection (c), or whenever and extensions either granted, modified, or
denied, "(1) an order signed by the authorizing
a motion is made by an aggrieved person judge certifying that a court order directing
pursuant to subsection (d), to suppress evi- "? 2528. Congressional oversight such assistance has been issued; or
dente on the grounds that it was obtained "(a) On a semiannual basis the Attorney "(2) in the case of an emergency inter-
or derived from an unlawful electronic sur- General shall fully inform the House Perma- ception or electronic surveillance as pro-
veillance, or whenever any motion or re- nent Select Committee on Intelligence and sided for in section 2518(7) of this chapter
quest is made by an aggrieved person pur- the Senate Select Committee on Intelligence or section 2525(d) of chapter 120, a certifi-
suant to section 3504 of this title or any concerning all electronic surveillance under cation under oath by the investigative or
other statute or rule of the United States, this chapter. Nothing in this chapter shall be law enforcement officer that the applicable
to discover, obtain, or suppress evidence or deemed to limit the authority and responsi. statutory requirements have been met,
information obtained or derived from elec- bility of the appropriate committees of each and setting forth the period of time for
tronic surveillance, the Federal court, or House of Congress to obtain such additional which the electronic surveillance is author-
where the motion is made before another information as they may need to carry out ized and describing the facilities from which
authority, a Federal court in the same district their respective functions and duties. the communication is to be acquired. Any
as the authority, shall, notwithstanding any "(b) On or before one year after the effec- violation of this subsection by a communlca-
other law, if the Government by affidavit as- tive date of this chapter, and on the same tion common carrier or an officer, employee,
serts that disclosure or an adversary hearing day each year thereafter, the Select Com- or agency thereof, shall render the carrier
would harm the national security of the mittee on Intelligence of the United States liable for the civil damages provided for in
United States, review In camera and ex Senate shall report to the Senate, concern- section 2520. No communication common
parts the application, order, and other trig the implementation of this chapter. Said carrier or officer, employee, or agent thereof
materials relating to the surveillance as.may reports shall include but not be limited to shall disclose the existence of any Intercep-
be necessary to determine whether the sur- an analysis and recommendations concern- tlon under this chapter or electronic sur-
veillance was authorized and conducted in Ing whether this chapter should be (1) veillance, as defined in chapter 120, with re-
a manner that did not violate any right af- amended, (2) repealed, or (3) permitted to spect to which the common carrier has been
forded by the Constitution and statutes of continue in effect without amendment." furnished either an order or certification
the United States to the aggrieved person. SEc. 3. The provisions of this Act and under this subparagraph, except as may
In making this determination, the court shall the amendment made hereby shall become otherwise be lawfully ordered.".
disclose to the aggrieved person portions of effective upon enactment: Provided, That (c) (1) Section 2511 (2) (b) is amended by
the application, order, or other materials re- any electronic survillance approved by the inserting the words "or otherwise engage in
lating to the surveillance only where such Attorney General to gather foreign intelli- electronic surveillance, as defined in chapter
disclosure is necessary to make an accurate gene information shall not be deemed un- 120," after the word "radio".
determination of the legality of the surveil- lawful for failure to follow the procedures (2) Section 2511 (2) (c) is amended by
lance. If the court determines that the elec- of chapter 120, title 18, United States Code, inserting the words "or engage in electronic
tronic surveillance of the aggrieved person if that surveillance is terminated or an or- surveillance, as defined in chapter 120," after
was not lawfully authorized or conducted, the der approving that surveillance is obtained the words "oral communication" and by in-
court shall in accordance with the require- under this chapter within ninety days fol- sertingthe words "or such surveillance" after
ments of law suppress the information ob- lowing the designation of the first judge the last word in the paragraph and before
tained or evidence derived from the unlawful pursuant to section 2523 of chapter 120, title the period.
electronic surveillance. If the court deter- 18, United States Code. (3) Section 2511(2) is amended by adding
mines that the surveillance was lawfully au- SEc. 4. Chapter 119 of title 18, United at the end of the section the following
thorized and conducted, the court shall deny States Code, is amended as follows: provisions: '
any motion for disclosure or discovery unless (a) Section 2511(1) is amended-
required by due process. (1) by inserting "or chapter 120 or with "(e) Notwithstanding any other provlsi-
(f) If an emergency employment of the respect to techniques used by law enforce- of this title or section 605 or 606 of the Com
electronic surveillance Is authorized under meat officers not involving the interception munications Act of 1934, it shall not be
section 2525(d) and a subsequent order ap- of wire or oral communications as other- unlawful for an officer, employee, or agent of
proving the surveillance is not obtained, the wise authorized by a search warrant or order the United States in the normal course of
judge shall cause to be served on any United of a court of competent jurisdiction," fm- his the Attl duty under procedures approved
States person named In the application and mediately after "chapter" in the first sen- by the Attorney General to conduct electronic
on such other United States persons subject ten6e; surveillance as defined in section 2521 (b)
to electronic surveillance as the judge may (2) by inserting a comma and "or, under (6) of chapter 120 without a court order for
determine in his discretion it is in the in- color of law, willfully engages in any other the sole purpose of:
terest of justice to serve, notice of- form of electronic surveillance as defined "(1) testing the capability of electronic
"(1) the fact of the application; in chapter 120" immediately before the semi- equipment, provided that no particular
"(2) the period of the surveillance; and colon in paragraph (a) ; United States person shall be Intentionally
"(3) the fact that during the period in- (3) by inserting "or Information obtained targeted for testing purposes without his con-
formation was or was not obtained. under color of law by any other form of elec- sent, the test period shall be limited in ex-
On ex parte showing of good cause to the tronic surveillance as defined in chapter tent and duration to that necessary to deter-
judge the serving of the notice required by 120" immediately after "contents of_ any mine the capability of the equipment, that
this subsection may be postponed or sus- wire or oral communication" in paragraph the content of any communication acquired
pended for a period not to exceed ninety (c); under 'this paragraph shall be retained and
days. Thereafter, on a further ex parte show- (4) by inserting "or any other form of used only for the purpose of determining the
ing of good cause, the court shall forego electronic surveillance, as defined in chapter capability of such equipment, shall be dis-
ordering the serving of the notice required 120," immediately before "in violation" in closed only to the persons conducting the
under this subsection. paragraph (c) ; test, and shall be destroyed upon com-
"(g) In circumstances involving the unin- "(5) by inserting "or information obtained pletion of the testing, and that the test may
tentional acquisition, by an electronic, me- under color of law by any other form of exceed ninety days only with the prior ap-
chanical, or other surveillance device of the electronic surveillance as defined in chapter proval of the Attorney General;- or
contents of any radio communication, under 120" immediately after "any wire or oral "(11) determining the existence and capa-
circumstances In which a person has a rea- communication" in paragraph (d); and bility of electronic surveillance equipment
sonable expectation of privacy and a warrant (6) by inserting "or any other form of being used unlawfully, provided that no
would be required for law enforcement pur- electronic surveillance, as defined in chap- -particular United States person shall be in-
poses, and where both the sender and all in. ter 120," Immediately before "in violation" tentionally targeted for such purposes with-
tended recipients are located within the in paragraph (d). out his consent, that such electronic sir-
United States, such contents shall be de- (b) (1) Section 2511(2) (a) (1) Is amended veillance shall be limited in extent and dura-
stroyed upon recognition, except with the by Inserting the words "or radio communi- tion to that necessary to determine the exist-
approval of the Attorney General where the cation" after the words "wire communica- ence and capability of such equipment, and
contents indicate a threat of death or seri- Lion" and by inserting the words "or other- that any information acquired by such sur-
ous bodily harm to any person. wise acquire" after the word "intercept". veillance shall be used only to enforce this
"? 2527. Report of electronic surveillance (2) Section 2511(2) (a) (11) is amended by chapter or section 605 of the Communications
inserting the words "or chapter 120" after the Act of 1934 or to protect information from
"In April of each year, the Attorney Gen- second appearance of the word "chapter," unlawful electronic surveillance.
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CONGRESSIONAL RECORD -SENATE April 20, 1978
"(f) Nothing contained in this chapter, or The Senator from Indiana. tronic surveillance for foreign intel-
section 605 of the Communications Act of Mr. BAYH. I would just like to say a ligence purposes. The effort to draw a
1934 (47 U.B.C. 605) shall be deemed to affect word in support of the statement of the proper balance between the rights of in-
the acquisition by the United States Gov- Senator from Ohio. He has been one of dividuals to be free from unwarranted
ernment of foreign intelligence information
from international or foreign communica- the long-time advocates of providing ad- surveillance and the right of this Nation
tions by a means other than electronic sur- ditional protection in this area, and as a whole to protect itself from foreign
veillance as defined in section 2521(b) (6) of without his help and assistance it would intelligence activities has been one of the
this title; and the procedures in this chapter have been much more difficult than was most challenging that we have faced-
and chapter 120 of this title, shall be the ex- otherwise the case to move this legisla- and one that has greatly concerned the
elusive means by which electronic surveil- tion along as rapidly as it was able to be people of the country.
lance, as defined in section 2621(b) (6) of moved along. Thanks to the efforts of the members
chapter 120, and tco interception domestic Mr. METZENBAUM. I thank the Sen- of the Judiciary and Intelligence Com-
wire and oral communications s may may b be ator from Indiana. mittees-and particularly to the efforts
conducted.".
(d) Section 2511(3) is repealed. (Conclusion of proceedings which oc- of these four Senators-that balance has
(e) Section 2515 is amended by inserting curred later.) been struck. For the Foreign Intelligence
the words "or electronic surveillance, as de- Mr. KENNEDY. Mr. President, I wish Surveillance Act, which the Senate has
fined in chapter 120, has been conducted" to acknowledge the excellent work that just now passed overwhelmingly, repre-
after the word "intercepted", by inserting was done by the staffs of the Judiciary Bents that necessary compromise between
the words "or other information obtained
from, electronic surveillance, as defined in Committee and the Intelligence Commit- individual rights and the rights of the
da
chapter 120," after the second appearance of tee, as well as the Department of Justice people as a whole that assures the pro-
the word "communication", and by inserting and the American Civil Liberties Union. tection of both interests and has made
"or chapter 120" after the final appearance The work of the following people was in- this country the great democracy that
of the word "chapter". valuable to the fashioning and the snap- it now is and will always be.
(f) Section 2618(1) is amended by insert- ing of this measure: Ira Shapiro, Mike The people of the country owe Sen-
ing the words "under this chapter" after the Mullen, Glen Feldman, Irene Emsullem, ators KENNEDY, BAYH, THURMOND, and
word "communication". Eric Hultman, Herman Schwartz, and GARN a profound debt of gratitude for
ing (g) the secwords "under is am this ended chapter" after in after r Mike Klipper. From the Department of their long and arduous labors in bringing
both appearances of the words "wire or oral Justice: Frederick Baron, John Hotis, about the enactment of this bill. communication':. Newell Squires, and Doug Marvin. And, Mr. CORD to BAYH.
ow Mr. President, I cI wish h the
the
(h) Section 2518(9) is amended by striking from the ACLU: John Shuttuch, and RECORD the owmbyrs special
the commenda-
the word "intercepted" and inserting the Jerry Berman. ation words "intercepted pursuant to this chapter" I especially wish to commend my ad- Committee staff. This was a joint effort,
after the word "communication". ministrative assistant, Ken Feinberg, as the Senator knows, and without the
word eis and amended by strike who made a very special contribution to help of Mr. Miller, Mr. Eisenhower, Mr.
(i)
the Section
"Intercepted "intercepted" nt to this to this s chap- ap- the this entire legislative process. Taylor, Mr. Epstein, Mr. Raffel, Mr.
tug words
words intthcepted pursuant Mr. Mr. Gitenstein, Mr. Shulsky, Mr.
"erm after the first appearance of the word President, I ask unanimous con- Codevilla, Mr. Norton, Mr. Bushong, Mr.
. sent that the Secretary of the Senate be
communication"
(j) Section 2519(3) is amended by insert- gtuthorized to make technical and cleri- Evans, , Mr. Mr. Shaw, Mr. Ford, Mr. Brooks--who Ricks,
I
ing the words "pursuant to this chapter" gal corrections in the engrossment of Mr. Elliff, and Nancy after the words "wire or oral oommunica- 1566. think spent until the wee hours of the
tions" and after the words "granted or The PRESIDSld( OFFICER (Mr. night putting all this together-and also
deni
denied"' ZORtNSKY). Without objection, it is so Mr. Tom Connaughton, my personal
(k)all sec subs 2boo ( a men dad bdeleting staff, we would not have accomplished
thereof: low "Any y person 2) and other than a a inserting in s foreign Mr. redign or. THURMOND. Mr. President, I what we have, and we owe them a debt
th persPdl of gratitude.
power or an agent of a foreign power as de- simply wish to say that I think this is
fined in sections 2521(b) (1) and 2521(b) an important bill. I congratulate the dis- * Mr. MUSKIE. Mr. President, the
(2) (A) of chapter 120, who has been subject tinguished Senator from Massachusetts adoption today of S. 1566 represents a
to electronic surveillance, as defined in chap- for his leadership in this bill and coin- landmark achievement in congressional
ter 120, or whose wire or oral communication
has been or about whom mend the able Senator from Utah (Mr. efforts to strike a working balance be-
mation intercepted, Infer- mai;ion has s been disclosed or used, in viiolola- GARN) for his good work on this bill. tween the legitimate need to collect na-
tion of this chapter, shall (1) have a civil Also, I join with Senator KENNEDY in tional security intelligence and the
cause of action against any person who so commending the majority and minority individual rights of citizens in a
acted in violation of this chapter and". staff for the splendid work they did in democratic society.
Mr. KENNEDY. Mr. President, I move connection with it. Many Members of the Senate have
to reconsider the vote by which the bill Mr. ROBERT C. BYRD. Mr. President, worked for several years to bring about
was passed. I wish to compliment the. distinguished the passage of this important legisla-
Mr. THURMOND. I move to lay that Senator from Massachusetts (Mr. KEN- tion. Particular credit is due to the
motion on the table. NEDY)' for his managership of this im- untiring leadership and dedication of
The motion to lay on the table was portant legislation. He has demonstrated Senator KENNEDY and Senator BAYH
agreed to. on this occasion as he has on so many representing the work of the Judiciary
(Later the following occurred:) occasions complete knowledge and com- and Intelligence Committees. Their
Mr. METZENBAUM. Mr. President, in plete grasp of the issues, and he has done judgment and patience have prevailed
connection with the last vote on S. 1566, a commendable and outstanding job. over a long period of time and have
I failed to vote on that measure because Also, Mr. President, I wish to com- advanced the protection of civil liber-
I was walking in the door when the vote mend the ranking minority of the com- ties for all Americans.
was being announced. mittee, Mr. THURMOND) for his able lead- Many other Members, however,
I wish to announce at this time that ership in joining with Mr. KENNEDY in played vital roles in the development of
been present I would have voted managing this bill. these procedural safeguards including
had been I think they are both to be commended the late Senator Philip Hart of Michi-
"aye."
and which in I which h and the Senate is in their debt. gan, Senator GAYLORD NELSON of Wis-
good a deal measure time on
"ayeaye.I ent a It
Mr. President, I commend Senator consin, former Senator Sam J. Ervin,
I have a good deal is good tremendous of ti I ask interest. I unanimous think h con- KENNEDY and Senator THURMOND, the Jr., Senator JAMES AROUREZK of South
sent that my remarks in connection with distinguished managers of S. 1566 on be- Dakota, and former Senator John
the measure be carried immediately file half of the Judiciary Committee, and Tunney of California.
Senator BAYH and Senator GARN, the dis- In a democratic society citizens must
lowing the vote. tinguished managers on behalf of the be ever vigilant to protect against gov-
Mr. BAYH. Mr. President, will the Intelligence. Committee, on what has ernment infringement of their liberties.
Senator yield? been accomplished here today. Few issues As we have seen all too clearly in recent
The PRESIDING OFFICER. Without have been fraught with more difficulty or years, democracy is a fragile system
objection, it is so ordered. controversy than the question of elec- which can be endangered as surely by
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April 20, 1978 CONGRESSIONAL RECORD -SENATE
citizen neglect as by government
despotism.
Lord Acton's maxim that "power cor-
rupts and absolute power corrupts
absolutely" should serve as a constant
warning against the common tendency
of those who govern to justify the use of
ignoble means to achieve noble objec-
tives.
The means by which government offi-
cials seek to achieve objectives, whether
it be the protection of the nation from
foreign attack or the distribution of the
Nation's health, will in the long run
determine the success or failure of our
experiment in self-government.
I applaud the work of the Senators
who have brought forth this major vic-
tory for it is yet another affirmation
II of success this country has had in pro-
tecting the liberties of its citizens.
`/ OUTINE MORNING BUSINESS
Mr. ROBERT C. BYRD. Mr. Presi-
dent, I ask unanimous consent that
there now be a period for the transac-
tion of routine morning business not to
extend beyond 30 minutes with state-
ments limited therein to 5 minutes each.
The PRESIDING OFFICER. Without
objection, it is so ordered.
MESSAGErp FROM THE PRESIDENT
Messages from the President of the
United States were communicated to the
Senate by Mr. Chirdon, one of his
secretaries.
EXECUTIVE MESSAGES REFERRED
As in executive session, the Presiding
Officer laid before the Senate messages
from the President of the United States
submitting sundry nominations which
were referred to the appropriate
committees.
(The nominations received today are
printed at the end of the Senate
proceedings.)
PRESIDENTIAL APPROVAL
A message from the President of the
United States stated that on April 17,
1978, he approved and signed the follow-
ing joint resolution:
S.J. Res. 124. A joint resolution to author-
ize the President to issue a proclamation des-
ignating the week beginning on April 16
through April 22, 1978, as "National Oceans
Week."
COMMUNICATIONS
The PRESIDING OFFICER laid before
the Senate the following communica-
tions, together with accompanying re-
ports, documents, and papers, which were
referred as indicated:
EC-99. A communication from the Sec-
retary of Agriculture, transmitting, pursuant
to law, a report covering the activities of
the Rural Electrification Administration for
fiscal year 1977; to the Committee on Agri-
culture, Nutrition, and Forestry.
EC-3400. A communication from the As-
sistant Secretary of Defense, reporting, pur-
suant to law, the intent to obligate $1.6 mil-
lion of funds available in the Marine Corps
Stock Fund for war reserve stocks; to the
Committee on Appropriations.
EC-3401. A communication from the Direc-
tor, Legislative liaison, reporting, pursuant
to law, that the Air Force recycling pro-
grams have been initiated in full compliance
with the Environmental Protection Agency's
criteria; to the Committee on Armed Services.
EC-3402. A communication from the As-
sistant Secretary of Defense (Manpower, Re-
serve Affairs, and Logistics), reporting, pur-
suant to law, on the adequacy of pays and al-
lowances of the uniformed services; to the
Committee on Armed Services.
EC-3403. A communication from the As-
sistant Secretary of the Army (Installations,
Logistics, and Financial Management), trans-
mitting a draft of proposed legislation to
amend section 2575 of title 10, United States
Code, to provide for more efficient disposal of
lost, abandoned or unclaimed personal prop-
erty that comes into the custody or control
of military departments; to the Committee
on Armed Services.
EC-3404. A communication from the Dep-
uty Assistant Secretary of Defense, trans-
mitting, pursuant to law, a statistical sum-
mary of reports received by OSD pursuant to
section 410, Public Law 91-121, together with
the reports; to the Committee on Armed
Services.
EC-3405. A communication from the Sec-
retary of Housing and Urban Development
transmitting a draft of proposed legislation
authorizing appropriations. for fiscal years
1979 and 1980 for the section 312 rehabilita-
tion loan program; to the Committee on
Banking, Housing, and Urban Affairs.
EC-3406. A communication from the Sec-
retary of the Treasury, transmitting a draft
of proposed legislation to change the size,
weight and design of the one-dollar coin, and
for other purposes; to the Committee on
Banking, Housing, and Urban Affairs.
EC-3407. A communication from the Di-
rector, National Park Service, transmitting
for the information of the Senate, a docu-
ment entitled "Access National Parks," a
handbook of accessibility for handicapped
visitors to the areas of the national park
system; to the Committee on Energy and
Natural Resources.
EC-3408. A communication from the Sec-
retary of Energy, transmitting, pursuant to
law, an annual report on the weatheriza-
tion assistance program; to the Committee
on Energy and Natural Resources.
EC-3409. A communication from the Dep-
uty Assistant Secretary of the Interior, re-
porting, that the Secretary of the Interior
has determined that certain lands in the
States of Nevada, Idaho, and Colorado are
considered as not suitable for disposal under
the provisions of the Unintentional Trespass
Act (UTA) of September 26, 1968 (43 U.S.C.
1431); to the Committee on Energy and
Natural Resources. -
EC-3410. A communication from the Sec-
retary of the Treasury, transmitting a draft
of proposed legislation to authorize a sup-
plementary fiscal assistance program of pay-
ments to local governments, and for other
purposes; to the Committee on Finance.
EC-3411. A communication from the Di-
rector, National Science Foundation, report-
ing, pursuant to law, a planned addition to
the NSF system of records; to the Commit-
tee on Governmental Affairs.
EC-3412. A communication from the Dep-
uty Under Secretary of State for Manage-
ment,, transmitting, pursuant to law, its re-
port of two new systems of records; to the
Committee on Governmental Affairs.
EC-3413. A communication from the Ad-
ministrative Director, U.S. Arms Control and
Disarmament Agency, transmitting, pur-
suant to law, a report on a new system of
records that the agency proposes to estab-
lish; to the Committee on Governmental
Affairs.
EC-3414. A communication from the
Comptroller General of the United States,
transmitting, pursuant to law, a report en-
titled "The Federal Information Processing
Standards Program; Many Potential Ben-
efits, Little Progress, and Many Problems,"
April 19, 1978; to the Committee on Govern-
mental Affairs.
EC-3415. A secret communication from
the Comptroller General of the United
States, transmitting, pursuant to law, a. re-
port on the contingency plans for evacuating
U.S. civilians from selected foreign areas and
suggests several ways to improve these plans;
to the Committee on Governmental Affairs.
EC-3416. A communication from the As-
sistant Secretary for Education, Department
of Health, Education, and Welfare, transmit-
ting, pursuant to law, the third annual re-
port of the Advisory Council on Education
Statistics; to the Committee on Human
Resources.
EC-3417. A communication for the Secre-
tary of Labor, transmitting proposed amend-
ments to the Comprehensive Employment
and Training Act of 1973 (CETA); to the
Committee on Human Resources.
EC-3418. A communication from the
Chairman, National Endowment for the Arts,
transmitting, pursuant to law, a report on
compliance with the Freedom of Information
Act; to the Committee on the Judiciary.
EC-3419. A communication from the Act-
ing Deputy Attorney Z'?eneral, transmitting,
pursuant to law, a report on compliance with
the Freedom of Information Act; to the
Committee on the Judiciary.
EC-3420. A communication from the Ad-
ministrator, Veterans' Administration, re-
porting, pursuant to law, on the need for
special pay agreements; to the Committee on
Veterans' Affairs.
PETITIONS
The PRESIDING OFFICER laid be-
fore the Senate the following petitions,
which were referred as indicated:
POM-598. A resolution adopted by the leg-
islature of the State of Hawaii; to the Com-
mittee on Agriculture, Nutrition, and
Forestry :
"HOUSE RESOLUTION
"Whereas, the United States Department
of Agriculture (USDA) Is the Federal agency
responsible for and authorized to implement
federally mandated agriculture related pre-
departure inspection requirements at the
various airports in the State of Hawaii for
aircraft destinedfor airports located within
the continental United States; and
"Whereas, major pre-departure inspection
programs and activities within the aegis of
the USDA include inspection of the aircraft
itself, passengers, luggage, and cargo; and
"Whereas, the sole, if not key objective of
such pre-departure inspection activities, is
the prevention of the entry of pests harmful
to agricultural production in the continental
United States; and
"Whereas, official statistics indicate that
nearly 21 million passengers passed through
the airports of the State of Hawaii in 1977 of
which total, 3,608,138 passengers were des-
tined for the continental United States; and
"Whereas, the Hawaii State House of Rep-
resentatives finds that the USDA lacks suffi-
cient resources, namely, personnel and funds
to adequately perform the pre-departure in-
spection requirements, particularly as they
relate to luggage inspection at the major air-
ports on the Neighbor Islands; and
"Whereas, as a result of the lack of ade-
quate USDA resources, the State of Hawaii
through the "Airport Special Fund", is ab-
sorbing the costs for the payment of services
of State of Hawaii inspectors performing
federally mandated inspection activities at
Hilo Airport, Kahului Airport, Ke-ahole Air-
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CONGRESSIONAL RECORD -SENATE April 20, 1978
port, and Lihue Airport, all located on the tions--which agree to provide a broad
Neighbor Islands; and I would like to express my apprecia-
"Whereas, experience by the State of range of health care services to groups tion to Senator SAM NUNN, the subcom-
Hawaii has clearly documented the feasi- of individuals for a fixed monthly rate mittee vice chairman, for his fine work
bility of effectively detecting and controlling per individual or family. This is known throughout the inquiry and for the ex-
the various target pests, principal among as a capitation payment. These enter- traordinary support and assistance of
which are those generally classified as a fruit prises either employ or contract with Senator CHARLES H. PERCY, the ranking
fly, through existing luggage inspection and physicians and other providers of health minority member.o
closely allied procedures; and services. Similarly, they either own or
"Whereas, informed experts have voiced contract with health care facilities. The
the firm opinion that strengthened inspec- PHP/HMO approach envisions that by REPORTS OF COMMITTEES
tion activities at the Neighbor Island airports grouping physicians togther, often in will serve to achieve the principal objective The following reports of committees
of curtailing pest entry into the continental one medical center, comprehensive were submitted:
United States without attendant inconven- health care can be made avialble at By Mr. RIBICOFF, from the Committee on
ience to passengers or the effective and efffi- reasonable cost and that the quality of Governmental Affairs, without amendment,
cient movement of passengers through and care to patients can be enhanced unfavorably:
within the State's airport system; now, through physician peer group pressure. S. Res. 404. A resolution disapproving re-
therefore, In theory, the HMO's aim is to provide organization plan numbered 1 of 1978 (Rept.
"Be it resolved by the House of Represents- enrollees with preventive medical serv- No. 95-750).
tives of the Ninth Legislature of the State of ices, thereby reducing hospitalization By Mr. ALLEN, from the Committee on the
Hawaii, Regular Session of 1978, that Hawaii's Judiciary: separation of power annual report
delegation to the Congress of the United and the resulting high costs. In a prop- (Rept. No. 95-751).
States is respectfully urged to, introduce and erly administered HMO, persons who
actively support passage of legislation so need treatment receive full care. The in-
vitally needed to insure adequate compli- centive exists to keep patients healthy INTRODUCTION OF BILLS AND
ance with federally mandated pre-departure. and to detect and treat illnesses in their JOINT RESOLUTIONS
inspection requirements at the Neighbor early stages so they will not need more
The foowing bills and joint resolu-
Island airports in the State of Hawaii; and expensive care. The HMO's fixed monthly tions were introduced, read the first time
"Be it further resloved that certified copies income forms a under which and, this Resolution be transmitted to each and, by unanimous consent, the second
member of Hawaii's delegation to the Con- ministrators agree through contracts to time, of the United States, the United States provide for the health care needs of the , and referred as indicated:
Secretary of Agriculture, the President Pro people they serve. By Mr. JACKSON (by request) :
Tempore of the United States Senate, the In short, there is no financial incen- thee. Go love. A ent to modify rs rutuam and
Speaker of the United States House of Rep- tive to provide unnecessary medical serv- vernment s, and o for Guam and
resentatives, the Governor of Hawaii, the the Virgin Islands, and for then purposral
ices, whereas in the fee-for-service sys- the Committee on Energy and Natural
Chairperson of the Hawaii State Board of tem, there is a financial l incentive to o Resources.
Agriculture, the Director of the Hawaii State provide patients with more services than By Mr. JAVITS
Department of Transportation, and to the (for himsel,
Mayors of the counties of Kauai, Maul, and they need, because medical providers are
MoYxrxnN, Mr. BAYH, Mr. BROOKE,
Hawaii of the State of Hawaii." paid for each service. Mr. CLARK, Mr. DURKIN, Mr. HUD-
The decision In 1972 by California to DLESTON, Mrs. HUMPHREY, Mr.
RrBIcoFF nd Mr. , Mr. RIEGEL, Mr. KENNEDY,
POM-599. A resolution adopted by the provide health care services to its med- a
National Cowboy Hall of Fame and Western icaid beneficiaries through prepaid plans S. 2956. A bill to amend section 1682A of
Heritage Center, relative to the Metric Con- was followed by passage by the Congress title 38, United States Code, to eliminate the
version Act; .to the Committee on Commerce, of the HMO Development Act of 1973 State matching requirement under such sec-
Science, and Transportation. to stimulate the growth of repaid tion in connection with the program of ac-
POM-600. A resolution adopted by the p celerated
Colorado Commission on Indian Affairs, re- systems, payment of educational assistance
lasting tu' Native Americans; to the Select Public hearings on PHP's and HMO's allowances provided for in such section; to
the
Committee on Indian Affairs. were held by the subcommittee. Senator Committee MAT Veterans' Affairs.
PERCY and I said at the opening of our By Mr. prow
S. 2957. A bill to to provide for a coordinated
inquiry that the subcommittee hoped to national policy on stable economic growth;
"PREPAID HEALTH PLANS AND learn from the mistakes of California's to the Committee on Governmental Affairs.
HEALTH MAINTENANCE ORGANI- PHP program so that the same errors S. 2958. A bill to encourage investment by
ZATIONS" -SPECIAL REPORT OF would not be made in other state med- private industry in urban areas through use
A COMMITTEE (REPT, NO. 95-749) icaid programs and in the new Federal of the investment tax credit; to the Com-
i Mr. JACKSON. Mr. President, I file HMO development program. I said then mS. 2959. A bill ill Ai to
and I still believe that the HMO concept S. amend the Internal Rev-
today a report of the, Committee on enue Code of 1954 54 to provide a special de-
Governmental Affairs prepared by its is a "good idea that should not be aban- duction for the employment of unemployed
Permanent Subcommittee on Investiga- doned, because men without consciences, residents of urban areas by businesses locat-
tions on prepaid health plans (PHP's) profiteers, and scam artists took the ini- Ing in those areas; to the Committee on
and health maintenance organizations tiative in California from those with Finance-
(HMO's). The report is the result of a good intentions." S. 2960. A bill to amend the Internal Rev-
more than 3-year investigation and re- Senator PERCY noted that the inter- enue Code of 1954 to allow the tax-exempt
treatment allowed oo bond s certain ain industrial de-
view of the performance of PHP's in tion of Congress in passing the HMO De- velpment bonds to da
California receiving funds from the velopment Act in 1973 was "to test this which h are to be used within economically
ow are
medicaid program and the Federal health care delivery system nationwide, distressed cities, and to allow national banks
health maintenance organization pro- Our thinking was and is that such a one- to underwrite these bonds; to the Committee
gram. step complete health delivery system on Finance.
The inquiry was begun following wide based an preventive care might be ready S. 2961. A bill to amend section 2687 of
publicity given alleged problems sur- for implementation when national health title 10, United States Code, to require noti-
rounding the prepaid health plans of the insurance becomes law." fication of local officials, as well as Congress,
California medicaid program. The report which is being filed today bement, or fore the e anssion f a milment, stallation
The State of California implemented summarizes information obtained by the may be carried out and tochange the period
in 1972 an alternative form of deliver- subcommittee evidencing: Fraud and of time which must elapse after notification
ing, organizing, and financing health abuse of the California prepaid health before such action may be carried out; to the
care services to beneficiaries of Medi- plan program; failures by the State gov- Committee on Armed Services.
Cal, the State's. medicaid program.. Pro- ernment in program management; in- S. 2962. A bill to provide surplus federal
gram costs in California had risen rap- adequacies in Federal oversight of the property for economic development purposes;
idly and continuously under the old sys- California pragraa:n; and questions con- to the Committee on Governmental Affairs.
tem of paying physicians, hospitals, and cerning the adequacy of the present Fed- S. to to u tional agencies as help
other providers fees for their services. eral program to encourage the develop- cant to State educational agencies
control violence in. n the the schools of local help
l edu-
PHP's are comparable to HMO's. Both ment of health maintenance organiza- cational agencies, and for other purposes;
are private entities-primarily corpora- tions across the Nation, to the Committee on Human Resources.
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