ELECTRONIC SURVEILLANCE LEGISLATION

Created: 5/27/1975

OCR scan of the original document, errors are possible

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subject: electronic surveillance legislation

ozen bills have been introduced in congress to date aimed at restricting electronic surveillance conducted on national security grounds. although impelled by concern for the fourth amendment rights of american citizens, the major bills in this area) arc characterizedeavy-handed approach whicherious threat to the exploitation of foreign sigint sources, both within the united stales and overseas. (signals intelligence subsumes communications intelligence and electronic intelligence.)

8 omnibus crime control and safe streetststablished certain procedures which require the government toourt order issued on probable cause prior to conducting wire or oral communication interception in the investigation of certain offenses. inf that act, congress specifically disavows any limitation on the constitutional powers of the president in national security matters and recognizes that the president has inherent constitutional authority to engage in certain foreign intelligence activities:

thing contained in this chapter or inf the communications act4 shall limit the constitutional power of theo obtain foreigninformation deemed essential to the security of the united states, or to protect national security information against foreign intelligence activities, (emphasis added)

the emphasized language implicitly recognizes that foreign intelligence surveillances may be distinguished from national security surveillances aimed at the discovery and prosecution of criminal conspiracies and activity.

reliance on these presidential powers andthereof, foreign intelligence signal and communicationbe conducted within the united states without judicial warrant.

APPROVED FOR RELEASE

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4. Sentiment that the provisions ofquoted above) are incompatible with Fourth Amendment rights hasenate bill andozen House bills (some of these identical) aimed at closing what the sponsors view as "the national security loophole" in current surveillanceistinctive approach to national security surveillance is taking shape which would prohibit the use of warrantless surveillance for any reason whatsoever, treating national security surveillanceingle rubric, withoutbetween gathering foreign intelligence on the one hand, and national security surveillances aimed at the discovery and prosecution of criminality, on the other.

(a) y Senators Nelson and Kennedyts follows: First, repealS-C.

thereby withdrawing whatever congressional recognition

section gave the foreign intelligence surveillance powers of

President. Second, prohibit intercepting the communications

an American citizen or alien admitted for permanent residence

rior judicial warrant is obtained issued on probablea specificspionage, has been or is about'to Third, prohibit intercepting the communication of a

power or its agentrior judicial warrant is obtained

establishing probable cause (a) that such interception is

to protect the national defense (note narrower standard

nationalb) that the interception will be consistent

the international obligations of the United States; and (c) that

the targetoreign power or foreign agent.oreign agentas any person, not an American citizen or alien lawfully

admitted for permanent residence, whose activities arc intended to serve the interestsoreign power and to undermine the national defense. Each application for such an interception would be made to the D. C. Federal District Court on personal and written authorization of the President and would provide detailedon the target, the purposes and justification of thepon court approval, only the FBI would be authorized to intercept the communication. Fourth, require that every American citizen targetted be informed of the specifics of the surveillanceonth of the last authorized interception. (This disclosure could be postponed if the Government satisfies the court that the target is engagedontinuing criminal enterprise or that disclosure would endanger national securityoreign powerts agent need not be informed ofifth, require the Attorney General to report to the Congress, at least quarterly, the details of each interception undertaken on national security grounds, to be filed with the Senate Foreign Relations and Judiciary Committees and the House International Relations and Judiciary Committees.

(b) H,y Representative Kastenmeier, ChairmanHouse Subcommittee on Courts, Civil Liberties, andof Justice, which has legislative jurisdictionis similar to the above bill. It wouldUnd amend Titleo permitin national security cases only under courton probable cause that an individual has committed oneenumerated offenses or is engaged in activities intendedthe interestsoreign principal and to underminesecurity. (From the language of the bill, it couldthat the foreign agent's activities would have tocriminal offensearrant could behenot mention the communicationsoreignapplication for an interception would have to bcthe Attorney General and madeederal judge ofjurisdiction. The targetted individual would be informed

the surveillance within ninety days. The President, Attorney

and all Government agencies would be required to

Congress, through the Senate Judiciary and Foreign

Relations Committees and the House Judiciary andCommittees, any information regarding any interception

for.

JO

o

a.

H.y Mr. Mosher and seven identical bills co-sponsored by overongressmen from both parties, would prohibit any interception of communications, surreptitious entry, mail-opening, or the procuring and inspection of records of telephone, bank, credit, medical, or other business or private transactions of any individual without court order issued on probable causerime has been committed. Likend H., reviewedould repeal Unlike the aboveoes not provide for non-law enforcement surveillance. It would also strike outfor summary procedures for intercepting communications during emergencies and would require that detailed information on each applicationommunication interception be reported to the House and Senate Judiciary Committees.

5. Intelligence Community Interests: These bills, through imposing judiciary administration over all surveillance, would impair existing responsibility to conduct electronic surveillance in gathering foreign positive intelligence, which now reaches wholly domestic communications, those both transmitted and received within the United States; wholly foreign communications those both transmitted and received abroad; and transnational communications. international communications received in or transmitted from the United States.

SIGINTroad range of foreign intelligence ranging from early warning indicators to the most mundane information. The importance of any single intercept or series of interceptions cannot be anticipated in advance; therefore, the probable cause standard and the proposed requirements of "particularity" are inappropriate in connection with this method of foreigncollection. (Furthermore, the House bills would impair existing responsibility for using other intelligence gathering techniques against foreign subjects within the Unitededicepts, photo surveillance, etc.)

Domestic Electronic Surveillance: An operation

mountedoreign target within the United States to gather foreign positive intelligence would apparently not meet the

test unless the specific message targetled involved an anti-

demonstrable and direct threat to the national defense.

xplicitly confers interception authority to the FBI alone.

{? also explicitly raises the issue of the consistency of surveillance

internationalhe Vienna Convention, and

thus challenges the position taken by the State Department that no

international obligation precludes targetting foreign

within the United States.

6. Effect on Intelligence Community Interests: The bills reviewed above would severely restrict domestic communications interception for foreign intelligence gathering purposes; raise serious questions respecting authority to intercept transnational communications; and would even raise questions concerning the foreign intelligence community's authority to conduct electronic surveillance abroad free from judicial intrusion or other conditions. (Moreover, the House bills would restrict the use of other intelligence gathering techniques against foreign targets within the United States.)

Electronic Surveillance: legislation would apparently subject the intercept ion of trans-

national communicationsitus within the United States to the probable cause standard. It could also provide grounds for arguing that interceptions of transnational communications from facilities outside the United States would be subject to the same standard.

Electronic Surveillance: Theabove are broadly written and the prohibitions arclimited to the territory of the United States.of this legislation should bo subject to the built-inthe authorityederal court to issue warrants isits territorial limits, repeal ofndof probable cause standards for foreignactivities couldrave impact oncollection by bringing intoody ofcase law (developed in ruling on the admissability incriminal trial of evidence obtained overseas by Suffice it, here, to say that this could result in

subjecting overseas foreign intelligence surveillance to the proposed probable cause standardsest of theequired by Fourth Amendment protections. Moreover, this legislation could raise complex questions in situations where an element of theprocess falls within the jurisdiction of the federalhe physical presence of the surveillance device. Even if these bills would not directly affect authority to conduct foreign electronic surveillance, they could ultimately weaken it by raising the opportunity to argue that this authority rests only on threeof inherent Presidential intelligence-gathering powers, congressional recognition and judicial acceptance. Repeal ofay be viewed as weakening the argument that Congress has recognised foreign intelligence gathering authority Inherent in the President and delegated to his Executive branch agents.

ummary:

--Proposed legislation would repealnd would impose judicial administrationprobable cause" standard over foreignelectronic surveillance. At the very least, this would restrict communications interceptions against foreign targets within the United States to situations involving an anticipated, demonstrable and direct threat to the national defense. Also, this would probably subject the interception of transnationalfrom either an overseas or domestic situs, to the same judicial standards. Finally, this would raise difficult questions concerning the ability of CIA, NSA, and the service cryptologic agencies to conduct electronic surveillance overseas against foreign targets without conforming to the standards of Fourth Amendment "reasonableness" articulated in this legislation. In sum, enactment of proposed legislation would severely restrict the collection and processing of foreign SIGINT and would seriously impair the production of all-source intelligence.

--By repealingnd by introjecting the judiciary into the field of foreign intelligence gathering, proposed legislationonstitutional challenge insofar as it purports to withdraw sanction of and place limitations on the President's inherent power to conduct foreign surveillance. This infringement could undermine the Executive sources of authority upon which the intelligence community depends. To be sure, the proposed requirement of prior judicial authorization of foreign intelligence surveillances is altogether impractical. But the fundamental constitutional objection is that it purports to share Executive authority with judicial officers having no expertise in or responsibility for national security or foreign affairs. The necessityoreign intelligence surveillance is simply inappropriate for judicial resolution. Itatter committed to the Executive branch by the Constitution and an area for which there are no judicially manageable standards. An arrangement by which federal judges decide what foreign intelligence the President may have in his conduct of foreign

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relations is incompatible with the Chief Executive's inherent foreign intelligence gathering powers. Since this Presidential authority is constitutional in nature and stemsundamental separation of governmentalongressional attempt to require its sharing with the judiciary would certainly lead to protracted constitutional litigation. Moreover, Congress implicitly authorized the uoc ofsurveillance in foreign intelligence activities and this legislation would circumscribe the very functions which Congress intended the Agency to perform.

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