Able Investigations

Technological developments in this century have rendered the most private conversations of American citizens vulnerable to interception and monitoring by government agents. The electronic means by which the Government can extend its “antennae” are varied: microphones may be secretly planted in private locations or on mobile informants; so-called “spike mikes” may be inserted into the wall of an adjoining room; and parabolic microphones may be directed at speakers far away to register the sound waves they emit. Telephone conversations may be overheard without the necessity of attaching electronic devices to the telephone itself or to the lines connecting the telephone with the telephone company. An ordinary telephone may also be turned into an open microphone — a “miketel” capable of intercepting all conversations within hearing range even when the telephone is not in use.

 

Even more sophisticated technology permits the Government to intercept any telephone, telegram, or telex communication which is transmitted at least partially through the air, as most such communications now are. This type of interception is virtually undetectable and does not require the cooperation of private communications companies.

 

Techniques such as these have been used, and continue to be used, by intelligence agencies in their intelligence operations. Since the early part of this century the FBI has utilized wiretapping and “bugging” techniques in both criminal and intelligence investigations. In a single year alone (1945), the Bureau conducted 519 wiretaps and 186 microphone surveillances (excluding those conducted by means of microphones planted on informants). 1 Until 1972, the Bureau used wiretaps and bugs against both American citizens and foreigners within the United States — without judicial warrant — to collect foreign intelligence, intelligence and counterintelligence information, to monitor “subversive” and violent activity, and to determine the sources of leaks of classified information. The FBI still uses these techniques without a warrant in foreign intelligence and counterintelligence investigations.

 

The CIA and NSA have similarly used electronic surveillance techniques for intelligence purposes. The CIA’s Office of Security, for example, records a total of fifty-seven individuals who were targeted by telephone wiretaps or microphones within the United States between the years 1947 and 1968. 2 Of these, thirty were employees or former employees of the CIA or of another federal agency who were presumably targeted for security reasons; four were United States citizens unconnected with the CIA or any federal agency. 3 One of the primary responsibilities of the National Security Agency (NSA) is to collect foreign “communications intelligence.” To fulfill this responsibility, it has electronically intercepted an enormous number of international telephone, telegram, and telex communications since its inception in the early 1950’s. 4

 

Electronic surveillance techniques have understandably enabled these agencies to obtain valuable information relevant 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.

 

By their very nature, however, electronic surveillance techniques also provide the means by which the Government can collect vast amounts of information, unrelated to any legitimate governmental interest, about large numbers of American citizens. Because electronic monitoring is surreptitious, it allows Government agents to eavesdrop on the conversations of individuals in unguarded moments, when they believe they are speaking in confidence. Once in operation, electronic surveillance techniques record not merely conversations about criminal, treasonable, or espionage-related activities, but all conversations about the full range of human events. Neither the most mundane nor the most personal nor the most political expressions of the speakers are immune from interception. Nor are these techniques sufficiently precise to limit the conversations overheard to those of the intended subject of the surveillance: anyone who speaks in a bugged room and anyone who talks over a tapped telephone is also overheard and recorded.

 

The very intrusiveness of these techniques implies the need for strict controls on their use, and the Fourth Amendment protection against unreasonable searches and seizures demands no less. Without such controls, they may be directed against entirely innocent American citizens, and the Government may use the vast range of information exposed by electronic means for partisan political and other improper purposes. Yet in the past the controls on these techniques have not been effective; improper targets have been selected and politically useful information obtained through electronic surveillance has been provided to senior administration officials.

 

Until recent years, Congress and the Supreme Court set few limits on the use of electronic surveillance. When the Supreme, Court first considered the legal issues raised by wiretapping, it held that the warrantless use of this technique was not unconstitutional because the Fourth Amendment’s warrant requirement did not extend to the seizure of conversations. This decision, the 1928 case of Olmstead v. United States, 217 U.S. 438, arose in the context of a criminal prosecution, and it left agencies such as the Bureau of Prohibition and the Bureau of Investigation (the former name of the FBI) free to engage in the unrestricted use of wiretapping in both criminal and intelligence investigations.

 

Six years later, Congress imposed the first restrictions on wiretapping in the Federal Communications Act of 1934 5 which made it a crime for “any person” to intercept and divulge or publish the contents of wire and radio communications. The Supreme Court subsequently construed this section to apply to federal agents as well as ordinary citizens, and held that evidence obtained directly or indirectly from the interception of wire and radio communications was inadmissible in court. 6 But Congress acquiesced in the Justice Department’s interpretation that these cases did not prohibit wiretapping per se, only the divulgence of the contents of wire communications outside the federal establishment, 7 and government wiretapping for purposes other than prosecution continued.

 

The Supreme Court reversed its holding in the Olmstead case, in 1967, holding in Katz v. United States, 389 U.S. 347 (1967), that the Fourth Amendment’s warrant requirement did apply to electronic surveillances. But it expressly declined to extend this holding to cases “involving the national security.” 8 Congress followed suit the next year in the Omnibus Crime Control Act of 1968, 9 which established a warrant procedure for electronic surveillance in criminal cases but included a provision that neither it nor the Federal Communications Act of 1934 “shall limit the constitutional power of the President” 10 — a provision which has been relied upon by the Executive Branch as permitting “national security” electronic surveillances.

 

In 1972, the Supreme Court again addressed the issue of warrantless electronic surveillance. It held in United States v. United States District Court, 407 U.S. 297 (1972), that the constitutional power of the President did not extend to authorizing warrantless electronic surveillance in cases involving threats to the “domestic security.” The Court distinguished — but remained silent on — the question of warrantless electronic surveillance where there was a “significant connection with a foreign power, its agents or agencies.” 11

 

Without effective guidance by the Supreme Court or Congress, executive branch officials developed broad and ill-defined standards for the use of warrantless electronic surveillance. Vague terms such as “subversive activities,” “national interest,” “domestic security,” and “national security” were relied upon to electronically monitor many individuals who engaged in no criminal activity and who, by any objective standard, represented no genuine threat to the security of the United States.

 

The secrecy which has enshrouded the warrantless use of this technique moreover, facilitated the occasional violation of the generally meager procedural requirements for warrantless electronic surveillance. Since the early 1940’s, for example, Justice Department policy has required the approval of the Attorney General prior to the institution of wiretaps; 12 such approval has been required prior to the institution of microphone surveillances since 1965. 13 This requirement has often been ignored for wiretaps and bugs, 14 and it was not even applied to NSA’s electronic monitoring system and its program for “Watch Listing” American citizens. From the early 1960’s until 1973, NSA compiled a list of individuals and organizations, including more than one thousand American citizens and domestic groups, whose communications were segregated from the mass of communications intercepted by the Agency, transcribed, and frequently disseminated to other agencies for intelligence purposes. The Americans on the list, many of whom were active in the anti-war and civil rights movements, were placed there by the FBI, CIA, Secret Service, Defense Department, and the Bureau of Narcotics and Dangerous Drugs without judicial warrant, without prior approval by the Attorney General, and without a determination that they satisfied the executive branch standards for warrantless electronic surveillance. 15 For many years in fact, no Attorney General even knew of this project’s existence. 16

 

Electronic monitoring by the National Security Agency and the CIA, however, is outside the scope of this Report. This Report focuses exclusively on the FBI’s use of electronic surveillance; NSA’s monitoring system is described at length in the Committee’s Report on NSA. Because the legal issues and the FBI’s policy and practice regarding consensual monitoring devices such as “body recorders” are distinct from those of nonconsensual wiretaps and microphone installations, 17 the Report is also confined to the latter forms of electronic surveillance.