September 30, 1974
Page 32841
WARRANTLESS WIRETAPPING
Mr. MUSKIE. Mr. President, I am delighted to cosponsor the Freedom From Surveillance Act of 1974. Jointly with two judiciary subcommittees, the Foreign Relations Subcommittee on Surveillance, of which I am chairman, held hearings this spring and summer to explore the balance between our legitimate national security needs and the rights of individuals in cases of wiretapping for national security purposes. As a result of our investigations, we found that there was a clear need to closely define and sharply limit the Executive authority to order wiretaps or other means of electronic surveillance – both because of past abuses and because of the potential for future abuse.
In our democracy, a decision to invade the privacy of an American citizen or of anyone living in America must be made with a full regard for the constitutional rights which could thus be jeopardized.
Such a decision should not be made lightly or arbitrarily by the Executive.
Three of the first four constitutional amendments in our Bill of Rights deal directly with our freedom to be safe in our homes, thoughts, and persons. They are freedoms from Government intrusion into our lives.
Congress dealt with the problem of domestic surveillance in the Omnibus Crime Control and Safe Streets Act of 1968. But similar invasions of privacy with a national security justification were not covered. And it has become evident that the national security argument can be and has been used as a cloak for actions far afield of our legitimate national security interests.
As reasonable men, we had put our faith in the reasonable use of power. That faith has been abused, and we offer this legislation to check the unreasonable power now vested in the President to order actions in the name of national security.
Essentially, the bill forbids wiretapping or other means of electronic surveillance without a court order. And under the warrant procedure which would be established, there would be very strict safeguards and specific limits on the wiretaps.
In order to limit not only the purposes of wiretaps, but also the authority to seek them, an application for court order would have to be signed by the President. It would then be heard by one of three judges to be selected by the U.S. District Court in Washington, D.C., and the Government would not know in advance which judge would hear the request.
In order to issue a warrant, the court would have to identify and specify the precise information sought by the wiretap, make certain of the national security justification, and determine that eavesdropping on innocent conversations would be minimized.
National security warrants could only be obtained to intercept the communications of a foreign power, or an employee of a foreign power, or a person whose activities are intended to benefit a foreign power or undermine the American national defense or security.
Warrants would be limited to 30 days, unless a finding was made that the wiretap yielded significant information and would continue to do so. The information obtained from the wiretaps would not be admissible in any trial or hearing, except in civil suits challenging the legality of the wiretap or in suits against foreign agents. All agencies of Government except the FBI would be prohibited from conducting national security wiretaps.
In an extreme case, where a judge could not be located, the President could order a wiretap of 48-hours duration, but a warrant must be sought within that period. If a warrant is not issued, or if the wiretap is terminated, the contents of all overheard conversations would have to be disclosed to the affected parties within 90 days.
The bill would also impose record keeping requirements on the telephone company and on the Government, and provides disclosure of the number, duration, and cost of all national security wiretaps every 3 months. As an extra safeguard, all American citizens overheard on such a wiretap would be notified of the tap within 90 days, unless a judge found that disclosure would endanger our national security.
Mr. President, it is Government's first responsibility to safeguard the rights and liberties of its citizens. The bill we offer today provides a needed check on the Government's power to violate those rights.
And as we continue the hearing process on this issue, I am certain a consensus will emerge which will strike that balance I have spoken of between our legitimate national security interests and our obligation to protect the constitutional rights of individuals.