Statement

on the
FOREIGN INTELLIGENCE WIRETAP BILL
by
Senator Frank Church
Presently before the Judiciary Committee of the United
States Senate is a foreign intelligence wiretap bill (S. 3197)
which, I fear, creates a potential for mischief unanticipated
by its drafters.
On its surface, the proposed legislation arrears
progressive.

It reauires the government to obtain judicial

warrants before conducting electronic surveillance of suspected

foreign agents.

But beneath this lid lies a Pandora's box which

is all too easily opened.

To obtain a warranty the government must only show
evidence that the target of surveillance is, in some way,
aiding or abetting an agent of a foreign power, faction, or
party engaged in "clandestine intelligence activities."

In

the opinion of the Attorney General, it apparently matters

not whether the aid is lawful or unlawful^ witting or unwitting.
Under the present proposal, it matters onlv if the government
thinks the aid somehow serves the secret intelligence objectives
of a foreign power.

The same rationale, of course, was

invoked bv the F.B.I, to iustifv the use of taps and bugs in

its vendetta against Dr. Martin Luther King, Jr. and by the

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Nixon Administration to place taps on newsmen and former

National Security Council aids.
In 1790, John P. Curran wrote that
It is the common fate of the indolent to see
their rights become a prey to the active. The
condition upon which God hath given liberty to man
is eternal vigilance; which condition if he break,
servitude is at once the consequence of his crime
and the punishment of his guilt.
The Senate Select Committee on Intelligence uncovered a
long list of actions taken by the intelligence agencies in
the period since the Second World War which had the effect
of narrowing the scope of human freedom in this country.

While

liberty was in the balance in America, the attention of free

people was too often focused elsewhere.

Our eternal

vigilance at home grew slack.

William Pitt, Earl of Chatham, a great defender of
liberty in the eighteenth century, once said:
The poorest man may in his cottage bid defiance
to all the forces of the crown. It may be frail,
its roof may shake; the wind may blow through it;
the storms may enterthe rain may enterbut the
King of England cannot enter.
Our forebears staunchly believed in the sanctity of privacy.
too. and in this same spirit the Senate Intelligence Committee
sought to impose clear limits on government intrusion into
the right of personal privacy.
This is why the Intelligence Committee strongly
recommended that "no American be targeted for electronic
surveillance except upon a judicial finding of probable

c-:?. ninal activity."

Contrary to the present proposal, we

also stressed that the Executive has no "inherent constitutional

authority to violate the law or in Cringe the legal rights of
Americans, whether it be a warrantless break-in into the
home or office of an American^ warrantless electronic
surveillance; or a President's authorization to the F.B.I.
to create a massive domestic security program based upon
secret oral directives."
During the course of American history, fear has often
paralyzed our institutions and eroded our liberties.

H. Frank

Wav0 Jr., the constitutional scholar^ has observed that

We have feared the Indians, blacks, aliens,
abolitionists, labor unions, Jews, Roman Catholics,
socialists, communists, and hippies. We have feared
crime and called for 'frontier' justice; we have
feared minorities and consigned them to the ghetto
and the barrio.
Though we must be vigilant against our enemies and maintain
a strong and effective intelligence and counter-intelligence
capability, we must not let a fear of foreign intelligence
services destroy our own liberties.
The Senate Intelligence Committee inquiry indicated
clearly that the use of undefined termssuch as "clandestine
intelligence activity" or "terrorist activities"not tied
to matters sufficiently serious to be the subject of criminal
statutes, is a dangerous basis for intrusive investigations.
If the laws are insufficient to protect rational security
information from foreign agents, then the laws should be

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amended.

Professor Way is correct:

Destructive assaults on individual liberties

have never provided a solution to our fears. In
the last analysis, our security and happiness are
best tied to a constitutional order based on
legality, equality, and free expression.
It is my earnest hope that the Judiciary Committee and
others will review this matter carefully and take into
account the reasoning and recommendations presented by
the Intelligence Committee.
Jefferson wrote to Beniamin Rush in 1880 that he had
"sworn uDon the alter of God eternal hostility aeainst every
form of tvrannv over the mind of men."

Each of us who have

taken a similar oath, in public or in our hearts? must

view with great circumspection any proposal that may have
the effect of diminishing the life of a free people.