CONFIDENTIAL : CONFIDENTIEL 7h, Sis) ni | 0 bn tats| RoparorUNITED STATES INTELLIGENCE LAWUNITED STATES INTELLIGENCE LAW Antonin Scalia* It is impossible, in a paper of the size here contemplated, to do justice to the entire subject of intelligence activities by the United States Government, and it may be well at the outset to indicate the areas that will be slighted. It is, first of all, not our intent to describe in any detail the nature of intelligence gathering in recent years by the various federal agencies. Such information-~and particularly data concerning alleged and documented abuses--may well be useful to the Commission, by providing examples of what {ts proposals should be designed to avoid. The broad out- lines of such information, however, have recurrently been reported in the popular press; and if more detail is desired, it is exhaus- tively (and perhaps somewhat exaggeratedly) set forth in the Final Report of the Senate Select Committee to Study Governmental Opera- tions with Respect to Intelligence Activities (the so-called “Church Committee Report")! which is at the Conmission's disposal. Thus, while some concrete examples of intelligence-gathering prograns will be alluded to in the course of other discussion, they will not thenselves occupy the focus of our attent{on. Also slighted will be analysts of the institutional structure of the United States intell igence-gathering apparatus. This, and reconmendations for its inprovenent, are again set forth with great clarity in the Church Committee Report--to which factor there maybe added the lack of any distinctive qualification on the part of this author to evaluate and analyze the subject. It needs the knowledge and experience of an intelligence administrator rather than a lawyer, except with respect to one point, which I shall make here and be done with: From the standpoint of assuring due observance of civil rights, it obviously makes sense to avoid commingling within a single agency responsibilities which differ substantially with regard to the means lawful for their performance. That is to say, the unit which regularly performs warrantless electronic surveillance and warrantless physical searches for the purpose of gathering foreign intelligence is likely to develop a more cavalier attitude towards such practices in its ordinary police work, if that is also part of its responsibility. What will be the focus of the present paper is the law governing intelligence-gathering activities by United States officials and agencies. Even this modest subject {s, however, exceedingly difficult to present in any easily cognizable form, for a number of reasons. It is an amalgam of constitutional restrictions, developed in a case-by-case fashion by the courts; legislative prescriptions of unusually vague and ambiguous characters and administrative directives, many of which are not publicy known. The constituttonal portion of the mix is, as will be seen, still indeterminate in some of the most fundamental respects because the Supreme Court has not had occaston to, or has not seen fit to, address the relevant issues. And both the legislative and adninis~ trative portions are in the process of undergoing massive change.The proposed scheme of discussion is as follows: Part I will analyze the constitutional and statutory law applicable to, successively, the various extraordinary techniques comonly used in intelligence-gathering operations. In addition to existing statutes, we will discuss in sone detail the application of the proposed Foreign Intelligence Surveillance Act,” which has the support of the Administration, has been reported to the Senate floor, and seens quite likely of passage. Part II will describe briefly the administrative Taw governing intelligence activities-- beginning with @ discussion of constitutionally required delegation within the administrative structure, and proceeding to examination of the substance of the few publicly known administrative prescriptions-- principally those issued by the President and by the Attorney General. Finally, Part III will deal with the crucial but often overlooked issue of sanctions, without which the prescriptions of the law may be ineffective. 1 Application of the Constitution and Laws to Particular Intelligence Techniques A.__Wiretapping Many legal issues are common to a number of intel] igence- gathering techniques. In considering United States law and practice, it makes sense to discuss these issues first in the context of wiretapping--because it is in that area that the relevant law, both Judicial and statutory, is the clearest and most fully developed.It also makes sense to treat the subject, at least briefly, from an historical standpoint, since the (in sone respects strange and uncertain) state of the current law can only be understood in light of the explosive evolution it has undergone over the past fifty years. Section 605 of the Federal Communications Act Federal statutory law concerning the permissible limits of wiretapping by law enforcenent officials and intelligence agencies is most noteworthy for its late development. The entire area was permitted to languish in an enornous degree of uncertainty for many years--and in some respects continues to do so today. Except for a few flukeish interludes in connection with federal seizure of telephone and telegraph systems during World War 1° and in connection with enforcenent of the National Prohibition Act,* it is the amazing fact that there was no federal statute prohibiting wiretapping by anyone until 1934; and that the three-line provision ‘then adopted, enacted without any separate congressional deliberation or debate, and copied almost verbatim from an earlier statute governing radio comunications,° renained the totality of federal statutory Jaw on the subject until 1968. Section 605 of the Federal Communications Act of 1934 included the following provision: “No. person not being authorized by the sender shall intercept any conmunication and divulge or publish the existence, contents, substance, purport, effect or meaning of such intercepted conmunication to any person."© Federal agents originally operated on the assumption that this prohibitionid not apply to the government and its officers, but such an inter- pretation was definitively rejected by the Suprene Court in the first Nardone case in 1937, at least insofar as divulging or publication in court was concerned.’ The result of this decision was that no wiretap could form the basis of a criminal conviction in federal court. Two years later, in the second Nardone case, the Court went a step further, and held that even the "fruits" of a wiretap (i.e. incriminating evidence discovered as a result of information overheard in the tap) had to be excluded.® These decisions, while adequate to discourage the use of wiretapping by federal agents in ordinary criminal cases, where prosecution was the primary object of the investigation, did not terminate its use in those cases (such as espionage and national security cases) in which detection without prosecution would be a significant gain. This was so for two interconnected reasons: (1) The statute required both interception and disclosure for a violation; and while presentation of the tap in court had been held to constitute disclosure, the Justice Departnent took the position that the mere dissemination of the information among law enforcement 9 officials did not.” (2) The principal sanction other than exclusion of the evidence was criminal prosecution by the Justice Department itsert,!? and since the Department would of course not prosecute what it did not consider violations, there was no ready means by which the validity of the Department's interpretation could be 1 challenged in the courts.!! thus, as Attorney General Brovnel16 wrote in 1954, Justice Department policy “favored and authorized" wiretapping, not only in security cases, but also in connection with wl2 "other heinous crimes such as kidnapping."’* This policy was continued until mid-1965, at which tine President Johnson limited federal wiretapping to "national security" cases? The confusion which existed under Section 605 1s compounded when one considers law enforcenent activities at the state rather than federal level. Of course prior to 1937 (Nardone I) state Taw enforcenent officials had believed, Tike federal law enforcement officials, that the prohbiition of Section 605 did not apply to them. After Nardone I, state wiretapping continued,!* apparently on a theory sinmflar to that which the Justice Department used--that disclosure within a state Taw enforcenent agency did not constitute the "divulging" necessary for violation of the federal statute. The existence of this state practice was by no means kept secret--indeed, in sone states by statute the taps had to be authorized by judicial orders!® yet there 1s no record of a Justice Department prosecution. By @ queer development of law, state wiretaps for a long period of ‘time had an advantage over federal wiretaps: they were admissible in court. Not until 1957 did the Supreme Court require federal courts to exclude wiretap evidence acquired by state law enforcement officials; '® and in 1952 it specifically negated the existence of ‘any federal prohibition upon state courts admission of wiretap evidence obtained by state officials.!7 The latter decision was overruled in 1968," but from 1937 (the year Nardone I was decided) until 1968 there actually existed a regime in which, although disclosurein state court was unlawful under Section 605, such unlawful disclosure id not (under federal law) have to be prevented by state courts, was never prosecuted by federal officials, and was sanctioned and encouraged by state wiretapping statutes which (through @ require- ment that officials obtain prior court orders for wiretaps) even involved the judiciary in the taps thenselves.19 Congress sought to bring some order to this chaotic area in 1968, with the enactment of Title IIT of the Onnibus Crine Controt and Safe Streets Act of 1968°° (hereinafter referred to as "Title III"), which remains, as slightly modified, the governing legislation.22 Before describing the text of the statute, however, it is necessary to discuss briefly sone applicable principles of United States constitutional Taw. The Katz Case The Fourth Amendment to the Constitution wes part of the B11 of Rights proposed by Congress in the very first year of the republic, and ratified by the requisite nunber of states two years later, It was a reaction against the general warrants and writs of assistance which had been issued by British officials to sanction random searching of colonists' hones for smuggled goods. It reads as follows: 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 propable cause, supported by oath or affirmation, and particularly describing the Place to be searched, and the persons or things to be seized.When the Supreme Court first considered the issue in 1928, it held that the Fourth Anendment did not prohibit law enforcenent officials from conducting wiretapping without judicial warrants the Prohibition, the Court said, applied only to the search of natertal things--not intangibles such as conversation; and so Tong as no Physical trespass was involved, wiretapping was not covered.2@ Sugsequent cases, however, represented @ continuous retreat from that interpretation until, in 1967, in the landnark Katz case, the Court flatly announced that that principle "can no longer be regarded as controlling,” and adopted in its place the doctrine that the Amendment “protects people, not places" and that the essence of its violation {s an invasion of "privacy upon which {a person) Justifiably retied,"23 It might be thought--and indeed there are many who do think-- that the effect of the Katz decision would be to iTlegitinate alt warrantless wiretapping by government officials. Yet warrantless 7 federal wiretapping was continued, and continues to this day, under a theory whose understanding is central to a grasp of the current state of affairs in this country. A close reading of the Fourth Amendment, quoted above, will reveal that it does not actually prohibit warrantless searches. Its first clause prohibits unreasonable searches, and its second clause establishes the conditions upon which warrants will issue. A Tong line of Supreme Court cases establishes that, while in most situations proceeding to search without a warrant 1s 4pso facto "unreasonable," and thus in violation of the Fourth Anendnent,”* yet this is not always so. Exceptionsto the warrant requirenent include search in the course of “hot pursuit" of a suspect,” search of the person incident to a lawful arrest,”® and search to prevent the iminent destruction of evidence.2” In such situattons, and others, the circumstances render it not unreasonable to proceed without awaiting prior judicial approval. The federal Executive Branch argued that @ sinilar exception to the General warrant requirement applied to searches and seizures authorized by the President not to gather evidence for specific criminal prosecutions, but to gather intelligence for the protection of the national security; here, 1t was urged, @ warrant requirement would obstruct the President's performance of his constitutional duty, Would inject the courts into an area in which they lack the necessary knowledge and techniques, and would compromise highly secret information. “2 Title 11] and the Keith Case To revert, now, to discussion of the statutory situatfon: As noted above, Title III of the Omnibus Crime Control and Safe Streets ‘Act was adopted in 1968 and remains, substantially unamended, the fundamental law in this field, Its full text 1s attached as Appendix A. For present purposes, the most significant feature of this law 4s {ts accomodation of the Executive Branch position concerning warrantless wiretaps. 18 U.S.C, $2511(3) reads as follows: Nothing contained in this chapter or in section 605 of the Conmunications Act of 1934... shall linit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile actsts of @ foreign power, to obtain foreign intelligence information dened essential to the security of the United States, or to protect national security infor- mation against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional poner of the President to take such measures as he deens necessary to protect the United States against the overthrow of the Govern- ment by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral conmunication intercepted by authority of the President in the exercise of the foregoing Powers may be received in evidence in any trial hearing, or other proceeding only where such inter- ception’was reasonable, and shall not be otherwise Used or disclosed except as is necessary to implement that power. The meaning of this provision--and the existence of the warrantless “constitutional power" to which it referred--were first considered by the Supreme Court in 1971,°° in the Keith case,2° involving wiretaps directed against a domestic group which had dynamited an office of the Central Intelligence Agency. The Court held, first, that {2511 did not constitute "a recognition or affimance of a constitutional authority in the President to conduct warrantless domestic security survefliance,"*! but was rather “a congressional disclaimer and expression of neutrality"®2 on the point. It held, secondly, that no such constitutfonal power exists. And finally, it strongly enphasized several important limitatfons upon its decision: (1) that, while not enabling the President to proceed without a warrant in donestic security cases, the Fourth Amendment may allow congresstonally prescribed standards and procedures for warrants in such cases which are more permissive than those required for ordinary criminal investigations;°? and (2) that the negationof constitutional authority for the President to proceed without a warrant applies to “only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents."*4 By reason of the last-quoted statement, the category of “national security investigation"=-which used to be comon in United States law-enforcement parlance, and which evidently remains a meaningful classification in Cenada--ceased to exist. The criterion of legality (or at least possible legality) for warrantless activity ‘is not whether an attack upon the structure of government or the national defense 1s at issue, but rather whether the investigation involves “activi ies of foreign powers or their agents." For the remainder of this discussion, therefore, we will refer to the "foreign intelligence" exception to the warrant requirement. (The term is meant to include both intelligence and counterintel ligence activities.) By way of an aside, it is worth noting that many of the more publicized instances of unlawful warrantless activities by the FBI--for example, ‘those undertaken against Martin Luther King, black separatist groups and the ku Klux Klan?®--dated from the period prior to Keith, when (as the text of §2511 demonstrates) it was thought within the Executive Branch that domestic "national secutiry" investigations could make use of the same extraordinary Presidential powers as foreign intelligence investigations. Of course the Supreme Court in the Keith case did not