practical means of safeguarding the privacy of confidential records; objections to legislation currently before Congress (HR 214) which would require disclosure of access to recrods would thus be met.

(iii) Mail Covers

Mail covers permit the systematic recording of all persons, businesses and organizations with whom a person corresponds. Such information can often reveal significant personal information as well as information about a person's political, associational and religious practices which is protected by the First Amendment.

This investigative technique is quite similar to the
use of pen registers to record all telephone numbers
both reaching a given number and reached by that
number. The use of pen registers for foreign intelligenc.
counterintelligence or. counterterrorism purposes within
the U.S. would require a warrant under S. 1566. The
intrusiveness of the technique and its similarity
to a technique which already would require a warrant
under Title UI indicate that the warrant requirement
should be extended to include mail covers.

(5) The warrant requirement would not jeopardize
legitimate intelligence investigations

The above techniques the targeting of informants, records
scarches and mail covers - are extremely intrusive investigative
techniques and bear a striking resemblance to investigative
techniques the use of which require judicial authorization in the
form of a warrant.
employment should not be left to the
sole discretion of the Executive, Judicial review should be
required by law. This conclusion is especially persuasive in
the absence of significant public interests against outside review
of Executive discretion:

(1) The value and pervasiveness of informants as an investiga-
tive tool is not an argument against subjecting the
technique to judicial scrutiny. One can think of any
number of investigative techniques practiced in police
states
e.g. torture, area searches which would be
valuable to investigators in the U.S. Such a statement
is clearly no endorsement of the activity. Moreover, the
value of informants in counterintelligence and counter-
terrorism investigations is subject to question. Jares
Q. Wilson claims that:

:

Certain groups are less vulnerable to being
penetrated by, or being deceived by an in-

formant than others. Among these are domestic
political revolutionaries, especially those with
strong feelings of mutual solidarity, and

foreign spy rings. Whereas a member of a gang
of bank robbers might be induced to give infor-
mation in exchange for money or leniency, a
revolutionary or spy might have a price no
government could pay.

(2) It is true that a warrant requirement would place a
bureaucratic roadblock in the path of investigators
intent on resorting to these techniques. Such a safeguard
is proper when intrusive techniques such as these are
contemplated. Certainly, it has not proved to be
insurmountable in the case of electronic surveillance.

(3) Courts are the most leak-proof arm of government; there
is no reason to believe that federal courts cannot maintain
secrecy where necessary in intelligence cases. Warrant
applications could be heard by the sang special court
provided for in Title III. Indeed, the confidentiality
of sources might ultimately be protected from exposure in
civil suits resulting from the abusive use of informants
if the use of such techniques wo, e subjected to prior
judicial scrutiny.

(4) There is no reason to believe that a federal judge cannot apply a statutory standard and detering whether the use of one of these intrusive techniques is warranted. Certainly, the expertise of theAttorney General is as open to question as that of a judge.

In sum, the procedural framework for the authorization of investigative techniques is generally sound but must be improved as recommended above. The application of procedures to particular techniques should be revised. Pretext interviews should require Attorney General approval under section 215. The targeting of informants and the use of record searches and mail covers should be subjected to judicial scrutiny as a check on executive discretion. The use of informants engaged in First Amendment activity is particularly threatening to civil liberties and should be prohibited.

D.

Provisions for Foreign Electronic Surveillance, Unconsented
Physical Searches and Mail Opening in Title III

Title III extends the provisions of S.1566 to foreign electronic surveillance, unconsented physical searches and mail opening by providing for a warrant requirement for the conduct of these activities similar to that mandated for electronic surveillance within the U.S.

We did not vigorously oppose the passage of $.1566 because it was an improvement upon current law. We would not object to the logical extension of its provisions to foreign electronic surveillance in so far as these provisions of Title III also improve upon current law. Such an extension must be based upon the presumption that U.S. persons abroad are entitled to the same constitutional protections as those afforded them at home.

We do not support the proposed extension of S.1566 to the conduct of physical searches and mail opening. Although these provisions of Title I largely parallel those covering electronic surveillance, they retreat significantly from protections afforded Americans and resident aliens by current law. The authorizations for these activities embodied in S.2525 are clear violations of the Fourth Amendment.

Our discussion of Title III which follows proceeds from the assumption that the debate over the provisions of S.1566 has ended. It is limited to those provisions of the title which expand upon that bill.

1. Foreign Electronic and Signals Intelligence

We support legislation in the area of foreign electronic and signals intelligence because the constitutional rights of Americans abroad should be recognized and protection for those rights guaranteed and expanded by a statute. However, legislation which retreats from current law would be worse than congressional inaction.

Provision for foreign electronic and signals intelligence must recognize that Americans abroad are not subject to any reduction in constitutional protection. This principle has been upheld in ACLU litigation. (See Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144 (1976)). Applied to electronic surveillance as dealt with in Title III, it requires that section 321 embody at least the same standards, procedures and restrictions regarding the targeting, of U.S. persons as those set forth in section 311 for targeting U.S.

persons within the U.S. Section 321 as written departs from the provisions of section 311 to the detriment of the civil liberties of U.S. persons abroad:

(1) Section 321 authorizes the targeting of a U.S. person
who is an officer or employee of a foreign power

residing abroad under a non-criminal standard for purposes
of obtaining any information fitting the broad definition
of "foreign intelligence information." This standard
is a clear threat to the civil liberties of a whole class
of U.S. persons of which the majority is certainly law
abiding. This provision has no parallel in section 311;
residence abroad does not justify targeting. The section
should be stricken from Title III.

(2) Section 321 provides for the targeting of fugitives from
justice abroad who are U.S. persons for purposes of
obtaining foreign intelligence information once again a
broadly defined term not necessarily constituting evidence
of a crime. This provision is not a logical extension of
the provisions of section 311. Fugitives abroad are
entitled to constitutional protection, including protection
from electronic surveillance for purposes of obtaining
what may merely be "interesting" information. The
section should be stricken.

(3) Section 321 does not require that the application for electronic surveillance certify that less intrusive means cannot provide the necessary information. Section 311 does. This omission has no logical basis.

(4) Section 321 does not restrict the duration of electronic surveillance abroad. Section 311 rightly does. Again, the omission is not logically supportable.

This list is not exhaustive. The important point we wish to make is not the details here but the broad principle U.S. persons abroad are entitled to the same constitutional protections as U.S. persons at home. Title ill must reflect this thinking.

2.

Unconsented Physical Searches by Surreptitious Entry

We strenuously oppose the authorization for physical searches by "surreptitious entry" proposed in section 343. The courts have never recognized a national security exception for a physical search. Cf. United States v. Ehrlichman, 376 F.Supp. 29 (D.D.C. 1974). As the Court noted in that case, the only exception has been made for wiretapping, which has only recently been interpreted to violate the Fourth Amendment. If the Fourth Amendment was designed to protect against anything, it was unreasonable "general searches" of "persons, houses, papers, and effects" directed at citizens. This authorization would strike at the heart of the Fourth Amendment, going far beyond current law. Section 341 would:

(1) authorize unreasonable searches since it departs from
the traditional standard of probable cause of a crime;

(2) authorize "general searches" by permitting multiple searches to gather "foreign intelligence information" broadly defined. This does not satisfy the Fourth Amendmont's requirement as to particularity with respect to the person or place to be searched and the "things to be seized;"

(3) violate the traditional rule that except in exigent
circumstances, the target of the search shall be

notified. Section 341 waives the notice requirement end,
in effect, authorizes burglary.

The Church Committee noted that intelligence agents who com burglaries and other such searches recognized that they were "clearly illegal. In effect this bill would make those seun, bes legitimate. But the judicial warrant requirement here does not change the inherent constitutional defects, since it does not meet the requirements of the Fourth Amendment.

Section 34] (b) should be stricken from the bill, which would in effect limit the intelligence agencies to the conduct of physical searches under the rules of criminal procedure. Although the President's Executive Order authorizes those searches without a warrant, we believe the Order is in violation of the Constitution and subject to challenge.

However, we asc prepared to discuss the terms of this section if "physical search" were defined to mean infiltration of organizetions by informants or undercover agents pursuant to authorized counterintelligence, counterterrorism, and foreign intelligence investigations.

As with physical searches, Title III would authorize a general search of a U.S. person's mail for foreign intelligence purposes. Rather than authorize the opening of a particular piece of mail, it would authorize a "general warrant" for the opening of all of a person's mail to collect foreign intelligence information rather than evidence of crime. Again, probable cause of a crime would not be required or a person notified of the search.

This was another activity which intelligence agencies considered "clearly illegal" that would be authorized by the charter. The warrant requirement does not cure the constitutional dubiousness of this new exception to the Fourth Amendment on the grounds of national security. Even the Executive Order implicitly recognizes the lack of a legal basis for this activity by authorizing mail opening only outside U.S. postal channels, although we consider this unconstitutional as well. Title III expands on the Executive