Intelligence Gathering and the Law: Conflict or Compatibility?
Intelligence Gathering and the Law: Conflic t or Compatibility?
Benjamin R . Civiletti 0
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Recommended Citation Benjamin R. Civiletti, Intelligence Gathering and the Law: Confl ict or Compatibility? , 48 Fordham L. Rev. 883 (1980). Available at: http://ir.lawnet.fordham.edu/flr/vol48/iss6/1
""HESE are troubled times for international legal order. A band of
.terrorists has seized the American Embassy in Tehran and holds
United States diplomats hostage.' The International Court of Justice 2
considered this international outrage and ruled unanimously that the
hostages must be freed. 3 The court declared that "[tihere is no more
fundamental prerequisite for the conduct of relations between states
than the inviolability of diplomatic envoys and embassies," a principle
of international law so well established that "thoughout history nations
of all creeds and cultures have observed reciprocal obligations for that
purpose."'4 Iran refused to comply with the court's order to release the
hostages. With similar disdain for international law, Soviet armed
forces have invaded a sovereign nation and installed a puppet
government.5 Following a Soviet veto of a Security Council resolution, 6 the
United Nations General Assembly overwhelmingly condemned the
actions of the Soviet Union and declared that the invasion -and
occupation of Afghanistan is deplorable and inconsistent with the
principles of the United Nations charter. 7
Iran's continuing defiance of the very foundations of international
law demonstrates the fragility of the law as a means of ordering human
behavior. The action of the Soviet Union damages the rule of law even
* Attorney General of the United States. This Article is adapted from the Tenth Annual John
F. Sonnett Memorial Lecture, delivered by the Attorney General at the Fordham University
School of Law on January 15, 1980. This Article was prepared with the assistance of several
attorneys in the Department of Justice, particularly Kenneth B. Reisenfeld of the Office of
Intelligence Policy and Review.
1. N.Y. Times, Nov. 5, 1979, § A, at 1, col. 4; id., Apr. 8, 1980, § A. at 1,col. 3.
2. The International Court of Justice (ICJ) is the "principal judicial organ of the United
Nations." U.N. Charter art. 92, 59 Stat 1031, 1051 (1945), T. S No. 993. at 21. The ICJ
consists of 15 members, each from different nations, who serve for nine-year terms. Statute of the
International Court of Justice, June 26, 1945, arts. 3, 13, 59 Stat. 1055, 1055-56, T. S. No. 993, at
25-26. Member states of the United Nations may unilaterally invoke the ICJ's jurisdiction in
several situations, including a dispute involving "any question of international law [and) the
existence of any fact which, if established, would constitute a breach of an international
obligation." Id., art. 36, 59 Stat. at 1060, T. S. No. 993. at 30.
3. United States Diplomatic and Consular Staff in Tehran, United States v. Iran, I.C.J.
(Order of Dec. 15, 1979)
4. Id. at 16.
5. N.Y. Times, Dec. 27, 1979, § A, at 1, col. 6;id., Dec. 31, 1979, § A, at 1. col 4.
6. N.Y. Times, Jan. 8, 1980, § A, at 1.col. 2.
7. G.A. Res. ES-6/2 (Jan. 14, 1980).
FORDHAM LAW REVIEW
more significantly because its action cannot be rationalized as an
aberrational act by revolutionary terrorists. Indeed, the Soviets claim
shamelessly that their invasion was required by a mutual defense
treaty with Afghanistan. 8 Both events illustrate that international law
is not self-executing, and that our ability to enforce the law through
peaceful means is limited. When the law is broken with apparent
impunity, the ensuing frustration may result in a willingness to reject
the very concept of law itself and a temptation to engage in acts we
would otherwise condemn. There are indications that such feelings are
astir within our nation today. Nevertheless, we must not permit our
frustration to result in the abandonment of recently developed legal
strictures on the intelligence-gathering activities of the United States.
This Article focuses on the evolving relationship between the rule of
law and the intelligence-gathering activities of our government. The
collection and utilization of intelligence information are essential
ingredients of foreign policy and national security, and the dramatic
increase in international tensions emphasizes our country's crucial need
for timely and accurate foreign intelligence. Nevertheless, past excesses
in the conduct of intelligence activities indicate that such operations
cannot be implemented without careful regard for the rule of law. 9
The following analysis considers the complexities of developing a rule
of law that comports with the genuine need of our government to
engage in foreign intelligence activities and preserves the civil liberties
and privacy interests of our citizens.' 0
THE NATURE AND ROLE OF INTELLIGENCE GATHERING
In the past, the line between foreign and domestic intelligence
gathering often was not clearly drawn." The Executive Branch,
8. N.Y. Times, Dec. 31, 1979, § A, at 1, col. 1.
9. A number of congressional committees and executive commissions have thoroughly
Investigated instances of misconduct by the intelligence agencies. E.g., S. Rep. No. 755, 94th Cong.,
2d Sess. (1976) [hereinafter cited as the Church Committee Report]; United States Intelligence
Agencies and Activities: Performanceof the Intelligence Community: Hearings Before the House
Select Comm. on Intelligence, 94th Cong., Ist Sess. (1974); Domestic Intelligence Operationsfor
InternalSecurity Purposes:Hearings Before the House Comm. on InternalSecurity, 93rd Cong.,
2d Sess. (1974); Staff of Subcomm. on Constitutional Rights of-the Senate Comm. on the
Judiciary, 92nd Cong., 2d Sess., Report on Army Surveillance of Civilians: A Documentary
Analysis (1972); Commission on CIA Activities Within the United States, Report to the President
(June, 1975), [hereinafter cited as the Rockefeller Commission Report].
10. A number of authors have grappled with the evolving rule of law in the area of national
security. E.g., Theoharis & Meyer, The "National Security" Justificationfor Electronic Eaves.
dropping: An Elusive Exception, 14 Wayne L. Rev. 749 (1968); Developments in the Law - The
NationalSecurity Interest and Civil Liberties, 85 Harv. L. Rev. 1130 (1972); Comment, Privacy
and PoliticalFreedom:Applicability of the FourthAmendment to "NationalSecurity"
Investigalions, 17 U.C.L.A. L. Rev. 1205 (1970); Note, Foreign Security Surveillance and the Fourth
Amendment, 87 Harv. L. Rev. 976 (1974).
11. The difficulty of distinguishing between domestic and foreign intelligence-gathering
operations has partially resulted from an inability to define clearly the terms applicable to
however, is now careful to distinguish these two concerns. Thus,
intelligence is defined to include only foreign intelligence and
counterintelligence,1 2 both of which, in turn, are defined as information
relating to "foreign powers, organizations or persons."' 3 Recent
bureaucratic reorganizations and the promulgation of rules, regulations,
and guidelines have also reflected this sharp domestic/foreign
distinction. 14 In the Federal Bureau of Investigation (FBI), for example,
various types of surveillances. The confusion has generally been clarified as case law and statute
have increasingly abandoned or defined the term national security. For example, in Katz v.
United States, 389 U.S. 347 (1967), the Court reserved decision on the question of the
applicability of the fourth amendment warrant requirement to national security electronic
surveillance. Id. at 358 n.23.
In United States v. United States Dist. Court (Keith), 407 U.S. 297 (1972), the Court analyzed
the domestic aspects of national security bit once again reserved "the issues which may be
*involved with respect to activities of foreign powers or their agents." Id. at 322 (footnote omitted);
see United States v. Smith, 321 F. Supp. 424, 429 (C.D. Cal. 19711 (applicability of warrant
requirement toforeign national security surveillance not decided, although warrant mandated for
domestic security surveillances). Keith may have added to the confusion surrounding the meaning
of national security. The opinion emphasizes that it is often difficult to distinguish between
domestic and foreign threats to the nation's security. 407 U.S. at 309 n.8. The Court
acknowledged that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§
2510-2520 (1976), uses the term national security to refer only to the activities of foreign powers.
Id. § 2511(3). Nevertheless, the Court continued to apply the term national security to both
domestic and foreign intelligence operations. 407 U.S. at 309 n.8.
In Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) (en banc), cert. denied, 425 U.S. 944
(1976), the court extended Keith and the warrant requirement to a wiretap of a domestic
organization that is neither the agent of, nor acting in collaboration with, a foreign power, even if
the surveillance is undertaken in the name of foreign intelligence gathering. The court, in a very
long footnote, attempted to distinguish between "internal security" or "domestic security" and
"foreign security." Id. at 613 n.42. The court's efforts failed, however, when it concluded:
" 'National security' will generally be used interchangeably with 'foreign security,' except where
the context makes it clear that it refers to both 'foreign security and 'internal security.' "Id. On
remand, the district court established its own categorization and distinguished "domestic
security," "domestic national security," and "foreign security" surveillances. Zweibon v. Mitchell, 444
F. Supp. 1296, 1299 n.3
, rev'd in port and remanded on other grounds, 606 F.2d
(D.C. Cir. 1979)
. Although these classifications appear to correlate roughly with the
distinctions provided in Exec. Order No. 12036, 3 C.F.R. 112 (1979), the terminology used may
foster continued confusion.
12. Exec. Order No. 12036, § 4-206, 3 C.F.R. 112, 133 (1979).
13. Id. §§ 4-202, -205, 3 C.F.R. 112, 133 (1979) (emphasis added). Foreign intelligence is
defined as "information relating to the capabilities, intentions and activities of foreign powers,
organizations or persons," id. § 4-205, 3 C.F.RI at 133, and counterintelligence is defined as
"information gathered and activities conducted to protect against espionage and other clandestine
intelligence activities, sabotage, international terrorist activities or assassinations conducted for or
on behalf of foreign powers, organizations or persons." Id. § 4-202, 3 C.F.RI at 133. Intelligence
organizations have not always had the benefit of such specific definitions. Sherman Kent, former
chairman of the CIA's Board of National Estimates, described intelligence in his pivotal book as
comprising three definitional subjects: knowledge that our nation must have regarding other
nations to assure itself that planning and decisionmaking will not be conducted in ignorance; an
organization structured to obtain, centralize, and evaluate that knowledge; and the activity of
gathering such knowledge. S. Kent, Strategic Intelligence For American World Policy at ix
14. Although many of the regulations and guidelines are not available in published form, they
criminal and intelligence investigations are handled by two separate
divisions. 15 Similarly, the President's Executive Order on Intelligence
Activities specifically provides that it does not "apply to or interfere
with any authorized civil or criminal law enforcement responsibility of
any department or agency.'
This distinction between foreign intelligence and domestic law
enforcement reflects not only the attitude of the courts 17 and the
legislature,1 8 but also the present belief of the Executive Branch that the
purposes of intelligence gathering are fundamentally different from
those of domestic law enforcement and, therefore, require different
regulations. Law enforcement is intended to discover and punish acts
which society deems unacceptable. Intelligence activities are intended
to acquire information so that the President and his advisors can make
informed decisions in conducting international diplomacy, foreign
relations, and national security affairs.19 In counterintelligence,
however, there are some areas in which intelligence and domestic
lawenforcement interests overlap. This intersection is particularly
apparcan be obtained from the agency which they govern. Requests should be made in the same
manner as requests under the Freedom of Information Act.
15. All foreign intelligence and counterintelligence investigations are handled by the
Intelligence Division (Division 5), and all domestic security and international terrorism investigations
are within the purview of the Criminal Investigation Division (Division 6). See note 14 supra.
16. Exec. Order No. 12036, § 4-107, 3 C.F.R. 112, 133 (1979).
17. See note 11 supra.
18. See notes 49-59 infra and accompanying text.
19. Positive foreign intelligence surveillances differ markedly from those in criminal
investigations. For example, a foreign intelligence surveillance may be undertaken without probable
cause to believe a crime has been committed, and may be of considerable duration and scope.
United States v. Humphrey, 456 F. Supp. 51, 56 (E.D. Va. 1978). Its purpose is to gather
information about the intentions and capabilities of a foreign government, not to obtain
admissible evidence of a crime. Id. But see United States v. Stone, 305 F. Supp. 75, 82 (D.D.C.
1969) (foreign intelligence wiretap used as evidence in criminal trial); United States v. O'Baugh,
304 F. Supp. 767, 763 (D.D.C. 1969) (wiretap of embassy used as evidence in criminal
proceeding). Foreign counterintelligence activities more closely parallel law enforcement
activities. Nevertheless, while it is true that many activities of the targets of counterintelligence
surveillances may be criminal, see, e.g., 18 U.S.C. § 641 (1976) (relating to unauthorized use of
government property); id. §§ 792-799 (relating to espionage); id. §§ 2151-2157 (relating to
sabotage); id §§ 2381-2391 (relating to treason, sedition, and subversive activities), the primary
objective of the surveillance is not preparation for prosecution. But see, United States v.
Humphrey, 456 F. Supp. at 56 (distinguishing between foreign intelligence surveillance and
domestic surveillance and stating that: "It would seem rare that the government would engage in
domestic electronic surveillance without some plans to prosecute at some time."); Zweibon v.
Mitchell, 516 F.2d 594, 648 (D.C. Cir. 1975) (en banc) (claiming it is a "myth to characterize
national security surveillance a purely non-prosecutorial in the criminal sense'), ccr, denied, 425
U.S. 944 (1976). The objective of a counterintelligence surveillance is to identify, isolate, and
prevent breaches of security in the foreign intelligence and national defense apparatus. The
distinction between certain intelligence surveillances and law enforcement activities was carefully
set forth in the Senate Report accompanying the Foreign Intelligence Surveillance Act. S. Rep.
No. 604, 95th Cong., 1st Sess. 4-7 (1977), reprintedin  U.S. Code Cong. & Ad. News 3904,
ent when the government attempts to monitor clandestine information
gathering by foreign agents in the United States because many forms of
foreign espionage conducted within our nation's borders are crimes
under federal law. 20 The need to observe the activities of agents of
foreign powers and to defend against their operations demands
Intelligence activities, which, as presently defined, pertain only to
foreign affairs and national security issues, 22 must be kept strong and
effective. The government needs to obtain the best information
available concerning the intentions and activities of foreign powers. The
ability of the United States to react to events in foreign lands is limited
under any circumstances. Without timely and accurate information,
the ability to react constructively is eliminated. Moreover, obtaining
critical intelligence is exceedingly difficult. Although it may be
virtually impossible, given today's technology, for any country to conceal
substantial troop movements, the transfer of funds and arms and the
strategies of foreign governments are not as readily detectable. Unless
we possess current, accurate knowledge about the actions a foreign
power is likely to take, our information base is limited; and the more
limited our information base, the more speculative are our analyses,
and the greater the danger to our security. Secrecy, however, is an
20. See note 19 supra. There has been some concern regarding the adequacy of the espionage
statutes in certain circumstances. See EspionageLaws and Leaks: HearingsBefore the Subcomm.
on Legislationof the House PermanentSelect Comm. on Intelligence, 96th Cong., 1st Sess. (1979).
See generally Edgar & Schmidt, The Espionage Statutes and the Publication of Defense
Information, 73 Colum. L. Rev. 929 (1973); Nimmer, National Security Secrets v. Free Speech:
The Issues Left Undecided in the Ellsberg Case, 26 Stan. L. Rev. 311 (1974).
21. Only a small percentage of all counterintelligence cases can be considered for successful
criminal prosecutions, and investigations of foreign intelligence agents are seldom conducted from
the outset as they would be were eventual prosecution expected. Many counterintelligence
professionals believe that criminal prosecutions should never be brought against hostile agents
because doing so may only result in their replacement by other, unknown agents of whose
activities we may not be aware. Moreover, criminal proceedings may not only confirm the
accuracy of classified information that has been passed to a foreign power, but may also reveal at
least some of the material to a far wider audience. This problem is known as -graymail." See
Senate Select Comm. on Intelligence, 95th Cong., 2d Sess., Report on National Security Secrets
and the Administration of Justice (Comm. Print 1978). Graymail problems, however, are not
insurmountable. For example, in United States v. Kampiles, 609 F.2d 1233 (7th Cir. 1979), the
trial court's procedures and judgment avoided the graymail problem. The trial court prevented
classified information from being introduced at trial by issuing a protective order after in camera,
ex parte proceedings in which the government presented evidence of the sensitive document that
was passed to the Soviets and of the FBI's counterintelligence investigation into the document's
disappearance. Id. at 1248. The court of appeals upheld the espionage conviction based upon the
defendant's confession that he had met with and sold a classified document to a Soviet intelligence
officer and upon sufficient other evidence to corroborate the reliability of the defendant's
confession. Id. at 1238.
The Administration has introduced legislation to resolve the graymail problem and to establish
a workable and fair procedure for handling classified information in criminal cases. See note 102
22. See note 13 supra and accompanying text.
essential element of effective intelligence gathering. Even if we are
able to gain information concerning a hostile foreign nation, our
success will be shortlived if we disclose the facts of our success.
Further, if we reveal the information obtained, we will not only lose
our advantage and risk changes in the acquired plans, but we will also
jeopardize or perhaps destroy our sources and methods of gathering
What makes these seemingly self-evident observations controversial
is that intelligence activities can come perilously close to intruding upon
our most basic statutory and constitutional rights. 24 This inherent
danger is increased by the highly sophisticated technological advances,
commonly used throughout the world today, that widen the range of
possible intelligence-gathering activities. The necessity of secrecy,
however, often prohibits any judicial review of questionable
intelligence activities. 25 The Executive Branch, therefore, is required to
redouble its efforts to ensure that intelligence activities are not
exempted from all responsible checks and balances. 2 6 The need to create
23. There is continuing debate concerning the need for and scope of legitimate government
secrecy. Compare Snepp v. United States, 100 S. Ct. 763, 765 n.3 (1980) (stating "[tlhe
[glovernment has a compelling interest in protecting both'the secrecy of information important to
our national security and the appearance of confidentiality so essential to the effective operation
of our foreign intelligence service') and Colby, Intelligence Secrecy and Security in a Free
Society, Int'l Security 3 (Fall 1976) (setting forth a conceptual framework for limiting unnecessary
government disclosures) with Church Committee Report, supra note 9, (Bk. I) at 16 (recognizing
the dangers of excessive secrecy to a democracy) and M. Hidperin & D. Hoffman, Top Secret:
National Security and the Right to Know (1977) (arguing that the secrecy veil of the intelligence
community needs to be pierced). See generally Investigation of Publication of Select Comm. on
Intelligence Report: Hearings Before the House Comm. on Standards of Official Conduct, 94th
Cong., 2d Sess. (1976).
24. See pt. m infra.
25. The Foreign Intelligence Surveillance Act of 1978, 50 U.S.C.A. §§ 1801-1811 (West Supp.
1979), does provide judicial review of certain intelligence activities. See note 48 ittfra. The
proposed National Intelligence Act of 1980, S.2284, 96th Cong., 1st Sess., 126 Cong. Rec. S1307
(daily ed. Feb. 8, 1980) [hereinafter cited as S.2284], would expand the scope of judicial review
to cover physical searches as well as electronic surveillance both within the United States and
abroad. Id. § 801.
26. Executive Order 12036 and its implementing regulations create an effective structure for
oversight of intelligence activities within the Executive Branch. The duty to identify, inspect,
and report unlawful or improper activity is placed upon senior officers throughout the intelligence
community. Exec. Order No. 12036, § 1-7, 3 C.F.R. 112, 119-20 (1979). This obligation Is
reinforced and monitored by the Inspectors General and General Counsel for each agency. Id. §
3-2, 3 C.F.R. at 131. These officers are required to investigate and report to the Intelligence
Oversight Board any activities that raise questions of legality or propriety. Id. The executive
order also gives the Attorney General substantial oversight and review responsibilities. ld. § 3-3,
3 C.F.R. at 131. For example, the Attorney General is empowered to establish and approve
procedures for each agency which will ensure compliance with law and protection of
constitutional rights and privacy. Id. § 3-305, 3 C.F.R. at 131. To advise and assist the Attorney General
in connection with his intelligence-related responsibilities, the Office of Intelligence Policy and
Review was established. 45 Fed. Reg. 13729 (1980) (to be codified in 28 C.F.R. § 0.33). This
durable mechanisms to regulate and review intelligence activities has
led to the evolution of intelligence law.
THE DEVELOPMENT OF INTELLIGENCE LAW
Although both law enforcement and intelligence activities have
existed in this country since before the creation of the Republic,2 7 they
have developed largely along separate tracks because of their
conflicting natures. Law enforcement emphasizes openness, stability,
and a balancing of interests; its concerns are domestic and its scope is
comprehensive. Intelligence activities require secrecy, flexibility, and a
single-mindedness of purpose; they focus on foreign developments and
rapid adaptability to specific circumstances. Given these disparities, it
is no surprise that law enforcement and intelligence activities did not
converge in the United States until recently.
The first permanent peacetime intelligence organizations in the
United States were created in the latter part of the nineteenth
century. 28 These were relatively ineffective, however, and during World
War I the nation relied to a great extent on the intelligence capabilities
of its allies. 29 It was not until World War I1 that American intelligence
efforts began to flourish under the Office of Strategic Services. 30 Apart
from various directives dealing essentially with organizational matters,
there was almost no accompanying development of law relating to
intelligence activities. 3 1
After World War II, a permanent Central Intelligence Agency (CIA)
was created by the National Security Act of 1947.32 This statute was
the first public declaration by any nation concerning the existence and
functions of its intelligence service. The Act is remarkably concise; in
office is currently staffed by ten attorneys and is under the direction of the Counsel for
Intelligence Policy. The Executive Branch oversight apparatus also includes the President's
Intelligence Oversight Board (lOB), which is composed of three individuals appointed by the
President. Exec. Order No. 12036, § 3-1, 3 C.F.R. at 130. The IOB periodically reviews the
oversight procedures and guidelines of each intelligence agency, forwards reports of illegality to
the Attorney General, and informs the President of its findings and any serious questions of
legality or propriety. Id. § 3-102, 3 C.F.R. at 130-31. This comprehensive system of oversight
within the Executive Branch is supplemented by extensive review in Congress. See note 104
27. There is clear evidence that General Washington authorized and relied upon substantial
intelligence activities in the conduct of the American Revolution. For an excellent account of the
history and evolution of United States intelligence capabilities, see A. Dulles, The Craft of
Intelligence (1963). See also H. Ransom, Central Intelligence and National Security (1958);
Church Committee Report, supra note 9, (Bk. VI) at 9-15.
28. The first permanent intelligence agency was the Office of Intelligence established by the
Navy in 1882. Church Committee Report, supra note 9, (Bk. VI) at 309. Three years later the
Army organized its own intelligence unit, the Military Intelligence Division. Id.
29. A. Dulles, supra note 27, at 40-41.
30. H. Ransom, The Intelligence Establishment 65-76 (1970).
31. A. Dulles, supra note 27, at 42-44.
32. 50 U.S.C. § 403 (1976).
five short subparagraphs it instructs the CIA to collect intelligence
information and to perform other related functions at the direction of
the National Security Council. 33 The Act's sole express restriction is
the proviso that the CIA should not have any police, subpoena, or law
enforcement powers or internal security functions. 34 This limitation
was as much a concession to established law enforcement agencies as it
was an effort to prevent the creation of an American secret police. 35
With the exception of espionage statutes enacted originally in 1917
and subsequently amended, 3 6 and administrative housekeeping laws
enacted to facilitate the operation of the CIA and the National Security
Agency, there were no other laws expressly relating to United States
intelligence activities from 1947 until the 1970's. 37 In fact, during this
period laws were passed that, if taken literally, would have obstructed
or prevented clearly legitimate and necessary intelligence programs. 38
Faced with an absence of particularized law or precedent and an array
of general purpose laws inappropriate to intelligence endeavors, the
government and its intelligence agencies understandably ignored the
broad range of legal strictures that apply in other areas of
governmental activity. The deference shown to intelligence matters for almost
thirty years by the public, press, Judiciary, Congress, executive
officials, various Presidents and Attorneys General considerably
strengthened the assumption that intelligence efforts were so different
or special that modified legal standards should be applied to them. 39
Over the past few years, however, this perception has changed, and
express legal principles have been specifically developed to govern
intelligence activities. Although there may continue to be some
confusion about how the law applies to a particular matter, there is no
longer any doubt that intelligence activities are subject to definable
The first comprehensive statement of intelligence law, which
delineated various standards, authorizations, and prohibitions designed
to govern our intelligence operations, was announced by President
Ford on February 18, 1976.40 After two years of experience with
President Ford's order, President Carter issued his own executive
order which broadens and strengthens the controls over the
intelligence community. 4 1 For example, this order requires that various
procedures be developed, subject to the approval of the Attorney
General, to govern the complete range of collection and dissemination
practices by all intelligence agencies when the information collected or
disseminated pertains to persons entitled to the protection of the
United States Constitution. 4 2 The United States is the only country
that has issued such a comprehensive statement.
President Carter also ordered that the government's document
classification system be changed. 43 This new executive order officially
embraces the principle that even a properly classified document should
sometimes be declassified if thi public interest in disclosure outweighs
the damage to national security that might reasonably be expected
from disclosure. 44 The order also creates an administrative
mechanism, complete with disciplinary sanctions, designed to eliminate any
abuses of the system,4 s such as the unnecessary classification of
have full discretion to undertake intelligence operations to protect national security. United States
v. United States Dist. Court (Keith), 407 U.S. 297, 316-17 (1972). In fact, the Justice Department
declined prosecution of individuals involved in two large-scale mail opening programs operating
between 1953 and 1973 because of the ambiguity of the law as it related to intelligence operations
during that period. Dep't of Justice, Report Concerning Its Investigations and Prosecutorial
Decisions With Respect to Central Intelligence Agency Mfail Opening Activities in the United
States (1977). Since Keith, however, the courts have attempted to define the constitutional limits
of intelligence investigations. See note 11 supra.
40. Exec. Order No. 11905, 3 C.F.R. 90 (1977).
41. Exec. Order No. 12036, 3 C.F.R. 112 (1979). For example, President Carter's order goes
well beyond President Ford's order in specifying the preconditions for targeting United States
persons for electronic surveillance. Compare id. § 2-202, 3 C.F.R. at 126 with Exec. Order No.
11905, § 5(b)(2), 3 C.F.R. 90, 100 (1977). President Carter's order also governs, for the first time,
television and movie surveillance, Exec. Order No. 12036, § 2-203, 3 C.F.R. at 126, and covert
procurement and contracting. Id. § 2-303, 3 C.F.R. at 129.
42. Exec. Order No. 12036, § 2-201, 3 C.F.R. 112, 126 (1979).
43. Exec. Order No. 12065, 3 C.F.R. 190 (1979).
44. Id. § 3-303, 3 C.F.R. 190, 197 (1979).
45. Id. § 5, 3 C.F.R. 190, 201-04 (1979).
46. Id. § 1-3 to -6, 3 C.F.R. 190, 193-95 (1979).
Congress has also played an important role in the development of
intelligence law. In 1978, Congress enacted the Foreign Intelligence
Surveillance Act (FISA),47 which mandates judicial review of certain
proposals from intelligence agencies regarding the conduct of
intelligence-related electronic surveillance in the United States. 48
Moreover, the Attorney General retains sole authority to approve
agency-certified surveillance applications before they are submitted to
the court. 4 9 This judicial and executive review process helps ensure
that only necessary and carefully considered electronic surveillances
will be initiated. 50 Governing standards for intelligence operations are
also provided by the Case-Zablocki Act, which requires that Congress
be advised of any international agreement to which the United States
is a party, including agreements between intelligence services. 51 Both
the Senate and the House of Representatives have created independent
committees with primary responsibility for overseeing the activities of
the intelligence agencies. 5 2 The Freedom of Information Act 5 3 and the
Privacy Act 54 have also had a significant effect on the information
collection, dissemination, and storage practices of the intelligence
For the past three years, Administration and Congressional
representatives have endeavored to develop comprehensive charter
legislation that would delineate proper and improper intelligence
activities. 55 This goal, however, has proved far more elusive than many
had anticipated. Intelligence agencies are called upon to operate in
societies with vastly different cultures, most of which we do not fully
understand, and to provide services in an atmosphere of international
political tension and volatility. The effort to reach agreement on a
charter that gives the agencies sufficient flexibility to meet changing
situations to protect our security, without delegating virtually
unlimited discretion, has been herculean.
On February 8, 1980, Senators Huddleston, Mathias, Bayh, and
Goldwater introduced the very complex and comprehensive National
Intelligence Act of 1980 (S. 2284). S 6 With few exceptions, S. 2284
represents a consensus of the Executive Branch and the Senate Select
Committee on Intelligence concerning the principles governing United
States intelligence activities.5 7 S. 2284 carefully balances the practical
need for an intelligence apparatus with the guarantees provided by the
Constitution and other relevant laws, and, for the first time,
legislatively defines and authorizes the activities and conduct of the entire
intelligence community. S. 2284 also provides workable standards for
the initiation of activities concerning United States persons, 5 8 by
providing a clear hierarchy of responsibility and oversight, and by
prohibiting certain activities that are anathema to American
democracy.5 9 Regardless of whether S. 2284 becomes law, however, its
formulation and consideration by the Senate has had the positive effect
of focusing attention on the policy choices required to be made in
conducting our intelligence activities and on the structural tools
available for implementing those choices. As long as we continue to
examine objectively the legal guidelines for our intelligence operations,
I am confident we will neither abandon our progress nor retreat from
what we have gained.
ILLUSTRATIVE CONSTITUTIONAL PROBLEMS IN INTELLIGENCE
The basic tension in intelligence-gathering activities exists between
the government's legitimate need for information and the individual's
right to privacy. 60 Although federal law protects United States
per56. S. 2284, supra note 25.
57. President Carter stated there was "virtually complete agreement [between the Executive
Branch and the Senate Select Committee on Intelligence] on the organization of the intelligence
community and on the authorizations and restrictions pertaining to intelligence collection and
special activities." 126 Cong. Rec. S1307 (daily ed. Feb. 8, 1980). He continued, however, to
state that "a few issues remain to be resolved." Id. One of the primary disagreements between the
administration and the authors of S. 2284 relates to prior reporting to Congress of covert
operations and sensitive collection operations. See note 105 infra.
58. See note 61 infra.
59. For example, S. 2284, supra note 25, prohibits assassination, id § 131, covert domestic
propaganda, id. § 133; covert contracting with educational institutions. id. § 134. and
accomplishing indirectly what cannot be done directly, id. § 135.
60. Fortunately for all Americans, the vast preponderance of the information our government
sons 6 1 from excessive or improper intrusions into their private affairs
in the name of national security, 62 intelligence activities aimed at
collecting information not publicly available 63 inevitably involve some
incursion into the privacy of individuals or organizations. The rights
which may be affected by intelligence activities directed against
nonconsenting United States persons arise from the Constitution,
particuseeks comes from foreign persons and organizations, most of them located outside the United
States. In all cases, the federal government collects the information this country needs without
intentionally violating United States law. United States law contains few limitations on the
collection of intelligence from foreign sources. See, e.g., 50 U.S.C.A. § 1802(a)(1)(A)(i) (West
Supp. 1979) (electronic surveillance directed at communications exclusively between or among
foreign powers may be approved by the Attorney General without court order); Exec. Order No.
12036, § 2-208, 3 C.F.R. 112, 128 (1979) (restricting only the collection of nonpublicly available
information concerning United States persons).
61. A United States person is defined in Executive Order 12036 as "a citizen of the United
States, an alien lawfully admitted for permanent residence, an unincorporated association
organized in the United States or substantially composed of United States citizens or aliens
admitted for permanent residence, or a corporation incorporated in the United States." Exec.
Order No. 12036, § 4-214, 3 C.F.R. 112, 135 (1979). FISA uses a similar definition. 50 U.S.C.A.
§ 1801(i) (West Supp. 1979)./S. 2284, supra note 25, however, provides a more limited definition
of United States person. Id. § 103(21). For example, it excludes corporations incorporated in the
United States and unincorporated associations organized in the United States which are "openly
acknowledged by a foreign government or governments to be directed and controlled by such
foreign government or governments." Id. One's status as a United States person is, in general, not
determined by one's location. Thus, a United States citizen abroad remains a United States
person for intelligence law purposes, while a foreign visitor to this country does not automatically
become a United States person upon entry into this country. There are a number of restrictions in
the law which protect foreign visitors from unwarranted intelligence activities in this country, but
those limitations are significantly different from the ones applicable to United States persons. For
example, Executive Order 12036 protects United States persons and foreign visitors alike from
unregulated covert electronic or mechanical monitoring, physical searches, mail surveillance in
the United States, and from unlawful physical surveillance by the FBI. Exec. Order No. 12036,
§§ 2-202 to -206, 3 C.F.R. at 126-27. The protections provided for foreign visitors, however, are
far more limited than those mandated for United States persons. See, e.g., id. § 2-208, 3 C.F.R.
62. See, e.g., Exec. Order No. 12036, §§ 2-1 to -3, 3 C.F.R. 112, 125-30 (1979).
63. The collection, retention, and dissemination of publicly available information is not
regulated by Executive Order 12036 or by the procedures for the various intelligence agencies
which were approved by the Attorney General pursuant to this order. Exec. Order No. 12036, §
2-201, -208, 3 C.F.R. 112, 126, 128 (1979). Consequently, the definition of publicly available
information is a threshold consideration to the application of legal standards to intelligence
gathering. The procedures for the CIA and the Department of Defense define the term publicly
available similarly. The Defense Department's definition provides: " 'Available publicly' means
information that has been published or broadcast for general public consumption, is available
upon request to a member of the general public, could lawfully be seen or heard by any casual
observer, or is made available at a meeting open to the general public." See note 14 supra. S.
2284, supra note 25, fails to define what information is publicly available but provides the
following standard for the collection and use of publicly available information: "Publicly available
information concerning any United States person may be collected by an entity of the intelligence
community when such information is relevant to a lawful function of that entity, and may be
retained and disseminated for lawful governmental purposes." Id. § 211(c).
larly the first and fourth amendments. Because our government does
not exist as an end unto itself, but as a means of preserving certain
precious freedoms for each of us, we cannot allow a need to protect the
nation to become an excuse to violate the very rights the government
was instituted to protect. Nevertheless, we cannot ignore the
government's legitimate need for intelligence information which may, at
times affect the freedoms guaranteed by the Constitution.
United States persons may acquire their knowledge of foreign
governments in the course of political activities protected by the first
amendment, and courts are often required to balance these first
amendment rights with the government's need for intelligence
information. 64 It is generally recognized that, in certain circumstances, the
government can compel a person to disclose information about such
protected activities. 65 The courts have adopted an exacting standard to
analyze the encroachment that a compelled disclosure imposes on first
amendment freedoms. The governmental interest in disclosure must be
substantial. Also, courts have required that there be a "relevant
correlation" 6 6 or "substantial relation" 67 between the governmental
interest and the specific information to be revealed, and that the direct
and indirect burdens on an individual's or group's associational rights
be carefully scrutinized. 68 A final factor that weighs in the balance is
64. The first amendment freedoms of association and of expression are implicated whenever
the government compels an individual to delineate his political affiliations before a legislative
committee, e.g., Eastland v. United States Servicemen's Fund, 421 U.S. 491, 509 (1975); Gibson
v. Florida Legislative Investigation Comm., 372 U.S. 539, 544-46 (1963); Sweezy v. New
Hampshire, 354 U.S. 234, 249-50 (1957), or a grand jury, e.g., Branzburg v. Hayes, 408 U.S.
665, 690-91 (1972); Bursey v. United States, 466 F.2d 1059, 1085-86 (9th Cir. 1972); In re Wood,
430 F. Supp. 41, 45-46 (S.D.N.Y. 1977); In re Verplank, 329 F. Supp. 433, 437-38 (C.D. Cal.
1971), or to identify his political beliefs as a condition of exercising first amendment rights, e.g.,
Lamont v. Postmaster Gen., 381 U.S. 301, 305-07 (1965); NAACP v. Alabama, 357 U.S. 449,
462 (1958), or of obtaining government employment, e.g., Shelton v. Tucker, 364 U.S. 479,
487-88 (1960). See generally L. Tribe, American Constitutional Law § 12-2, at 581-82 (1978).
65. There are, however, severe limits on the government's right to compel information. For
example, it is unconstitutional for a state to compel a private political organization to furnish its
membership list to the state where the effect of doing so would be to subject the organization's
members to economic reprisal, loss of employment, or physical coercion. E.g., Louisiana ex rel.
Gremillion v. NAACP, 366 U.S. 293, 295-96 (1961) (upholding temporary injunction restraining
enforcement of statute requiring certain not-for-profit organizations to file membership lists);
Bates v. City of Little Rock, 361 U.S. 516, 527 (1960) (invalidating occupational license tax
statute which required membership list); NAACP v. Alabama, 357 U.S. 449, 466 (1958)
(reversing civil contempt judgment against NAACP for refusing to disclose its membership list in
violation of foreign corporation registration statute). These foreseeable consequences would
dramatically chill the individual's freedom of expression and of private political association.
66. Bates v. City of Little Rock, 361 U.S. 516, 525 (1960).
67. Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546 (1963).
68. Buckley v. Valeo, 424 U.S. 1, 64-68 (1976) (per curiam). Exacting "scrutiny is necessary
the government's ability to pursue its goal in a manner less intrusive on
fundamental personal liberties. 69
Utilizing this balancing standard, courts have held it constitutional
for the United States to compel private citizens to disclose their
contributions to presidential campaigns, 7 0 to require private lobbyists
for foreign governments to register, 7 1 and to require citizens acting as
even if any deterrent effect on the exercise of First Amendment rights arises, not through direct
government action, but indirectly as an unintended but inevitable result of the government's
conduct in requiring disclosure." Id. at 65 (citing NAACP v. Alabama, 357 U.S. 449, 461 (1958)).
69. Lamont v. Postmaster Gen., 381 U.S. 301, 310 (1965" (Brennan, J., concurring); Shelton
v. Tucker, 364 U.S. 479, 488 (1960). This ad hoc balancing test has been criticized for being "so
unstructured that it can hardly be described as a rule of law at all." T. Emerson, The System of
Freedom of Expression 16 (1970). Nevertheless, the Supreme Court in Buckley v. Valco, 424
U.S. 1 (1976) (per curiam), used the balancing test and acknowledged that the governmental
interest in disclosure must be weighed against not only the damage to the individuals involved
but also the injury suffered by the public at large. Id. at 64-68. Buckley, however, made it more
difficult to prove a constitutional abridgement by requiring evidence of such probable harassment
resulting from disclosure as was found in NAACP v. Alabama, 357 U.S. 449, 462 (1958). 424
U.S. at 72. According to Chief Justice Burger, this increased evidentiary burden on litigants
challenging compelled disclosure marks a departure from the "historic safeguards guaranteed by
the First Amendment." Id. at 238 (Burger, C.J., concurring in part and dissenting in part),
70. In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Supreme Court upheld the
requirement of the Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-456 (1976), that
political committees record and transmit to the government the names of individuals contributing
in excess of ten dollars to political committees or independent candidates. The Court considered
the substantial governmental interest in maintaining the integrity of the electoral process to be of
such magnitude as to outweigh the possibility of first amendment infringements. 424 U.S. at
66-68. The Court upheld the ten-dollar minimal threshold reporting requirement based upon a
finding that it was not irrational. Id. at 83. This deference to a complex congressional judgment
represents the Court's hesitation to substitute its judgment for that of the legislature. See Shelton
v. Tucker, 364 U.S. 479, 490 (1960) (Frankfurter, J., dissenting); cf. id. at 488 ("legislative
abridgment [of first amendment freedoms] must be viewed in the light of less drastic means for
achieving the same basic purpose.") (footnote omitted).
In a slightly different context, Shelton's least restrictive alternative test has been more
stringently applied. In Pollard v. Roberts, 283 F. Supp. 248 IE.D. Ark.), aff'd per curlam, 393
U.S. 14 (1968), the district court enjoined a quasi-grand jury investigation which had
subpoenaed essentially the contributor list of the Arkansas branch of the National Republican Party.
The prosecutor issued the subpoena in the course of his investigation of possible election law
violations. The court, relying on the principles of Shelton, held that "even if a [sitate can
legitimately compel a limited disclosure of individuals affiliated with a group, it does not follow
that the [sitate can compel a sweeping and indiscriminate identification of all of the members of
the group in excess of the [sitate's legitimate need for information." Id. at 257.
71. The reporting requirements of the Foreign Agents Registration Act of 1938, as amended,
22 U.S.C. §§ 601-621 (1976), were upheld against a first amendment challenge in Attorney Gen.
v. Irish N. Aid Comm., 346 F. Supp. 1384, 1389-91 (S.D.N.Y.), cert. denied, 409 U.S. 1080
(1972). The court found that the disclosure of defendant's activities bore a substantial relation to a
legitimate government interest-informing the government and the public as to sources of foreign
propaganda-and that the government interest outweighed "any possible infringement of the first
amendment rights of the defendant's members or contributors." Id. at 1391. The court was
careful to emphasize the vital governmental interest in safeguarding our political process from
unacknowledged foreign influences and, on the basis of these concerns and the foreseeable
complications with United States foreign policy, rejected the first amendment claim. Id.
agents of a foreign power to disclose the details of their agency and
their activities. 72 The law is less settled, however, when the
government obtains information about an individual's activities without his
consent, and under circumstances in which that person is not subject
to legislative, judicial or administrative compulsion. Judicial opinions
indicate that it is not unconstitutional for an undercover agent in a law
enforcement investigation to obtain information that a person is willing
to disclose, even though that disclosure is induced by some form of
deception. 73 Nevertheless, when the information disclosed concerns
political activities and is gathered by a law enforcement agency for
purposes other than criminal prosecution the practice may be
72. -There are three basic statutes requiring the registration of individuals or organizations
that serve as spokesmen or agents for, or receive money from, foreign governments. First, 22
U.S.C. § 612 (1976) provides that anyone who acts as an agent of a foreign principal must file a
registration statement with the Attorney General. The registration statement must contain a
thorough description of the registrant's business and employees, the agency relationship, and the
activities performed for the principal. Second, 18 U.S.C. § 951 (1976) requires that anyone who
acts as an agent of a foreign government must notify the Secretary of State. Third. 18 U.S.C. §
2386 (1976) provides that organizations which accept support from foreign governments must
register with the Attorney General if they engage in activities designed to forceably control or
overthrow the United States government, or if they engage in activities constituting military
training. This statute has been successfully challenged under the fifth amendment. See Albertson
v. Subversive Activities Control Bd., 382 U.S. 70, 77-78 (1965).
73. The use of informers or infiltrators in a criminal investigation does not give rise to any
violation of the first or fourth amendments. Handschu v. Special Servs. Div. 349 F. Supp. 766,
769 (S.D.N.Y. 1972). For fourth amendment purposes, a person assumes the risk that any known
party to a conversation concerning criminal conduct is an undercover police agent. E.g., Hoffa v.
United States, 385 U.S. 293, 300-03 (1966); Lewis v. United States, 385 U.S. 206, 211 (1966). The
fourth amendment, however, does restrict the scope of permissible activities of an undercover
agenL See, e.g., Gouled v. United States, 255 U.S. 298. 304-06 (1921) (informant overstepped
constitutional bounds when he obtained entry into business office of suspect by deception and
secretly ransacked office and seized incriminating documents). Infiltration for law-enforcement
purposes into a political organization or rally which might dampen the exercise of first
amendment rights of the participants has also been upheld. Socialist Workers Party v.Attorney Gen.,
419 U.S. 1314, 1319-20 (1974); United States v. McLeod, 385 F.2d 734, 750 (Sth Cir. 1967).
Nevertheless, because of the inherent danger that first amendment activities may be significantly
impaired, undercover investigations in university classes or political organization meetings will be
sustained only if there is a substantial government interest to justify the probable impairment of
first amendment rights. White v. Davis, 13 Cal. 3d 757, 768-73, 533 P.2d 222, 229-32, 120 Cal.
Rptr. 94, 101-04 (1975) (in bank); see Socialist Workers Party v. Attorney Gen.. 419 U.S. at 1319.
74. Compare White v. Davis, 13 Cal. 2d 757, 773, 533 P.2d 222, 232, 120 Cal. Rptr. 94, 104
(1975) (in bank) (reversing demurrer of plaintiff's complaint and finding that police undercover
surveillance on university campus, which gathered information that pertained to no illegal
activity, was a prima facie violation of first amendment rights) with Fifth Ave, Peace Parade
Comm. v. Gray, 480 F.2d 326, 332-33 (2d Cir. 1973) (affirming dismissal of complaint and
finding police surveillance of a large antiwar demonstration to be a perfectly lawful method of
preserving public safety and deterring violence), cert. denied, 415 U.S. 948 (1974) and Anderson
v. Sills, 56 N.J. 210, 229-31, 265 A.2d 678, 688-89 (1970) (reversing injunction of widespread
police surveillance program and holding that, absent proof of bad faith or arbitrariness, the
Executive Branch should perform "detectional and preventive" functions and gather any
information reasonably believed to be necessary without judicial interference). See generally Note,
Although these decisions are helpful, they do not specifically address
the different considerations that exist when the information is sought
by an intelligence agency for intelligence-gathering rather than
lawenforcement purposes. 75 If the government can compel agents of
foreign powers to register and describe their political activities, is it
unconstitutional to place covert domestic agents in those same foreign
agent groups to obtain information? 7 6 Case law indicates there is no
absolute answer and that each situation must be carefully considered,
balancing both the need of the government and the effect on the
The Executive Branch has tried to provide some guidance in this
area. President Carter's Executive Order on United States Intelligence
Activities generally prohibits an intelligence agency from covertly
placing agents in any organization in the United States unless the
organization is acting on behalf of a foreign power and is primarily
composed of individuals who are not United States persons,7 8 or unless
the infiltration is undertaken on behalf of the FBI as part of a lawful
bureau investigation. 79 The order also permits agencies to have
employees participate in organizations, without disclosure of their
intelliDomestic Intelligence Informants, the FirstAmendment and lhe Need for PriorJudicialReview,
26 Buffalo L. Rev. 173 (1976); Note, Governmental Investigations of the Exercise of First
Amendment Rights: Citizens' Rights and Remedies, 60 Minn. L. Rev. 1257 (1976).
75. But cf. United States v. United States Dist. Court (Keith), 407 U.S. 297, 320 (1972)
(extending fourth amendment to domestic security electronic surveillances); Zweibon v. Mitchell,
516 F.2d 594, 611-13 (D.C. Cir. 1975) (en banc) (extending fourth amendment to national security
electronic surveillance), cert. denied, 425 U.S. 944 (1976).
76. There is very little case law in this area because of the difficulty of proving sufficiently
specific injuries to overcome the threshold case and controversy standing requirement as
articulated in Laird v. Tatum, 408 U.S. 1 (1972). Mere allegations of a subjective chilling impact
of government surveillance on first amendment activities is not an adequate basis for
justiciability. Id. at 12-13. Allegations of disruption, harassment, or bad faith are generally required before
one can litigate first amendment rights when intelligence activities are involved. E.g., Berlin
Democratic Club v. Rumsfeld, 410 F. Supp. 144, 149-51
77. In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Court refused to grant a blanket
exemption from the federal contributor reporting requirements for all minor parties and
independent candidates. Id. at 74. Instead, the Court established a case-by-case procedure which allows
each such party to prove that disclosure of contributor lists would substantially impair its
members' constitutional rights. Id. Since Buckley, political parties have had varying success In
the lower courts. Compare Wisconsin Socialist Workers 1976 Campaign Comm. v. McCann, 433
F. Supp. 540, 548-49 (E.D. Wis. 1977) (injunction issued relieving party from complying with
Wisconsin Campaign Financing Act) and Partido Nuevo Progresista v. Hernandez Colon, 415 F.
Supp. 475, 482-83 (D.P.R. 1976) (per curiam) (injunction issued prohibiting the use of
government inspectors to enforce Puerto Rico's political contribution and disclosure statute) with Oregon
Socialist Workers 1974 Campaign Comm. v. Paulus, 432 F. Supp. 1255, 1259-60 (D. Or. 1977)
(injunction denied where Oregon Campaign Disclosure Act was found to have minimal impact on
first amendment rights of party).
78. See note 61 supra.
79. Exec. Order No. 12036, § 2-207(a), 3 C.F.R. 112, 127 (1979).
gence affiliation, in certain narrow circumstances under publicly
available guidelines approved by the Attorney General. 80 The CIA, for
instance, is not required to disclose participation by agency employees
in domestic organizations for the purpose of developing individual
associations and credentials needed to substantiate a cover
employment.8 1 Approval of such undisclosed participation must be given by
an appropriate CIA senior official, and all such approvals are subject
to review by the Attorney General.8 2 These procedures go considerably
beyond the requirements of any existing statute or judicial decision.
They reflect an awareness of the chilling effect that undisclosed
government involvement may have on the exercise of first amendment
freedoms and privacy. Thus, the procedures attempt to balance the
competing interests of the individual and the government by defining
categories of permissible participation and by requiring appropriate
review in each case.
Fourth Amendment Issues
Another constitutional provision often at issue in intelligence
gathering is the fourth amendment's prohibition against unreasonable
searches and seizures. 8 3 Intelligence techniques involve traditional
searches as well as the utilization of new technology that has not yet
80. Executive Order 12036 and the procedures adopted pursuant to it have established formal
controls over this sensitive form of information gathering. Exec. Order No. 12036, § 2-207, 3
C.F.R. 112, 127 (1979). Guidelines have been approved thus far for the CIA, the Department of
Defense, and the FBI. See note 14 supra. But see Wisconsin Socialist Workers 1976 Campaign
Comm. v. McCann, 433 F. Supp. 540, 548 (E.D. Wis. 1977) (prior to adoption of Executive
Order 12036 and public procedures, the court expressed skepticism that harassment of dissident
political groups had been terminated).
81. The CIA guidelines authorize undisclosed participation in organizations in the United
States "to develop associations and credentials to be utilized for purposes relating to foreign
intelligence as for example by joining an organization to which an employee would ordinarily be
expected to belong if his cover employment were his true employment." Such undisclosed
participation is also permitted "to obtain training or education relevant to CIA employment...
to obtain publications of organizations whose membership is open to the general public . . . to
maintain or enhance the qualifications of CIA employees, and to make it possible for them to stay
abreast of developments in their fields of professional expertise ... to maintain the cover of CIA
personnel, programs and facilities which are not publicly acknowledged as such by the United
States Government ... to utilize individuals on a witting or voluntary basis who are members of
an organization within the United States to develop persons of foreign nationality as sources or
contacts for purposes related to foreign intelligence . . . to place employees in an organization
within the United States to identify and develop persons of foreign nationality as sources or
contacts for purposes related to foreign intelligence [and] to protect the degree of CIA interest in a
particular foreign intelligence subject matter, but limited to participation in an organization that
permits such participation by government employees in their official capacities." See note 14
82. Exec. Order No. 12036, § 2-207, 3 C.F.R. 112, 127 (1979).
83. U.S. Const. amend IV.
been considered by the courts. The FISA 84 requires that a court order
be obtained for most traditional forms of wiretapping or eavesdropping
conducted within the United States. 85 Such a warrant is also required
before the government employs most surveillance devices in the United
States to gather information under circumstances where there is "a
reasonable expectation of privacy and a warrant would be required for
law-enforcement purposes." ' 86 For example, consider the instrument
known as a beeper. This device is attached to a vehicle and emits
periodic radio signals which enable the person monitoring the device to
determine the location of the vehicle. The FISA does not require a
court order before a beeper can be used to determine the location of a
foreign agent's car unless, under applicable decisions, a court order
would be required if the FBI used such a device to locate a bank
robber. Thus, while the fourth amendment's applicability to the use of
beepers is not yet completely clear, these devices have been involved in
numerous criminal cases and there is some judicial precedent to which
intelligence agencies can turn for guidance. 8 7
87. Most circuits have recognized that the use of beepers to trace airplanes or automobiles on
public thoroughfares does not implicate the fourth amendment primarily because there is no
reasonable expectation of privacy in activities that are readily observable in public. E.g., United
States v. Bruneau, 594 F.2d 1190, 1197 (8th Cir.) (airplane), cert. denied, 100 S.Ct. 94 (1979);
United States v. Curtis, 562 F.2d 1153, 1156 (9th Cir. 1977) (airplane), cert. denied, 439 U.S.
910 (1978); United States v. Hufford, 539 F.2d 32, 33-34 (9th Cir.) (automobile), cert. denied, 429
U.S. 1002 (1976). But see United States v. Holmes, 521 F.2d 859, 864 (5th Cir. 1975)
(automobile) (holding use of beeper to track vehicles impinges upon reasonable expectation of
privacy), aff'd en banc by equally divided panel, 537 F.2d 227 (5th Cir. 1976) (per curiam).
Subsequent decisions, however, indicate that the original panel decision in Holmes is not the
settled law of the Fifth Circuit. United States v. Conroy, 589 F.2d 1258, 1263 & n.5 (5th Cir.),
cert. denied, 100 S.Ct. 60 (1979); United States v. Cheshire, 569 F.2d 887, 888 (5th Cir.), cert.
denied, 437 U.S. 907 (1978). The First Circuit has concluded that although the use of a beeper to
track an automobile constitutes a search within the meaning of the fourth amendment, the
lessened expectation of privacy associated with an automobile justifies the use of a beeper without
a warrant. United States v. Moore, 562 F.2d 106, 111-12 (Is: Cir. 1977), cert. denied, 435 U.S.
Similarly, the placement of a beeper inside contraband is not a search within the meaning of
the fourth amendment because there can be no objectively justifiable expectation that the
possession of an illicit item or stolen good will not be traced by government authorities. E.g.,
United States v. Pringle, 576 F.2d 1114, 1119 (5th Cir. 1978) ,beeper placed in contraband mail);
United States v. Emery, 541 F.2d 887, 889-90 (1st Cir. 1976) (beeper placed in contraband
package); see United States v. Dubrofsky, 581 F.2d 208, 211-12 (9th Cir. 1978) (beeper placed in
The rapid development of technology, however, permits intelligence
agencies to use surveillance devices that have never had the benefit of
judicial review. As each new technique is considered, the Department
of Justice must determine whether it is necessary to seek court
approval before using the device. The FISA thus poses a problem. The
court's jurisdiction under the Act is limited to issuing orders for
electronic surveillance as defined in the Act. 8 8 Yet the definition of
electronic surveillance itself requires consideration of judicial
interpretations of the fourth amendment, and there may not be any precedent
covering a particular new technology. For example, case law indicates
that a court order must be obtained before a microphonic surveillance
device is used to intercept a private conversation if the communicant
has a reasonable expectation of privacy. 89 The cases, however, do not
clearly define the limits of such an expectation. Placing such a listening
device in a home, office, or other private location requires a Warrant.9"
Using a tape recorder to record a conversation that can be heard by an
individual lawfully in an adjacent room does not require a warrant. 9t
Use of a parabolic microphone, such as those used by television crews
to enhance the entertainment value of professional football, may well
require a warrant. 92 It is often difficult, therefore, to determine when a
particular surveillance technique requires a warrant. For instance,
contraband package); United States v. Bishop, 530 F.2d 1156, 1157 (5th Cir.) (beeper inserted
in stolen bait money), cert. denied, 429 U.S. 848 (1976). The placement of a beeper in a lawfully
possessed item, however, is a search within the meaning of the fourth amendment and requires a
warrant, particularly when it can trace a person's movement within a home United States v
Moore, 562 F.2d 106, 112-13 (Ist Cir. 1977) (beeper placed in noncontraband package. cert
denied, 435 U.S. 926 (1978); United States v. Bailey, 465 F. Supp. 1138, 1141 (E.D. Mich, 1979)
(beeper placed in noncontraband package). But see United States v. Perez, 526 F.2d 859, 862 (5th
Cir.) (beeper placed in television set received in exchange for contraband). cert denied, 429 U.S
846 (1976). See generally Marks & Batey, Electronic Tracking Devices. Fourth Amendment
Problems and Solutions, 67 Ky. L.J. 987 (1978-1979); Note, Tracking Devices and the Fourth
Amendment, 13 U.S.F. L. Rev. 203 (1978); Note, Tracking Kat:. Beepers, Privacy and the
Fourth Amendment, 86 Yale L.J. 1461 (1977).
88. 50 U.S.C.A. § 1801(f) (West Supp. 1979).
89. Katz v. United States, 389 U.S. 347 (1967). is the seminal case prohibiting the warrantless
use of electronic surveillance devices when the target has a reasonable expectation of privacy
Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U S C §§ 2510-2520
(1976), imposes criminal penalties, id. § 2511, and authorizes recovery of civil damages. td §
2520, for the warrantless use of bugs or wiretaps in certain circumstances.
90. See Berger v. New York, 388 U.S. 41 (1967) (bringing eavesdropping within the purview
of the fourth amendment).
91. United States v. Carroll, 337 F. Supp. 1260 (D.D.C. 1971) (using a tape recorder no
more sensitive than the human ear, defendant recorded a conversation, which he could hear
without assistance or contrivance from his adjacent hotel room)
92. See Lopez v. United States, 373 U.S. 427, 465-66 (1o03) (Brennan, J . dissenting)
(highlighting danger which modern electronic surveillance devices pose to privacy interests and
personal security); United States v. Kim, 415 F. Supp 1252. 1255-56 (D Haaii 19761
(suggesting there might be a technological limit to reasonable government searches) See generally
suppose an intelligence agency is able to use a normal, readily
available tape recorder to listen to sounds that are discernible, though not
intelligible, to the human ear without any physical intrusion, and then
subject that recording to audio enhancement to render the sounds
intelligible. Is that activity one which would require a warrant if
undertaken for law enforcement purposes? The answer is not clear. 9 3
Consider a similar issue. No one would suggest that the FBI must
obtain a warrant before reading the daily newspaper. The FBI may
act on the basis of information contained in the paper without the
slightest suggestion that it has undertaken a search. If members of a
criminal conspiracy decide to use the classified advertisement section of
the paper to communicate their plans, an FBI agent may certainly
read that same section and, if clever enough, discover the conspiracy.
The situation is undoubtedly the same if the advertisement is
published in a foreign language. Suppose, however, the conspirators
believe their advertisement is completely indecipherable by outsiders
because it is written in a complicated mathematical code generated by
a computer that is beyond the state of the art. Assume further that the
FBI is able to break that code by using an even more sophisticated
computer. Surely most people would agree that the FBI has not
undertaken a search within the meaning of the* fourth amendment.
The answer, however, is uncertain. It is, of course, possible to argue
that the conspirators had a reasonable expectation that their
communications were secret. Nevertheless, the decision to put those
communications in the public domain, even though in cryptic form, may justify
the conclusion that their privacy expectation is not one that the courts
are prepared to protect from governmental surveillance. This analysis
rests, in part, on reported cases which indicate that one who
broadcasts a message on a radio, a public communications medium, does not
have an expectation of privacy, 94 and in part, on cases which permit
police, without a warrant, to take trash from outside a person's home
and subject it to chemical analysis to determine whether any drugs
have been discarded. 95
These first and fourth amendment issues, many of which involve
Westin, Science, Privacy, and Freedom:Issues and Proposak-forthe 1970's (pts. 1-2), 66 Colum.
L. Rev. 1003, 1205 (1966).
93. See note 92 supra.
94. United States v. Hall, 488 F.2d 193, 198 (9th Cir. 1973) (holding there is no reasonable
expectation of privacy in a radio-telephone conversation that could be received by generally
available radio-reception equipment); United States v. Hoffa, 436 F.2d 1243, 1247 (7th Cir. 1970)
(holding there is no reasonable expectation of privacy in a telephone conversation from a mobile
telephone unit that can be received by an ordinary commercial FM radio receiver), cert. denied,
400 U.S. 1000 (1971).
95. United States v. Crowell, 586 F.2d 1020, 1024-25 (4th Cir. 1978), cert. denied, 440 U.S.
attempts to apply case law in novel contexts, are typical of those
presented to the Department of Justice. The precedents developed and
rules promulgated by the Justice Department, however, are often not
subject to judicial review or public comment. Thus, the American
principle of checks and balances can be eviscerated when it comes to
intelligence activities. It is extremely important, therefore, that we
institutionalize in the Executive Branch a process for obtaining a
multiplicity of views on the fundamental legal issues arising from
intelligence activities. 9 6 For example, in the Justice Department, the
Attorney General receives advice on these matters from former CIA
employees, members of the American Civil Liberties Union, and the
Department's Office of Intelligence Policy and Review. It is likewise
important for intelligence agencies to encourage meaningful in-house
criticism of their proposals. The ability to argue against his client's
project is one of the most difficult, but most important, skills a lawyer
must acquire if his practice is to meet minimal standards of social
responsibility. 97 This is particularly true in the government. This
process of debate, consideration of conflicting opinions, and careful
review will help ensure that intelligence decisions are properly and
legally made. Although this process may not always result in perfect
legal decisions, it will at least guarantee that the legal issues are
considered, the appropriate questions asked, and reasonable
THE FUTURE OF INTELLIGENCE LAW
The evolution of the law applicable to intelligence activities is
directly influenced by world conditions. The current emphasis on legal
guidelines for intelligence operations is a result of past excesses which
were disclosed during a period in our history when a President was
forced out of office and an unpopular war was prolonged despite
vigorous public dissatisfaction. 98 Current events, however, may
provoke a different analysis. Some may now argue that attempts to
regulate intelligence activities are futile and self-destructive. Others
may seriously question the costs and benefits of regulation in view of
the enormity of hostile acts abroad. While such reexamination is
necessary and constructive, it should not cause us to lose sight of the
past. Watergate did happen. CHAOS and COINTELPRO were actual
programs. 99 Those abuses had their beginnings in action which
appeared necessary and reasonable to the officials who began them. As
the programs grew, however, the justifications expanded and
96. See note 26 supra and accompanying text.
97. See ABA Canons of Professional Ethics No. S.
98. See note 9 supra and accompanying text.
99. See Church Committee Report, supra note 9, (Bk. IIl.
The proliferation of law governing intelligence activities has not
been entirely without cost. It has limited some of the flexibility and
ease of action formerly enjoyed by intelligence officials. 1o We have
gained, however, much more than we have lost. Intelligence agencies
now operate under the most lucid statements of authority, and
limitations thereon, ever available. The protection of individual rights and
liberties from infringement by intelligence activities is at a high point.
At the same time, there are few, if any, cases in which it has proved
impossible under the law to collect truly vital intelligence information.
Rather, intelligence officials think more carefully and answer more
precisely before proposing or authorizing particular activities.
Nevertheless, there is still more work to be done in this area.
Existing law provides inadequate protections to the people who serve
our nation as intelligence officers. They need, and deserve, better
protection against those who would intentionally disclose their secret
mission and jeopardize their safety' by revealing their identities.
Although public comment and criticism of intelligence activities and
specific operations is proper, exposing the identities of particular
intelligence personnel and thereby placing them in danger serves no
legitimate purpose. Our proper concern for individual liberties must be
balanced with a concern for the safety of those who serve our nation in
difficult times and under dangerous conditions.10 ' We must also adopt
100. See, e.g., Hearingson H.R. 5129 Before the Subcomm. on Government Information and
Individual Rights of the House Government Operations Comm., 96th Cong., 1st Sess. (1980)
(statement of Frank Carlucci, Deputy Director of Central Intelligence, CIA) (reporting
detrimental impact of Freedom of Information Act on security and efficiency of intelligence analysis
process and on intelligence gathering from foreign intelligence services and sources, and
recommending that CIA be relieved from certain of FOIA's provisions).
101. Several proposals have been introduced in Congress to criminalize disclosure of an
intelligence agent's or source's identity. E.g., S. 2284, supra note 25, tit. VII; Intelligence
Reform Act of 1980, S. 2216, 96th Cong., 2d Sess., 126 Cong. Rec. S366, 369-70 (daily ed. Jan.
24, 1980) [hereinafter cited as S. 2216]; S. 191, 96th Cong., 1st Sess., 125 Cong. Rec. S431 (daily
ed. Jan. 23, 1979); H.R. 3762, 96th Cong., 1st Sess., 125 Cong. Rec. H2383 (daily ed. Apr. 26,
1979); H.R. 1068, 96th Cong., 1st Sess., 125 Cong. Rec. H187 (daily ed. Jan. 18, 1979).
Another proposal that has received considerable attention is the Intelligence Identities
Protection Act, H.R. 5615, 96th Cong., 1st Sess., 125 Cong. Rec. H9324-25, 9331 (daily ed. Oct. 17,
1979). This bill seeks to restrict the disclosure of information identifying any covert intelligence
agent, employee, or source by persons who presently have or formerly had authorized access to
classified government information concerning covert identities. Id. § 501(a). The bill would also
prohibit the disclosure of identifying information by any person, regardless of previous govern.
ment service or access to classified information, who discloses it with an "intent to impair or
impede the foreign intelligence activities of the United Srates." Id. § 501(b). The House
Permanent Select Committee on Intelligence has held hearings on this proposal.
The Administration supports an alternative proposal which would (a) prohibit the knowing
disclosure of identifying information by any person acting with knowledge that the disclosure is
based on classified information, and (b) prohibit current and former government employees, who
have had access to information concerning covert identities in the course of their employment,
legal procedures to resolve the problem of graymail, where criminal
defendants who have had access to classified information escape
punishment by threatening to disclose secret information during a
criminal trial. 10 2 Although it is not impossible to prosecute such
cases, 10 3 the court's ability to protect legally irrelevant secret
information from unnecessary disclosure must be strengthened.
Further protection for the intelligence community could also be
achieved by a change in the Hughes-Ryan Amendment, which requires
the timely reporting of covert action to seven congressional
committees. 104 This cumbersome procedure disseminates knowledge of
intelligence operations to such a large number of persons that the secrecy
essential to their success becomes doubtful. A carefully crafted
amendment to the statute should require reporting only to the Senate
and House intelligence committees. 10 5 This would give Congress the
from making any disclosure concerning the identity of agents or sources to unauthorized persons,
even if the particular disclosures were based purely on speculation or publicly available
information. See Hearings on S. 2284 Before the Senate Select Comm. on Intelligence. 96th
Cong., Ist Sess. (1980). This alternative would balance the need to protect the identities of covert
agents and sources with the public's right to free and open discussion of intelligence policies and
102. There are several outstanding legislative proposals to resolve the graymail problem and
to prevent the disclosure of classified information during a criminal proceeding. E.g-, Classified
Information Criminal Trial Procedures Act, H.R. 4736, 96th Cong., 1st Sess.. 125 Cong Rec.
H5780 (daily ed. July 11, 1979). H.R_ 4736 is a complex legislative proposal which, inter alia,
creates a procedure for securing pretrial rulings to determine whether classified information may
be disclosed at pretrial or trial proceedings, and authorizes the government to take interlocutory
appeals from adverse district court orders relating to the disclosure of classified information. The
proposal also provides for appropriate protective orders to safeguard classified information
disclosed to defendants. H.R. 4736 is strongly supported by the Justice Department
103. See note 21 supra.
104. The Hughes-Ryan Amendment, 22 U.S.C. § 2422(a) (1976), requires that Presidental
findings be made with regard to each proposed covert action operation of the CIA, and that notice
of these findings be provided "to the appropriate committees of the Congress. including the
Committee on Foreign Relations of the United States Senate and the Committee on Foreign
Affairs of the United States House of Representatives." Id. Currently such reports are also
made to the intelligence committees of both houses, the Senate and House appropriations
committees, and the Senate Armed Services Committee, under arrangements between the CIA
and these committees.
105. S. 2284, supra note 25, and S. 2216, supra note 101, propose to repeal the Hughes-Ryan
Amendment and replace it with a requirement that only the House and Senate intelligence
committees be notified of proposed covert operations. S. 2284, however, would require that
Congress receive prior notice of all covert operations. S. 2284, supra note 25, §§ 103(18),
125This contrasts with the requirement of the Hughes-Ryan Amendment to report all such
operations in "a timely fashion" to appropriate House and Senate committees. 22 U.S.C. § 2422(a)
(1976). S. 2284 would also codify requirements that the intelligence agencies furnish any
information requested of them by the intelligence committees, and report to these committees
information relating to illegal or improper intelligence activities. Id. § 142(a).
The prior notice provision of S. 2284 might unduly jeopardize the safety and security of some
information it needs without unduly jeopardizing intelligence projects.
While we pursue legislative solutions to these problems, the process
of self-regulation in the Executive Branch must continue. Many of the
regulations are publicly available, 106 and as they gain wider review we
will all benefit from the analysis and critical comment of others. 10 7 The
need for governmental self-regulation, however, will increase as
modern technology grows ever more sophisticated. The state of the art is
already so advanced as to bear little relation to traditional fourth
amendment analysis, and will continue to outstrip the development of
decisional law for the foreseeable future. Although these technological
advances will benefit national security by providing increased
efficiency of intelligence gathering, they will also increase the
responsibility for fashioning proper safeguards in intelligence law. The
interpretation of constitutional provisions, statutes, executive orders,
and procedures affecting intelligence gathering will evolve in response
to changing perceptions and new experiences. While we must guard
against the adoption of an overly pliant construction of our
selfimposed rules, I am confident that, in the light of experience, we can
continue to devise new standards which do not compromise our
essential liberties and which support a strong intelligence community
equal to its critical mission.
covert operations which require the utmost secrecy. When the Hughes-Ryan Amendment was
originally enacted, Congress specifically rejected the language of the Senate bill, which clearly
required prior reporting of covert operations. Compare Conference Report on Foreign Assistance
Act of 1974, H.R. Rep. No. 1610, 93rd Cong., 2d Sess. 12, 42-43, reprintedin  U.S. Code
Cong. & Ad. News 6734, 6744-45, with S. Rep. No. 1299, 93rd Cong., 2d Sess. 43, 90-91,
reprinted in  U.S. Code Cong. & Ad. News 6674, 6707. The language adopted by Congress
requires only timely reporting of covert operations. Experience under the Amendment has proven
the wisdom of that decision. Although prior notice is, as a general rule, compatible with national
interests, there are occasions where prior notice would jeopardize the safety of individuals
involved in the activity or impair the effectiveness of an activity that reasonable people would
clearly support. In such cases, timely notice comports with the constitutional role of the President
to execute the laws and of Congress to inform itself in order to legislate. Prior notice is not
essential to the legislative or oversight process, and subsequent timely notice may be critical to the
successful execution of a covert operation.
106. See note 14 supra.
107. The entire corpus of unclassified rules, regulations, and statutes that is emerging as the
substantive field of intelligence law needs to be carefully reviewed b' the academic community.
Such examination and evaluation is critical to the continued evolution of intelligence law.
33. Id . § 403 ( d)(1)-(5).
34. Id . § 403 (d)( 3 ).
35. Rockefeller Commission Report, supra note 9 , at 61. S. 2284 , supra note 25, proposes to replace the National Security Act provisions governing intelligence activities. As Senator Huddleston noted when he introduced S. 2284: "The National Security Act of 1947, the current 'charter' for intelligence activities, is vague and cursory. As Clark Clifford, a primary author of that legislation, told this committee, that act was considered interim legislation that would be replaced once the Executive and Congress better knew what was required . [In S. 2284] we have given the intelligence community authority to do what needs to be done." 126 Cong. Rec. S1305 (daily ed . Feb. 8 , 1980 ).
36. 18 U.S.C. §§ 792 - 794 ( 1976 ).
37. A key aspect of the present structure and functioning of the intelligence community is that of. all the organizations engaged in foreign intelligence, only the CIA has been created by legislation. The National Security Agency, the FBI, and the Defense Intelligence Agency have been operating without legislative charters .
38. For example, there are a variety of statutes which, if applied literally, would limit the ability of the FBI to engage in undercover investigative operations for the collection of foreign intelligence or counterintelligence . E.g., 31 U.S.C. § 484 ( 1976 ) (restricting the use of proceeds from government operations); id. § 521 (restricting the deposit into banks of proceeds from government operations); id. § 869 (restricting acquisition or creation of proprietary corporations or business entities) . In recent years, Congress has used the Department of Justice Appropriation Authorization Act to provide an annual waiver from these requirements for intelligence operations . See, e.g., Dep't of Justice , Appropriations Act, Fiscal Year 1980 , P.L. 96 - 132 , § 7 ( a ), 93 Stat. 1040 , 1045 - 46 , reprinted in  U.S. Code Cong . & Ad . News.
39. It was not until 1972 that the Supreme Court acknowledged the Executive Branch did not
47. Foreign Intelligence Surveillance Act of 1978 , Pub. L. No. 95 - 511 , 92 Stat. 1783 (codified at 50 U.S.C.A. §§ 1801 -1811 (West Supp . 1979 )).
48. FISA directs the Chief Justice to "publicly designate seven district court judges from seven of the United States judicial circuits who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States." 50 U.S.C.A. § 1803(a) (West Supp . 1979 ). The Chief Justice is also directed to designate three judges "who together shall comprise a court of review which shall have jurisdiction to review the denial of any application made under this Act." Id. § 1803(b). The Attorney General, rather than the court, is authorized to approve electronic surveillance of certain communications transmitted by means of communications used exclusively between or among foreign powers and of technical intelligence from property under the open and exclusive control of a foreign power . Id. § 1802(a)(1)(A ) -(B). The Attorney General must advise the court of his actions . Id. § 1802(a)(3).
49. Id . § 1804 .
50. Experience has demonstrated that our intelligence agencies are functioning well under FISA. The record refutes the argument that congressional consideration of such statutes would undermine the entire intelligence apparatus of the United States . See generally S. Rep . No. 379 , 96th Cong., 1st Sess . ( 1979 ).
51. 1 U.S.C. § 112 (b) ( 1976 & Supp . II 1978 ).
52. The Senate Select Committee on Intelligence was created by S. Res . 400 , 94th Cong., 2d Sess., 122 Cong. Rec . 14673 - 75 ( 1976 ). The House Permanent Select Committee on Intelligence was established by H . R. Res. 658 , 95th Cong., 1st Sess., 123 Cong. Rec. H7104 - 06 (daily ed. July 14 , 1977 ).
53. 5 U.S.C. § 552 ( 1976 ).
54. Id . § 552a.
55. One of the purposes of the Church Committee was to create a record to serve as a foundation for drafting such legislation . Church Committee Report, supra note 9.
84. See notes 47-50 supra and accompanying text.
85. 50 U.S.C.A. §§ 1801 -1804 (West Supp . 1979 ).
86. Id . § 1801(f)(1), (4). See note 48 supra. The drafters of FISA relied on the Supreme Court's decision in Katz v . United States , 389 U.S. 347 ( 1967 ), and intended the statute to reflect evolving concepts of the fourth amendment as interpreted by the courts. Thus, the legislative history of FISA manifests Congress' intention to incorporate the Katz standard for constitutionally protected privacy interests into the definition of electronic surveillance, which serves to activate the statute's requirements . S. Rep. No. 604, 95th Cong., 1st Sess . 4 - 18 ( 1977 ), reprinted in  U.S. Code Cong . & Ad. News 3904 , 3905 - 20 .