1976 Letter on FISA from Attorney General Edward Levi to Senator Kennedy

Office of the Attorney General
Washington, D.C.
March 23, 1976

Hon. Edward M. Kennedy
U.S. Senator
Washington, D.C.

You have asked for my comments on two provisions of the draft bill which establishes a procedure for seeking a warrant to authorize electronic surveillance for foreign intelligence purposes.

Under this bill, the Attorney General would be authorized to make an application to a judge to obtain a warrant authorizing the use of electronic surveillance. A judge would issue the warrant only if he found probable cause to believe that the target of the surveillance was a foreign power or an agent of a foreign power. The phrase “agent of a foreign power” is defined in the bill as (1) a person who is not a permanent resident alien or citizen of the United States and who is an officer or employee of a foreign power; or (2) a person who, pursuant the direction of a foreign power, is engaged in clandestine intelligence activities, sabotage, or terrorist activities, or who conspires with, assists or aids and abets such a person in engaging in such activities.

The phrase “clandestine intelligence activities, sabotage, or terrorist activities” is meant to encompass those type of activities by a foreign power or its agent that the Federal government must be capable of discovering, particularly when they occur within the United States. While the most common activities that would come within the scope of this phrase would constitute violations of the federal criminal law, there is a certain limited area that would not. For example, the clandestine collection of information by an agent of a foreign power concerning important industrial processes essential to the national security, e.g. computer technology, would not in most cases violate any Federal statute.

Additionally, foreign intelligence services in this country may engage in clandestine intelligence activities against installations and personnel of other nations situated here. This could include recruitment, clandestine gathering of information and covert actions. Virtually none of this activity is prohibited by Federal law, yet it can profoundly affect our security or the conduct of our foreign relations. Finally, certain terrorist activities undertaken by a foreign based terrorist group within the United States may not constitute a Federal crime, e.g. arson committed in a state capitol building.

While most would agree that many of the activities falling within the scope of this phrase should be considered criminal, the fact is that presently all of them to not violate our Federal criminal laws. This may be attributable, in part, to the difficulty of drafting a precise criminal law that does not sweep too broadly as well as to the view that normally such acts, such as arson, are covered by state criminal laws. The factor requiring the Federal government’s interest arises only where the act is committed by an agent of a foreign power.

In my view, the present bill is correct in placing its principal focus not solely upon the factor of Federal criminality or non-criminality, but upon the issue of whether the proposed target of the surveillance is engaging in clandestine intelligence activities, sabotage or terrorism as an agent of a foreign power and pursuant to the foreign power’s direction. Under this bill, a warrant would issue in the cases we have been discussing only upon a finding by an independent magistrate that there is probable cause to believe that such agency and direction exists and that the target is engaging in clandestine intelligence activities, sabotage or terrorist activities or is conspiring with, assisting or aiding and abetting a person who is engaging in such activities.

The second provision on which you have requested my comment is section 2528 of the bill, which relates to the constitutional power of the President to order electronic surveillance under facts and circumstances not covered by this legislation.

This provision would represent the expression of congressional and Presidential intent that the President use procedures established by this bill for all national security electronic surveillance which falls within the scope of this legislation. At the same time, it would assure that every situation important to the national interest would be covered – either by the warrant procedure of the bill or by the President’s inherent constitutional power; however that power may be defined by the courts, to conduct electronic surveillance with respect to foreign powers. I reaffirm, however, what I have previously advised you orally: that it will be the policy and intent of the Department of Justice, if this bill is to be enacted, to proceed exclusively pursuant to judicial warrant with respect to all electronic surveillance against domestic communications of American citizens or permanent resident aliens.

Sincerely,
Edward H. Levi Attorney General