Jamie S. Gorelick
Deputy Attorney General, Department of Justice.
From a statement made before The Senate Judiciary Committee, May 24, 1995.

The administration [is] committed to supporting legislation which protects all Americans from the scourge of terrorism, without sacrificing the constitutional liberties which all of us hold dear.

It is a fundamental principle underlying our criminal law that a criminal statute should protect - and be understood by the public to protect - some recognizable public interest, such as public safety or the exercise of protected rights. This legislation is designed to protect the public's safety by intercepting criminal conversations of those who commit specific serious and dangerous crimes against law- abiding citizens in our communities while protecting our overriding and compelling privacy interests. . . .

The balance is struck in two ways. First and foremost, the ultimate decision to permit electronic surveillance is made by a federal judge who determines that probable cause exists to believe that a specific crime has been committed, that specific named persons are committing that crime and that there is probable cause to believe that an identified phone or premises is being used to commit the crime. Second, the decision whether to even permit a prosecutor to go to court to seek a wiretap order is made at the highest levels of the Department Justice. Law enforcement uses the tool sparingly. There were only 554 federal investigations in calendar year 1994 in which wiretaps were used. The state and local governments used this investigative tool in only 600 investigations during that year. This is a small percentage of the thousands of . . . investigations conducted that year. . . .

In an ordinary wiretap, the court-ordered electronic surveillance is not necessarily limited to a particular individual. Rather, the government is permitted by law to intercept criminal conversations occurring over the tapped telephone, regardless of who the participants are. By contrast, all multi-point electronic surveillance orders require that the specific subject of the electronic surveillance be identified at the time the application is made, and only his communications and those of the persons to whom he speaks may be intercepted. . . . Since multi-point electronic surveillance is aimed at a particular individual, rather than at a particular facility or location, it is less, not more, likely that the conversations of innocent third parties will be randomly intercepted. It is, in fact, practically impossible. . . .

We do not believe that our proposal in this area will result in many more orders allowing the government to use multi-point wiretaps, although its availability at a crucial moment may prove the difference between preventing a terrorist attack and watching the aftermath on the evening news.

Donald M. Haines
Legislative Counsel, American Civil Liberties Union.
From a statement made before The Senate Judiciary Committee, May 24, 1995.

The ACLU, of course, deplores the bombing and the tragic loss of life in Oklahoma City. We support bona fide efforts to ensure that law enforcement officers have the tools necessary to arrest and prosecute anyone who commits such a crime. Nevertheless, we remain most concerned that we do not - out of a heightened fear of the threat of terrorism - throw out the civil liberties and constitutional rights that have defined us as a land of freedom. . . .

The ACLU strongly opposes virtually every one of the electronic surveillance and intelligence gathering proposals presented by the administration in S. 761. Those proposals are unnecessary and, in fact, not related to the events of Oklahoma City. They will not make the American people any safer. We hope that no one, in the administration or in the Congress, will use the trauma and grief of Oklahoma City to advance legislative interests unrelated to that incident. Moreover, the administration's proposals will expose all Americans to the increased danger that our government will violate our rights - thereby turning into a reality a feeling about their government that many Americans already have. . . .

Electronic surveillance is a particularly intrusive investigatory technique, subject to the search and seizure requirements of the Fourth Amendment. Wiretaps should be authorized therefore only in the most serious cases and subject to the most stringent protections. The proposed expansions of wiretap authority sweep far too broadly and, in at least some instances, probably run afoul of the Constitution.

Equally important, such expanded authority is quite unnecessary. Virtually all federal felonies characteristic of terrorism, including those that would likely form the basis for the Oklahoma City prosecution, are already on the list of felony investigations in which an electronic surveillance order may be sought. Yet the FBI has very rarely used wiretaps in investigations of arson, bombings or firearms violations.

Out of 8,800 wiretaps applications filed by federal and state authorities between 1983 and 1993, only 16, less than 0.2 percent, were for arson, bombing or firearms. The last known request in such a case was filed in 1988. Congress should not be considering expanding federal wiretap authority, when the FBI is demonstrably not using the authority that currently exists.

The American Civil Liberties Union urges both the Congress and the administration to resist the temptation to use the tragedy of Oklahoma City as a smokescreen behind which to enact legislation that is in fact both unrelated to Oklahoma City and anti-civil liberties.