Mr. Berman has made an appeal for a consensus, one that I appreciate. I suppose the classic case of consensus was the choice of Spiro Agnew as Vice President. Mr. BERMAN. Thank you very much, Senator, for your vote of confidence in the consensus that I have fashioned here. Senator MATHIAS. Well, that boiled down to a choice of a candidate who had the least enemies at the time of the choice. Mr. BERMAN. Well, there may be a hidden trap in putting even these standards into law, but I do not think so. I really think that trying to enforce the reasonable suspicion standard is the least that we should be doing in this area, and if we can take the Sensenbrenners and Congressman Edwards and Senator Mathias and Senator Simpson and form a coalition around that position, expansion of that position, the expansion of the review board and the implementation of the reasonable suspicion standards, that is certainly light years away from where we are where the Bureau has the discretion to ignore that standard whenever they choose. I think that there are lots of problems involved. I agree with Mr. Seignenthaler. It is not clear, and with Monroe, how to-whether it is better or worse to try to put stronger limitations on some of these practices which probably should be prohibited. But certainly the administration will go to the mat believing that these are limitations that they do not want, and it will doom any chance of doing anything at all. Šenator MATHIAS. I think we have to keep in mind the case you mentioned, the North Carolina case, in which voters could go to the polls in an election that is solely the product of Government deception. Mr. BERMAN. I tried to sneak into my modest proposal a couple of prohibitions. I do not think that you can, in an undercover capacity enter into a confidential relationship protected under law. It is a violation of the lawyer/client test. I believe that is a violation of due process under the Constitution. Senator MATHIAS. What you are saying is there are some fundamental societal values that cannot be interfered with. Mr. BERMAN. Absolutely. We recognize those relationships in other areas of the law whether it is source, shield laws or whatever. That prohibition ought to be excepted, and I would not like to be the Senator on the floor saying we should not respect those relationships. Another is that you should not interfere with the political and judicial process, and I think that is what happened in Graylord potentially when all the facts come out. It happened in Cleveland, and the operation of buying election and influencing an election result in North Carolina is totally unacceptable. We need the line from the CIA executive order which says that to the extent they are conducting covert operations in the United States it should be designed so as not to interfere with or effect the political process. Senator MATHIAS. Maybe that is a good point at which to end our discussion today. This last panel has been worth waiting for. It has been very enlightening to me. I think it has brought some fresh concepts to this discussion. I am very grateful to all of you. The committee stands in recess subject to the call of the Chair. [Whereupon, at 4:05 p.m., the subcommittee adjourned at the call of the Chair.] APPENDIX PART 1.-ADDItional Statements and ViewS THE UNIVERSITY OF CHICAGO THE LAW SCHOOL 1111 BAST 60TH STREET CHICAGO ILLINOIS 60637 May 23, 1983 Senator Charles McC. Mathias, Jr. United States Senate Committee on the Judiciary Dear Senator Mathias: Thank you for soliciting my views on S. 804. My comments are divided into three general sections. Section I examines undercover operations from a policy perspective. Section II examines the decisions of the United States Supeme Court relating to undercover operations and the fourth amendment. Section III focuses directly on S. 804. Sections I and II are derived from my testimony in February 1981 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary during its Hearings on FBI Oversight. I should note at the outset that S. 804 is an important contribution. Subject to a few minor suggestions, I strongly endorse its enactment. I. Undercover Operations and Legitimate Expectations of The use of spies, secret agents, and informers to elicit information from unsuspecting individuals and to "invite" such individuals to engage in unlawful conduct can be an extraordinarily effective investigative technique. Undercover operations may enable government investigators to infiltrate the inner-most circles of organized crime and to discern otherwise difficult to detect patterns of "consensual" unlawful behavior. Moreover, such operations frequently enable the government to present its evidence in subsequent criminal prosecutions in an unusually reliable form--through the direct testimony of law enforcement officers who have participated personally in the unlawful conduct, and often through video and or al tapes of the actual criminal transactions. Finally, the widespread use of spies, secret agents, and informers can effectively generate an (331) atmosphere of distrust and suspicion among potential "targets." By rendering such individuals uncertain as to the actual status of their cohorts, the very existence of undercover operations can have a potent deterrent effect. There is, however, another side of the coin. For despite their special utility--indeed, largely because of their special utility--undercover operations pose special dangers to the individual, the government, and to society in general. These dangers are not unfamiliar. Such operations, for example, may "create" crime; they may require government agents to participate directly in illegal activity; they may unfairly entrap unwary individuals into unlawful conduct; they may damage the reputations of innocent persons; and they may seriously undermine legitimate expectations of privacy. Although each of these dangers merits careful scrutiny, I will focus my own comments on the potential conflict between undercover operations and personal privacy. To what extent, if any, does the government's use of spies, secret agents, and informers significantly endanger legitimate expectations of privacy? To what extent, if any, should undercover operations be restricted in order to preserve such expectations? In approaching these questions, it is essential to note at the outset that the "under cover operation" is not a unitary phenomenon. It is, rather, multifaceted in nature, embracing an almost limitless variety of situations . It emcompasses the creation of an unlawful business establishment to attract "customers" seeking to engage in illegal transactions, and the infiltration of a drug-smuggling conspiracy by a professional agent; it encompasses the approach of a suspected prostitute by a plainclothes officer on the street, and the activities of an informer who joins the ranks of a political or community organization in the course of a domestic security investigation. The undercover operation may last a moment, or it may extend over many months. It may involve only a single agent, cooperating citizen, or paid informant, or it may involve a complex network of undercover operatives. The extent to which any particular operation intrudes upon legitimate expectations of privacy will necessarily vary according to the circumstances. With that caveat in mind, I would like to turn directly to the privacy issue. In assessing the nature of the potential intrusion on legitimate expectations of privacy, it may be helpful to hypothesize a paradigm situation--one posing a not uncommon set of circumstances. Let us suppose that an agent seeks to investigate an individual suspected of complicity in labor racketeering, narcotics smuggling, or political curruption. The goal may be to deceive the "target" individual into revealing desired information, to lead the agent to "higherups" in a suspected conspiracy, or to induce the target to engage in a criminal transaction with the agent himself. Whatever the ultimate goal, the target in most circumstances is highly unlikely to disclose his criminal proclivities, if any, to just any stranger off the street. In all probability, the agent, to be effective, will need to initiate and gradually foster a relationship with the target in which the target will come eventually to trust and to confide in the agent. In short, the agent must win the target's confidence through deception, a task that may require weeks or even months to accomplish. Το hasten this process, the agent may seek the cooperation of some person already in a trust relationship with the target--perhaps a friend, a business acquaintance, or even someone in a confidential relationship with the target. To secure this cooperation, the agent may appeal to civic duty, offer monetary compensation, or perhaps offer some other inducement. Whether the agent acts on his own or secures the assistance of a private citizen, the undercover operation in our hypothetical investigation is likely seriously to intrude upon the target individual's legitimate expectations of privacy. Indeed, the intrusion occasioned by such operations is strikingly similar to and perhaps even greater than that ordinarily associated with other investigative techniques--techniques that may lawfully be employed only when there is a prior judicial finding of probable cause. Consider, for example, such practices as wiretapping, third-party electronic bugging, and eavesdropping. No less than these other practices, the use of spies, secret agents, and informers directly undermines conversational privacy. In the wiretapping, electronic bugging, and eavesdropping context, government officals surreptitiously monitor the individual's conversations. In the undercover context, government officials deceitfully participate in and overhear those very same conversations. The intrusion upon conversational privacy is functionally the same. As in the case. of wiretapping and electronic bugging, the undercover operative will inevitably learn not only about the target individual's criminal intentions, if any, but also about his personal, political, religious, and cultural attitudes and beliefs--matters which are, quite simply, none of the government's business. Moreover, unlike wiretaps and bugging devices, spies and informers see as well as hear. If, in the course of an investigation, government officials want to search an individual's home or office or inspect his documents, letters, or other personal effects, they ordinarily would be required first to obtain a judicial warrant based upon probable cause. In the undercover context, however, the undercover operative may in the course of the investigation be "invited" to enter the target's home or office or to examine his private papers or effects. The undercover operation, if not carefully controlled, would thus have the anomalous effect of enabling government to invade the individual's privacy through deceit and stratagem when it could not otherwise lawfully do so. Finally, there is a special social cost associated with the use of spies, secret agents, and informers. As noted earlier, the use of undercover ope artives can effectively deter criminal conduct by creating doubt and suspicion as to the trustworthiness of the would-be criminal's colleagues and associates. If the use of such operatives is not carefully confined, however, and lawabiding citizens are not reasonably confident that they will not find themselves dealing inadvertently with spies and informers, then this chilling effect can all too easily spill over into completely lawful conversations and relationships. The unrestrained use of such operatives, in other words, has at least the potential to undermine that sense of trust that is essential to the very existence of productive social, business, political, and personal--as well as criminal--relations. Despite these concerns, no one would sensibly suggest that the government be prohibited absolutely from engaging in undercover investigations. Rather, what is needed is a reasonable accommodation of the competing investigative and privacy interests. In attempting to define such an accommodation, two related bodies of law should be considered-the Supreme Court's analysis of these issues from the perspective of the fourth amendment, and the restrictions proposed in S. 804. II. Undercover Operations and the Fourth Amendment The Supreme Court has consistently held that the use of deceit by spies, secret agents, and informers to elicit information from unsuspecting individuals does not in itself constitute a "search" within the meaning of the fourth amendment. See e.g., United States v. White, 401 U.S. 745 (1971); Hoffa v. United States, 385 U.S. 293 (1966); On Lee v. United States, 343 U.S. 747 (1951). In part, this is the result of historical circumstance. The language and historical background of the amendment make clear that its framers did not affirmatively intend to bring undercover investigations within the amendment's scope. Although the use of spies and informers was not wholly unknown to the framers, the practice simply was not on their minds at the itme. In some contexts, the Court has been willing to look beyond the precise intent of the framers and to construe the amendment expansively. This has been the case, for instance, with respect to wiretapping and electronic bugging, see Katz v. United States, 389 U.S. 347 (1967). The Court has declined, however, to extend the amendment's protections to undercover operations as well. In large part, the Court has attempted to justify this distinction on the theory that the risk of being betrayed by one's supposed friends and confidants is "inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak." Hoffa v. United States, supra, at 303. And, the theory goes, since this "is not an undue risk to ask persons to assume," the fourth amendment does not protect the individual's misplaced confidence that a person to whom he discloses information will not later reveal it. Untied States, 373 U.S. 427, 450 (1963) (Brennan, J., dissenting). With all due respect, this theory is unsatisfactory whether as a matter of constitutional law or as a matter of policy. Lopez v. It is true, of course, that in the ordinary course of our relationships we necessarily assume the risk that our friends and associates will betray our confidences. Insofar as such persons act solely in their private capacities, and not in cooperation with government officials, their betrayals undoubtedly fall beyond the scope of the amendment's concern. The analysis shifts markedly, however, once government enters the picture. For the risk that the individual's confidant may be fickle or a gossip is of an entirely different order from the risk that he is in reality an undercover agent commissioned in advance to report the individual's every utterance to the authorities. In the latter situation, we are no longer dealing with a risk of misplaced confidence inherent in the nature of human relationships; we are dealing instead instead with government action designed explicitly to invade our privacy and to end in deceit and betrayal--with government action that appreciably alters the nature of the risks we ordinarily expect to assume. The notion that our willingness to assume one risk means that we must necessarily assume the other is doubtful at best. Indeed, from a constitutional standpoint, we necessarily assume the risk that private citizens will invade our privacy by tapping our telephones, bugging our office and ransacking our homes. It has never been suggested, however, that because those risks are unprotected by the fourth amendment we must also assume the risk that government agents will engage in similar conduct or induce others to do so for them. There is simply no logical reason to assume that the risk of undercover surveillance is any more "inherent" in our society than the risk that government officers will tap our telephones, bug our offices, or ransack our dwellings. Another theory occasionally voiced in defense of the Court's distinction between wiretapping and electronic bugging, on the one hand, and undercover operations, on the other, is that the risk of being deceived by a secret agent or informant is not an |