Disclosure of Court-Authorized Interceptions of Wire Communications to Congressional Committees ( 1980 )

Disclosure of Court-Authorized Interceptions of Wire
Communications to Congressional Committees
A n o fficer o f th e D e p a rtm e n t o f Ju stice m ay disclose tapes o f c o u rt-a u th o riz e d in te rc e p ­
tio n s o f w ire co m m u n icatio n s to con g ressio n al co m m ittees w ith o u t a c o u rt o rd e r, as
lo n g as su ch d isclo su re is a p p ro p ria te to th e p ro p e r p erfo rm an ce o f his official duties.
G en erally , p ro v id in g C o n g ress w ith in form ation in o rd e r to help facilitate its c o n s titu tio n ­
ally m an d ated legislativ e ro le is p a rt o f th e legal o b lig atio n o f th e E x e c u tiv e B ranch;
h o w e v e r, it is also th e E x e c u tiv e 's responsibility to d e te rm in e w h e n su c h d isc lo su re
w o u ld im p ed e its p erfo rm an ce o f o th e r responsibilities, an d th u s be in ap p ro p riate.
May 12, 1980
MEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY
G EN ERA L, CRIM INAL DIVISION
I am responding to your memorandum concerning the dissemination -
to the Permanent Subcommittee on Investigations of the Senate Com­
mittee on Governmental Affairs of tapes of court-authorized intercep­
tions of wire communications. In a January 9, 1980, letter to Deputy
Assistant Attorney General Irvin B. Nathan, the subcommittee’s chief
counsel, Marty Steinberg, requested such tapes dealing with “organized
crime, labor racketeering, and narcotics trafficking.” We conclude, as
explained below, that this Department is empowered under Title III of
the Omnibus Crime Control and Safe Streets Act of 1968, as amended,
18 U.S.C. § 2510 et seq., to disclose tapes of court-authorized intercep­
tions of wire communications in response to a proper request or
demand by a congressional committee unless, in the Department’s judg­
ment, such disclosure would be improper because of our duty faithfully
to execute the criminal laws.
Ordinarily, this Department is empowered to respond to proper re­
quests for information from congressional committees, unless such in­
formation is privileged or protected by a statutory restriction upon
executive agency disclosure. The only applicable statutory restriction of
which we are aware in this instance is 18 U.S.C. §2515, which pro­
vides:
Whenever any wire or oral communication has been inter­
cepted, no part o f the contents o f such communication and
no evidence derived therefrom may be received in evidence
in any trial, hearing, or other proceeding in or before any
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court, grand jury, department, officer, agency, regulatory
body, legislative committee, or other authority of the
United States, a State, or a political subdivision thereof if
the disclosure o f that information would be in violation o f
this chapter [i.e., Title III]. [Emphasis added.]
Section 2515 is not an absolute, but a conditional limitation on disclo­
sure. If disclosure is otherwise authorized by Title III, it is not prohib­
ited by §2515.
The authority to disclose intercepted wire communications appears in
18 U.S.C. § 2517. Subsection (2) of that section provides:
Any investigative or law enforcement officer who, by any
means authorized by this chapter, has obtained knowledge
of the contents of any wire or Oral communication or
evidence derived therefrom may use such contents to the
extent such use is appropriate to the proper performance
of his official duties.
Because the proper performance of the official duties of Department
personnel includes responding to proper requests and demands of con­
gressional committees, the plain language of this subsection would
appear to authorize the disclosure in question.
Your Division suggests that §2517(2) might not authorize disclosures
to congressional committees, but might be limited to disclosures in
connection with “actual criminal investigations and prosecutions.” Al­
though the language of the Senate report explaining § 2517(2) illustrates
its coverage only with examples that would be so limited, S. Rep. No.
1097, 90th Cong., 2d Sess. 99-100 (1968), we do not believe such a
limitation should be inferred from the statute.
As originally drafted by Professor G. Robert Blakey, the section that
was to become §2517 included language substantially similar to the
section eventually enacted, but included also the following section:
(d) The contents of any wire or oral communication or
evidence derived therefrom intercepted in conformity
with this Chapter may otherwise be disclosed only upon a
showing of good cause before a judge of competent juris­
diction.
>
Blakey, G. R., “Aspects of the Evidence Gathering Process in Orga­
nized Crime Cases: A Preliminary Analysis,” reprinted in President’s
Commission on Law Enforcement and Administration of Justice, Task
Force Report: Organized Crime Annotations and Consultants' Papers 109
(1967). It is certain from Professor Blakey’s discussion that he viewed
disclosures to legislative committees as included within his subsection
(d), and thus contingent upon a judicial finding of good cause. Id. at
103-04.
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Subsection (d), however, was omitted from S. 675, 90th Cong., 1st
Sess. (1967), which became Title III of the bill eventually enacted as
the Omnibus Crime Control and Safe Streets Act of 1968. We have
found no discussion of this omission in the legislative history of S. 675
or Title III, but its impact would logically have to lead to one of the
following interpretations. Either Congress, like Professor Blakey, in­
tended subsections (1)—(3) to confer disclosure authority only with
respect to specific criminal proceedings and to eliminate any disclosure
authority outside that, context, or Congress intended to permit disclo­
sures to Congress to be made without a court order under subsection
(2), so long as the disclosures would be within the proper performance
of an investigative or law enforcement officer’s legal duties.
For three reasons, we conclude that the latter interpretation is more
reasonable. First, the legislative history contains no suggestion that
Congress intended to protect intercepted communications from proper
disclosures to congressional committees. Second, Congress ordinarily
does not protect Executive Branch information in this way, cf, 5
U.S.C. §552a(b)(9). Third, providing Congress with information in ap­
propriate instances in order to help facilitate its constitutionally man­
dated legislative role is part of the legal obligation of the Executive
Branch to help achieve a mutual accommodation of the two branches’
functional needs for information. U.S. v. American Telephone and Tele­
graph Co., 567 F. 2d 121 (D.C. Cir. 1977). We should not lightly assume
that Congress has proscribed our participation in what otherwise would
be a constitutionally mandated effort at cooperation.1
It should be noted that, although §2517(2) authorizes the use of the
contents of intercepted communications “to the extent such use is
appropriate to the proper performance of [the] official duties” of an
investigative or law enforcement officer, this section does not require
automatic compliance with the requests of legislative committees and,
on its face, mandates a finding by a disclosing officer that the requested
disclosure would be “appropriate to the proper performance
of . . . official duties.” There are foreseeable circumstances in which
the disclosure to congressional committees of the contents of inter­
cepted communications would impede Departmental performance of
other official duties, e.g., by compromising ongoing investigations or
divulging the identities of informants. Because the faithful execution of
1 T he Criminal Division also suggests that the scope o f “official duties'* as that phrase is used in
§2517(2) perhaps should be read as com prising only duties in connection w ith crim inal actions because
Congress, w hen it subsequently wished to accom m odate the disclosure o f w iretap information in civil
actions, am ended §2517(3), rather than regarding such disclosures as w ithin the proper perform ance o f
a law enforcem ent officer’s official duties. Subsection (3) as first enacted in 1968, how ever, expressly
pertained to testimony in criminal actions and, absent the later am endm ent, the omission in that
subsection o f any reference to civil actions m ight have precluded an assumption that such actions w ere
covered by §2517(2). T he original limitation o f §2517(3) to crim inal actions, how ever, w ould not have
precluded an interpretation o f §2517(2) com prising nonadjudicatory proceedings, e.g., congressional
hearings. On the different uses o f information in legislative and adjudicatory contexts, see. Senate Select
Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D .C. Cir. 1974).
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the criminal laws and the protection of the constitutional rights of
potential defendants requires this Department to avoid disruptions in
the orderly handling of cases, we conclude that the Department might
reasonably determine that disclosures to Congress, in certain cases,
would not be “appropriate to the proper performance of . . . official
duties.” In sum, the proper exercise of authority under this section
requires a balancing of responsibilities, and the Department may, as
appropriate, comply with or decline committee requests for the con­
tents of intercepted communications.
L arry A. H a m m ond
Deputy Assistant Attorney General
Office o f Legal Counsel
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