The Justice Department said yesterday it is keeping "an open mind" on proposals to require secret court warrants for surreptitious entries -- popularly known as "black bag jobs" -- in foreign intelligence cases.
Testifying before a House Intelligence subcommittee, Mary C. Lawton, the department's counsel for intelligence policy, reiterated the longstanding claim that the president has inherent authority to order clandestine property searches for national security purposes without court approval.
But she said legislation requiring judicial warrants for physical searches, such as those now required for electronic surveillance in foreign intelligence cases, might provide some "practical benefits" that would make the change worthwhile.
Other witnesses denounced the present practice as unconstitutional in view of the Fourth Amendment's guarantee of "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . "
In the postwar heyday of the late J. Edgar Hoover, thousands of "black bag jobs" were carried out across the country by full-time FBI "bag squads" in the name of national security or some other allegedly overriding purpose, such as the fight against organized crime.
Today, however, burglaries for national security reportedly are few and far between, approved on a case-by-case basis by the attorney general. The Justice Department supplies a secret, twice-yearly rundown to the House and Senate Intelligence Committee staffs.
Rep. Matthew F. McHugh (D-N.Y.), subcommittee chairman, said that "a warrantless search of one's home is, in my opinion, more intrusive than a wiretap of one's telephone," which now requires a warrant under the 1978 Foreign Intelligence Surveillance Act (FISA).
He said he is considering introduction of a bill authorizing physical searches for intelligence purposes and requiring a court order, under standards and procedures similar to FISA, before such searches may be carried out.
A Senate advisory panel recommended Wednesday that FISA simply be expanded to permit surreptitious seizure of information, material or property in cases where a special court certifies there is "probable cause" to believe that the target is a foreign power or the agent of a foreign power.
It was plain at yesterday's hearing that such proposals could founder in disputes over how explicit the "black bag" warrants should be, what uses could be made of any evidence that is seized or photographed, and whether any of the more rigorous standards applicable to search warrants in criminal cases should be applied.
Morton Halperin, Washington director of the American Civil Liberties Union, argued that unless Congress insists on criminal standards, including advance notice of the search, it might "be better to do nothing." A law authorizing "black bag jobs" without strict rules, he said, probably would lead to many more of them.
Samuel Dash, director of Georgetown University's Institute of Criminal Law and Procedure, said the warrants should at least have some specifics about what is to be seized or photographed. Washington lawyer Bruce Fein maintained that no prior judicial warrants should be required and that a "reasonable suspicion" standard should be enough to justify intrusions for national security.