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Memorandam to Mr. E. S. Miller statute expand the Constitution, it can by statute enact more . Do ade _. restrictive limitations than are imposed in the Constitution. ag Such a statute imposing more restrictive limitations thanthe oe Fourth Amendment to the Constitution is Title 18, United States Code, Section 2511, which prohibits electronic surveillance except as specifically provided in Chapter 119 of Title 18 which deals _ with electronic surveillance. This statute, therefore, prohibits electronic surveillance except those which are commonly known _ as Title DI court-or dered surveillances, and consensual monitoring. The statute does recognize the authority of the President to act in regard to situations where he deems it necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect . ~ national security information against foreign intelligence activities. The decision of the Supreme Court in the, Keith case indicates that this exception in the statute recognizes Presidential authorily only in regard to situations other than surveillances concerning domestic organizations or groups. Therefore, the legal conclusion is that while it might | be possible to satisfy the constitutional requirements in the Fourth -_ Amendment, we are prohibited by statute from undertaking electronic surveillance of a domestic organization except under the procedures 4% “~~ prescribed by Title II. ~~ Ow aati e . . The second problem with the proposal is a practical problem. } do not agree that a case involving the life of a kidnap victim should be used as a test case where it is very likely that the district court would doubt its authority to issue such an order. The matter would then | be reviewed by a court of appeals and perhaps even by the Supreme : Court of the United States. This judicial review would generate enormous ©. publicity and would be exceptionally controye rsial. Itseems tomethat.—. ' +. such action on the part of the FBI could be called irresponsible if it © __. resulted in the increased kelihood that the victim would not hed retur ned. - unharmed. . -2-. -CONTINUED= OVER