WIRETAPPING FOR NATIONAL SECURITY

THURSDAY, MAY 6, 1954

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C.

The subcommittee met at 10 a. m., pursuant to recess, in room F-59, the Capitol, Senator Alexander Wiley (chairman of the subcommittee) presiding.

Present: Senators Wiley and Welker.

Present also: Thomas B. Collins, subcommittee counsel.
Senator WILEY. The meeting will come to order.

Capt. Stephen E. Jones, Chief, Security Branch, Office of Naval
Intelligence, Department of the Navy, will be the first witness.
Will you come up here, Captain? It is good to see you.
You have a written statement, have you?

Mr. COLLINS. Mr. Chairman, before we start, could we offer for the record a letter received from the President of the American Bar Association, pursuant to a wire that you sent to the president of the bar association asking them if they cared to testify.

Senator WILEY. Yes. That will be made a part of the record. (The document referred to is as follows:)

AMERICAN BAR ASSOCIATION,
Chicago, Ill., April 29, 1954.

HON. ALEXANDER WILEY,

Chairman, Subcommittee of the Committee on the Judiciary,

United States Senate, Washington, D. C.

DEAR SENATOR WILEY: I appreciate very much your wire giving us information of the public hearing to be held on wiretapping legislation on May 6.

As you perhaps know, the section of criminal law submitted a recommendation to the house of delegates at its meeting held March 5 and 6 last asking that the house approve H. R. 477. The house, however, did not adopt that recommendation but recommitted it to the section for further consideration and report at its next meeting.

In view of the above action, it is obvious that views of the association on this matter cannot be expressed at the hearing. However, I am transmitting your telegram to Walter P. Armstrong, Jr., Commerce Title Building, Memphis, Tenn., chairman of the section of criminal law, and to Senator Herbert O'Conor, chairman of the committee on Communist tactics, strategy, and objectives.

We greatly appreciate information on these matters and the opportunity to express the views of the association, when possible, or to inform those association groups who have an interest in the subject.

Sincerely yours,

Senator WILEY. Carry on, Captain.

W. J. JAMESON, President.

103

STATEMENT OF CAPT. STEPHEN E. JONES, CHIEF, SECURITY BRANCH, OFFICE OF NAVAL INTELLIGENCE, DEPARTMENT OF THE NAVY, ACCOMPANIED BY GILBERT R. LEVY, CHIEF, COUNTERINTELLIGENCE DIVISION, SPECIAL INVESTIGATIONS, OFFICE OF INSPECTOR, AND CHESTER D. SMITH, SECURITY ADVISER TO CHIEF, SECURITY DIVISION, DEPARTMENT OF THE ARMY

Captain JONES. My name is Capt. Stephen E. Jones, United States Naval Reserve, on duty with the Office of Naval Intelligence. I have been designated, in response to the considerate invitation of the chairman of the Special Subcommittee of the Committee on the Judiciary, to represent the Department of Defense as well as the Navy Department at this hearing, and to express to the committee our coordinated views on the general subject of wiretapping legislation.

The interest of the Secretaries of the military departments and their respective investigative agencies in such legislation parallels that of the Attorney General and the Federal Bureau of Investigation. Consistent with existing agreements covering the fields of sabotage, espionage, and subversion, the Assistant Chief of Staff, G-2, of the Army, the Director of Naval Intelligence of the Navy, and the Director, Office of Special Investigations of the Air Force, are charged with the same responsibilities with respect to their own military personnel as is the Federal Bureau of Investigation with respect to the civilian population, generally. In addition, the responsibilities of the investigative agencies of the Armed Forces regarding subversive activities extend into areas beyond our borders wherever United States personnel of or with the Armed Forces may be located. Examination of bills S. 832 and H. R. 8649 indicate that they would, generally speaking, legalize the acquisition of certain communications and their admission into evidence, together with the admission into evidence of intercepted communications. These bills require that evidence so obtained must be in the interest of national security, that the agency making the interception must have had the prior written approval of the Attorney General, and finally, that for the material to be admissible in evidence, an authorized agent, prior to engaging in such activity, must have been granted a permit authorizing such acquisition or interception by a judge of a United States

court.

S. 3229 makes criminal all interceptions other than those authorized in the manner provided in the act, and requires permission of a Federal judge as a condition precedent not only to admissibility in evidence, but to the interception itself.

S. 2753 would amend section 605 of the Communications Act of 1934 to make possible the admission in Federal courts of the United States of evidence obtained as a result of interception of communications when the information so obtained pertains to crime involving the national security.

Parenthetically it may be noted that, where the investigative agencies of the Armed Forces are referred to in these bills, they should be designated as follows:

Assistant Chief of Staff, G-2, Department of the Army.
Director of Naval Intelligence, Department of the Navy.

Director, Office of Special Investigations, Inspector General, Department of the Air Force.

Further minor amendments are recommended as follows:

(1) H. R. 8649, on page 2, line 14, and on page 3, line 13, after the word "Congress" insert the words "or in any military court or commission,". These amendments are necessary as it is doubtful whether the present wording "in any criminal proceedings in any court established by act of Congress", would include a trial by courtmartial or a trial before a military commission.

Also in H. R. 8649, on page 3, line 19, change "agent" to "agency". This change is necessary as the interception operation once authorized may require numerous investigators working simultaneously at different places on an around-the-clock basis. Moreover investigative operations are such that the particular agents to be used cannot always be named in advance.

(2) S. 2753, on page 2, line 5, after the words "United States" insert the words "or in any military court or commission,".

The Department of Defense position on these bills is in support of that of the Attorney General of the United States presented to his subcommittee in his statement of April 20, 1954, particularly with respect to his objection to those bills which require the approval of a Federal judge as a condition precedent to the admissibility in evidence of the information obtained by the interception operation.

I hasten to assure the committee that our objection to obtaining ex parte consent of a Federal judge is by no means intended as an expression of any lack of confidence in our Federal judiciary. The objection is founded simply in operational requirements of extreme speed and extreme secrecy, both of which, as we see it, would be likely to be impaired to the point of futility under the bills in question.

We concur with the Attorney General in his conclusion that authorized interceptions in connection with investigations in this field are well justified by reason of the real and clear public interest based upon considerations of national security.

Senator WILEY. If that application to judges is made in chambers, the requirement of notice, wouldn't be so serious, would it?

Captain JONES. Well, sir, any judge has his staff. Even if he tries to keep secret the papers relating to the application, he must file them in his safe or other container, to which, in my experience at least, more than one person has access. The staffs of the Federal judiciary, to my knowledge, are not cleared for security purposes, and there is that possibility of a leak.

Mr. COLLINS. Wouldn't you have the same possibility of leaks in the Defense Department?

Captain JONES. That is right.

Mr. COLLINS. There have been some recently.

Captain JONES. I am sure of that.

Except in situations involving access to classified information, for the most part people have had a security clearance, background check, and so forth, in the Department of Defense.

Senator WILEY. That is your own objection to the application to the court?

Captain JONES. The objection of speed was also mentioned, Senator. There are areas in the country where you may have to travel two or three hundred miles to get to a Federal judge, and then it is possible

that when you get there you may find he has gone fishing. There is that possibility. And if the matter is urgent, there is that interruption in the process.

Senator WILEY. Is there any question, in case the judge gives the record, that it would have competency outside of the jurisdiction of the court?

Captain JONES. There is that serious possibility, and that may cause the necessity for an application to be made to several Federal judges in one case.

Senator WILEY. Of course, under the law you can't say even at present that tapping, unless prohibited by State law, is illegal. It is a question of making the evidence competent.

Captain JONES. Right, sir.

Senator WILEY. I would like to get your idea, in case you had a court order in the district court, say, involving one of the district judges in a given State. Could the statute be amended so that that would make the evidence competent, without raising the question of jurisdiction?

Captain JONES. I would like to call in the constitutional lawyers on that one.

Senator WILEY. I didn't know but what you had studied it. We will probably get some pretty good testimony on that, so carry on. Captain JONES. Right. I was about to summarize.

The Department of Defense strongly urges the enactment of legislation which would provide reasonable safeguards for the acquisition and interception of communications in investigations affecting our national security and which would permit the information so obtained to be admissible in criminal proceedings to which the United States is a party. The vesting of authority in the Federal judges to authorize the interception of communications would not provide the speed of operations necessary to such investigations nor would it afford the security essential to investigations in these categories. Therefore, as an operational necessity it is highly desirable that this authority be vested in the Attorney General of the United States.

Senator WILEY. That concludes your written statement?
Captain JONES. Yes, sir.

Senator WILEY. I see that you are accompanied by Gilbert R. Levy, Chief of Counterintelligence, and Chester D. Smith, Security Adviser. Have they anything additional to testify to?

Captain JONES. I could call them up here, sir.

Mr. LEVY. Mr. Chairman, speaking for the Air Force, we agree with the statement as introduced by Captain Jones, sir.

Senator WILEY. Will you come up, please? Just keep your chair, Captain. And the other gentleman?

Mr. SMITH. Smith is my name, sir.

Senator WILEY. You are Levy, and you are Smith.

Do I understand that on the basic problem here you feel there can't be worked out any workable basis for getting a court order? Or do you feel that it is simply inadvisable? Any one of you fellows can take the ball.

Mr. SMITH. Speaking for the Department of the Army, we believe it unworkable, sir, from an operational standpoint. It would be a crippling operation and would in all probability nullify our efforts to secure the proper evidence.