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trial, in which Darrow defended himself with the help of the now greatest criminal attorney in the world, in my opinion, Jerry Giesler, at that time a very young man, resulted in acquittal for him. Because at that time I think the rule was, and it still is, that an honest man can take the stand before a jury, and a jury is going to sit there and weigh the testimony.
And in view of the fact that you people and people like you can come in and say that this is not positive evidence and can well be changed, altered, it would seem to me that that would be the best way in the world of winning a lawsuit.
Mr. COAR. Yes, if you could give a demonstration such as this to any jury, I would think that they would immediately question the veracity of the original evidence.
Senator WELKER. Absolutely. And then, of course, the prosecution would be required of necessity-and I believe my distinguished chairman will agree with me to bring on corroborating evidence to sustain the wiretap or the recording.
I have given some thought to this, and I am certain that you will not be an expert on this, but I am wondering what you think about this, that before this is permissible you must have something other than the recording device.
Mr. Coar. I would think that is the only fair way that such evidence should be used—with the original material impounded immediately upon its completion before anyone had a chance to do anything with it.
Senator WELKER. I have heard the chairman say, and it perhaps has been said to you, that this is dirty business, the tapping of telephone wires. But I have had a little bit of experience in prosecution and in defense work. I can't imagine anything any more dirty than boring a hole and peeking at you or looking through your window or, for instance, having Counsel Collins, who is adverse to the distinguished chairman and myself, tell a jury that he heard us say something which in fact he didn't hear us say. He was there committing perjury. In other words, in my opinion it goes to the rule of evidence. It goes to the weight of the testimony. And the jury should be the sole judge of that.
Will you agree with me on that?
Senator WELKER. Well, I certainly thank you very much. I think this has been very valuable.
I want to make this observation: that in my experience in law, even though prosecutors have made it very hard for me to make a living, I never at any time distrusted them. I felt that they took an oath as lawyers the same as I did. I felt that they took an oath the same as the Attorney General. And I felt that they took an oath the same as a judge, who, many people say, should permit this wiretapping before it should become competent and legal.
I just can't imagine any prosecutor wanting to send an innocent person to the penitentiary. I just don't believe that is possible. It might happen, but it hasn't happened in my brief experience. I have no
other questions, Mr. Chairman. Senator WILEY. Any questions? Thank you very much.
Hon. Theodore Pearson, chairman, Committee on Federal Legislation, Association of the Bar of the City of New York.
Do you have a statement, sir, that you want to submit?
STATEMENT OF THEODORE PEARSON, CHAIRMAN, COMMITTEE ON
FEDERAL LEGISLATION, THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
Mr. PEARSON. Yes, Mr. Chairman.
Mr. PEARSON. My name is Theodore Pearson, 70 Broadway, New York City.
Mr. Chairman and Senator Welker: I wish to thank you very much for affording us this opportunity to testify before your subcommittee, on this important subject of wiretapping legislation.
I am the chairman of the Committee on Federal Legislation of the Association of the Bar of the City of New York. After extended study, our committee has prepared a “Report on Pending Wiretap Bills” dated May 3, 1954, a copy of which I now submit to you. I shall not take your time to read the report in full, with its footnotes and appended separate reports. I therefore ask permission that the report be included in the record of these hearings.
(The report referred to is as follows:)
REPORT ON PENDING WIRETAP BILLS BY THE COMMITTEE ON FEDERAL LEGISLATION,
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK The House of Representatives on April 8, 1954, passed by 379 to 10 what was variously characterized as a "wiretap” or “antitraitor" bill, and a subcommittee of the Senate Judiciary Committee on April 20 began hearings on this bill and others introduced in the Senate,' starting with a recommendation for legislation by Attorney General Brownell. The subject provokes sharp differences of opinion and involves sharply conflicting considerations of policy. As President Roosevelt said, in recommending wiretapping in cases of espionage, sabotage, kidnapping, and extortion :
"The use of wiretapping to aid law-enforcement officers raises squarely the most delicate problem in democratic statesmanship. It is more than desirable, it is necessary that criminals be detected and prosecuted as diligently as possible. It is most necessary that citizens of a democracy be protected in their rights of privacy from unwarranted snooping. * * * Somewhere between these two conflicting ideals we must find balance. * * * We will not perceive perfection because it does not exist."
For the reasons discussed in this report, our committee considers the House bill as having a basically inadequate objective though representing constructive accomplishments, and endorses the approach taken by S. 3229 introduced by Senator McCarran. On the two most important issues raised between these bills, the position of our committee is that (1) the Attorney General should be authorized to wiretap in the specified areas provided prior court approval is obtained upon a showing of reasonable grounds therefor, and (2) all other wiretapping should be prohibited in clear, enforcible terms. We favor the enactment of the McCarran bill to accomplish these two important objectives, although we believe that improvements in its lesser aspects are desirable.
For other individual views see footnote 27. 1S. 3229 (McCarran), discussed in this report; S. 832 (Wiley), which is along the lines of H. R. 477 discussed in note 15 below; s. 2753 Potter), which amends section 605 of the Communications Act of 1934 to make it inapplicable to past or future interceptions for the purpose of prosecution for national-security crimes.
2 The material and literature are extensive. See annotations to Alan F. Westin, The Wiretapping Problem : An Analysis and a Legislative Proposal, 52 Col. L. Rev, 165 (1952); comment, 52 Mich. L. Rev. 430 (1954), Margaret Lybolt Rosenzweig. The Law of Wiretapping (study prepared for the New York State Bar Association), 32 Corn. L. Q. 514, 33 id. 73 (1947).
8 Letter to Représentative Elliot, February 21, 1945.
+ Our committee rendered a report dated May 31, 1951, on various wiretap bills then pending in the House. Following the House Judiciary Subcommittee hearings last year (see note 15 below) our committee undertook a fresh study of the subject, in which it has had the benefit of a preliminary study made prior to the hearings by the association's committee on law reform.
This report represents the views of the majority of our committee. There are attached two separate reports—–1 by 4 members in favor of the House bill, and 1 by 2 members opposing legislation permitting wiretapping.
THE EXISTING SITUATION
Essential to any discussion of pending bills is some understanding of the present state of the law on the subject. The salient points for present purposes may be summarized from the Supreme Court's decisions as follows:
1. Wiretapping by Federal officers and the introduction of the results in criminal prosecutions does not violate the protections of the fourth amendment against unreasonable searches and seizures or of the fifth amendment against self-incrimination. To the announcement of this doctrine in 1928, there were notable dissents by Justice Holmes (wiretapping is "dirty business”) and Justices Brandeis and Butler; the philosophy of these dissents continues to appear in dissenting opinions.
2. The only present Federal law dealing with the subject is section 605 of the Communications Act of 1934, the important provision of which is as follows:
"* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person;"
3. This prohibition of section 605 extends to agents of the Federal Government and the information which they obtain by wiretapping may not be introduced into evidence. Also, evidence which Federal agents obtain as a result of information procured through wiretaps is inadmissible, as "a fruit of the poisonous tree."
There is no substantial dispute as to the law on these points. An area in which there is sharp dispute is the question of whether the 1934 act prohibits interception when coupled with only internal divulgence, in view of the language "no person * * * shall intercept * * * and divulge * * * to any person. * * *" The position of the Department of Justice on this question has been stated by the House Judiciary Committee as follows: "* * * The Attorney Gen. eral at that time, as well as his successors to date, except for a short period in 1940, maintained the position that what this section prohibited was both the interception and the divulgence, and the mere report of the intercepted message to public officials by Federal enforcement agents did not constitute divulgence.”
Whether this construction of section 605 is right or wrong, the practical effect of its being supported by the Department of Justice is that the Department considers itself free to intercept communications as much as it wants.
5 Olmstead v. U.S. (277 U. S. 438 (1928)).
The Olmstead doctrine was reaffirmed in Goldstein v. U. 8. (316 U. S. 114 (1942)), Goldman v. U. 8. (316 U. S. 129 (1942)), and on Lee v. U. S. (343 U. S. 747 (1952)). In the first two Chief Justice Stons and Justices Murphy and Frankfurter dissented, and in the last case Justices Frankfurter, Burton, and Douglas dissented.
The Goldstein case held that only partie to the intercepted conversation have right to object to the use of the information in evidence. The Goldman case held that there was no violation of the fourth amendment from the introduction in evidence of conversations picked up by a detectaphone located outside the wall of defendant's office, which conversations included what occupants of the office stated over the telephone as well. The On Lee case allowed use of self-incriminating statements made by the defendant to an old acquaintance, who had on his person à concealed microphone and antenna which transmitted to a receiving set outside the premises.
The only case in which wiretapping was held to violate the defendant's constitutional rights is the second Coplon case. The FBI tapped her wire and her parents' wire until a week before her trial, intercepting among other things her discussions with her lawyers regarding witnesses and trial strategy. In Coplon v. U. S. (191 F. (20) 749 (D. C. Cir. 1952)), it was held that this deprived her of her right to counsel' under the fifth amendment.
6 Nardone v. U. 8. (302 U, S. 379 (1937)).
Weiss v. U. 8. (308 U. S. 321 (1939)), held that transcripts of purely intrastate conversations, obtained in the course of a general wiretap, also could not be introduced in evidence in a Federal prosecution.
? Nardone v. U. 8. (308 U. S. 338 (1939)).
o On the validity of the Department of Justice's interpretation, the position of most of our members is as follows:
We believe that the Department's view is a misconstruction of the statute as it has been interpreted by the Supreme Court. In the first Nardone case the Court said:
"We nevertheless face the fact that the plain words of sec. 605 forbid anyone, unless authorized by the sender, to intercept a telephone message, and direct in equally clear language that 'no person' shall divulge or publish the message or its substance to any person. To recite the contents of the message in testimony before a court is to divulge the message, *" (302 U. S. 379, 382).
(Footnote continues on next page.)
A further effect is to make the Department naturally hesitant about prosecuting private wiretapping. As Attorney General Jackson said in 1910: "I do not feel that the Department of Justice can, in good conscience prosecute persons for a practice engaged in by the Department itself, and regarded as legal by the Department."
The practical situation at the present time, it seems to be generally agreed, is that wiretapping continues to be practiced by Federal officials, State officials, and private individuals, and that there have been almost no convictions or even prosecutions for violations of section 605. In operation, therefore, section 605 may fairly be said to have completely failed as a prohibition against wiretap ping (even against private wiretapping). Also, as stated by the House Judiciary Committee, “Your committee was informed that at the present time the Department of Justice has in its possession evidence obtained by interception of communications which might well convict other spies and traitors, but which it cannot use at the present time because of the rule of evidence which bans its use.
In the last 16 years more than 30 measures dealing with wiretapping have been introduced in Congress, 4 of which passed 1 house. 12 Since 1940 various Attorneys General have urged legislation." We believe the present legal and practical situation is unsatisfactory in the public interest, and calls for congressional action.
The evils and benefits of wiretapping have been thoroughly discussed in the recent debate in the House of Representatives (which occupied 2 days and 60 pages of the Congressional Record 14). Rather than attempt a catalog of these factors, this report will only summarize them.
On the one hand, a succession of Attorneys General of hoth political parties have forcefully urged that wiretapping is vital for the effective enforcement of laws involving the national security. In these critical times officials charged with the enforcement of these laws should have every facility made available to them for their work, except for the stroncest reasons. It has also been said that crimes affecting the national security such as treason, espionage, and sabotage are crimes which involve organization to a peculiar degree and, with organization, the use of communication facilities such as the telephone.
Unfortunately, no Attorney General has cited data or instances where wiretapping was the only feasible way of acquiring information of crimes affecting
“It is urged that a construction be given the section which would exclude Federal agents since it is improbable Congress intended to hamper and impede the activities of the Government in the detertion and punishment of crime. The answer is that the question is one of policy. *.* *" (p. 383).
In the second Nardone case (308 U, S. 338: 1939), the result could not have heen reached if the court had believed that intercentinn plus divulgence within the Gnvernment was legal: the court could not have found illegal the other evidence which the Government ohtained through use of the wiretap leads. for the fruit could not have been poisoned if the tree itself had never become noisonous. Furthermore. under the fourth clause of sec. 605. no person having received such intercented communication, or having become acmainted therewith, shall "use" arr information therein contained.
Two lower court decisions have dealt more explicitly with the illegality of intercention plus internal use. In the first Conlon case the defendant's nretrial motion for the destruction of wiretan records was granted, Judge Ryan saving: "The fact that these intercentions were carried on under written authorization of the Attorney General imparts no sanctity to them : they remain unlawful and prohihited" (89 F. Supn. 921, 925 : S. DN. Y., 1950). The conviction obtained suhsequently at the trial was reversed, in part on the ground that the defendant had heen refused onnortunits to examine the wiretap records. Judge Learned Hand saving: "It is of course well-settled law that 'wiretapping' is forbidden by statute * * *" (185 F. (20) 629, 636 : C. A. 2. 1950).
We annreciate that the Government may consider it has the most comrelling reasons for wiretapping, particularly in time of war or impending war. During the fall of France in 1940 President Roosevelt is said to have issued a confidential memorandum tn Attorney General Jackson (apparently unpublished, but widely referred to). ordering the Department of Justice to emplov wiretanning to prevent and punish subversive activities and extreme danger to life. But the existence of such reasons does not change the law. and in our opinion wiretapping plus internal divulgence by Federal officials constitutes a violation of sec. 605.
Four of our members (Messrs. Jacohi, Sche'l. Victor, and Williard) specifically disagree with the foregoing reading of sec. 605 and the decisions under it, and they accordingly believe that the position of the Department of Justice is warranted.
The Denartment of Justice's interpretation of sec. 605 is accepted in the report of the House Judiciary Committee, recommending the earlier version of H. R. 8649 by a divided vote. 10 1.00 Congressional Record 4532, Apr. 7, 1954. 1 House Judiciary report, p. 4. 12 Comment, 52 Mich. L. Rev. 430, 436 (1954). 18 House hearings (see note 15), pp. 18, 20. 14 100 Congressional Record 4522-4557, 4612_4636, Apr. 7, 8, 1954.
the national security, or where, without the use of wiretaps, the course of an investigation would have been seriously impeded. Though the lack of such a showing may itself be for security reasons, it does mean that even the legislature, and much more this committee, must rely on the Department's general though emphatic assertion of the need for this instrumentality in the area presently involved.
On the other hand, wiretapping is an insidious intrusion on rights of privacy and on the right, even more important in a democracy, of a citizen to be secure in his political thoughts. Wiretapping affords a means by which Government authorities can learn more easily than in any other way these private political thoughts, without the persons whose conversations have been tapped even knowing of it. Furthermore, a wiretapper intrudes upon not only the person whose phone is tapped but also on every other person who makes or receives a call on that wire. Although no authorization to wiretap can guarantee that no conversations of innocent persons will be tapped, it should be the goal of any bill, as will be discussed shortly, to confine the authorization to those wires most likely to be employed by those guilty of crimes against the national security.
Mindful of the dangers of permitting wiretapping, our committee supports the authorizing of wiretapping for crimes affecting the national security if such authorization is subject to the safeguards outlined below, the most important of which is a prior court order. The committee has reached this conclusion because it believes that in this area such an effective tool should not be denied to the proper authorities, and that to obtain effective enforcement of a prohibition against unauthorized forms of wiretapping it will be necessary to give the Attorney General enough authority to wiretap in the most critical areas.
TWO DIFFERENT OBJECTIVES
There is a sharp difference in both terms and purpose between the bill passed by the House (H. R. 8649) and the bill introduced in the Senate by Senator McCarran (S. 3229). The House bill deals with authorizing the admission of wiretap evidence in certain national security cases; it does not prohibit or regulate wiretapping as such. The McCarran bill deals with authorizing the tapping of wires in like cases (under prior court order), and prohibits all other tapping.
In the House debate there was little consideration or support for the latter approach, and by far the most attention was given to two alternatives for the admission of wiretap evidence: (1) Should a court authorization be required for any wiretap which is to be admitted in evidence (which would automatically exclude evidence heretofore obtained)? or (2) Should the Attorney General have the sole power to authorize admission of wiretap evidence, including specifically any heretofore obtained? (The discussion involved use of wiretaps only for espionage, treason, sabotage and other national security offenses, and seems to have taken for granted that any legislation would be confined to crimes of this sort.)
The House bill as passed represents a compromise which combines these two features. Information obtained by wiretapping before the effective date of the bill (with the “express written approval of the Attorney General") is made admissible in evidence, without any reference to any court order. Informa. tion thus obtained after the effective date is made admissible only if the wiretap has been authorized in advance by a Federal judge; the judge must be satisfied that there is reasonable cause to believe that the specified crimes have been or are about to be committed and that the communications may contain information which would assist in the investigation of such crimes. The full text of this second provision is given in the appendix, with a summary of the remainder of the bill. The legislative history in committee and on the floor is summarized in a footnote."
18 In May and July 1953 hearings on 4 bills were held before Subcommittee No. 3 of the House Judiciary Committee, the record of which has been printed as serial No. 7, Wiretapping for National Security, here cited as "House Hearings." The subcommittee published no report, but unanimously recommended H. R, 477 (Keating), with minor modifications. This bill followed the same general lines as sec. 2 of the House bill as passed (except that it contained in addition a specific authorization to the FBI and Armed Forces to tap wires with the express
approval of the Attorney General in specified nationalsecurity investigations, without reference to prior court approval).
(Footnote continues on next page.)