Yet the Federal court would not admit an exact transcription of an intercepted conversation in the form of a phonograph recording.

The Supreme Court has even allowed that evidence although unlawfully seized is admissible in a Federal criminal proceeding to establish that the defendant lied. There is little if anything to distinguish these approved methods of admitting and obtaining evidence and wiretapping which is now not admissible. In these modern times, society would be severely handicapped unless it could resort to these methods to combat crime and to protect itself from its internal enemies. So a reevaluation of the critical situation today makes it clear at least to me that authorized wiretapping, under careful restrictions and only in cases involving our national security, is not dirty business at all but a commonsense solution by Congress which will protect the liberty and security of all the people from those who wish to see it impaired; indeed, to be destroyed.

The next argument: Some opponents to wiretapping also claim that they are concerned with the protection of innocent persons who through no fault of their own may have become enmeshed with spies and subversives.

To me this argument has no real validity. The reason for that is this: The proposed laws will not allow the use of this evidence against innocent persons. Look at these safeguards: Its use would be confined solely to criminal proceedings initiated by the Government against those criminals who seek to subvert our country's welfare. Senator WELKER. Mr. Chairman, may I interrupt?

In the event of such a case where they are innocent but get into the field of communism, that is a question of fact for the jury, and a jury certinly would give weight to that. If he could establish that fact, certainly no jury would convict. Is that not a fair conclusion?

Attorney General BROWNELL. It is so true, Senator. Look at the safeguards you have. First you have your investigation by the Department of Justice, to weed out the innocent from the accused. Then you have to go before a grand jury, a body of citizens, and present your evidence there. You have to convince them that there is prima facie evidence of a crime.

Senator WATKINS. As a matter of fact, the telephone conversation itself may convince the jury the person is not guilty, unless he is guilty of saying some things and joining in the conspiracy.

Attorney General BROWNELL. That is right. And one further point: The telephone conversation recording has to be submitted to the judge before it can even be submitted to the jury. He has to rule that it is relevant and material in that particular case.

Senator JOHNSTON. Just one question there: Do you think that in every instance they would give all the conversation or would they pick parts of the conversation out and present it as evidence?

Attorney General BROWNELL. I imagine they would use the same rules on that that they do on oral testimony. You cannot use part unless you use all the relevant material parts. And the judge would pass on that.

Senator JOHNSTON. But you would use certain parts. You could make a recording and cut any out that you wanted to cut out?

Senator WELKER. That is not the rule of evidence. If you use one part, you have to use the full statement.

Senator JOHNSTON. I do not think you would have to, unless you put it into the law, that you would have to use all of the conversation that was carried on in that particular instance. I think you could cut some out and put some in, the same as you could in a conversation that took place between two men. You could put part in and leave

some out.

Attorney General BROWNELL. In other words, what you are saying is exactly the same rules of evidence would apply to the wiretap testimony as it would to other testimony?

Senator JOHNSTON. Yes.

Attorney General BROWNELL. And the same safeguards under our system of law would prevail.

Senator WATKINS. The attorney for the party could insist that the rest of the conversation be put into the record.

Senator WELKER. It is a fundamental rule of evidence that you cannot use one part and leave out the other part.

Attorney General BROWNELL. There is absolutely no distinction between the rules that would govern the introduction of the wiretap testimony and any other testimony in a court trial. All of the other rules pertaining to evidence in a court trial would relate to that.

Senator JOHNSTON. When you had the witness on the stand, would you not question him and say "didn't you say so and so in a certain conversation"? Wouldn't that be your question?

Attorney General BROWNELL. Yes.

Senator JOHNSTON. And he would answer "yes" or "no," and then expand on that, would he not?

Attorney General BROWNELL. Yes.

Senator JOHNSTON. Now, then, it probably has been months ago and probably he could remember part of it and part of it he could not remember. If he didn't remember it, it could go very strongly against him. Is that not true?

Attorney General BROWNELL. Yes, so that your wiretap testimony in a way would be more reliable, because there you would have the exact transcription of what was said.

Senator JOHNSTON. If you put it all in, if you put in there every bit of the conversation in each instance, it would be all right. But if you give them a right to cut out part of it, you are going to get on dangerous ground.

Attorney General BROWNELL. That should be in the hands of the judge, to decide how much of that is relevant and material to the case. Of course, that would prevail here.

Senator WELKER. Mr. Chairman.

Mr. Attorney General, it is a fact that you can subpena a Western Union telegram at its point of origin or other place and certainly under no concept of the field of criminal evidence have I ever heard that you could take one sentence out of that telegram and leave out the balance. You have to leave it all out or use it all. Is that a correct statement of the law?

Attorney General BROWNELL. That is exactly right.

Now, if I may go on, the opponents of wiretapping, taking up these objections, also charge that it encourages the invasion of the man's liberty or privacy, that the principle is wrong, and that people would be made fearful of ever using the telephone at all.

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It seems to me that that kind of a claim is just about as unreasonable as to say that people are afraid of walking in the streets because policemen have clubs and guns.

Senator WATKINS. They should be afraid of saying things that they would not want anybody to hear if they are a criminal or have anything to do with a criminal offense.

Attorney General BROWNELL. That is right.

Senator WILEY. This wiretap proposition works both ways. While it might work to convict, it might also work to show the innocence, and you cannot take that which is innocent and proven any more than you can take that which makes you a criminal at present. You want to open it so that both can be used.

Attorney General BROWNELL. That is right.

Contrary to the general impression, authorizing the introduction of this intercepted evidence in a Federal court would not interfere in any way with telephone privacy. As the law now stands it does not keep people from tapping wires. It is still useful to those who make private use of it for personal gain. But what has been stopped is the use of such evidence to enforce the laws of the Nation against the Nation's most heinous criminals.

In my opinion, and I think it has already been intimated here by Senator Watkins, treason and sabotage deserve no such privacy and no such protection.

It was Mr. Justice Jackson when he was Attorney General who observed that the decisions only protect those engaged in incriminating conversations from having them reproduced in Federal courts. In other words, the court decisions merely lay down rules of evidence. He stated it this way: He said the criminals today have the free run of our communications system. But the law-enforcement officers are denied even a carefully restricted power to confront the criminal with his telephonic and telegraphic footprints.

It is also claimed that even controlled monitoring of the wires should not be permitted since the authority might be abused, and I can understand this. Whenever power is given to any Government official, executive, legislative, or judicial, it is subject to abuse. Unfortunately, wiretapping has been brought into disrepute because of widespread abuse of it by private peepers. That is part of our problem today. But the fact that the technique has been abused by private persons and even by some local law-enforcement officials for private benefit does not, to me, furnish any ground for belief that the FBI would abuse it that way.

The experience since 1941 when President Roosevelt first issued the Executive order granting this authority to the FBI to tap wires, during all of that time the FBI has never abused its wiretap authority. As a matter of fact, its record of known nonpartisan, nonpolitical, tireless, and efficient service over the years gives ample assurance to me at least that the innocent will not suffer in the process of the FBI's alert protection of the Nation's safety.

A recent editorial, I think in the Saturday Evening Post, says:

We have wiretapping now. Why not use it where it will do the most good, against our Nation's enemies.

This seems to be the general feeling. I would say an overwhelming number of people would agree with that, but there is a dispute

which I would like to discuss for the balance of my statement, a dispute as to the mechanics by which the technique may be most effective without the impairment of individual rights and liberties.

i

There are two schools of thought on this. One believes that the wiretapping should be resorted to only after the court has given its permission. The other school believes we should continue the present system that has been in effect since 1941, namely, after authorization by the Attorney General.

It is obvious what the objections to investing this continued power in the Attorney General are. The first one is he should not be allowed to police his own actions; that the authority may be abused when Government prosecutors turn out to be overzealous; or that the court is more likely to be objective and curb indiscriminate wiretapping than the Attorney General and that wiretapping is something like a search into the privacy of individuals' affairs, as in the case of search and seizure which requires supervision by the courts.

I might point out that J. Edgar Hoover has testified before your predecessors on this committee on a number of occasions and I checked with him just recently and found that the same thing is true, that there have never been more than 200 wiretaps on at any one time since 1941 when the original authorization was given.

So you can see that it has been pretty careful and not indiscriminate in any sense.

I might point out here that the first school of thought which would say that the wiretap should not be put on without previous authority of a court, that is modeled after a law in my own State of New York. It has been in effect there for several years. But, I would like to point out, there they allow the wiretapping in every kind of case. Here we are only talking about one restricted area of Federal crime. That is, the crime against our national security.

As I will try to point out to you in a few minutes, very different considerations are involved there in the way of time and secrecy. This question was up before the House a couple of weeks ago and the House Committee on the Judiciary was considering the opinions of these two schools of thought. This is what they said in reporting the bill there:

Your committee believed that the best interests of all will be served by placing the control of wiretapping in the hands of the Attorney General of the United States. Many believed it should be deposited in the Federal judiciary, but after weighing all the arguments advanced, your committee concluded that the nature of the crimes involved and the operation of wiretapping itself require such a high degree of secrecy if it is to be successful, that any opportunity for a leak would best be avoided by placing it under the control of the Attorney General. In addition to the need for secrecy―

The committee report goes on

It should be pointed out that by placing control in the Attorney General uniformity will be assured. This is clear when one considers the several hundred Federal judges under the other system could issue court orders. In addition, the Congress itself is in a better position to study and, if necessary, control the activities of the Attorney General than that of the Federal judiciary.

Furthermore, your committee is of the opinion that it is more consistent that control be placed in the Attorney General for he is the one primarily responsible for the protection of our national security; he is in the best position to determine the need for wiretapping and he has the responsibility for prosecuting criminal violations.

Senator WILEY. You are inclined to agree with that, are you not? Attorney General BROWNELL. I am, Senator, and I assure you it is nothing personal because I am arguing for a system that has been in effect for 13 years under my predecessors without any, so far as I know, criticism.

Then the committee sums up and says:

The type of crime which this legislation encompasses is not localized, but in most instances consists of a network reaching out over the length and breadth of the land. It overlaps judicial districts and covers many points in between. To compel the enforcement agents to operate in a limited geographic area while attempting to cover a nationwide network of crime, is not feasible.

Finally, there is the question of the time element. Very often, speed is of the essence and the time consumed in obtaining a court order might well result in the loss of vital evidence. Your committee feels that these difficulties may be avoided on the one hand and the needed benefits derived on the other when the approval and control is in the hands of the Attorney General.

As far as that time element is concerned, I would like you to picture what you think would have happened or did happen at the time of the Puerto Rican attack in the House of Representatives. Do you think the Federal law-enforcement agents should be able to go out immediately and take every possible step that was necessary for the safety of our country and its public officials, or do you think there should be the delay that would be consequent upon the other system?

Senator JOHNSON. You do wiretap now, do you not?

Attorney General BROWNELL. That is correct. Since 1941, under an Executive order issued by President F. D. Roosevelt, the FBI and security agencies of the Army, Navy, and Air Force, have wiretapped and, as I say, Mr. Hoover has testified that as far as he is concerned there has never been more than 200 taps on at any one time. It has been very carefully restricted and as far as I know, without criticism.

Senator JOHNSTON. How would they have taken any more precaution in the Puerto Rican situation if they had had the right to use it in court than they would have had under the present system?

Attorney General BROWNELL. I guess I didn't make my point clear, Senator. What I was trying to distinguish there was the present system under which the FBI and Attorney General can authorize immediate action, and the alternative system which some people are now proposing that the FBI restricted in this matter, have to wait, prepare papers, submit it to court with the usual hearing, the delays that would be involved there.

You might have 48 or 72 hours' delay with nobody's fault, except that the red tape and system would require it. I am trying to point out that I think the present system is better there.

Senator WATKINS. You have to get permission from Congress this way, and instead of that you have to go to the courts. The Congress gives you the right.

Attorney General BROWNELL. That is a very good point.

Senator WELKER. Those who believe that the Federal court should have a pretrial hearing with respect to the wiretap, is it their feeling that the Federal court should hear that testimony before it permits its use?

Attorney General BROWNELL. They go to varying degrees on that, Senator. Some of them say an ex parte hearing before a judge. Senator WELKER. Well, an ex parte hearing, let him hear it in chambers. But he does hear the recording, the wiretap?