Mr. COLLINS. Is that for the reason that his bill calls first for the prohibition of all wiretapping and then carves out certain exceptions. Mr. STEINBERG. Right.

Mr. COLLINS. That is one of the reasons?

Mr. STEINBERG. I don't do this, though, for local pride. As the Senator says, when you live in New York you have no local pride, and you see good and bad things, and you are not really a native of any place. You are without a place. But I have seen the New York law work, and it works fairly well. There are flaws in it. One of the flaws in it, in my opinion, is the fact that the New York law will let you in effect tap a wire for spitting on the sidewalk, as the Senator said, this bill takes care of that.

Mr. COLLINS. Then you feel no matter what bill is reported by our subcommittee, the desirable approach would be to start out first with a flat prohibition against all wiretapping.

Mr. STEINBERG. Otherwise it is meaningless.

Mr. COLLINS. And then carve out certain exceptions?

Mr. STEINBERG. Otherwise it is meaningless. Successive attorney generals of different political faiths have, in my opinion, given a very tortured interpretation of 605, because they were trying to meet themselves coming back. They were tapping wires. They felt they had to tap wires and they had to justify it. They did it with double talk. Now, unless you have a flat prohibition, you are going to meet with more of that double talk.

Senator WELKER. I have one more question, Counselor, and I must make this brief, because I have another hearing and witnesses waiting for me.

Mr. STEINBERG. If you leave, we all have to leave.

Senator WELKER. But I have read some pretty profound statements on the retroactive effect of this. I am acquainted with the case of United States versus Thompson, I think a Missouri case, where a man poisoned his wife, and subsequently legislation was enacted permitting the introduction of testimony which was inadmissible at the time of the trial. I am sure that you, as the able counselor you are and trial attorney, believe that when one has had his or her day in court, that is a basis of fundamental American jurisprudence, and they shouldn't have to come back and face those delays due to something that some legislative body might enact in the form of evidence. Now, I would like your observation on that.

Mr. STEINBERG. I think you have stated it, in a leading question, but I will subscribe to it wholeheartedly.

Now, let me in that connection come back a little bit. And don't take offense if I differ with something you said before. When Mr. Coar was here, you said, "Wouldn't that demonstration you put on be the finest kind of a defense if a fellow were wrongfully accused by means of a fake wiretap? Wouldn't that be convincing to the jury? I think you scared him and he said, "Yes." Or maybe he didn't know what he was talking about.

I think that is wrong, for this reason, Senator. If a fellow gets on the stand, and he gives wiretap evidence, and you ask him questions designed to shake his credibility or to try to knock out that wiretapping evidence by getting him to admit certain things and he says "No," no judge, in my opinion, would exercise his discretion to allow

you on rebuttal to put on this kind of an exhibition. Because this is hypothetical rebuttal evidence on a collateral matter. It couldn't get in. And if a judge kept that out, he couldn't be reversed for it. So that means that this kind of a demonstration, which would be helpful in an actual trial on fixed evidence, wouldn't get in. It would not get in.

Senator WELKER. Assuming you put the wiretap legislation in in your case in chief, and not in rebuttal?

Mr. STEINBERG. Presumably the prosecution is doing it. And then the defense lawyer is trying to show that this was a fake.

Senator WELKER. You mean the prosecution doesn't introduce their wiretap evidence?

Mr. STEINBERG. They do introduce their wiretap evidence in the case in chief.

Senator WELKER. Very well.

Mr. STEINBERG. And they go ahead and put in evidence in, purporting to show that this fictitious FHA man took a bribe because he is a doctor. The defense lawyer is aghast, and he turns to his client and says, "That is a fake. I never said that. This must be doctored." So he turns back and says, "Didn't you doctor it?" And he will say, "No, I didn't doctor it." Obviously he is going to say that, if he is putting it in in the first place. So then when it comes time to put his witnesses on in defense, he says, "I am going to call Mr. Coar, and he is going to show you how it is possible to doctor." No judge is going to let him do that.

Senator WELKER. Oh, yes.

Mr. STEINBERG. Not in New York he wouldn't.

Senator WELKER. You ought to go over to Mexico, then.

Mr. STEINBERG. If my wife keeps fighting with me, I may.

Senator WELKER. But if that isn't proper evidence, I don't know what is. You have witnesses other than your defendant, you know. Mr. STEINBERG. But not to combat a lie. Because it is negative. evidence.

Senator WELKER. In my opinion, as a trial lawyer, this is a pigeon, in the event you catch them off base.

Mr. STEINBERG. Senator, you are a better trial lawyer than me if you say that. Because I don't think it is a pigeon. I think that is going to kill anybody that is framed with that.

Now let me say another thing. Nothing has been mentioned so far in any of the House testimony and here about an interesting problem which I have run across twice. That is that we have talked about State courts and we have talked about Federal courts. There is a great body of administrative tribunals and grievance committees, like medical associations, bar associations, which are not part of a court system and not part of a jurisdiction, either Federal or State.

Now, recently I represented a lawyer who was up for disbarment before the grievance committee of the Bar Association. And a client was disgruntled, didn't like the way he had handled a case, and said, "This lawyer suggested to me I should fix the judge." And he said, "Absolutely not. I didn't say it." It is the client's word against the lawyer's word. So the client goes to the DA's office and tells the story. He says, "I will tell you what you do. You dial the number, get on the phone, and try to get this lawyer to repeat it, and I will listen in."

The client did that, and he said, "Remember when you told me about that money? What was that for? For the judge?" And the fellow says, "I didn't tell you anything about money for a judge." The lawyer gets flustered and something happens, and bing, they go down to the grievance committee and say, "We want to disbar this fellow. Here is the witness who says he said it, who is a disgruntled client, and for corrobration we have this recording."

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I didn't know what was in the recording. They weren't showing it to me, because I was on the other side. But when they offered it, I said, "That is not admissible," because-and I gave all the arguments to the point that it is not admissible in a State court.

So they were left with that fundamental approach of deciding what rule they are going to adopt, although they are bound by neither rule.

I had two cases exactly alike in the period of a few years before the same body. And in one case they admitted evidence and in the other case they kept it out, because the personnel of the committee changed.

Now, that comes back to what you were saying, Mr. Collins. Unless you have a flat prohibition, you leave a wide area untouched by this tapping.

If you don't start out with a prohibition-and the Federal Government has the power to preempt the field, which would cover States and bar associations and administrative agencies and arbitration associations and countless places.

Senator WELKER. You mean by this legislation

Mr. STEINBERG. You will stop that kind of stuff.

Senator WELKER. We can stop the State of New York from their State right to wiretap?

Mr. STEINBERG. Yes. You positively can. I took the case of Stemmer to the United States Supreme Court, where there was a 4 to 4 split. And since then, recently, as you know, the Schwartz versus Texas case has held that the Supreme Court, following Wolfe against Colorado, is not going to move in, because they want a clear indication of intent, you know, to move in, under this 14th amendment business. But certainly they have the power to preempt the field, because this is communications, which is interstate commerce. Once Congress legislates on it, we can say, "We don't want any little pipsqueaks going around tapping wires unless we tell them to do it, and we are only going to let them do it in this area and this type of situation."

In the second Nardoni case and in the Weiss case, they held that if you legislate with regard to telephone communications, even though you are covering intrastate as well as interstate, it is within the legislative power.

Isn't that right, Mr. Collins?

Mr. COLLINS. Yes. Furthermore, they pointed out that they couldn't distinguish in some instances whether calls were inter or intra.

Mr. STEINBERG. You can't tell until you check that little gimmick later on that tells where the call came from.

Mr. COLLINS. One other feature. When you are speaking about Senator McCarran's bill, how, as a prosecutor, do you feel about his

provision that any court order obtained should have a 6-month duration?

Mr. STEINBEGR. That is all right. You ask me as a prosecutor, and you bring me up short, because I am "Pooh-Bah." I am here in two capacities.

Mr. COLLINS. I mean in view of your background.

Mr. STEINBERG. Yes, that is in the New York provision, and it works all right. Because we have found that in 6 months either the wire is blown because somebody starts getting cautious, or he starts wondering that every time he is going to the corner there is a mysterious stranger lurking there. They are not too stupid. So in 6 months either the wire is blown, or if it isn't blown there is nothing wrong in taking 5 minutes off to go to the judge and saying, "Let's extend it."

Mr. COLLINS. However, couldn't we distinguish? It may very well be that the 6 months limitation works well in New York because the offenses are comparatively minor. When we are thinking of legislation, though, affecting the internal security of the Nation, the Attorney General was of the view that there shouldn't be any such time limitation.

Mr. STEINBERG. The Attorney General, Mr. Collins, is a "poohbah," too. Because, not only is he an advocate who tries one side of a case against another fellow in a court, but he is an administrative officer. He appoints judges. He does investigating. He is head of the FBI. He has too many different functions. And he is not talking as a lawyer when he says it. He is trying to think of all his varied and sometimes inconsistent functions, and he is trying to put out a blanket that will cover any possible or conceivable situation.

I honestly don't think it makes a lot of difference. I think I would like to see it, because it isn't practical and doesn't stop anything, because it can be renewed. But if you think, or he thinks, that that is something which is going to hamper him, I don't think it is going to make much difference, because you will only keep the tap in as long as it is useful. And I have never heard of a tap that was useful for

6 months.

Senator WELKER. I can think of some that would be quite useful if we had had them not only for 6 months but for 6 years.

Mr. STEINBERG. Can you conceive of a fellow blithely talking to a fellow on a line that was tapped for 6 years?

Senator WELKER. I wish you could have come along with me on some of my little hearings. I might enlighten you on something in connection with espionage or sabotage, without naming any names. But I can assure you of this, that we are going to do the best we can. I propose not to sign a bill that would appear to be a crippling bill; that is not going to help. Because if it isn't going to help, we might just as well let the American people know that we want to protect these people, in my opinion.

As I say, I was on a national broadcast several days ago. I have yet to receive one letter from the ordinary good old-fashioned American; yes, even one espionage agent, telling me that my philosophy on this matter is wrong. However, tomorrow I may get a lot of them that will tell me I am wrong.

Thank you very much, Mr. Steinberg.

Mr. COLLINS. Just one question. I think Mr. Pearson could answer for us, Senator, that I didn't get a chance to ask him in his testimony this morning.

He heard the Defense Department witnesses.

Noticing your report that you submitted for the committee, your committee on Federal legislation would oppose the granting of the powers to wire-tap to the defense agencies. I take it that your committee believes it best to limit this power to tap to the Attorney General and to the FBI?

Mr. PEARSON. That is right. It wasn't in my prepared statement, but it is in the full report.

Mr. COLLINS. That is why I asked. I was wondering, in view of hearing their testimony this morning: Has that affected your particular view at all, or is that still the view of your committee on Federal legislation.

Mr. PEARSON. No, sir; it is still my view. I didn't think they made a very good case for their proposition. I don't know. They didn't explain why. As I understood it, all they said was, "Well, we have got to keep track of our own people."

Well, sure they do.

Senator WELKER. Mr. Hoover will do a pretty good job of that, too, you know, if they will pay any attention to it.

Mr. PEARSON. Yes; I don't see how that would prevent them, if they had somebody in the Armed Forces that they were suspicious of, from producing the Department of Justice at that point. I think in the hearing last summer that point was made that although they have to watch their own people while they are, so to speak, on the reservation, when it gets to the stage of any civil prosecution, they admitted at the hearing they would have to bring it to justice anyhow.

Mr. COLLINS. And for any wiretap action they would have to go to the Attorney General first anyway under the language of the House bill?

Mr. PEARSON. That is right.

Mr. COLLINS. So therefore your committee on Federal legislation, in the event that there is any legislation coming from the Congress on this subject, would urge that the authority be vested only in the Attorney General and the FBI and that the Congress not give such powers to the defense departments?

Mr. PEARSON. That is correct.

Mr. COLLINS. Thank you.

Senator WELKER. I am glad to get that observation. I missed that portion of the hearing. Because I don't know the experience these people have had.

As I stated to you, I have been in the service; but I wasn't such an addition to the service, and maybe some of those men aren't such great additions to the service. I am glad to get your observations.

The committee will now recess until May the 12th.

(Whereupon, at 1: 10 p. m., the hearing was recessed until 10 a. m., Wednesday, May 12, 1954.)