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In that struggle for the minds and hearts of men, we are judged primarily by the fidelity with which we act in accordance with our professed ideals. Our task is not easy. We must first feel a concern for our fellow men less fortunate than we, and then by our actions we must communicate to them our genuine desire to help them help themselves.
In the long run, no threat to our security is more grave than the possibility that we may lose touch with events and facts in distant lands. Each step by which we show that we have lost faith with the long accepted values for our individual liberties is a step away from winning the minds and hearts of those people. Any measure by Government which insists upon undue conformity, discourages controversy and dissent, may seem, at the moment, to promote our security, but in the long run is far more certain to weaken it.
Our genuine safety as a nation rests upon the respect and confidence of people around the world, and the vigor and vitality or our democracy at home, rather than upon piling up massive armaments and an obsession with military secrecy and with internal security.
It is always more pleasant to be for something rather than just against something, and so I suggest that you approve Senate bill 3229, introduced by Senator McCarran, provided certain sections are deleted as follows: On page 2, delete lines 7 and 8 (the except clause), and on page 2 delete lines 11 through 24. Delete page 3 entirely (lines 1 through 24), and on page 4 delete lines 1 through 3. On page 5, a period after “distress," and the balance deleted.
The bill as amended in this fashion would make it a crime punishable by a fine of not more than $5,000 or imprisonment of not more than 10 years or both, without authorization from the sender and recipient of any wire communication by common carrier, either willfully to intercept or attempt to intercept, or procure any other person to intercept or attempt to intercept, such wire communication. That, gentlemen, might be a very salutary statute, and I mean that, not more. Thank you very much for your courtesy to me and to the Friends committee.
Senator WELKER. Due to the fact that we have a lady here who lives at Suffield, Conn., Miss Mineola Miller, of Connecticut, who comes here and asks to be heard in open hearing today, even though I am a little bit weary and I am sure the audience is, we are going to listen to Miss Miller now.
Miss Miller, I know you have been very courageous to wait while we have been here. I have a committee meeting starting in another room at 2:30 hut if we can get through in 5 or 7 or 8 minutes, I assure you I will not bore you with questions like I have the other able witnesses and I am sure you are able.
STATEMENT OF MISS MINEOLA MILLER
Miss MILLER. I am Mineola Miller. I live in Suffield, Conn.
I am a farmer and I have farmed in both Massachusetts and Connecticut.
My address down here is Belleview Hotel. I might be here a few days more.
Senator WELKER. Just make yourself at ease.
Miss MILLER. I think most of the ground that could be covered has been covered already and I would not try to rehearse any of it or repeat any of it. I think there is one thing that may be has not been of very great external danger and I believe it' a danger that is not touched on which I think is important. I believe we are in a position appreciated entirely. I have spent a good deal of time reading the raw press reports that come in from the foreign countries, the Associated Press news features which are supposed to be reliable and also in reading the broadcasts from foreign countries, the Communists and also the non-Communist broadcasts.
On May 5, I read from a broadcast from Formosa that intelligence agents had given the word that a Chinese general had been dispatched from Peking to–I cannot remember now I have it written down here, one of the cities in lower China, to organize forces they believed to attack either Thailand or Burma, that 500 young Communisttrained Chinese, Chinese Communist trained Burmese youths had just been sent back into Burma to support the Communist cause from a school on the border in Yuma Province in China on the border of Burma.
It seems to me that we are in very serious danger of suffering the same kind of reverses we did when Japan sailed down through the Pacific into east Asia.
I think we should not be talking about making wiretapping legal now, certainly. I think we should leave the law as it is until we can, . I mean there is not any law really now. I think it is not necessary to use wiretapping as evidence in court to convict somebody. I think that what is necessary is to be able for the Army and all the Armed Forces to be able to discover anything at all which might assault our country and I think that is most important right now.
I think wiretapping should be outlawed. I agree with the previous speaker here. I never heard such a splendid argument in my life and I have heard several but I think that, I do not see how we can outlaw wiretapping now because I think we are in a state of war and do not realize it. I do not think that we should under any circumstances leave the authority for wiretapping in the hands of the Attorney General. Regardless of any person human nature is human nature and in the long run it runs true to form.
Senator WELKER. You believe in leaving it to judges ?
Miss MILLER. I do not believe in leaving it to anyone. I think it should be left to the Armed Forces.
Senator WELKER. They are human.
Miss MILLER. Yes; but this is a time of war. I think it is bad enough to leave it as it is now and I think as we get straightened out and know whether we are going to own America or be transplanted to China and the Russians will take over our country that we should use every means we now have to protect ourselves.
Senator WELKER. I am certain you and I agree that it would be a wonderful world if we did not have any laws at all, only the law of God.
Miss MILLER. If people could abide by any of them it would be wonderful.
Senator WELKER. Miss Miller, it has been an honor and privilege to have had you here. I certainly appreciate your statement and the committee will try to arrive at some conclusion.
Miss MILLER. I just believe that that situation protects us now and that we can make a law when it is time to make a law and when are not in the predicament that we are in now.
Senator WELKER. I am unable to see how that would hurt, the predicament we are in at this minute. I can only see that it might be some advantage. While we may not like wiretapping, we do not want to wait and make a law after the house is burned down.
Mr. COLLINS. In as much as this concludes our public hearings on the wiretapping bill, the subcommittee has received a request to incorporate a number of statements into the record, from the Congress of
Industrial Organizations, the American Jewish Congress, the Chicago Bar Association, the National Lawyers Guild, and a letter from the assistant vice president of the Western Union Telegraph Co.
I also ask that there be inserted at this point two memorandums from the Attorney General and the Department of Justice report on S. 3229.
Senator WELKER. Without objection, they will be put in the record (The material follows:)
DEPARTMENT OF JUSTICE,
Washington 25, D. C., May 14, 19.5% Hon. WILLIAM LANGER, Chairman, Committee on the Judiciary,
United States Senate, Washington, D. C. DEAR SENATOR: This is in response to your request for the views of the Department of Justice relative to the bill (S. 3229) to prohibit wiretapping by any person other than a duly authorized law-enforcement officer engaged in the investigation of offenses involving the internal security of the United States.
The bill would introduce into the civil rights chapter of title 18 of the United States Code a new section designated "245. Interception of wire communications."
Paragraph one of the new section would make interception, attempted interception, procurement of any other person to intercept or attempt to intercept, or conspiracy for any such purpose, a felony punishable by a fine of not more than $5,000 or imprisonment for not more than 10 years, or both, except if done in compliance with the second paragraph of the section.
The second paragraph of the proposed section would authorize wiretapping under certain circumstances and subject to certain safeguards and restrictions. It would require the Attorney General, in instances in which he has reason to believe that wiretapping will produce evidence of the commission of any crime punishable under chapter 37 (espionage and censorship), chapter 105 (sabotage), or chapter 115 (treason, sedition, subversive activities) of title 18, or under either section 4 or section 15 of the Subversive Activities Control Act of 1950, so to certify in writing and to designate in his certificate a United States Attorney, assistant United States attorney, or officer or attorney of the Department of Justice to make application for a court order allowing such interception. The application would be made to any judge of the district court of the United States for the district within which the interception is sought. It would be an ex parte application supported by the authorizing certificate of the Attorney General and such other evidence as the judge may require to determine whether there is reasonable ground to believe the interception will result in the procurement of evidence of the commission of any of the enumerated crimes. Any order issued upon such an application must specify the persons whose communications may be intercepted, the purpose of the interception, and the identity of the persons authorized to make the interception, and shall be effective for a maximum of 6 months unless renewed for a period not in excess of 6 months by the judge who issued it. Renewals may be granted only after a hearing and a determination that reasonable ground has been shown for continued interception. Only a duly appointed investigative officer of a department or agency of the United States who has been designated by the Attorney General to do so may conduct an interception.
The third paragraph of the section would consist of definitions of "wire communication," "common carrier,” and “person."
Section 2 of the bill would amend section 605 of the Communications Act of 1934 so as to except from its application any wire communication intercepted in compliance with paragraph 2 of the proposed section 245.
The Department of Justice is unable to recommend the enactment of this bill. Many of the reasons in support of this position are to be found in House Report No. 1461 which accompanied H. R. 8649, the wiretap bill which passed the House of Representatives on April 8 and is now pending with your committee. They were also stated by the Attorney General in his testimony before the special subcommittee of your committee on April 20.
Among the more significant objections which this Department has to the enactment of S. 3229 are the following:
(1) It seems inappropriate to place this type of legislation in the chapter of title 18 which is entitled “Civil Rights.” If such legislation is to be incorporated in existing law, it would seem more appropriate to do so by amendment to the Communications Act of 1934.
(2) Secrecy, uniformity, and expedition would each be better served by the elimination of any requirement for a court order.
(3) The provision which would limit authority for maintaining an interception to a period of 6 months, with what appears to be a maximum extension period of 6 months, is unrealistic insofar as internal security investigations are concerned.
(4) The absence of any provision for the use in future security prosecutions of information heretofore obtained by interceptions maintained with the express approval of the Attorney General is prejudicial to the interests of the Nation. Incorporation of a retroactive feature would permit a reexamination of a number of cases with a view toward criminal prosecutions where warranted.
(5) In its specific enumeration of 3 chapters of title 18 and 2 sections of the Subversive Activities Control Act of 1950, the measure is unduly restrictive. Broader language would appropriately permit the use of the wiretapping technique in cases involving security violations of statutes hereafter
enacted, and in other existing security statutes. Accordingly, the Department of Justice urges the committee to report a measure which would authorize the use in evidence in certain criminal proceedings of communications intercepted by designated investigative personnel upon the written approval of the Attorney General in national security cases, and irrespective of whether such evidence has heretofore been acquired or is acquired hereafter.
The Bureau of the Budget has advised that there is no objection to the submission of this report. Sincerely,
WILLIAM P. ROGERS, Deputy Attorney General.
OFFICE OF THE ATTORNEY GENERAL,
Washington, D. C., April 28, 1954. Hon. ALEXANDER WILEY,
United States Senate, Senate Office Building, Washington 25, D. C. DEAR SENATOR WILEY: At the hearings on pending wiretap legislation held on April 20, 1954, the Senate Subcommittee on the Judiciary requested me to supply information on the following matters:
1. Retroactive effect of proposed wiretap legislation legalizing the admissibility of intercepted information obtained prior to enactment of the bill.
2. The States which allow wiretap evidence.
The enclosed memoranda cover the two points raised. If I can be of any further help, please feel free to call upon me. Sincerely,
HERBERT BROWNELL, Jr.,
MEMORANDUM RE WHETHER LEGALIZING ADMISSIBILITY OF EVIDENCE INTERCEPTED
PRIOR TO ENACTMENT OF PENDING BILLS WOULD BE CONTRARY TO Es Post FACTO LAWS
Some of the proposed wiretap bills contemplate legalizing the admissibility of evidence intercepted prior to enactment of the bills. The question raised is whether such a provision would violate the ex post facto provisions of the Constitution. That the Constitution would not be offended by such a law is supported by the leading decision of Thompson v. Missouri (171 Ù. S. 380 (1898)) and related cases.
In Thompson v. Missouri, supra, the facts were briefly these :
Thompson was indicted in the St. Louis Criminal Court for murder by poison of a sexton. One of the issues of fact was as to the authorship of a certain prescription for strychnine, and of a certain letter addressed to the organist of the church containing threatening language about the sexton.
The accused denied authorship of both the prescription and letter. At the first trial, certain letters written by him to his wife were admitted in evidence
1 The Ex Post Facto prohibition is found twice in the Constitution. First, restraint is upon the Federal Government. Sec. 9 (3) of the Constitution provides as follows: "No bill of attainder or ex post facto law shall be passed.” Second in sec. 10. the limitation is upon the States in these words : “No State shall * * * pass any law * * * *
ex post facto
for the purpose of comparing them with the writing of the prescription and letter to the organist. From a conviction, appeal was taken and conviction reversed upon the ground that it was error to admit in evidence for purposes of comparison the letters written by the accused to his wife. A new trial was ordered. Prior to it, the State of Missouri enacted a law which permitted comparison of disputed writings. Based upon this statute, the letters written by the defendant to his wife were admitted in the second trial over objection for the purpose of comparing them with the prescription for strychnine and letter to the organist. From anuther judgment of conviction the defendant again appealed, urging that the Missouri statute which permitted evidence to be admitted which was previously inadmissible, was an ex post facto law under the Constitution. Rejecting this contention, the Supreme Court said :
"* * * If persons excluded, upon grounds of public policy, at the time of the commission of an offense, from testifying as witnesses for or against the accused may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed. The Missouri statute, when applied to this case, did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the murder of which he was found guilty. * * The statute did not require ‘less proof, in amount or degree,' than was required at the time of the commission of the crime charged upon him. It left unimpaired the right of the jury to determine the sufficiency or effect of the evidence declared to be admissible, and did not disturb the fundamental rule that the State, as a condition of its right to take the life of an accused, must overcome the presumption of his innocence and establish his guilt beyond a reasonable doubt. * * * We cannot adjudge that the accused had any vested right in the rule of evidence which obtained prior to the passage of the Missouri statute, nor that the rule established by that staute entrenched upon any of the essential rights belonging to one put on trial for a public offense.” (Pp. 387–388.)
In Hopt v. Utah (110 U. S. 574 (1884)), we have another case where the laws of evidence were changed after the date of an offense and prior to trial without violation of the ex post facto laws.
Hopt was convicted of murder. When the offense was committed, no person convicted of a felony could be a witness in a criminal case. Subsequently, and prior to trial, the law was changed removing the disqualification as witnesses of persons previously convicted of felonies. Contrary to Hopt's contention, the Supreme Court held this was no ex post facto law. The Court said:
** * * Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed.
"The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition upon upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt, but—leaving untouched the nature of the crime and the amount or degree of proof essential to conviction-only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at pleasure.” (Pp. 589 590.)
Other cases in point are: Beazell v. Ohio (269 U. S. 167 (1925)); Luria v. United States (231 U. S. 9 (1913)); Hass v. United States (8 Cir., 93 F. 2d 427)); Charley Toy v. United States (2 Cir., 266 F. 2d 326). (See too, Cooley's Constitutional Limitations, 7th Ed., p. 524.)