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:) Hon. WILLIAM LANGER, Chairman, Committee on the Judiciary, DEPARTMENT OF JUSTICE, Washington 25, D. C., May 14, 195 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, Hon. ALEXANDER WILEY, WILLIAM P. ROGERS, Deputy Attorney General. OFFICE OF THE ATTORNEY GENERAL, 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 EXx 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.1 That the Constitution would not be offended by such a law is supported by the leading decision of Thompson v. Missouri (171 Ú. 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 ex post facto law ***" * * * 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 another 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. 589590.) 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.) 47683-54--16 These cases indicate that the Congress and State legislatures may validly modify rules of evidence and make them applicable to pending cases, provided a party is not deprived of his right to present his proof. The sole question that remains is whether the law which regulates admissibility of intercepted conversations is a rule of evidence. Of that there can be no question in view of Olmstead v. United States (277 U. S. 438, 466 469 (1928)). CONCLUSION In my opinion, use in Federal criminal proceedings of existing evidence obtained through wiretaps with the express approval of the Attorney General would not violate the ex post facto provisions of the Constitution. MEMORANDUM RE LAW OF WIRETAPPING IN THE VARIOUS STATES Among the 48 States there are many different types of law designed to protect the privacy of the individual in the use of communication facilities. They present a varied and complex picture and follow no uniform pattern or form. Some statutes forbid injury to telephone wires or interference with telephone services. Others forbid wiretapping in only the most general terms. Still other wiretap statutes deal solely with telegraph communications or wiretapping by employees of utility companies. To categorize the States which have any form of wiretap limitation as States which prohibit wiretapping would be indeed misleading. Similar or identical statutory provisions with respect to wiretapping are subject to varying interpretations by the courts in different States. There seem to have been few prosecutions, however, under any of the State statutes which make wiretapping unlawful. Ten States permit the authorized tapping of wires. Twenty-three States, although limiting in some form the tapping of wires, do not prohibit the admission in evidence of information obtained in violation of their laws (which would apparently include evidence obtained by wiretapping). Fifteen States appear to forbid both the tapping of wires and the admission of evidence which is obtained in violation of their laws. From this analysis it would follow that although many States have declared that evidence obtained by wiretapping is illegal evidence, more than 30 States apparently allow the admission in their courts of evidence obtained through the tapping of wires. Ten States permit the authorized and lawful tapping of wires: Arkansas, Iowa, Kansas, Louisiana, Massachusetts, Nebraska, New York, North Dakota, Oklahoma, and Tennessee. Twenty-three other States permit the admission of illegally obtained evidence: Alabama, Arizona, California, Colorado, Connecticut, Delaware, Georgia, Maine, Maryland, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Utah, Vermont, and Virginia. Fifteen States prohibit both the tapping of wires and the admission of illegally obtained evidence: Florida, Idaho, Illinois, Indiana, Kentucky, Michigan, Mississippi, Missouri, Montana, Rhode Island, South Dakota, Washington, West Virginia, Wisconsin, and Wyoming. OFFICE OF THE ATTORNEY GENERAL, Hon. ALEXANDER WILEY, United States Senate, Washington, D. C. DEAR SENATOR WILEY: In answer to your letter of April 30, 1954, there is enclosed a memorandum of law dealing with two significant constitutional issues raised during the hearings on wiretap legislation. If this Department can be of further assistance in this matter, do not hesitate to let me know. Sincerely, MEMORANDUM HERBERT BROWNELL, Jr., Two additional questions were raised during the Senate hearings on wiretap legislation which the Department of Justice has been asked to consider. These are: 1. Does it offend the Constitution, which by article III, section 2, requires trial of all crimes in the State, and by the sixth amendment, in the State and district where committed, to enact a law permitting a Federal judge of one district to issue a wiretap order authorizing wiretapping to be conducted in another Federal judicial district? 2. Would a statute legalizing the admissibility of wiretapped evidence obtained prior to enactment upon authority of the Attorney General, and requiring a court order for future wiretaps constitute an invalid classification contrary to the fifth amendment? These questions will be answered in order. I The first question is whether a law permitting a Federal judge of one district to issue a wiretap order authorizing wiretapping to be conducted in another Federal judicial district, would offend the Constitution which by article III, section 2 requires trial of all crimes in the State, and by the sixth amendment, in the State and district where committed. Weinberg v. United States (2 Cir., 126 F. 2d 1004) supports the conclusion that there is grave risk of invalidity in any law which confers upon a court authority to give to its wiretap order extraterritorial effect, where the evidence so obtained will be used in a criminal case. The Weinberg case raised the question as to the legality of a search and seizure of property in the southern district of New York made pursuant to an order of the District Court of the United States for the Eastern District of Michigan. The facts were briefly as follows: The defendants were charged with conspiring to transport stolen property in interstate commerce. The Federal district judge of Michigan issued an order designating members of the FBI to seize certain automobile parts located in a building occupied and operated by the defendants. Armed with this order the agents proceeded to remove the automobile parts, undeterred by the fact that another company and Phoebe Weinberg, sister of the defendants, who were not named in the order, also occupied the premises and claimed an interest in the property seized. After the seizure, Phoebe Weinberg asserted ownership of the property and moved in the southern district court for the return of the property. The district court denied her application. Upon appeal the court of appeals reversed and held the seizure to be illegal. Speaking through Judge Clark, the court said the following (126 F. 2d at 1006): "The United States attorney makes no defense on the merits. We do not see how he can. With very few exceptions, United States district judges possess no extraterritorial jurisdiction. *** It is conceded that Congress may extend a district court's geographical jurisdiction in civil cases, Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. Ry. Co. (294 U. S. 648, 683, 55 S. Ct. 595, 79 L. ed. 1110); and this has been done in a limited number of cases, such as those involving restraint of trade and insurance interpleader. Nothing has been attempted, however, in criminal matters, presumably because of the limitations of the Constitution, which by article III, section 2, requires trial of all crimes in the State, and by the sixth amendment, in the State and district where committed. Though these provisions refer only to the trial, no one has yet attempted to separate process from trial and make the former extend beyond the district. Hence, even though the statute, 18 United States Code Annotated, section 611, authorizing the issuance of search warrants, does not contain an express limitation of the district court's power to its own district, that seems clearly understood, in view of the constitutional provisions and the general rule of territorial limitation. We, therefore, cannot hold silence to mean that search warrants may be used anywhere in the country. See Mitchell v. Derter, supra, for application of the rule to arrest without the district for riminal contempt." From this decision, the following seems clear so far as the Court of Appeals for the Second Circuit is concerned: 1. Congress may extend a district court's jurisdiction beyond its geographical boundaries in civil cases; 1 1 See 2 Moore's Federal Practice, p. 1036. These include civil actions by the United States under sec. 5 of the Sherman Act (15 U. S. C. 5) and by any person under sec. 15 of the Clayton Act (15 U. S. C. 25), where it is necessary to bring in as parties third perons residing in other districts. So, too, a writ of execution obtained for the use of the I'nited States in any court may be served and executed in any State or territory (28 U. S. C. 939). |