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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, Missis. sippi, Missouri, Montana, Rhode Island, South Dakota, Washington, West Virginia, Wisconsin, and Wyoming.
OFFICE OF THE ATTORNEY GENERAL,
Washington, D. C., May 14, 1954. 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,
HERBERT BROWNELL, Jr.,
MEMORANDUM Two additional questions were raised during the Senate hearings on wiretap legislation which the Department of Justice has been asked to consider. These
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.
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 Ceneral rule of territorial limitation. We, therefore, cannot hold silence to mean that search warrants may be used anywhere in the country. See Mitchell V. Dexter, supra, for application of the rule to arrest without the district for criminal 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 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
f 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 United States in any court may be served and executed in any State or territory (28 U. S. C. 939).
2. Article III, section 2, of the Constitution and the sixth amendment would appear to bar such extension of jurisdiction in criminal cases ;
3. Process such as an order for search and warrant is an integral part of the trial itself and subject to similar constitutional limitations ;
4. The Court also held that if we are not to fritter away the protection of the fourth amendment against unlawful search, and of the procedural legislation in 18 United States Code, sections 611-625, governing search warrants, it is necessary in making a search in the southern district of New York “to obtain a warrant from the proper official having authority there. * *
The question that remains is whether a court order authorizing wiretapping is so different from a court order authorizing search and seizure, as to render the ruling of the Weinberg case inapplicable.
True, there is this difference between wiretapping and search and seizure. The Supreme Court has held that neither the fourth nor fifth amendment afford protection against wiretapping (Olmstead v. United States, (277 U. S. 438 (1928)), whereas the fourth amendment expressly protects against unlawful search and seizure.
But even though wiretapping falls outside the fourth amendment, and searches and seizures within it, it cannot be denied that a court order authorizing a wiretap would be a process no less separate from a criminal trial than is a court order authorizing a search. Under the proposed court-order bill, the formalities for obtaining an order to wiretap are substantially similar to those for obtaining a search-and-seizure order. Their purposes of furnishing evidence upon the trial are no different. For these reasons, the validity of the court order for the wiretap might very well be governed by the reasoning of the Weinberg case, at least in the second circuit, and elsewhere wherever the courts concurred in the ruling laid down by this case.
The Weinberg case has never been questioned (see too, 11 Cycl. Fed. Proc. (3d ed., p. 170)).
Thus, if the court-order proposal is adopted which authorizes a wiretap order with extraterritorial effect, the Government will be faced with this dilemma:
1. It can obtain one court order as the statute requires, and run the risk that an appellate court will reverse a conviction obtained on wiretaps secured in a district outside the Federal district in which the order was obtained; or
2. It can do more than the statute requires, and obtain a different court order from each of the different Federal judges in the various States or districts when wiretapping is necessary.
Obviously, neither alternative furnishes adequate protection for the public security and safety. The Department of Justice should not be called upon to follow either alternative if the fight to destroy the Communist conspiracy in this country is to be won.
The first alternative is bad because of the grave danger involved that key spies, espionage agents, and subversives may go scot free after a long, expensive, and successful trial in the lower court.
The second alternative is equally undesirable because of the delay inherent in obtaining many court orders where a conspiracy is widespread throughout the country, and because of the increased possibility of leaks from multiple applications.
In addition, if a court order is obtained to wiretap in New York on a call made by Jones to Smith, a leading conspirator in New Jersey where no court order has been obtained, Smith in New Jersey may be able to claim that the evidence is not admissible as against him, but only as to Jones as to whom the order was granted. The difficulties discussed above under a court-order plan fully demonstrate how unworkable, unrealistic, and unreasonable it is.
The bill vesting exclusive authority in the Attorney General to permit wire tapping, avoids all of these risks and difficulties. The Weinberg ruling would have no application where wiretapping is conducted under the authority of the Attorney General. This is so because article 3, section 2 of the Constitution and the sixth amendment are limitations on the judiciary alone, and there is no court process involved when authority is vested exclusively in the Attorney General.
The House bill, as passed, legalizes existing wiretaps obtained with the prior approval of the Attorney General, and requires a court order for future wiretaps. The question is raised whether such a law is not contrary to the fifth amendment in establishing discriminatory classifications between persons whose wires
were tapped prior to enactment of the law, and those persons whose wires are to be tapped after enactment.
In our opinion, this objection to the validity of the law lacks merit.
Upon that basis, any of the laws changing existing rules of evidence would be invalid as applied to pending cases. But as has been demonstrated by our prior memorandum, that is not the case. (See also, McAllister, Ex Post Facto Laws in the Supreme Court of the United States, 15 Cal. L. R. 269 (1927).)
In this case, the Congress is not making different rules for persons similarly situated. On the contrary, persons similarly situated are being given equal treatment in that all those persons who offended our laws in the past will be subject to the same rule of evidence, and all those persons who offend in the future will also receive the same treatment.
Apart from that, the fifth amendment to the Constitution, unlike the 14th amendment, has no equal protection clause, “and it provides no guaranty against discriminatory legislation by Congress” (Detroit Bank v. United States (317 U. S. 329, 337–338 (1942)) per Chief Justice Stone; See too; Sunshine Coal Co. V. Adkins (310 U. S. 381, 400_401 (1940)) ; Currin v. Wallace (306 U. S. 1, 13–14 (1939)); Woods v. Miller (333 U. S. 138, 145 (1948)); United States v. Petrillo (332 U. S. 1, 8 (1947)) ; Hirabayashi v. United States (320 U. S. 81, 101 (1943)).
In the Hirabayashi case, supra, the alleged discrimination did not involve merely a rule of evidence, but a curfew proclamation during a war emergency which was directed solely against citizens of Japanese ancestry. Rejecting the claim that such discrimination violated the fifth amendment, the Court speaking through Chief Justice Stone said (320 U. S. at 100): "Congress may hit at a particular danger where it is seen, without providing for others which are not so evident or so urgent."
In the Miller case, the objection was made that the Federal Rent Control Act covered some classes of housing accommodations and exempted others. To this contention the Court replied that Congress “need not control all rents or none. It can select those areas or those classes of property where the need seems the greatest” (333 U. S. at 145).
These cases make it plain that Congress may establish reasonable classifications without violating the fifth amendment. These limits would not be transgressed by Congress if it changed existing rules of evidence by which those already guilty of betrayal may finally be "brought to book” for their conspiracy against the safety and security of the Nation.
THE WESTERN UNION TELEGRAPH Co.,
Washington, D. C., May 11, 1954. Hon. ALEXANDER WILEY, Chairman, Subcommittee of the Committee on the Judiciary,
Senate Office Building, Washington, D. C. DEAR SENATOR WILEY: I should like to direct your attention to the language of section 5 of H. R. 8649, currently pending before your subcommittee. This provision was originally sought by the Western Union Telegraph Co. to avoid burdening the telegraph company with the possibility of liability based on common-law obligations.
In this connection, we submitted an expression of our views to the Hon. Chauncey W. Reed, chairman of the House Judiciary Committee, along with a suggested amendment to H. R. 408 and H. R. 477, at the time these measures were being considered before a subcommittee of the Committee on the Judiciary. Following the hearings on these bills, the committee favorably reported H. R. 8649 in the form of a clean bill which included substantially the same phraseology as that suggested in our letter.
Likewise, on February 17, 1953, a similar letter was written to the Hon. William Langer, chairman of the Senate Judiciary Committee, concerning S. 832, which you introduced on February 6, 1953. For your convenient reference, I am attaching a copy of that letter, a copy of which was also forwarded you at the same time.
We earnestly hope the committee will retain the provision under section 5 of H. R. 8649 in the legislation which is finally adopted and reported by the committee.
It is the opinion of our legal counsel that in order to avoid the possibility of liability to the telegraph company, this provision should be incorporated into the measure to prevent subsequent ambiguity of interpretation. Sincerely yours,
K. W. HEBERTON.
THE WESTERN UNION TELEGRAPH Co.,
Washington, D. C., February 17, 1953. Hon. WILLIAM LANGER, Chairman, Judiciary Committee,
Senate Office Building, Washington, D. C. DEAR SENATOR LANGER: May I direct your attention to the phraseology of S. 832, "A bill to authorize acquisitions and interception of communications in interest of national security and defense."
We do not believe it is the intention of your committee, or of Senator Wiley, sponsor of S. 832, to burden the Western Union Telegraph Co. with the possibility of liability based on common-law obligations.
In order to avoid any such possible liability to the telegraph company, your consideration is requested for incorporation of the following language at the beginning of line 18 on page 2, just after the figure “1103”:
“And all carriers subject to this act are hereby authorized to permit such interception, receipt, disclosure, or utilization of the contents of any such communications by wire or radio.”
An expression of your opinion, and guidance on our proposal, will be greatly appreciated. Very truly yours,
K. W. HEBERTON, Assistant Vice President.
THE CHICAGO BAR ASSOCIATION,
Chicago, Ill., April 30, 1954. The board of managers of the Chicago Bar Association has directed that the attached report be sent to all of the members of the Senate Judiciary Committee and the House Judiciary Committee and the Senators and Congressmen from Illinois.
It is hoped that the report on the question of wiretapping will be helpful in considering legislation on that subject.
REPORT OF THE CHICAGO BAR ASSOCIATION, BASED ON A REPORT OF THE COMMITTEE
ON CIVIL RIGHTS, AS APPROVED BY THE BOARD OF MANAGERS
I. PROPOSED LEGISLATION RESPECTING WIRETAPPING
The United States House of Representatives passed, on April 8, 1954, H. R. 8649, which proposes to permit the admission into evidence of material obtained through intercepting wire or radio communications by the Federal Bureau of Investigation or the intelligence services of the Army, Navy, or Air Force during the course of investigations in connection with certain named crimes affecting the national security. Such material could be introduced only in criminal proceedings involving those crimes and must have been obtained upon express written approval of the Attorney General. If acquired after the effective date of the act, it must have been obtained pursuant to an order issued by a Federal district or appellate court judge as well. The judge must be satisfied before granting the order that one of the named crimes has been or is about to be committed and that the material to be obtained would assist in the conduct of the investigation. The bill would also prohibit the divulgence of the informa-a tion contained in the order or acquired pursuant to the provisions of the bill for purposes other than those mentioned.
In the Senate, Senator McCarran, Democrat of Nevada, introduced S. 3229. This bill would add section 245 to chapter 13 of title 18 of the United States Code (the civil rights chapter of the title designated "Crimes and Criminal Procedure”), prohibiting all wiretapping except as authorized therein, and would add to section 605 of the Communication Act of 1934 (47 U. S. C. 605) a proviso corresponding to the exception. This exception would authorize agents of the Department of Justice to intercept wire communications when authorized in writing by both the Attorney General and a Federal district court. The agent of the Department of Justice would obtain from the court an ex parte order to extend for not more than 6 months, renewable for a like period, upon application "supported by the authorizing certificate of the Attorney General and such oral or other evidence as the judge may require to determine whether there is reasonable ground for belief that such interception will result in the procurement