There are two abuses which have occurred in the past, and might become far more serious if the introduction of wiretap evidence is to be permitted. The original recordings made in the course of intercepting are sometimes edited or destroyed before the trial occurs. Even when the original recordings are still intact when the trial occurs, the prosecution often refuses to grant requests by defendants to inspect the original records or memoranda made in the course of interception, and the judges are reluctant to order that such confidential records be produced. If the Government agent who intercepted the communication is to be allowed to testify as to what he heard, or to offer edited notes or recordings in support, the complete original recording or his complete contemporaneous memoranda should be made available for purposes of cross-examination. A fair trial can be assured only by producing the original and complete recording.1 Both of the abuses described above have occurred, and both have been criticized by Judge Learned Hand. See United States v. Coplon (185 F. 2d 629, 637-639 (C. A. 2, 1950)). Ideally, of course, the actual recording or memorandum of the interception should be introduced into evidence. However, if the person who intercepted the communication is allowed to testify as to his recollection of the contents of the intercepted communication, there should be available for purposes of cross-examination his contemporaneous recordings and memoranda, since they are the "best evidence" of the contents of the communication. Preservation and production of the "best evidence" will check any possibility of so "editing" or "interpreting" the communication as to make it appear more damaging to the defendant than it actually was. It may be urged in objection that parts of the intercepted communication should not be made available to the defendant because of national security interests. The answer to this was given by the United States Court of Appeals for the Second Circuit in United States v. Andolschek (142 F. 2d 503, 506 (C. A. 2, 1944)). There it was held that if the Government chooses to prosecute an individual for a crime, it is not free to deny him the right to meet the case against him by withholding relevant documents on grounds of privilege. The Government has a choice: It can either prosecute and reveal the evidence or it can conclude that the evidence should not be revealed. If it makes the latter choice, it should not prosecute. This view, as applied to criminal prosecutions, has apparently received Supreme Court approval. See United States v. Reynolds (345 U. S. 1, 12 (1953)). Unless restrictions of the type suggested are enacted, we will have taken a long step in the direction of denying a defendant in a criminal prosecution his constitutional right to be confronted with the evidence against him. While the use of pertinent evidence, without producing the source of the evidence for cross-examination, may be considered justifiable in administrative proceedings, such as a loyalty or security hearing for a Federal employee, such devices are and should continue to be absolutely inadmissible in judicial proceedings. For this reason, it is strongly urged that serious consideration be given to the amendment of S. 3229 along the lines suggested above. For the reasons stated in the first part of this memorandum, it is recommended that S. 3229 rather than H. R. 8649 be reported to the Senate. However, the amendments which we propose are equally applicable to any other legislation on this subject, including H. R. 8649. Therefore, if the committee decides to report any of the pending bills on wiretapping, it is our recommendation that the following amendments be added to such legislation: The following language is in the form of an amendment to S. 3229. "All recordings, notes, and memoranda made in the course of or describing the information acquired by any such interception shall be preserved by the individual or individuals conducting such interception. The Attorney General shall promulgate regulations for the preservation and safekeeping of such recordings, notes, and memoranda. No testimony relating to communications intercepted under the provisions of this section shall be received in evidence in any court of the United States unless all recordings, notes, and memoranda made in the course of or describing the information acquired by the interception of such communications have been preserved in accordance with the provisions hereof. 1 It is technically not only possible but very easy to "edit" the tape recording of a wiretapped conversation, simply by cutting out portions and splicing together what remains. This practice can easily result in the production of a distorted version of what was actually said. All such recordings, notes, and memorandums shall be considered to have been 'obtained from or belonging to the defendant or obtained from others by seizure or by process' for purposes of discovery by the defendant under rule 16, Federal Rules of Criminal Procedure." LLOYD N. CUTLER. STATEMENT OF ROBERT J. SILBERSTEIN FOR THE NATIONAL LAWYERS GUILD My name is Robert J. Silberstein. I am executive secretary of the National Lawyers Guild, with offices at 40 Exchange Place, New York City. The National Lawyers Guild is an association of members of the bar which, since its organization in 1936, has been actively engaged, among other things, in efforts to protect our democratic institutions and the civil rights and liberties of all the people. INTRODUCTION As the guild believes that the House-passed bill on wiretapping threatens our democratic institutions and opens the way to the invasion of civil rights and liberties of all people, I wish to speak, on behalf of the guild, in opposition to this legislation. Proponents of H. R. 8649 in debates on the floor of the House, as well as the Attorney General and members of his staff, have sought to create the impression that the present wiretapping practices of the FBI are legal and that the only issue presented by the pending legislation is whether or not evidence thus obtained should be admissible in court. The National Lawyers Guild disagrees strongly with this approach. It believes that present wiretapping practices and the use of wiretap evidence in FBI investigations are illegal under the plain language of section 605 of the Communications Act and under clear-cut decisions of the Supreme Court. A pamphlet published by the guild, entitled “Is Anybody Listening?", sets forth our views on this point. It also contains a discussion of the basic evils of the wiretapping which a law such as H. R. 8649 would permit, as an intolerable and unnecessary invasion of personal privacy and an intrusion into the most confidential relationships. There too will be found the guild's recommendation for the strengthening and enforcement of the existing law. Copies of this pamphlet have already been sent to each member of this committee. I now ask that this pamphlet be accepted for inclusion in the record as an extension of my remarks. All the material contained in this pamphlet is relevant to the issues before you but, because my time is short, I would rather direct my remarks here to a narrower issue-the issue highlighted by the major portion of the debate in the House: whether the so-called judicial safeguards which have been written into this bill afford a meaningful protection to the American public against the invasion of the fundamental rights of privacy which the bill sanctions. My remarks will be focussed on this point because it is apparent from a reading of the debate in the House that a great many Congressmen were basically opposed to the sanctioning of wiretapping by the FBI. It is abundantly clear that the bill in the form in which it came from the committee did not have the support of the majority. Two hundred and twelve Congressmen who opposed the committee bill voted for this bill because they believed that the requirement of prior judicial approval would provide an effective safeguard against untrammeled snooping into the private lives of every American. They thought that, through these judicial safeguards, wiretapping could really be limited to the "spies and traitors" against whom it was ostensibly directed. We believe that they were mistaken. We believe that the safeguards they sought to provide have not been provided and that the bill therefore will not achieve what those who voted for it hoped to accomplish. We shall therefore show first that this bill would not have passed without safeguards which the majority of the House regarded as effective, and second that the safeguards this bill actually provides are a sham, and that those who voted for this bill did so under a grave misapprehension. 1. This bill would not have passed without judicial safeguards This bill, in the form in which it was voted out from the House committee, placing all power in the Attorney General, was presented as "must" legislation, demanded by the Justice Department as a necessary and indispensable tool in the discovery and prosecution of spies and saboteurs, without which the national security would be gravely imperiled. Nevertheless opposition to the basic premise of this bill was strong, and not merely from the 10 Members who voted against the bill in its final form. Many, many others rose on the floor to deliver stirring and persuasive speeches demonstrating the evils of legalized wiretapping, characterizing it as a tool of the police state, a means of destroying the most fundamental of our traditions of privacy and individuality. One Congressman, for example, said:1 "It must be perfectly clear to all of us that something has happened in the United States and in the world when we are trying to find a way to use the weapons of the dictator within the limitations of a democracy. *** Have we become a nation of faceless people, without individual personalities, without privacy, and without individual dignity? Are there no sacred things left? Cannot a parent speak alone to his child? Must the patient surrender that confidence born of privacy which he shares with his physician? Have husbands and wives no words that are their own? Are we committed to live in the police state goldfish bowl? God forbid that the nature of America has been thus altered." This Congressman and many others like him—a majority of those present and voting-voted to amend the committee-approved bill. By their vote, the majority demonstrated clearly their viewpoint that, however strongly the Department of Justice might feel about its need for unlimited power to tap any wires it saw fit, Congress could not, in good conscience, sanction such an unrestricted intrusion into everyone's privacy. Clearly, unless safeguards they regarded as adequate were provided, the majority would have voted against any wiretapping authorization. The sentiments of many who voted for H. R. 8649 were represented by one Congressman who said: " "Conscious of our awful responsibility, if we are to make this grant of power in order to fight our enemies, we must acknowledge that it is required of us that we do all that we can to prevent the infliction upon us of this abuse of power. "It is on this premise that, contrary to my deepest feelings and with a heavy sense of responsibility, I am willing to vote to make this grant of power to the Attorney General but only under the reasonable restrictions of a higher authority. *** "Nothing is perfect in this world, but surely it must be apparent that supervision by the judiciary over the power to intercept communications is the best safeguard we can devise." We would say to this Congressman and to those members of this committee who may share his views: Doubtless it is the best safeguard, but the best is simply not good enough. 2. The bill provides no meaningful safeguards Placing responsibility upon Federal judges to authorize wiretapping will not provide the safeguards of due process. In theory, this bill was to insure that the general public would be protected from indiscriminate snooping at the whim of a political appointee and his perhaps overzealous law-enforcement agents. Many Congressmen recognize that even if the Attorney General were scrupulous in the extreme, no real protection would be afforded by the requirement that he approve each tap, for, as one Congressman said: 3 "Does one suppose that the Attorney General would personally be called upon to approve all these taps? Would the practice not become one of delegation? The FBI would in the final analysis control the situation." The proponents of this bill sought to insure, by requiring judicial approval, that politics would not play a part, that judicial objectivity would be brought to bear to restrict interception to the wires of suspected spies and saboteurs against whom the bill was ostensibly directed. Primarily, they sought to insure the full guarantees of due process, and to provide a procedure closely resembling the search warrant. "If I was the Attorney General you could not give me this kind of power. In the first place, I would not want to go into court with the tinge of politics upon me. *** I would want to be where I could say to the court and to the jury that what I did was under an order of a court of this land and that I was obeying that order, being conscious that I was operating in the only forum in which all parties can come together on equal terms." 1 Congressman Dodd, Congressional Record, April 7, 1954, p. 4550. But that is not what this bill provides, and if this Congressman-and others like him-voted for this bill believing that it did, they were deluded. The parties do not come together before the judge on equal terms or in any way at all. The person whose wire is to be tapped is never notified and is never allowed to show why his wire should not be tapped. All that the bill provides is this: When an FBI agent or military intelligence officer decides that it might be useful to tap a wire, he fills out the proper form to get the Attorney General's approval and then either goes before a judge or submits his own affidavit to a judge setting forth the fact that, in his opinion, the interception of a particular communication may assist in a national-security investigation. There would, of course, be no hearing. Secrecy is of the essence in wiretapping. Upon the basis of the testimony or affidavit of the investigator, the judge would have to decide to grant or deny the application. There need not even be a showing that the person whose wire is sought to be tapped is engaged, or about to be engaged, in any criminal activity whatever.— The bill does not require that. All that must be shown is that something that may be said over his telephone may assist in the conduct of a national-security investigation. How can a judge, on the basis of an affidavit from an investigator, and nothing else, exercise objective judgment? If the investigator says something useful might be heard over a particular phone, how can the judge say it will not? How can the judge, any more than the investigator, know what a person is likely to say over the telephone or what someone is likely to say to him in return? If the judge wished to make an independent investigation, what facilities would be at his disposal?—And what would he investigate? Certainly the person whose wire is to be tapped cannot be questioned. Even if the judge merely wanted further facts about the situation and asked the Department of Justice to furnish them, there is no assurance that the facts would be forthcoming. The Department might or might not see fit to comply. Complying with such requests is time-consuming, and the Department might well feel that speed was essential. If the particular judge did not agree, the investigator would be free to take his request elsewhere. As Representative Willis, the author and sponsor of the amended bill repeatedly explained: Б "Under this bill they can go to any judge, anywhere in the United States. We absolutely had that under consideration and we made it free as a bird. For instance, if they cannot get a judge in New York to sign one-and I think they can, but if they cannot, let them come down to Georgia and I will get them one." This bill will not have the effect of limiting the number of wires to be tapped.— New York State has a law like this one allowing wiretapping only on prior approval of a judge. Fifty-eight thousand taps were authorized in 1952 under the New York statute." Mr. Miles F. McDonald, District Attorney for Kings County, New York, in the course of questioning by the House committee, said that wiretapping was expensive, cumbersome, and time consuming but that obtaining a court order was a simple thing. It presented no problem of procedure and involved absolutely no delay.' The protection of the search warrant cannot be given to wiretapping The search-warrant requirements of the fourth amendment are that the place to be searched and the thing to be seized must be described in particular in advance of the search, and no amount of good intentions can frame a similar requirement for the authorization of wiretapping. The fault does not lie in the legislative drafting. The impossibility is inherent in the unselective nature of wiretapping itself and in the fact that it is never possible to know in advance what someone is going to say (so that the thing to be seized can be described) nor to whom he is going to say it. When you "seize" a conversation, you must seize all of it. When you tap a wire, you are tapping and recording all calls-both incoming and outgoing—and you "seize" the conversation of the person at the other end of the line as well as that of the person whose line you are tapping. By the same token, you are "searching" the premises at the other end of the line, and you cannot possibly describe these in advance. 5 Congressional Record, April 7, 1954, p. 4543. Quoted by Congressman Rogers, Congressional Record, April 7, 1954, p. 4530. A search warrant to search the home of an alleged criminal does not give the police the right to search the homes of all his friends, relatives, acquaintances; a warrant to tap his telephone cannot help but do so. A policeman with a search warrant can refrain from looking for or taking objects not described in the warrant, but how can a telephone tapper refrain from taking irrelevant conversations or confidential conversations between husband and wife, lawyer and elient, doctor and patient? The very simplest and most obvious protection of the search warrant is lacking here: When someone enters your house with a search warrant, you know he is there. You know what he has seen and what he has taken. On the other hand, the wiretapper, as one Congressman phrased it, "a peeping Tom with a latchkey plus invisibility." You do not know that he has tapped your wire, nor when, nor for how long. If he says he has tapped your wire and that this tape he holds in his hand is a recording of your conversation, how can you dispute him? How can you prove that the voice is not your voice, or that, if it is your voice, the conversation is not all there or is not in context? can you even be sure that the master tape has not perhaps been cut and spliced (in the interests, no doubt, of simplicity and clarity)? You cannot. How The requirement that permission to tap wires must be confined to investigation of national-security matters adds little, if anything, in the way of protection.— In the first place, the term is not defined and the wiretap need only be likely to assist in the investigation. Judging by past performance, with particular reference to the material brought to light in the Coplon case, "limitation" to national-security matters will not impair the freedom the FBI exercises to tap (or to ask permission to tap, if that is required) the wires of persons regarded by it as subversive or who associate with present or past members of organizations regarded by it as subversive. It may also see fit to tap the wires-chain-letter fashion-of anyone whose conversation was recorded on an incoming or outgoing call on such a tapped wire. Nor will it, again judging by past performance, have any scruples about recording and filing conversations between mother and daughter, husband and wife, attorney and client. Secondly, there really is no way in which a judge can effectively restrict the wiretapping to national-security matters even if the term were defined. The fault is inherent, first, in the nature of wiretapping and, second, in the nature of the subject matter under investigation. The judge certainly cannot order the investigator to listen only to useful information and to shut his ears and turn off his recorder when irrelevant or privileged conversation is heard. Moreover, investigations of so-called national-security matters are not like investigations of other crimes such as gambling or prostitution, where the telephone is itself an instrument in the commission of the crime. It may be reasonable to expect that if the telephone of a suspected bookie is tapped, evidence of off-the-track betting will be obtained: if the telephone of a suspected procurer is tapped, a conversation with a call girl may be intercepted. But if the tap is on the phone of someone suspected of Communist affiliations or associations, or even on the phone of someone suspected of active engagement in a sabotage or espionage, what criminal conversation is likely to be overheard? It has not been seriously suggested by anyone that spies and saboteurs discuss their plans over the telephone.-All that can be hoped for-and, as far as is known, all that has ever been intercepted-is information concerning their opinions, associations, appointments, hotel reservations, grocery orders, etc. Wiretapping will not uncover any plots nor finger any conspirators. At best. it will enable an investigator to follow the movements of a particular person, to discover his associates, to learn his opinion. It is a poor way to track down conspirators; but, as one Congressman pointed out in the House debate," "By wiretapping, a government can, with far less effort than in any other way, keep track of the thoughts and opinions of its citizens without their even knowing it." A pioneer in the hunt for spies and subversives-Congressman Martin Diestook a dim view of the effectiveness of wiretapping as a method of catching spies, saying of the bill: 10 ***** it will not do what the sponsors anticipate *** you are notifying the intelligent and well-trained agents of foreign powers that you are going to tap their wires, and that you will use the evidence in the courts. From my Congressman Fine, Congressional Record, April 7, 1954, p. 4540. Congressman Fine, Congressional Record. April 7, 1954, p. 4540. 10 Congressional Record, April 7, 1954, p. 4554. |