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PROPOSED FEDERAL WIRETAPPING LEGISLATION
This memorandum first considers the comparative merits of two bills presently pending in the Congress which deal with the subject of wiretapping: H. R. 8649, as passed by the House of Representatives, and S. 3229, presently pending before the Senate Judiciary Committee.
We believe that S. 3229 is greatly preferable to H. R. 8649, because of the strict limitations and safeguards which are contained in the Senate bill but omitted in the House bill. However, we believe that certain additional safe guards are also required if the use of wiretap evidence is not to make serious inroads on the right to a fair trial. If evidence based on wiretapping is to be used in criminal trials, the destruction, editing, or alteration of recordings and other data obtained in the course of wiretapping should be prohibited, and these recordings and other data should be made available for the defendant's inspection.
We favor the addition of these safeguards to S. 3229 and recommend that this bill be enacted in preference to H. R. 8649. However, if H. R. 8649 is preferred by the Senate Judiciary Committee, we recommend that it be amended to include the same amendatory provisions as we propose for S. 3229.
ANALYIS OF PENDING LEGISLATION
If legislation is to be passed authorizing wiretapping and the use of wiretap evidence in Federal prosecutions, the legislation should be drafted so as to permit this generally undesirable practice only to the extent absolutely required by considerations of national security and subject to procedural safe guards designed to minimize its impact on the right to a fair trial enjoyed under our Constitution.
H. R. 8649, as passed by the House of Representatives and presently pending before the Senate Judiciary Committee, falls far short of achieving these obiectives. It is a loosely drawn piece of legislation which, if enacted, would doubtless require years of litigation to clarify its ambiguities. It contains a number of undersirable features which have no significant connection with the interests of national security.
Fortunately, there is also pending an alternative bill which recognizes the dangers inherent in legalizing wiretapping and which grants a limited right subject to a number of desirable restrictions. This is S. 3229, introduced on March 31, 1954, by Senator McCarran, the ranking minority member of the Senate Judiciary Committee.
S. 3229 is preferable to H. R. 8649 in the following respects :
1. S. 3229 makes all wiretapping, except as specifically authorized, a crime. Today, the only legal prohibition against wiretapping is section 605 of the Communications Act of 1934 which makes it unlawful to intercept and divulge a wire communication. There is no justifiable excuse for wiretapping by private individuals or by public officers who have been unable to obtain whatever authorization may be required by law. The mere act of unauthorized wiretapping should be made a crime, regardless of whether it can be proven that the intercepted communication has been divulged. This result is accomplished by S. 3229. However, H. R. 8649 contains no such provision and is therefore objectionable.
2. S. 3229 is not retroactive. H. R. 8649, on the other hand, would permit the introduction into evidence in criminal prosecutions of testimony based on wiretapping done in the past. Any evidence so obtained and disclosed by the tapper to his superiors in the past was illegally obtained and disclosed. This retroactive feature of H. E. 8649 would thus breach the long-established rule of Weeks v. United States (232 U. S. 383 (1914)), that illegally obtained evidence may not be used in the Federal courts. While there may be no substantial question as to the constitutionality of such a retroactive change in the rules of evidence, the practical result of such a change would be most unfair. It would mean that evidence obtained contrary to law, and without any effective regulation or supervision by prosecuting attorneys or the courts, could be used indiscriminately against potential defendants, even though the tap was made under such improper circumstances that even if a Federal judge had been asked to authorize it in advance, he would have refused to do so. The desirability of punishing a specific individual for past offenses provable only by illegally obtained wiretap evidence is greatly outweighed by the dangers inherent in the promiscuous use of evidence obtained without reference to any legal standards.
3. S. 3229 would require that an order authorizing wiretapping be obtained from a Federal district judge in the district where the wiretap is to be made. This seems preferable to the comparable provision of H. R. 8649, which would merely require that an order be obtained from a judge of any United States court of appeals or district court. This could result in the anomaly of an order being obtained in San Francisco authorizing the tapping of telephones in New York. Further, it would encourage shopping around for a judge who is willing to issue such orders on the basis of a minimum showing of necessity. Clearly, not all judges will have the same standards with respect to the issuance of an authorizing order; as time goes by the views of the various Federal judges will become known; and the result will be a flood of applications directed toward the judge or judges who have shown themselves to be most willing and ready to grant authorizing orders. This undesirable practice would be reduced by the provision of S. 3229 that the application must be addressed to a judge of the district where the interception is to be made.
Shopping around could be eliminated altogether by requiring that the application be addressed to the chief judge or his designee in the district where the tap is to be made. This would eliminate shopping around within districts where there are a number of Federal judges, such as the District of Columbia and the southern district of New York. More important, it would introduce a desirable element of uniformity into the development of standards for granting authorizing orders.
4. H. R. 8649 prescribes no standards for the guidance of the judge who is asked to issue the authorizing order, other than that he shall be satisfied that "there is reasonable cause to believe that such crime or crimes have been or are about to be committed and that the communications may contain information which would assist in the conduct of such investigations.” S. 3229 properly restricts the issuance of an order to cases where “there is reasonable ground for belief that such interception will result in the procurement of evidence of any such crime." It does not adopt the undesirable criterion of H. R. 8649 that "the communications may contain information which would assist in the conduct of such investigations.” Furthermore, S. 3229 permits the judge to require the taking of oral or other evidence to support the conclusion that the order should be issued.
5. H. R. 8649 provides no method of centralized control over the obtaining of authorization orders. Although it states that the "express written approval of the Attorney General" must be obtained, H. R. 8649 does not provide that a certification of such approval must be presented to the judge. Furthermore, H. R. 8649 permits an investigating agent from any one of a number of agencies to obtain the order. S. 3229, by contrast, requires the authorizing order to be sought by a United States attorney, assistant United States attorney, or authorized officer or attorney of the Department of Justice, who in turn must present the Attorney General's authorizing certificate.
6. H. R. 8649 places no limitations at all on the scope of the wiretapping activity which may be conducted pursuant to a court order. An order could be issued under H. R. 8649 permitting the tapping of an indeterminate number of telephones over an indefinite period of time. But S. 3229 requires that the order shall specify the person or persons whose communications may be intercepted, the purpose of the interception, and the identity of the individual or individuals authorized to make the interception. Furthermore, S. 3229 provides that an authorizing order shall be effective for not more than 6 months, unless renewed for a further period of not more than 6 months by the judge who issued the original order, after a hearing and determination by him that reasonable grounds have been shown for continued interception. This provision will give an opportunity for continued judicial control over wiretap orders. It is suggested, however, that 60 days is a sufficiently long period of time for an authorized interception and that renewal orders should likewise be confined to 60 days. There is no reason why wiretapping should be continued indefinitely if, after a reasonable period of time, such as 60 days, no evidence of crimes affecting national security has been obtained.
For all the reasons stated above, the commendable specificity of S. 3229 is greatly preferable to the vague, loose provisions of H. R. 8649, which, if enacted, pould lead to many undersirable practices.
ADDITIONAL DESIRABLE AMENDMENTS OF EITHER BILL
S. 3229, as presently drawn, does not assure that evidence obtained through wiretapping will be admitted in Federal courts only under conditions that protect the defendant's right to a fair trial.
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 nemoranda should be made available for purposes of cross-examination. A fair trial can be assured only by producing the original and complete recording.
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 memora dum, 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.
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:
"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 priracy, 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: 2
“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 wbim 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:
“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.
On this score, one Congressman said :
“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.