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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 :
“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 ust 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.
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, às one Congressman phrased it, "a peeping Tom with a latchkey plus invisibility.” 8 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? How 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.
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 Dies— took a dim view of the effectiveness of wiretapping as a method of catching spies, saying of the bill:
** * * 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. 9 Congressman Fine, Congressional Record, April 7, 1954, p. 4540. 10 Congressional Record, April 7, 1954, p. 4554.
knowledge of the agents of foreign countries, there is not one of them who will be so naive and careless that he will employ a telephone in order to communicate his treasonable planş. * * *"
But this same Congressman recognized the great power that would be granted by such a bill to invade the rights of citizens. For he said further:
“If I pay my money to lease a telephone line, I am entitled to have my privacy respected unless I am engaged in criminal activities.
“Who is to determine whether or not I am engaged in such activities? There were public officials in this country who said I was subversive. Congressman Dies thought this evil could be cured by a provision for judicial approval, but we submit that he neglected to read the bill carefully. As we have pointed out, the FBI agent need not show and the judge need not determine that the person whose wire to be tapped is or is likely to be engaged in criminal activities. He need only show that some helpful words will be likely to be uttered over the particular telephone.
Anyone's wire may properly be tapped under this bill.—Congressman Dies' wire may still be tapped—and with the approval of a judge-if it can only be shown that conversations concerning national security matters may take place on his phone or that someone under surveillance may be likely to call the Congressman. Any wire may be tapped on the basis that some conversation helpful to a national security investigation may take place on the wire. As the bill is written, the wire of any Congressman, any Cabinet member, any executive office the White House wire itself—may legitimately be tapped. On any of these wires, conversations likely to aid in a national security investigation may well be expected to take place.
Thus this bill is not-and no bill authorizing wiretapping can be directed solely against spies and traitors—or even potential spies and traitors. tice, and by the very nature of the two-way telephone it cannot be. Even if the bill limited interception to the wires of suspected criminals (and it does not), it would still permit the recording of words spoken by everyone who called the suspect or to whom he placed his call—his friends, his wife, his child, his doctor, his lawyer, his religious mentor, or, perhaps, his Congressman.
Will the requirement of judicial approval have any practical effect at all?— We submit that it will not. It will lend the aura of judicial sanction to a dirty business. (For who can say that conduct is lawless if a judge approved it in advance?) It will place ostensible responsibility upon the judiciary rather than upon Congress. (No one back home can complain.) It will make easier the acceptance of the material in evidence. (It will be more difficult for a judge to exclude evidence the securing of which he, or his brother judge, has authorized in advance.) It will do these things. It will lend dignity ; it will shift responsibility; but it will safeguard no one.
This bill is not—and no wiretap bill can be directed solely against spies and traitors. In practice it cannot be; it is directed against every one of us. It is not an antitraitor bill; it is an anti-American bill.
The National Lawyers Guild urges you not to recommend this legislation to the Senate.
IS ANYBODY LISTENING ?-A REPORT ON PENDING WIRETAP LEGISLATION
Would a recording of your last telephone conversation aid in the investigation of a national security matter? “Fantastic" you say. But how can you be sure? The FBI may take a different view.
Obviously, to determine whether or not your conversation would assist them they have to listen; so please step aside and let them set up the wiretap equip ment. After all, if you aren't plotting to overthrow the Government, if your conversations are wholly innocent, why should you object? What sort of secrets do you have anyway?
Rest assured, nothing the wiretapper hears will be divulged (outside the office, that is, and barring occasional regrettable ‘leaks'), unless it proves useful as evidence against you or someone else. Is that all right with you? Shall they go ahead?
If it isn't all right with you, you'd better keep an eye on Congress, because a number of bills now pending say that it's perfectly all right for the FBI to tap your wires and file the records away for evidence, if and when needed. And these bills might pass, in the interest of what is loosely described as “national security."
WHAT DO THE PROPOSED LAWS PROVIDE ? The so-called compromise bill (H. R. 8649, Keating) approved by the House Judiciary Committee and now before the House itself, would allow the use of evidence heretofore or hereafter obtained by the FBI or by military intelligence officers in the course of a national security investigation. Only the Attorney General's permission is needed to tap the wires (and all FBI wiretapping in the past has been done with his permission). The evidence may be used “in any criminal case arising out of or related to” national security investigations.
This compromise bill was arrived at after consideration of a variety of bills introduced in the House and some of the features of these bills, discarded in the compromise bill, may still be considered on the floor of the House. A similar variety of bills is pending before the Senate Judiciary Committee. Some of these bills are broader in scope than the compromise bill, authorizing the use of wiretap evidence past or present, without anyone's permission and with even less limitation on the type of case in which the evidence can be used. Some are narrower than the compromise bill, authorizing only future wiretapping in national security investigations and permitting the introduction of wiretap evidence only in cases involving national security violations, and only if prior authorization to tap the wires in question was obtained from a Federal judge. Such bills provide tliat the judge must be "satisfied that there is reasonable cause to believe that the communication (to be intercepted] may contain information which would assist in the conduct of such investigations." (Italics supplied.) Presumably, the judge would ordinarily be afforded no proof of this beyond a sworn statement of an FBI agent that the conversation to be tapped would be helpful. Applications to tap wires would not, of course, be made on notice to the person whose wire was to be tapped. He would never know that an application had been made; he would have no opportunity to oppose it nor would he discover that it had been granted.
WHAT PRICE NATIONAL SECURITY ? If wiretapping is needed for law enforcement and if it will help the FBI in preserving our national security, why shouldn't it be permitted ?
What is the nation, and wherein does its security lie? Is a nation nothing but a territory and does its security lie solely in the safety of that territory from invasion? Is a nation something less than the people who compromise it and can its security be divorced from that of its members? If the people themselves are not secure in their persons, in their homes, in their associations and in their most private and confidential relationships, in what sense will the nation be secure? What greater plot against the national security could be devised than one that sought to invade the ideals which gave America birth, to destroy the precepts that made it viable and to sabotage the principles from which it draws its continued vigor and strength?
“The makers of our Constitution,” Brandeis wrote in his famous dissent in Olmstead v. U. 8. (48 S. CT. 564, 572), "undertook to secure conditions favorable to the pursuit of happiness. *** They knew that only a part of the pain, pleasure, and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men.”
And with this concern in mind, they rejected then and for all times these methods of police surveillance and investigation, whatever their merit for efficient law enforcement—which would destroy that personal security which lies at the core of our national security.
THE CONSTITUTIONAL QUESTION
Opening and reading the mail, issuing and checking identity papers at regular intervals, universal fingerprinting, registration of all residents, a search of everyone's house now and then—just a quick look-see to discover what evidence affect
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ing national security might turn up—all these, like wiretapping, might now and then afford the police some information they might not otherwise obtain. It is doubtful whether such randon, hapbazard searches of the population at large are very efficient police methods, but efficient or not, the undesirability of most of them was decided a long time ago by the adoption of the Bill of Rights.
The framers of the fourth amendment spelled out the principle very clearly by announcing, “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." They provided that no search warrant should be issued except "upon probable cause ticularly describing the place to be searched and the * * * things to be seized.”
Within the framework of the society of their times, they tried to give the American people full protection of the privacy of their homes. But they did not anticipate the science of electronics. They did not foresee the need to protect the privacy of persons talking in their own living rooms half a continent apart. Not dreaming that a man's home and his private conversation in it with his wife, friends, doctor, lawyer, might be effectively invaded by the splicing of a wire down the street, not realizing the possibility of a trespass without breaking and entering, not envisaging the feasibility of a search by police officers who are never seen or heard and whose presence on the wire is not known or capable of detection, they did not guard against it. Or so the Supreme Court found when it announced in the famous Olmstead case-made famous largely by the dissents of four judges, Holmes, Brandeis, Stone, and Butler—that the fourth amendment applies only to tangibles and that when a wire is tapped there is no search and nothing seized.
THE PRESENT LAW
Since the Supreme Court has said there is no constitutional protection against wiretapping, such protection can come only from an act of Congress. The present law (section 605 of the Communications Act of 1934), while it does not actually forbid wiretapping, does forbid the "divulgence" or "use” of intercepted communications by any person. (And a Federal agent is a person within the meaning of the statute, the Supreme Court decided in Nardone (302 U. S. 379).)
It would seem clear that the recording of phone conversations, the creation of files containing such information and made available to Justice Department personnel, and the use of such information in the conduct of investigations would constitute such "divulgence" and "use" as the statute forbids. The view lately adopted by the Justice Department that disclosure to other persons in the Department is not "divulgence" and that use is not "use" unless it is for personal gain, has never been tested in the courts. And it is not likely to be, since nobody but the Justice Department, through indictment of one of its own agents for unlawful wiretapping, could bring it to a test. The Justice Department is understandably reluctant to indict its own agents for following Department policy.
The Justice Department thus runs no risk of having its illegal wiretapping activities curtailed as long as it does not attempt to introduce in court evidence which can be identified as wiretap evidence and such identification is not easily produced. But it still cannot boldly produce its wiretap records in court, and it is this defect in the law which the proposed legislation is designed to remedy.
SAFEGUARDS AGAINST INDISCRIMINATE WIRETAPPING
While the Justice Department seeks legislation which will legalize past as well as future wiretap evidence, some of the proponents of new wiretap legislation will not go that far, and they seek to provide safeguards to the public at large. They recognize that there is considerable popular feeling, in spite of the Supreme Court's several decisions on the question, that wiretapping is a search and that the recording of a conversation is a seizure, and they feel the need, therefore, of providing for something like a search warrant before a wire can be tapped.
But 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.