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Senator WILEY. How was the liquor?
Senator WATKINS. I was not there. I am not an expert on liquor, Senator. I happen to be a teetotaler.
Senator WELKER. If the policy is good in some 32 States to wiretap for most anything, what is the difference between the policy of the Federal Government wiretapping on these very serious matters of espionage, sabotage, treason, and yes, I will even go as far as kidnaping and get a bill.
I do not want to go down to lighting matches in the Federal forests or anything like that. I think it should be those major things that I am worried about now. But if the policy, if the law, is good in the State, it seems to me that we should consider that if the policy is good in the State of Wisconsin, why should not the policy of wiretapping be good as a method of law enforcement in our Federal Government?
Senator McCARRAN. Senator, when you come to comparing crimes such as murder, rape, and even robbery and arson, you get into revolting atmospheres at times, and the community is aroused. If you are going to open it up to all those offenses you might as well open it up to everything, petty larceny.
Senator WELKER. I think, Senator, that this bill was promoted to save the United States from destruction from within. I do not think it was ever intended that we should wiretap on everything. I agree with my eminent colleague wholeheartedly with respect to the invasion of the right of privacy by the individual. I certainly go with you 100 percent, but I cannot go with you when we have delays, and certainly there would be unreasonable delays as I think the Senator is aware, and I do not believe I am disclosing anything of an executive nature, I believe he was with me on a committee at one time where we disclosed the fact that probably the greatest espionage agent in the United States worked in the State of Idaho and in the State of Washington near the atomic energy plants and installations.
Now if the Attorney General had to go out to Idaho or to Washing, ton and try to find a judge, and you and I agree they are hard to find because they are all overworked, it would destroy absolutely our attempt to catch this espionage agent, but I think the two of us knew so well because we were there. Do you have an observation with respect to that?
Senator McCARRAN. I think I have expressed my views all the way through on it. I will not support a bill, and I will oppose a biil with everything I have that does not take it to the courts for sanction because I am not going to put this in the hands of a political officer.
Senator WELKER. In most rules of evidence we place the rule in the hands of the political officer, a prosecutor, is that a fact? And I might make this observation. I do not care whether the Attorney General be Democrat, Republican, or anything else.
Senator WATKINS. Neither do I. As long as this Nation is being destroyed from within by virtue of these saboteurs and espionage agents whose main avenue of communication is that of the telephone I believe that it should be tapped and then let a jury decide as to the weight of credibility.
Senator McCARRAN. Senator, let me make one last expression. The atmosphere in which we live, the danger that we know exists to our country and those within our midst will at times seem to justify us in saying that when one is caught he shall not have the benefit of the
courts of the land, and yet we say to him that he can run the gamut of every court to the court of last resort, and rightfully so.
Senator WELKER. I would like, Mr. Chairman, to read a statement made by Alexander Holtzoff, Special Assistant to the Attorney General, Washington, D.C.
Senator WILEY. Now judge ?
Senator WELKER. Now judge. This is in the House committee hearings of 1941, volume 929, page No. 5, in which he states among other things;
Wiretapping is no departure from our fundamental principles. After all, when you come to analyze its philosophy, tapping a telephone wire is no different in principle from listening through a keyhole or any undercover investigation
Senator WILEY. I see the Congressmen are leaving:
Representative KEATING. Mr. Chairman, there is a quorum call, and I will be back.
Senator WILEY. Excuse me, Senator Welker.
Senator WELKER (continuing): undercover investigations which have been carried on necessarily by law enforcement and police agencies from time immemorial.
I have no further questions.
Senator WILEY. We will now hear from Congressman Celler. It is good to see you, sir, and we are always happy to get your reaction. If you will please tell us your position on the House bill and on the bill that I think Mr. Keating introduced which was the Attorney General's bill as I understand it.
STATEMENT OF HON. EMANUEL CELLER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK Representative CELLER. Thank you, Mr. Chairman.
Senator WELKER. Mr. Chairman, since I must leave your committee, and this is very interesting, I am wondering if the distinguished Congressman has a copy of his statement?
Representative CELLER. Yes, I have given the clerk a copy.
Representative CELLER. I want to say before you leave that I am in utter accord with the bill that has been offered by the distinguished Senator from Nevada, Senator McCarran. I thought you might know that before you leave. I am not wedded to the House bill by any manner of means.
Senator WELKER. I think in fairness to you as of this moment I am not wedded to the bill of the distinguished Senator. I want the best thing, and as you have heard my cross-examination, I am trying to do what I think is best to protect the internal security of this country.
Senator WILEY. Do I understand, Congressman, that you are in favor of the McCarran idea that only through and after application to a court for power to wiretap by a Federal official that it should be granted ?
Representative CELLER. Yes, sir.
Senator WELKER. May I ask before I leave, and I ask unanimous consent to do this, does the Congressman have an observation with respect to the statement made by Judge Holtzoff in 1941 where he said:
Wiretapping is no departure from our fundamental principles. After all, when you come to analyze its philosophy, tapping a telephone wire is no different in principle from listening through a keyhole or any other undercover investigations which have been carried on necessarily by law enforcement and police agencies from time immemorial.
Representative CELLER. I say that is just nonsense, absolute nonsense, and I am in utter disaccord with what Judge Holtzoff says. Way back in 1894 Judge Holmes said it was “dirty business.” I say that kind of business stinks, and it is high time that our Government invokes sanctions against wiretapping.
Senator WELKER. Just a moment, how does this stink any more than some undercover man boring a hole in your house and listening to what you are saying over the telephone or to your friends?
Representative CELLER. I say that that is wrong.
Representative CELLER. Before you go, Senator, let me read what another eminent jurist said, Justice Jackson.
Senator WELKER. I have it right here.
Representative CELLER. Justice Jackson has just had occasion to saythat science has perfected amplifying and recording devices to become frightening instruments of surveillance of invasion of privacy whether by the policeman, the blackmailer, or by the busybody. That is part of his opinion in Irvin v. California, decided February 8, 1954 (22 U. S., LW, p. 411-412).
Senator WILEY. Then you are in favor certainly, and there seems to be no argument against the utilization by unauthorized people, you are in favor of that?
Representative CELLER. Yes.
Senator WATKINS. There is not any difference, I imagine, on the committee, that we do not favor private people intercepting.
Senator WILEY. I started to ask you a question, Mr. Congressman. What I started to say was that if we limit the ground, why not put your statement in the record ?
Representative CELLER. Of course, what I am going to say this morning does not follow completely my statement, and I have certain interpolations I would like to give if you do not mind.
Senator WILEY. Let me ask you the question I started to ask, and that was this: We can agree on the general proposition, one, that we believe there should be a Federal statute making it unlawful for wiretapping by unauthorized people. Do you agree to that?
Representative CELLER. That is correct.
Senator WILEY. Two, that we agree there should be authorization lodged in some authority in cases of espionage and treason, and so forth, where the public interest is involved and have that authority lodged there for the purpose ?
Representative CELLER. Yes.
Senator WILEY. The thing we disagree on is the mechanism or the thing to get that authority into operation. In other words, making legitimate wiretapping competent. That we disagree on, if I am not in favor of the courts and you are in favor of the court process ?
Representative CELLER. That is right.
Representative CELLER. Interception of wired or wireless communication should be outlawed except in those cases where it is specifically permissible, such as in espionage, sabotage, subversion, and matters pertaining to our national security and defense, and in cases where it is permitted by State law. In those permissible cases, no tapping should be permitted unless, as in the case of a search warrant, a court order ex parte shall have been obtained.
It is time to call a halt to this wretched practice, so obnoxious to all our citizens. Wiretapping is a media for extortion, blackmail, and corruption used by cheats, procurers, prostitutes, gamblers, racketeers, bootleggers, bookmakers, and kidnapers. The roster is revolting, and it permeates our whole society. Such malefactors should be denied the right to tap wires and anyone who installs the apparatus should be punished.
Unfortunately, way back in 1928, the Supreme Court in the case of Olmstead versus the United States declared that wiretapping was not a violation of the fourth amendment. In that case the defense lawyers pleaded for a reversal of the client's conviction for bootlegging on the ground that wiretapping used to gain evidence violated that amendment.
In its 5-to-4 decision, however, the Court ruled that the fourth amendment applied only to "actual physical invasions" of privacy and not to "projected voices.” The four dissenters were Justices Brandeis, Holmes, Butler, and Stone.
Wiretapping is also used by the FBI, the CIA, the Army, Air and Navy Intelligence Services, the city police, State troopers, private detectives, business executives, political parties, and labor unions. All these entities should be prohibited from intercepting calls or messages except in cases involving national defense and security and in cases permitted by State laws.
Senator WILEY. Now wait a minute. That is another exception. You claim that for instance there should be no interference with the State law such as you have in New York!
Representative CELLER. That is correct. Where those taps are permitted by State law there should be no interference with that permission.
Senator WATKINS. But you would be against them ordinarily, would
Representative CELLER. I would be against them ordinarly, but I am not a State legislator, and I cannot have a voice in the State legislature.
Senator WATKINS. I know that, but I take it as a matter of principle you are against it?
Representative CELLER. I am except in cases of national security and such matters of espionage, sabotage, and the like.
Senator WATKINS. Now you have an opportunity probably to prohibit those if you want to because of the interstate character of a telephone company, interstate wires. You could stop that by putting an amendment in the bill.
Representative CELLER. I want to be practical, and I question whether you would get any kind of bill if you interfere with State practices. I say where those States permit it there should be no inter
ference. However, while it is true that some 42 States restrict tapping in some manner and only 2, Delaware and New Jersey, outlaw the divulgence in court, while at least in 7 others, including Massachusetts and New York, permission by local law-enforcement officers, the State statutes are very loosely drawn and they are mostly inconsistent one with the other.
You do not get much comfort from citing State laws because it is a veritable hodge-podge, and if you have occasion to go through them you will
see that. Senator WILEY. Has there ever been any sentiment in the States, you said 42, I understand the Attorney General said 32. Has there ever been any sentiment in the States for the repeal of these statutes?
Representative CELLER. I can only speak for my own State, where the wiretapping is only permitted as a result of an ex parte court order, and it works very well in our State. Judge Miles McDonald, who was the District Attorney of my county, Kings County, Brooklyn, testified before our Judiciary Committee last year that he would not want any change, and he reflected as he indicated, or I think he indicated, the views of most of the District Attorneys of our State where he said that the law worked very well, there were no delays, there were no leaks.
There was some conversation here this morning between you, Mr. Chairman, and one of the other members of your committee concerning leaks, and I think Senator Watkins had a story to illustrate a leak, but in our State the Bar Association of New York City indicated that they are eminently satisfied with the operation of the statute, and there are no leaks because of the recourse that must be had to the court by way of an ex parte order as a condition precedent to obtaining the right to tap a wire.
Senator WILEY. Now, Mr. Congressman, to me that confirms exactly the information I'have that the people of this country, you say 42 States, have found that where there was legal authority under their local statute to wiretap, they have found that it works satisfactorily in the interests of the public against crimes that are State crimes.
Representative CELLER. Wait a minute, you assume that it works satisfactorily. I did not say that.
Senator WILEY. I say public sentiment. That is my question. There has been no question where public sentiment has been because there has been no question about repealing these laws in the States where they relate to local crimes. Now they have different methods, it is true, and I can understand how you might in a local jurisdiction in New York or Wisconsin have a statute where you apply to the court ex parte, simply go to them and get the order.
But where you have offenses against the public welfare and the life of the nation that cross boundary lines, it seems to me that the point here that was made by the distinguished Senators who related instances is very well taken.
Representative CELLER. If you will forgive me for interjecting an answer in that regard, I should think the best authority as to whether or not there should be a widening of power with regard to wiretapping is Mr. J. Edgar Hoover, and I would like you to point out to me any statement of J. Edgar Hoover, head of the FBI, which indi