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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.
Senator WELLER. That is the law.

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

say

that 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.
Senator WILEY. All right, now carry on.

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 you not?

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

cates the desirability of having wiretapping apply to any crime excepting crimes of subversion and sabotage, matters affecting the national security, plus kidnapping. That is the only other crime for which he asked additional apparatus, namely, through wiretapping. He never asked for the right to wiretap in cases involving generally the statutes of the United States.

Senator WILEY. I do not see how your question relates to what I had in mind. I am trying to find out in the local matters in the States; that the States have expressed themselves pretty clearly that they do not want that authority taken away. They do not want that question of competency of evidence taken away.

If the people of 32 States feel that way about crimes like robbery, rape, and thieving, horse stealing, and so forth, the question now is how will the people feel in relation to authorizing the appropriate Federal officers in cases of espionage, sabotage, and treason? I have not any question how they feel, I have the feeling that it is overwhelming; that they want something done and done quick. They recognize that we have put ourselves in a position which prevents us from doing a thing to save our necks. Whether or not there should be application to the court I think that is a very important matter since you and the Senator from Nevada have expressed yourselves.

Much heretofore has come into the evidence in relation to what you might call the crime of generalizing wiretapping. We should simply get at these private detectives and others who do it, you said some of the labor unions and some big businesses do it, we should see that that which they do is made an offense, and I personally feel that you are correct in that respect.

I think the only issue now in the subcommittee as I have listened to it is whether or not the power should be lodged in the Attorney General or whether they should come in cases through the authority of a court. Then again if it is through the court I think this bill of Senator McCarran is rather cumbersome with regard to getting that authority.

Have you read that?

Representative CELLER. Yes, I have. I have only one suggestion as to that. It should provide for the prevention of crime as well as the commission of a crime.

Senator WILEY. That is fine. How about the question of the procedure to get the court order? In other words, you have to give notice and do all those things.

Representative CELLER. The Senator's bill prescribes the procedure that is now operative for warrants for search and seizure. It is purely an ex parte order. The bill does not require a hearing as a condition precedent. The court may order a hearing. We have always had that in the case of a search warrant. I think the listening in on a telephone conversation is just as much an invasion of my privacy and entrance to my castle, as it were, my hearth and home, as physical

entrances.

Since you require a search warrant for purposes of search and seizure because that is a violation of the fourth amendment, a violation of my privacy, entrance of my castle, to use the old legalistic term, I think it is inevitable that we should come to the conclusion if you are going to tap a wire you will also enter my home, my office, and likewise you should have an order from the court.

I will skip some of my statement. I am going to read from a statement made by the Association of the Bar of the City of New York.

The importance of a prior court order for any wiretap is much the same as in the case of a search warrant. The requirement of a search warrant is made so that an objective mind might weigh the need. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing.

Then that Bar Association quotes McDonald v. U. S. (335 U. S. 451, 455).

District Attorney Miles F. McDonald testified favorably as to his experience under the New York statute requiring a prior court order for any wiretap:

I think prosecutors, myself included, can be overzealous. * * * The judge is a safeguard.

He also testified that he had never had any bad experience so far as leakages in the court are concerned.

It is not asking too much to give up a bit of our freedom to enable (after a court order has been obtained) the FBI, the CIA, and the Intelligence Services of our Army, Navy, and Air Force, to track down spies, saboteurs, and the disloyal, who would deprive us of all our liberties.

Although I thought differently in the past, I would now oppose any bill that would leave the power to tap in the discretion of the Attorney General or any designee of his. This is too great a power to lodge in any one individual. Power begets power, and the use of power for power's sake is tempting. Such inordinate power could be used even for political purposes and thus abused.

Let us not be naive, Senator. We know from past experiences that power of any sort lodged in an executive officer is very tempting and can be and has been used for political purposes.

Senator WILEY. Does that power exist now but the right to use the evidence does not exist?

Representative CELLER. That is right. I do not like you to ask me whether it has been used for political purposes. I do not want to enter into politics, and I do not want to deal in personalities, but search the record yourself, and I am quite sure you will not be so naive as to imagine that that power will not be used for political purposes.

We must remember that we legislate for the future. No one can foretell who our future Attorneys General will be. There is nothing personal in this argument. The court is the proper determinative agency. We are a government of law, not a government of man. To my mind, wiretapping involves the presence of an unexpected, silent, furtive, and unwelcome guest at your telephone. It is like the invasion of your proverbial castle. You may not enter anybody's home, even if you suspect a crime has been committed there or is about to be committed, without a search warrant. Is there any difference when you enter the hearth and home by way of a telephone wire? Why should we not in common sense require a court order in those circumstances just as we do in a case of a search and seizure? Senator WILEY. May I interrupt there because as I listen to your rather persuasive way of presenting things and when I remember what Senator McCarran said, he would fight, then it seems to me

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