simply makes competent evidence that heretofore was incompetent. It is all relevant, all this and that, it is very relevant. It would have to pass those tests and also pass the test as to whether or not there was testimony between priest privilege and so forth. Think that through.

Representative KEATING. That is important.

Senator WILEY. I am trying to get a bill through.

Representative KEATING. That is what I was trying to do on the other side.

Senator WILEY. You were not here, but Congressman Celler said you could not pass this unless you got this court business in, you would never pass it in the House, and Senator McCarran said you could not pass it in the Senate. He said he would fight it. When you get the Irishmen and the Jews fighting against something on the same side, you have something.

Representative KEATING. That is right.

Representative WILLIS. Here is what the bill says as it passed the

House

that prior to intercepting the communications from which the information is obtained an authorized agent of any one of said investigatory agency shall have been issued an order by a judge of any United States Court of Appeals or United States District Court.

It says it twice below there again. That was the effort being made to carry out what you had in mind, Senator. Now, if you want to make it stronger I am for it. But let me try to distinguish what we have here and the search warrant posed by my good friend from New York. I say that it would be legal, despite that case quoted by Mr. Keating to carry out your thought and to choose words to pick any chunk you want because in the case of the search warrant there the search is of a physical structure, so therefore you strike at jurisdiction.

Here you have telephone conversations all over the United States wherever the crime is being committed, wherever those telephone conversations take place. So I say it would not offend the search-andseizure provision to carry out the thought you have in mind. I think it can be done, and it was my effort to do it that way.

Senator WILEY. But if you wrote in here "and that the evidence so obtained shall be competent in any court in the United States"I am just trying to feel out the question of evidence instead of the question of the law involved.

Representative WILLIS. That is all this bill does, is to make admissible in evidence. We are dealing here with a rule of evidence. The evidence is now barred. Why? Because section 605 says that it shall be unlawful for any person to intercept a communication and to divulge such intercepted communications to another party.

Now it is the act of Congress that bars it, and after section 605 was adopted, then the court simply interpreted that section to mean what it plainly says, that you cannot divulge it anywhere, you cannot even divulge it in court.

Senator WILEY. I can understand your argument, sir, but I can also see the court sitting up there, and unless you make it very plain the court in my State would say the court that issued that order to change that rule only had jurisdiction in that court, and Congress did not have the intention of making it applicable all over the United States.

Representative WILLIS. I am all for Congress saying so, and I tried to say that very thing in the House.

Senator WILEY. I am sorry you did not get into that over in the House.

Representative WILLIS. On the provision for the ex parte order, I added that to my substitute to meet the question of speed and secrecy. Now it may be ex parte, and the practice in New York which I tried to emulate here in this: The order is prepared by the district attorney, it is presented to the court in an ex parte fashion.

There need be no clerks, no reporters, et cetera.

Mr. COLLINS. In chambers?

Representative WILLIS. In chambers. He has only to show a crime is about to be committed and then to make sure that there shall be no violation or leaks by the court, and I almost hesitated to put that in the bill, but I put in my substitute that the Federal Judge himself and his attachés can be sent to the penitentiary if they disclose what is in that order.

So we have met that issue of secrecy. The Attorney General will know about that, his assistants will know, you have to make arrangements to make the wiretaps, you have to make arrangements with the telephone company. You will have someone listening in on those conversations for months at a time. It seems to me that the interposition of a judge as an umpire is all the more necessary because there are so many people, and to be sure that the judge does not violate it I make provision that he may be punished.

Senator WILEY. You must have been talking to Senators Welker and Watkins before you came in here?

Representative WILLIS. No, sir.

Senator WILEY. You did not hear their talk this morning about judges? It was implied that there were a few that spotted the ermine. Representative WILLIS. I would refer to them as our courts. Attorneys General may come and go, but in our courts I want to preserve

checks and balances.

Senator WILEY. We want to make sure that the country stands, too, and does not go.

Representative KEATING. Mr. Chairman, it might be helpful if I first addressed myself to Senator McCarran's testimony. His approach to the problem is somewhat different from any of the bills considered in the House in that he affirmatively seeks to bar the use of wiretapping, to make wiretapping illegal, and then to make an exemption in these cases involving our national security.

I am very sympathetic with the position to the effect that there are abuses by private individuals and industrial concerns and private detectives and so on in the use of wiretapping. There was a parliamentary situation on our side which we felt, the Parliamentarian felt, that it did not permit us to deal with that problem.

Your rules, of course, are much broader. Anything relating to the Federal Communications Act would have been referred on the House side to the Interstate and Foreign Commerce Committee. We felt sure that a point of order would be raised against any effort to change the meaning of that act which is in effect what he is seeking to do even though it may be added as a title in the United States Code.

However, speaking personally, I would be very sympathetic to broadening the scope of whatever bill we report out to provide for

the elimination and stiff penalties against many of the abuses which we know exist with regard to wiretap, with the appropriate exception which as I understand his testimony he accepts, to permit the continuation in the several States of the rules that there pertain relating to wiretapping.

In New York State, for instance, we have the ridiculous situation today that you can use wiretap evidence to convict a petty thief, but you cannot use it to convict an espionage agent or saboteur. It is perfectly silly the way the New York State situation is at the present time.

Now I was originally the author of a bill which substantially is the same as the second part of the substitute which was adopted on the House side, and it was put in a few days before the reversal by the court of appeals in the Coplon case, which shocked me, and I think everyone else throughout the country.

That bill provided that you could go to a court and get an order to intercept communications and then they could be divulged in court, used in evidence. That bill was the subject of extensive hearings, the hearings are available to your committee, and they were held before a subcommittee of which I was chairman, and after a long discussion we unanimously reported out that bill. That required the court approach as to the past and as to the future. That was reported out last June near the end of our session to the full committee, and it got caught in the logjam of a lot of business at the end of the session and was never considered by the full committee until this year.

Subsequent to that the Attorney General and Mr. Hoover communicated with me, and I had lengthy conversations with them, and then Mr. Brownell appeared informally before all of the members of our subcommittee to express some of his views. He pointed out his objections to requiring the Attorney General to go to the court in this limited classification; espionage, sabotage, sedition, conspiracy, the Smith Act, and the Atomic Energy Act.

I will come in a moment to his reasons. I want to tell this committee the way this bill evolved in the House.

My principal reason for being convinced by the Attorney General with regard to his position, and the strongest, even stronger than the point I have mentioned here, was that he made it clear to me that not only in the Coplon case but in a number of other cases evidence had been intercepted by the FBI, perfectly legal, which would be of great importance in a trial of individuals for treason, sabotage, espionage, or the other serious crimes and that they had that evidence in their files, and they were barred from using it, and they would be barred under the wording of my bill as originally introduced because it had not been obtained by court order, and therefore would not be admissible.

I certainly did not want to put myself in the position of being responsible for a suppression of evidence against these characters. Therefore, when the bill came before the full committee and after advising the members of the subcommittee, and we have all worked in great harmony, and my position is the same in one respect I know as my good friend from Louisiana, that we want to see legislation evolved in this Congress to deal with this problem.

It is an important problem, and we will support, either one of us, any reasonable bill that is eventually evolved after the Senate and House have worked their will on it. That is No. 1.

Therefore, I offered in the full committee a substitute for the original bill reported by the subcomittee which would permit the Attorney General to use evidence obtained on his own certification, on his own order, and I am told the number of wiretaps are very, very small, and I hope that this committee will have an opportunity to talk with Mr. Hoover in this regard.

I realize his reluctance to appear as a witness.
Senator WILEY. He has already appeared.

Representative KEATING. I am speaking of Mr. Hoover. I know he is reluctant to appear before committees, but I hope it will be possible for you to have the benefit of his views informally because it was extremely convincing to me, and I have such great admiration for him and the work he does that I was very strongly influenced by his statements to me in which he felt earnestly and sincerely that this court approach to the problem would interfere with what he is seeking to do. Senator WILEY. Was that an executive session?

Representative KEATING. Just a conference with him, several conferences with him and the Attorney General.

Senator WILEY. What is your answer to that?
Representative WILLIS. TO Mr. Hoover's objections?
Senator WILEY. Yes.

Representative WILLIS. I never talked to Mr. Hoover.

Representative KEATING. His objections were relayed by Mr. Brownell.

Representative WILLIS. His objections, I understand from you, were twofold: One, a question of speed and the other the question of secrecy. Representative KEATING. I have not gone into what his objections are yet.

Representative WILLIS. I do not know; I would prefer for you to state them.

Representative DODD. I would like to make a suggestion in regard to that. Why could we not write legislation so as to allow the Attorney General to use any evidence that he has procured prior to a given date and thereafter get judicial authority?

Representative KEATING. I thought it would be helpful to tell you the way this evolved in the House. This substitute was adopted in the full committee, and then in the House the substitute offered by Mr. Willis was adopted, which did this. The substitute adopted by the committee would have permitted the use of evidence in the past where the Attorney General had authorized it, and in the future.

Now the House split the difference, and the bill that is before you from the House says that as to the past he may use evidence which he has already procured. As to the future he will be required to go to the court to get an order. That takes care of the No. 1 objection which I had to my previous position, my early position, and does permit the use of the evidence against those enemies of our country that they already had, provided there is not a serious constitutional question involved by making this differentiation between evidence obtained yesterday and tomorrow.

I would earnestly ask your staff go fully into this question because this was not raised until the debate on the floor, and certainly these characters that are brought into court in these cases can think up enough defenses, and we certainly do not want to give them any more ammunition of constitutional character than we have to.

The serious point has been raised that that might, and I do not want to put it too strongly because certainly if the bill evolves in this form we do not want to give aid or comfort to the enemy, but there is a question which the committee should consider, whether this would set up a double standard and might be in violation of the equal protection clause of the Constitution, if you call the addition of the court order an additional protection.

It is possible that someone who is charged under evidence already obtained without a court order could successfully raise the question that he has been dealt with differently from the fellow who does the same thing tomorrow, but who has the protection of the court order. I frankly do not know the strength of that, but I know it is worrisome to some in the Attorney General's office and is something which certainly the committee would want to consider.

Senator WILEY. In every case where evidence that was not competent became competent by virtue of legislative enactment that could be raised. Has it been raised?

Representative KEATING. Well, there is a case which you would be interested in.

It

Senator WILEY. You have lots of cases of husband and wife. used to be that they could not testify against each other. In many States the law has been changed, and I have never heard that that raised a constitutional question.

Representative KEATING. There is a very interesting case in 1895 of the Supreme Court dealing with the point made by Senator McCarran, who expressed his opposition to what he roughly termed ex post facto, although I am sure he would agree this did not relate to that because this relates to substantive crime and not to law.

In that there was a man tried for murder in a Federal court, and at that time certain evidence about handwriting was not admissible. They offered some, and it was allowed in by the court, and he got a new trial on that and on other grounds. He was tried a second time. He was convicted and tried a second time. It again was offered and was excluded and reversed on other grounds, and he came back for a third time.

In between Congress passed a specific statute saying that you could admit that evidence.

Senator WILEY. Congress, was it a Federal statute?

Representative KEATING. Federal statute relating to the use of handwritten evidence.

Senator WILEY. But what was he accused of?

Representative KEATING. I do not remember the details sufficiently. Senator WILEY. Federal offense?

Representative KEATING. Federal murder offense. I think it was a prescription for drugs. I think he was charged with having killed his wife by prescription. Anvway, in the third trial they allowed the evidence because of the legislative enactment in between, and he made that point in the Supreme Court, and the Supreme Court said this simply went to the admissibility of the evidence, and it was not a ground for the reversal of conviction, it had nothing to do with ex post factor, and the conviction would stand.

I think that is very close to the situation that would be presented to us here in this bill.