is that power? Not substantive power, it simply gives him the right to use this evidence competently in court. It is based upon the condition that there is a court order.

“Judge, we feel this situation is so and so, we would like to have your court order.” The court writes out an order. Whether that would affect the evidence, the validity of the evidence, competency of the evidence in a jurisdiction outside the jurisdiction of the judge is the only shadowy case. That is the only shadowy element that is left as I see it. I wish you would give this some thought because without that we will not get a bill.

Representative KEATING. I think that legislation is as much needed as any that we are considering in this Congress. I would be glad to have the views of the Attorney General on that subject, and would request that you also get them on this constitutional question of whether if you make this distinction between the past and present there is a serious constitutional question involved.

I think that is something that we have to consider.
Senator WILEY. What provision of the Constitution?

Representative KEATING. The equal protection clause is the argument that is made at least on that point.

Senator WILEY. You have to put it this way, equal protection of evidence.

Representative KEATING. It seriously disturbs some of the men in the Attorney General's Office. I do not think the Attorney General himself has taken a position, nor would want to take a position because if that was the type of legislation enacted he would not want to be confronted by some defense lawyer that “You, yourself, have taken that position."

Senator WILEY. In some States in this country there are some laws that obtain that do not obtain in other States in the Union. No one has raised the point that the guy in the one State is militated against because of the law in the other State.

Representative KEATING. If he is charged with a Federal crime he is subject.

Senator WILEY. He is charged with a crime and then all at once he says, “The statute now says in relation to John Jones who committed the crime before the law was passed that in his case the evidence is admissible because the Attorney General says it is admissible and in the second case there had to be an order of a judge in my case."

It seems to me that the court would simply say, "Well, this is a matter for the legislative branch to say what evidence is competent."

Representative KEATING. I am inclined to agree with your position, and I am inclined to feel that there is not a serious constitutional question here, but I know that it bothers some of the lawyers in the Department of Justice, and I think it is worthy of pursuing further as much as you can with the Attorney General and with your own legal staff.

Senator WILEY. If there is any doubt about that, you cannot take both horns of the dilemma, you either have to pass your bill or you have to pass the second bill and do away with all past offenses.

Representative KEATING. I think that is true.

Senator WILEY. Change the present bill so that the evidence is not applicable to past offenses, is that right?

Representative WILLIS. Yes.

Representative KEATING. Well, I would hate to see that done.

Senator WILEY. Of course you would. Now we have not given these other distinguished gentlemen a few moments. I only wish we had gotten you fellows here in the beginning. We have a discussion here that has gone down to the heart of this matter, and that to me has been valuable.



Representative DoDD. I do not want to take much of your time. You have heard many views, and many of which I have found myself in agreement with, particularly those of Senator McCarran. I would like to point out a couple of things that seem to be important.

I think we are in this unfortunate position which Mr. Keating apparently acknowledges, that there is a great deal of confusion about this problem, and my view, what we did in the House, we just added another piece to a crazy legal quilt. I hope that your committee will come out with a definitive clarifying piece of legislation so that all hands can know what the situation is with respect to wiretapping by private individuals, by State authorities, and by Federal authorities.

Your invitation to appear before this subcommittee and give testimony concerning the problem of wiretapping in the United States is one which I value highly and greatly appreciate.

I think this is one of the most important matters to come before the Congress this year. You gentlemen have the opportunity-one which I am afraid we on the House side missed earlier this monthnot only to provide the Attorney General with the additional power he claims he needs to protect our security, but to do it in a way which protects the Constitution and the Bill of Rights as well. And I would say both objectives are important.

First of all, I am opposed to wiretapping. I think it is an abuse of our right to be let alone.

And may I say at this point that I have very grave doubt about the constitutionality of wiretapping despite the decision in the Olmstead case. And I hope and expect that this question will be presented again to the Supreme Court of the United States. For our purposes this morning, however, I think it better that I confine myself to other aspects of the problem.

In view of your courtesy in inviting me to testify on this legislation, I will not presume upon your time by repeating and rehashing all of the arguments which I raised in the House debate in three separate speeches. For what assistance that material can be to you, I will submit it for the record at the conclusion of my testimony.

You have the power to clear up through the instrument of this legislation an ever-widening never-never land of doubt, confusion and illegality in connection with the increasing use of the telephone tap not only as a police weapon but even as a business activity and as a means of blackmail.

According to the debate in the House on April 8, the State of New York last year had something like 58,000 wiretaps in operation under a State law which I am convinced is illegal and in conflict with the Communications Act of 1934.

How many wiretaps are in operation in the United States at this very minute? For what purposes?

Are your telephones being tapped? Do you know? Do you care?

I think if we consider this matter on such a basis, at least for a start, we can put this very complex problem into some perspective and see what it is we are dealing with. The easy oversimplification that we are merely passing some legislation to improve our spy-catching techniques does not cover the problem at all.

Let me say first, however, that while I do not believe the Attorney General needs the wiretapping authority he has demanded from the Congress in order to defend the internal security of the United States, I am willing to give him the benefit of the doubt if the wiretapping legislation we pass does certain things:

1. If it establishes a truly clear-cut, straightforward, pinpointed line of demarcation between legal and illegal wiretapping.

2. If it establishes a definite time limit on the authority for legal wiretapping, so that Congress can take a second look in a year or so.

3. If it makes all private wiretapping illegal, and provides effective machinery for enforcement.

4. If it prohibits the disclosure of any information obtained through private-illegal-wiretapping.

5. If it should go so far as to legalize, under judicial supervision, State and local wiretapping and the disclosure of wiretap information in State courts, then this legislation should also set a time limit on the authority just as I have suggested be done in relation to the authority granted the Attorney General.

These, it seems to me, are fundamental safeguards as well as necessary reforms which should be written into any wiretap legislation if we are not to make the Congress vulnerable to the charge of sloppy, hasty, half-baked, legislative bungling in a crucial field of American civil liberties and personal freedoms.

The Attorney General has said that he would prefer no legislation to the kind of legislation which has been passed by the House. His objection, I take it, is to the provision written on the House floor requiring judicial supervision of the wiretap authority provided in the House bill.

It is difficult for me to follow the Attorney General's reasoning. I cannot believe that he lacks confidence in our Federal judges. It appears, however, that he has two fears:

First, he is afraid of “leaks” if judicial supervision is imposed. My experience with a large number of Federal judges does not warrant this type of concern.

Secondly, he fears burdensome delay if it is required that authority be obtained from Federal judges before wiretapping may be carried out. This appears to me to be a baseless argument, and I am confident that in this type of activity any Attorney General, through the development of proper procedures, can obtain expeditious handling of wiretapping applications from our Federal judges.

Finally, it seems clear to me that no Attorney General should have the power to tap wires without some higher supervision over such power.

The problem here, as I see it, is not merely to regularize a police technique long in force in the Department of Justice and in other investigative agencies, Federal, State and local, but to guarantee that this tremendous weapon for the invasion of privacy also be regulated and policed and enforced.

Senator WILEY. Supposing we took the House bill and added to that the provision that would outlaw the wiretapping by all those except authorized under Federal and State law.

Representative Dodd. I think that is all right. I would like to observe that it is my view, and I have some company sharing in it, that the State statutes to which reference has been made are illegal and that there are violations of State statutes. I think it is bad for the country to have the States violating the Federal law and the national legislature not facing up to it and not doing something abou it.

Senator WILEY. Wait a minute, how do they violate the Federal law?

Representative Dodd. The Communications Act says it is forbidden to intercept and divulge information obtained through a wiretap. When New York State, through its officials, intercepts and divulges it violates that Communications Act.

Senator WILEY. That is communications within the State?

Representative Dodd. Yes, and the Supreme Court has said in the Wise case that intrastate communications are subject to the Communications Act.

Senator WILEY. I realize what the Supreme Court has said, but has the Court said that for a State to intercept intrastate communications it is in violation of that Act?

Representative DODD. I do not think that narrow a question has been presented.

Senator WILEY. The commerce provision, and that has constantly been enlarged and enlarged, but they have not enlarged it that far as I understand. In other words, you do not agree with Senator McCarran when he says he wants States' rights protected ?

Representative DoDD. I am not in disagreement with him, rather my point is let us do it right. Let us write a piece of legislation that says what Senator McCarran says, all wiretapping is illegal except Federal authorities and State authorities and set that up definitively. Say that anybody else that does it is in violation of the law and be punished. I think that would be a wonderful thing for you to do.

Senator WILEY. Would you accept it over in the House?

Representative Dodd. I am confident that we would, but I am only one, and I do not speak for anybody else.

Another point I would like to mention is this. I offered an amendment on the floor of the House to limit this legislation. I asked that it be limited in this fashion, that at the expiration of 1 year, and I am not fussy about the time, whether it be 2 years, 3 years, you said 5, I believe. In any event, let us put a time limitation on, and let us require that the Attorney General come before you and the members of the committee every year and tell you how many taps he has authorized or had authorized by a Federal judge, how many cases such evidence was used in in the Federal courts.

Why do I suggest that? I think everybody agrees we are entering on a new and delicate and dangerous field. This will give you some checkrein. You may find at the end of the year that it has not been useful and parenthetically let me say I do not think it will be useful because I do not think there is a spy worth his salt that will use the telephone.

You may find there has been an abuse, and you may find a lot of things that you do not like, and who can be harmed by having the Attorney General come in and give such a report? I think it would be salutary because if you do this and make it permanent it is a terrible task to take it back and for that reason I hope that your committee will consider that provision in the law.

About speed with respect to the requirement that the Attorney General have to get permisison of Federal judges, I think maybe it is a good thing to slow these things down a little bit. Not to an extent that would damage us or unduly hinder or harm us, but I would not want to see, for example, these things done so easily that they get all out of hand and that can happen in an area like this.

That reminds me, too, that when we talk about using any Federal judge I think we ought to think about the danger that law enforcement officers get in the habit of going to a favorite judge. Judges are not all alike, at least my experience has been that they differ one from another. An easy judge who is not too careful, he becomes the favorite wiretapping authority.

I would be concerned about that. We might have the requirement that they use a number in each district, maybe something to think about in that respect.

Mr. COLLINS. What do you think about Congressman Keating's possible objection that there might be some danger of unconstitutionality?

Representative Dodd. Equal protection? I do not think much of it. That is just my view, and his is just as valid and more valid than mine. I am not concerned about that, I am more concerned about the constitutionality of wiretapping at all. Despite the Olmstead case, if that case comes to the court again they may not say that it is not a violation of our rights, but I do not think we can do anything here.

One of our newspaper friends suggested that I put the question: What are you going to do about international telephone lines controlled by treaty? That is something that we did not think of on the House side which we might think of here. It was suggested by a distinguished reporter on the Hartford Courant, Mr. Burns, who brought that to my attention.

I do not want to take too much of your time, Senator. I am grateful for the opportunity which you have given me. I just want to say in closing that my attitude is that I do not like wiretapping, and I feel it is something that we have to be extremely careful about. If we have to do it at all I want it done under the greatest safeguards and on a limited proportions basis, both as to time and area.

Representative WILLIS. I would like to address myself to the question of competence and constitutionality raised by Mr. Keating. I have no prepared statement or notes. For that purpose let us go back just a bit and see what the condition of the law is today. You have to start with the decision of the Supremen Court in the Olmstead case which deals with the question of competency that you raised.

In the Olmstead case in 1928 the Supreme Court of the United States, to be sure by divided vote of 5 to 4, answered that question

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