have held that to change the quantitative rule of evidence would definitely violate the ex post facto provision. For instance, right now the Constitution provides in the case of treason, I think, that you must have two witnesses. Treason could be left at such. The crime would be punishable just as in the past, but could you amend the Constitution by saying that for the past and in the past cases on the books one witness shall be sufficient? That has been barred under decisions of the courts, so you have that problem any time you reach out. It is a question of: Are we striking at substance even in the field of the rule of evidence here? Senator WILEY. I do not think that is quite pertinent. It is not quite an analogy because you are talking there about the bedrock of this country, the Constitution. What is your instance of qualitative or quantitative evidence in law? What would be your illustration there? Representative WILLIS. I do not know. I took a case that I knew would strike a responsive chord, you would agree with me on, trying to illustrate the trend of the decisions. Senator WILEY. Certainly. Representative WILLIS. Let me pose this, and I do not know what would be held. You spoke a while ago of the rule in the States with respect to the husband and wife testifying against each other. Let us take this case and follow it through: Suppose a married woman commits a crime. The only witness is the husband. Then the husband and the wife separate. Then a district judge is sold on the idea that, well, they separated. He will admit the evidence, and suppose it goes on appeal, as did a certain case that you probably have in mind, and on appeal the appellate court says, "No, though separated they are still husband and wife." They remand the case. Then the legislature reaches for the past and says, "Even in past offenses a husband may testify against his wife." There you would be making admissible in evidence the one bit of evidence that makes the difference between guilt and innocence. What would the court hold in that case? I do not know. However, I do not want to stress that point. I am agreeing with Mr. Keating that any time we go for the past we are bound to have certain legal problems. I do not think they should stand in the way, and for that reason in my substitute I made the date of enactment of the law the cutoff date, and then I attached a separability clause. What is wrong with that? I think it will hold water. I think of course arguments can be made on the question of reaching for the past in any way you want. No matter what bill we pass these offenders are going to urge those arguments, but I do not think they are so serious that we must not proceed with a law to have them brought to trial and be responsible to society. Senator WILEY. Under the law now the Attorney General can go ahead and have investigations made by wiretapping and he does. This question comes to my mind because I wanted your fine mind put to work on it. We are talking now about a provision to outlaw wiretapping except that which is ordered by the courts, State and Federal. That of itself, especially if you had the criminal feature in, would make wiretapping by the Attorney General unless he received a court order, illegal, would it not? 47683-54 Representative WILLIS. You might have the same problem. Senator WILEY. That is what I mean, because a lot of this wiretapping is necessary in the interest of public safety, and while the evidence is incompetent for the time being we have to think in terms as we try to make a composite law that we do not restrict the power that still exists, so if you fellows over there have any more ideas, and I must say you are fertile minded and you have added a lot to this record that will give us pause, do not hesitate to suggest the legal authorities for them. Send them over here for the secretary of this subcommittee so that we can get out the record and get to work on it. Mr. COLLINS. Congressman, what about this? The bill as it passed the House and is before us-I mean your substitute-what is the effect or what is your view as to the power of the Attorney General and the FBI making wire-taps now? There is a question there as to whether this will stop all of them. Representative WILLIS. I am delighted to give you my views and what I had in mind. Senator WILEY. That is the point I raised now. Representative WILLIS. We do not want, and it was not my intention, to bar what has been going on, for a number of reasons: One, we held no hearings on the question of the broad approach of legalizing or barring evidence across the board because we might have stepped on the toes of another committee, so the bill, the substitute and Mr. Keating's original bill, all versions on our side, do not in terms say that the practice, whatever it is, going on in the past shall be approved, disapproved, or barred. Let that evil of that day stand by itself for future treatment. Whatever practice has been going on is not barred under this bill, but in this limited area to make the evidence competent-and that is all we are talking about, a rule of evidence and competency of evidence let them go on so far as I am concerned and do what they have been doing in the past, whatever it is, but if they want to open the doors of the court and make evidence admissible in the limited area of treason and our national security, then we are setting the guideposts and we are making the rules, so my answer to that is that the substitute bill would not bar in any way the activities of wiretapping, if any, and to whatever extent it is going on. Senator WILEY. By the Attorney General and the FBI. Representative WILLIS. By the Attorney General and the FBI, and I would say further that we were rather deliberate about that point. Senator WILEY. I think it is good to have that on the record. I see it is past 1 o'clock. We want to thank you gentlemen from the House for coming over here. We have a meeting tomorrow, do we not? Mr. COLLINS. Tomorrow at 10 a.m. Senator WILEY. The meeting stands adjourned until tomorrow at 10 a.m. (Whereupon, at 1:05 p.m., the hearing was recessed to reconvene at 10 a.m., Thursday, April 29, 1954). (The following statement was subsequently submitted:) STATEMENT BY SENATOR CHARLES E. POTTER OF MICHIGAN Mr. Chairman: I am pleased to submit this statement in support of Senate bill 2753, the object of which is to permit the use of evidence obtained by wiretap in the prosecution of cases in the Federal courts involving crimes against the national security, treason, espionage, etc. Mr. Chairman, I am surprised and disturbed that many appear to feel there is no need for this type of legislation. I wonder how much warning we need that our way of life is threatened by a ruthless, unprincipled, and determined organization operating within our borders before we are sufficiently moved to act effectively to tighten up our defenses. Today, Mr. Chairman, we face the spectacle of a nationwide Communist organization with a membership estimated by the FBI at 25,000 which utilizes the most lawless methods, including murder, to carry out its ends. Almost equally as much harm is done to our security and respect for our laws by the dupes who front for Communist causes and whose number is estimated at many times the actual party membership. How can we possibly justify a refusal to use the most diligent and effective methods that are available, to facilitate the constant surveillance and relentless detection of all the activities of this nefarious movement, whose avowed purpose is to destroy all that we hold dear and whose admitted methods include the taking of human lives where that would contribute to the success of their program? This group within our borders, with its own form of organization, its own laws, its own police, and judicial structure (if it is not a travesty to use the word justice in this connection) must be brought within control if we value our national security, our freedoms, yes-our very lives. Why should we hesitate to grant the power sought by our protective agencies to ease their task of detection and prosecution? It is particularly necessary that legislation of this type be adopted now that, according to reliable reports, Communist Party activities and is adherents have adopted methods of greater concealment than ever before. No longer are there group meetings of members in one central place. The current practice is to allow no more than a handful to get together at once, and at places remote and well concealed, in the effort to defy detection. Individual members, it is said, frequently change their identities. Naturally, successful detection is made the more difficult by various devices. Why can we not restore the balance, place in the hands of our defenders a weapon that will enable them to utilize, for purposes of court prosecution, evidence that they are able to obtain, by the use of wiretap. remembering that employment of this device is itself entirely legal? But, Mr. Chairman, in doing this, let us be sure that we act in an effective and consistent manner. It seems to me that my bill, S. 2753, more nearly approaches this description than the measure passed by the House, H. R. 8649. Under the House bill, there is a requirement that, for the future, where evidence is obtained by wiretap and its use in court is desired, there must be a showing that prior to its acquisition-permission to use wiretap in obtaining it was secured in the form of an ex parte order issued by a judge of a Federal Court of Appeals or District Cour. However, in connection with evidence obtained in this manner in the past, and now on hand. such material may be used in cases involving crimes affecting the national security such as treason, espionage, sedition, etc. Now, Mr. Chairman, I fail to see why what was right to do yesterday can become wrong to do tomorrow. If there are suspected criminals now running around loose against whom we cannot presently proceed in court because of the restrictions now in effect on the use of wiretap evidence, and whom we should go ahead and prosecute, as of course we should, what about those who may engage in this same type of criminal activity directed against our national securitv tomorrow? Are their possible or probable activities to be regarded as of so much less importance, from the standpoint of bringing them before a court of justice, than the doings of those who have already apparently completed criminal acts and whom we could now bring to book under this bill? What possible assurance can we have that crimes against the national security yet to be committed may not be even more reprehensible, embodying even more peril to our safety and well-being than previous actions? And, Mr. Chairman, when we analyze the probable bearing of this requirement calling for issue of court order before proceeding to use wiretap in a specific operation gathering evidence for prosecution for this type of crime, it seems to me that a complete lack of realism can be demonstrated. Conspiratorial or individual acts of this type are not planned or executed in the open, in the presence of witnesses, with written records or documents prepared to describe the activity or plan. They take place behind closed doors or in obscure, out-of-the-way places, with communication by word-of-mouth, utilizing utmost secrecy, with, it is probable, only two or three persons participating. The criminal act, moreover, may be exe cuted very soon, or immediately, after the plan is made. To require that a Federal court order be obtained before setting up the wiretap to secure evidence would almost certainly hazard the entire undertaking. The time element alone .could make it impossible to carry out. FBI agents must also operate in secrecy. Finally, what sort of evidence would have to be shown in order to justify a Federal judge in acting? The intelligence agents would not know that a certain type of act was going to be planned or executed. They have to act on suspicions, hunches, scraps of information, that may lead to something important or to a dead end. In applying for a court order it could rarely if ever be proven that its issuance would be certainly followed by the receipt of evidence that would lead to court conviction, even assuming that the order could be obtained in time and without prior knowledge of the person or persons believed about to perpetrate the crime. It is quite conceivable that a Federal judge might refuse to issue an order applied for on a speculative chance that it might be valuable. Mr. Chairman, if we are going to have legislation let it be consistent, workable, and effective. H. R. 8649 at best is weak and inconsistent and, at worst, can be completely self-defeating. On the contrary, S. 2753 is consistent in allowing the court use both of past and future evidence obtained by wiretap in cases involving crimes against the national security. As there is no requirement for prior court order, it would not hazard or impede expeditious action by an intelligence agency where there is prospect of obtaining valuable or incriminating evidence, nor would it risk breaking the cloak of secrecy which is so essential in this vital work. I hope S. 2753, or some measure involving its provisions, may find favor and be reported by this committee. I appreciate this opportunity to submit my views on this subject of such grave concern to the security and integrity of our people, our Government, and our way of life. WIRETAPPING FOR NATIONAL SECURITY THURSDAY, APRIL 29, 1954 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. The subcommittee met, at 10 a. m., pursuant to recess, in room 424, Senate Office Building, Honorable Alexander Wiley (chairman of the subcommittee) presiding. Present: Senators Wiley and Welker. Also present: Thomas B. Collins, subcommittee counsel. We are very happy to have you, Commissioner Hyde, with us this morning. You have a statement, I presume. STATEMENT OF ROSEL H. HYDE, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, ACCOMPANIED BY WARREN E. BAKER, GENERAL COUNSEL, FEDERAL COMMUNICATIONS COMMISSION Mr. HYDE. Yes. Senator WILEY. If you will make your statement, we will have a few questions to ask you afterwards and then we will let you go in peace, I trust. Mr. HYDE. Chairman Wiley, my name is Rosel H. Hyde. I am the Chairman of the Federal Communications Commission. I am appearing here this morning at the request of your chairman to present the views of the Commission on four bills dealing with the important question of the interception of communications in cases involving the investigation of certain Federal crimes, and the degree to which information obtained may be introduced in evidence in the course of criminal or civil proceedings to which the United States is a party. All of these bills have as one of their objectives the modification of the existing provisions of section 605 of the Communications Act of 1934, as amended, which, as you are aware, has been interpreted by the Supreme Court of the United States to preclude the Government from introducing in evidence in any criminal or civil action, information concerning any crime which has been secured through wiretapping or other interception techniques. I should like to point out that although section 605 has been physically incorporated into the Communications Act because of its general relation to communication activities, it is primarily a criminal statute of the type normally found in title 18 of the United States Code. This fact has been recognized by both the Federal Communications Commission and the Department of Justice, and the Department of 81 |