WIRETAPPING-THE ATTORNEY GENERAL'S PROGRAM-1962 FRIDAY, APRIL 6, 1962 U.S. SENATE, COMMITTEE ON THE JUDICIARY, The committee met, pursuant to recess, at 10:45 a.m., in room 2228, New Senate Office Building, Senator Philip A. Hart presiding. Present: Senators Hart (presiding), Long of Missouri, and Fong. Also present: Francis C. Rosenberger, professional staff member. Senator HART. The committee will be in order. The first of the witnesses scheduled for the hearing today is the legislative counsel for the International Brotherhood of Teamsters, a Milwaukee lawyer, whom we welcome, Mr. Sidney Zagri. STATEMENT OF SIDNEY ZAGRI, LEGISLATIVE COUNSEL, Mr. ZAGRI. Good morning, Mr. Chairman; for the record, my name is Sidney Zagri, the legislative counsel of the IBT. I would like to have permission to insert my statement in the record, Mr. Chairman. Senator HART. It will be printed in full at this point and if you have any summary or elaboration or comment, that will be fine. Mr. ZAGRI. I also have an exhibit I want to introduce in the course of my statement. Senator HART. We assume it will be admissible when you get to it. Mr. ZAGRI. Upon behalf of General President Hoffa, the general executive board, representing 1,725,000 members, and pursuant to unanimous resolution of 5,000 teamsters' wives assembled in Milwaukee, Wis., on April 3, and 1,300 in Green Bay, Wis., on April 4, I appear in opposition to bills proposing the legalization of State and Federal wiretapping. The Attorney General seeks to justify legalized wiretapping as a means of balancing the interests of individual privacy with the needs of society in law enforcements. He assumes that one is equitable with the other. This we disagree with. The interest in freedom from intrusion of wiretapping is so basic to the very existence of a free society that it transcends other more temporal considerations. Wiretapping and eavesdropping are more serious intrusions on privacy than the general writs of assistance used in colonial days. 83777-63-10 Now all the intimacies of one's private life can be recorded. This is far worse than ransacking one's desk and closets. This is a practice that strikes as deep as an invasion of the confessional. I quote from Justice Douglas in "The Right of the People" (1959). Wiretapping is an essential instrument of the police state. It is the key to Orwell's "1984." It is the ear of the Gestapo. Even if it were a useful tool in frustrating foreign agents so is rifling the mails, so is unrestricted search of private homes- I am quoting now from Alan Barth's book on the subject of wiretapping so is summary arrest on suspicion-the ominous knock on the door by night that came to be the symbol of the Gestapo's terror. A great deal could be learned about crime by putting recording devices in confessionals and in physician's consulting rooms, by compelling wives to testify against their husbands, by encouraging children to report the dangerous thoughts uttered by their parent. The trouble with these techniques, whatever their utility in safeguarding national security, is that a nation which countenances them ceases to be free. Senator HART. What is the quotation from? Mr. ZAGRI. This is from Alan Barth. On the other hand, it is conceivable that under rare and unusual circumstances the national security may require a temporary relaxation of our concepts of civil liberties-a concept which holds that the invasion of privacy can only be justified under the most serious and compelling circumstances and then only consistent with basic standards of due process of law. It is essential that such a showing be made before Congress act. In wiretapping the intrusion of privacy is so extensive that its authorization can be justified by only the most compelling evidence. The basic issues to be resolved separately are threefold: (1) Whether problems of crime and threats to our national security are so great and compelling as to overide the constitutional right of privacy; (2) Whether wiretapping is essential to efficient law enforcement; and (3) Whether the procedural safeguards provided in the act are adequate in protecting the individuals' right to privacy against the intrusion of wiretapping. I agree with you, Senator, in your observation when the Attorney General appeared before this committee on Thursday, March 29: I am honestly compelled to acknowledge that instinctively, I place the burden on you to prove *** The Attorney General's statement is full of assertions but few facts to justify basic departure from our concepts of civil liberties. Observations of the late Senator Tom Hennings of a similar failure by other proponents of legalized wiretapping is most apropos here: During the course of our hearings Here he is referring to hearings before the Constitutional Rights Subcommittee of this committee on wiretapping, I have been struck by the remarkable lack of specific information on a case-by-case basis, demonstrating the indispensability of wiretapping to the solution and prosecution of crime. The advocates of wiretapping would do much to advance their case if they would come forward and support their claims of need with more specific evidence. The Attorney General says "Yes," but doesn't substantiate his assertions with evidence. For example, he states, and I quote him in his testimony: Testimony presented to committees of both Houses of Congress last year highlighted, as did the Kefauver and McClellan committees' investigations, how the Nation is being corrupted financially and morally by organized crime and racketeering. This statement is shocking on its face, particularly when made by the Attorney General of the United States. It is worthy of the Russians and their propaganda efforts to discredit this country and our democratic institutions. It is a serious reflection on the moral fiber of the American people and the basic integrity of our institutions. He asserts: It is an anomalous situation to receive information of a heinous crime and yet not be able to use that information. I could agree that it would be anomalous if the information were lawfully received-but, if he adds the words "unlawfully" to his statement, the anomaly disappears. He concludes his statement: If there is one proposition on which almost all the witnesses who have appeared before congressional committees in recent years have agreed, it is that the present situation is intolerable. The Attorney General's policy of having the FBI conduct security taps is in violation of section 605 of the Communications Act. When the Department of Justice takes the position that divulgence from one agent to another is not divulgence at all, it flies in the face of the clear words of the statute and the decisions of the Supreme Court. The statute provides that "no person" shall intercept a telephone conversation and divulge its contents to "any person. The simple cure for the "intolerable situation" is for the Attorney General to enforce the law. The record does not bear out the charge that— all the witnesses who have appeared before congressional committees in recent years have agreed that the present situation is intolerable. The Senate Subcommittee on Constitutional Rights found vast disagreements among the State attorneys general regarding the need for wiretapping legislation. Of the 45 attorneys general responding to the Senate subcommittee inquiry, only 13 supported wiretapping authority. Four came out flatly against wiretapping. As a further showing of need, the Attorney General states: The telephone is not only a means of facilitating crime, but it may be an instrumentality of crime. It is used in bribery, extortion, and kidnaping, with the added advantage of protecting the identity of the criminal. On the basis of this logic, he should ask for authority to monitor every automobile, by placing a microphone in the seat of every car, since the automobile is an instrument in the crime of kidnaping; he should seek authority to suppress the publication of clearinghouse numbers in newspapers on the basis that clearinghouse numbers are used for the purpose of establishing winning numbers in the numbers racket; he should seek authority to rifle the mails on the basis that the mails are an instrument of certain crimes such as fraud, and so forth. The Attorney General testified that the FBI has been engaged in wiretapping in internal security matters since 1941. Informed sources have questioned the value of wiretaps in security cases. In the famous case of U.S. v. Coplon (88 F. Supp. 921 (S.D. N.Y. 1950)), for example, the prosecution succeeded in convincing the trial court that none of its evidence were the fruits of wiretapping, despite almost continuous interception of the defendants' telephone calls. The Government itself took the curious position that wiretapping had been a complete failure. Prof. Louis B. Schwartz, an assistant counsel in wiretapping cases, formerly of the Department of Justice has made the following excellent analysis of the problem: It is clear that there never was a showing, or even a serious attempt to show, that we would catch fewer criminals or that criminal activity would increase in case of the unavailability of the surveillance devices involved. All we could prove, and I think all that the current talk of necessity means, is that the prosecution will lose a particular conviction, as in the Coplon case, when it becomes known that an illegitimate detection device has been employed. This does not prove that future Coplon cases cannot be found and successfully prosecuted by more orthodox procedures. Nor is it reasonable to suppose that the failure of the Coplon prosecution has encouraged or increased espionage activity. A traitor who risks death if apprehended is certainly not going to be deterred by the knowledge that his telephone may be tapped; at most, he will avoid use of the telephone. Law enforcement officials disagree as to the effectiveness of wiretapping. However, even District Attorney Silver, of New York, one of the most ardent proponents of law enforcement wiretapping, in his presentment of the second additional March 1958 grand jury of Kings County, cites only one case of wiretapping which contributed substantially to successful police action. A portion of the presentment indicates that conventional forms of police activity may be most effective against organized crime. William Keating, in his testimony before the House Judiciary Committee in 1955, states: I don't know of a serious case in my recollection in the city of New York where a conviction was obtained by wiretapped evidence. Senator HART. Are you able further to identify William Keating? Mr. ZAGRI. Yes; I do not know what he is doing today, but I think at the time when he appeared before the House Judiciary, he was on the staff of the prosecuting attorney in New York City. Senator FONG. How old is the statute in New York City? Mr. ZAGRI. I think it goes back many years. Senator FONG. In 1955, did it have sufficient time for it to be proven? Mr. ZAGRI. I believe it has, yes. Senator FONG. I said up to 1955 Mr. ZAGRI. Yes. I think it goes back many years. Sam Dash reports in his book, "The Eavesdroppers": Police in Philadelphia are now generally of the opinion that the use of wiretap transcripts in court only jeopardizes the cause, because it brings with it the danger of technical arguments concerning the sources of the telephone information and the qualifications of the wiretapper which obscure the real issue before the jury, the guilt or innocence of the defendant. Also police believe divulgence of wiretaps panics the lawyers and the community, resulting in efforts to restrict law-enforcement wiretapping. Now, as to limitations on wiretapping in S. 2813: The limitations are as illusory as the title of the bill is misleading. The bill is labeled as one "to prohibit wiretapping by persons other than duly authorized law-enforcement officers." Such a title is misleading. Wiretapping is already prohibited by section 605 of the Federal Communications Act, 47 U.S.C. 605, and the net effect of S. 2813 is to repeal section 605. Power of the Attorney General, as defined in section 5(a) of the bill, is much greater than in any previously introduced in wiretapping legislation. Section 5(a) permits the Attorney General to authorize the FBI to intercept wire communications if he determines-in his "sole discretion" and certifies that there is reasonable ground for belief. The Attorney General's determination will not be subject to review by the courts; nor is there any requirement that he report the record of the tap orders to Congress. This will give the Attorney General unchecked surveillance powers. Since no one outside his office will know whether the taps have been ordered, either before or after, the power requested provides the potential of being used as a surveillance instrument for political purposes. This presents the danger of giving the party in power an instrument for self-perpetuation. It also could be used as a club over recalcitrant Members of Congress as a means of "getting the goods on them." The excuse offered for this unprecedented power is that time may be of the essence and sensitive information may be leaked by personnel in the Federal district courts. Since when is the personnel of the prosecuting arm considered more reliable than the personnel of the courts? Even if wide powers were granted in time of national emergency, which is not currently the case, the zeal of the prosecutor should be tempered with judicial restraint, and the procedure for obtaining a court order in section 5(b) should apply to section 5(a). The enumeration of specific crimes in 5 (a) and (b) does not provide any significant restraint on the scope of wiretapping. Section 6 of the bill authorizes the use of all the contents of intercepted communications before a Federal or State grand jury or court. If any limitation on the use of contents is intended then section 6(a) should be amended as follows-following "disclosure"—"with respect to the crimes enumerated above." It would then read as follows: Sec. 6. (a) Any investigative or law-enforcement officer, who has obtained knowledge of the contents of any wire communication in accordance with this Act, may disclose such contents to another investigative or law-enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officers making and receiving the disclosure. This is a rush job. The girl did not put in my amendment. In this connection, section 8(g) of the proposed amendment with respect to the crimes enumerated above-in other words, official making and receiving of disclosure with respect to the crimes enumerated above-in this connection, section 8 (g) would also have to be amended with a fifth ground for a "motion to suppress": (5) or that the evidence does not relate to the enumerated crimes. |