State of New York-where permission for wiretapping has existed under constitutional authority since 1938.

I have no reason to believe, gentlemen, that if the right to tap wires, conferred by the measure now before this committee and Congress, were enacted, that there would be any abuse of such right by our law enforcement authorities.

Before I close, gentlemen, may I express a grave doubt which I have as to the provisions of section 5 (a).

That says:

The Attorney General may authorize the Federal Bureau of Investigation to intercept wire communications if he determines, in his sole discretion and certifies in his authorization that there is reasonable ground for belief thatthen follows an enumeration of various criminal activities as to which the authority to wiretap is issued solely by the Attorney General.

It is true that the U.S. Supreme Court has not thus far held unequivocally that the use of a wiretap constitutes an invasion of one's rights under the fourth amendment. As already observed the nearest it came to it was in the Olmstead case, where it divided 5 to 4 in its ruling that wiretapping does not constitute a violation of the fourth amendment. But we have seen, in somewhat recent years, manifestations that our great Supreme Court is not always reluctant to modifying, and even overruling, prior adjudications, notwithstanding the doctrine of stare decisis.

If it should be held that wiretapping does constitute a violation of the fourth amendment, I very much fear that a tap made under the authorization of an officer of the executive or law-enforcing branch of our Government, rather than by a judicial officer, might be regarded as a violation of the fourth amendment.

There have been a number of opinions by our Supreme Court within recent years in which certain language is used that suggests very strongly that view.

Let's take, for instance, the case of United States v. Lefkovitz (285 U.S., p. 452) referred to in a footnote in the much more recent case of Johnson v. United States, reported at 333 U.S. page 10. There the U.S. Supreme Court said:

The informed and deliberate determination of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried actions of officers.

In the opinion, written by Mr. Justice Jackson, in the case of Johnson, which I have already mentioned, and which was decided in 1947, Mr. Justice Jackson, among other things, said as follows:

The point of the fourth amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Now, in a later case, that of United States v. Jeffers (342 U.S. 48), decided in 1951, the U.S. Supreme Court, in an opinion written by Mr. Justice Clark, had this to say:

The fourth amendment prohibits both unreasonable search and unreasonable seizure, and its protection extends to both houses and effects. Over and again this Court has emphasized that the mandate of the amendment requires adherence to the judicial processes. In so doing, the amendment does not place an

unduly oppressive weight on law enforcement officers, but merely interposes an orderly procedure under the aegis of judicial impartiality that is necessary to attain the beneficent purposes intended.

Now, it seems to me, gentlemen, that the philosophy underlying those expressions may well be applied to the principle involved in section 5(a) of the bill before us now.

If the U.S. Supreme Court should ever hold that a wiretap invades an individual's rights under the fourth amendment and if the authority for making the wiretap were to consist, not of a warrant or order issued by a judicial officer, but of a certificate issued by a law enforcement officer of the Government-which is what the Attorney General is-I would question the constitutionality of such a provision. Therefore, I would urge that in the consideration of this bill pause be given sufficiently to enable the making of a complete exploration of that question.

I want to express to the members of the committee my personal thanks for the courtesy implied in permitting me to appear before them this morning to give expression to my views with regard to this so-called wiretapping bill.

Senator HART. Judge, we appreciate very much your willingness to come and to express your views so effectively.

Senator Keating had hoped very much that he could attend this morning, but was unable to because of a conflicting meeting and the early convening of the Senate. He would like the record to note that Judge Pecora is one of the leading citizens of the State of New York. Judge Pecora has had a brilliant career in government service and private practice. This wide experience will give Judge Pecora's testimony on the difficult question of wiretapping great weight. Judge Pecora has a richly deserved reputation as a man of deep concern with individual rights and dignity. Senator Keating is grateful to him for taking the time to share his views with us on the pending legislation. He wants to assure you, Judge, that he shall read your full statement with the greatest interest and respect.

Judge PECORA. I thank you sir. And I want to express my cordial appreciation of the very fulsome things that Senator Keating had to say, and which you, Mr. Chairman, have just put into the record. Senator HART. Šenator Dirksen.

Senator DIRKSEN. I have no questions.
Senator HART. Thank you again.

Now, our final witness for today is Dan H. McCullough, speaking on behalf of the National Association of Defense Lawyers in Criminal Cases.

I should add for the record that yesterday Congressman Ashley, of Ohio, expressed to me his hope that he might be here this morning to introduce Mr. McCullough, and to listen. Unfortunately, his schedule on the other side is such that he could not do it. But Congressman Ashley advises the committee that we will now be listening to one of the most effective defense lawyers in Ohio, a man whose practice is such that his presence here represents a very substantial contribution of that which a lawyer has to put on the marketplace. We are very grateful to Mr. McCullough for coming here.

STATEMENT OF DAN H. McCULLOUGH, NATIONAL ASSOCIATION OF DEFENSE LAWYERS IN CRIMINAL CASES

Mr. McCULLOUGH. Mr. Chairman, members of the committee, I realize I am outcounted here by the reputation of my predecessors in this witness chair. General Biddle has been known to me both as a national figure and as a classmate of an old associate of mine, for more than 30 years. And I know Judge Pecora has been on the national scene for 40 years. I am an obscure lawyer from a rural city back in Ohio.

But while they have with them the power and prestige of their long years in government, I have with me a considerable experience in the field of the law, and I also have with me the words and the thoughts of the Founding Fathers.

Reduced to its simplest terms, when you get through with everything that these men have said, we can best state it in the language of the Lynway case. Reference has been made by both my precedessors in this witness chair to Mapp v. Ohio. This was a decision in the U.S. Supreme Court in May of 1961. In Mapp v. Ohio, the Supreme Court of the United States reaffirmed the rights of all citizens in all States under the fourth amendment, and also suggested their rights under the fifth amendment, and they reversed Lynway v. The State of Ohio. Now, Lynway v. The State of Ohio, the opinion was written by Judge Jones, in 131 Ohio State, back in 1936, and it represented the death blow to a search and seizure law in Ohio, which was started back in 1932 with the Rosonsky case, under the Antisaloon League. And Justice Jones said substantially what these gentlemen have said, which rejects the fact that ours is an accusatorial system and not an inquisitorial system of law.

It rejects that men are presumed guilty under our law-everyone is presumed to be innocent until his guilt is established beyond a reasonable doubt.

Now, you can't have it both ways. There aren't three sides to this coin. There are only two sides.

There is a side that says man is presumed to be innocent. That is the accusatorial system. There is a side that says a man is presumed to be guilty, and that is the inquisitorial system where the burden then devolves upon himself to prove himself innocent.

In Lynway, here is what Judge Jones said, and it in effect is what my two distinguished predecessors have said when they always refer to the fact that on applying for the right to tap a telephone they are referring to, or they are dealing with, what they call the criminal element.

Judge Jones said this: I have in this case found a happy solution to a problem that has disturbed all people since the beginning of the Republic-how to accord to everybody their constitutional rights, and yet make the law effective. And I would do that by this simple device. To all law-abiding citizens who are not charged with crime, I would extend the full protection of the Constitution. But those people who are charged with crime, they have forfeited their rights under the Constitution. I would deny to them their rights under the fourth amendment of the Constitution. But they will not go without a relief. If and when Mr. Lynway is released from the Iowa Peni

tentiary, he can then bring a suit against these police officers for trespassing upon his property, because they were there clearly in an illegal fashion.

Now, all of their presumptions, and all of their assumptions, upon which they urge you to adopt this bill, are on the assumption that they are dealing here with criminal, criminal, criminal, criminal.

Now, gentlemen, I want to make your mind at ease on one thing. I am a kind of an odd-ball criminal lawyer. I am what I call a sixthamendment criminal lawyer. The truth of the matter is that if it hasn't been for the fortunate circumstance that on Tuesday of this week a scientist came in from Finley College who engaged in a cancer research program, and is charged with a violation of the immigration law, I wouldn't have a criminal case in the office. So I don't represent any group that has an interest in wiretapping, or opposing wiretapping. I am a member of the Courts Committee of the Toledo Bar Association, both the Court of Appeals Committee, and the Common Pleas Committee. I am a member of the Lucas County Bar Association, a member of the Criminal Law Committee of the Harris Bar Association. I am a member of the American Bar Association, and I am president of the National Association of Defense Lawyers. But basically I am, gentlemen, a sixth-amendment lawyer. The sixth amendment placed upon the legal profession the duty of standing between the people and the Government. And that I have tried to give full effect to.

Toledo is a provincial city and has a relatively small incidence of crime. We have relatively little criminal law business. In other words, no lawyer could specialize as a criminal lawyer and succeed, or survive, I should say. Last year I represented a marine who was charged with murder in the first degree. That was the first firstdegree case I have handled, although I have handled 40 of them since the president of the bar association asked me to represent a man-a boy named Shriever. I took that case for the purpose of trying to diseastablish the McNaughton rule, and establish some other rule so far as insanity was concerned in Ohio. So when I appear in a criminal case, it will probably be at the request of the Ohio State Bar Association, on the one hand, or the president of the Toledo Bar Association, or as a president of the Constitutional Rights Committee of the Toledo Bar Association.

I say that because I think, gentlemen, when I give advice the advice of any man who has an ax to grind is valueless. The first duty of a lawyer is to give opinions based not upon his personal interest, but what is good for his client or what is good for the legal system or what is good for the community.

I come from a family that have fought in all the wars of the Republic. My father was a Scotch-French Indian. My people have been in this country for approximately 300 years.

I served for almost 3 years in World War I. So there is no question as to the patriotism of the family.

I am only here because I really believe, gentlemen, that the Founding Fathers adopted the philosophy of John Locke. And I am here because not only did they adopt the philosophy of John Locke, that is the right of the individual, the individual being superior to the allpowerful government-but if you go through the Declaration of Inde

pendence, you will find in great part that they copied, that they lifted, particular parts from the philosophy of John Locke.

Now, we have back home an officer-probably Senator Dirksen knew his father. He is a judicial officer. He is one of our best court of appeals judges. His name is Lehr Fess. He served during the Congress as Parliamentarian. His father was Simeon Fess, of Ohio.

I am a member of the Northwestern Ohio Historical Society, and Lehr Fess is also a member of that society; he is also head of our judicial council in Ohio. I was on a program with him last week. I was down at Ohio no more than a week before on the question of the McNaughton rule, and I was in the Ohio State Bar Association program last weekend on the question of Mapp v. Ohio. And I was at Lehr's judicial conference, and he was at our meeting, because of the interest of the judiciary in the Mapp case.

Now, a quarterly we receive from the Northwestern Historical Society, a publication-this one was written by Lehr, "Charters of Freedom, and the Most Unforgettable Character I Have Ever Known," by Lehr Fess. The unforgettable character is his father, Simeon Fess, the late Senator from Ohio.

Now, Lehr, in "The Charters of Freedom," starts with the Magna Carta, and he has the Ordinance of 1787, and the Constitution, and he has all the various important documents that were adopted by the Founding Fathers. And he says this:

It is said that these elder statesmen who framed the first 10 amendments were never tired of quoting the immortal words of the elder Pitt in his speech on the excise "The poor Englishman in his cottage may bid defiance to all the forces of crime. It may be frail, its roof may shake, the wind may blow through it, the storms might enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of this ruined tenement."

Now, he says the Founding Fathers were proud of quoting that. And of course that is exactly what we are involved with here today. Whether you like it or not-and it was suggested by Judge Pecora-he realized the fourth-amendment implications of this bill and the fifth-amendment implications of this bill, that you are asking the Members of the Congress of the United States to adopt.

Now, I am fond of saying, and I probably will say, as an incident to a lecture before the bar of Wisconsin in June, that while the Founding Fathers adopted Locke, and the theories and the philosophy of Locke, yet inevitably we seem to be headed toward the adoption of the philosophy of Hobbes, and ultimately, "Leviathan." And I am not at all surprised at what Judge Pecora said about the people of the State of New York adopting this bill, favoring wiretapping. My answer to that is one of my favorite quotations, which, by the way, Aldous Huxley quotes in his "Brave New World Revisited," and is substantially the same thing to be found in Voltaire's "Philosophical Dictionary"-and that is the statement of the inquisitor. You all remember the book, "The Brothers Karamazov" by Dostoevski, and that part about the inquisitor and what the inquisitor says about people, people not wanting freedom, that people, as a general rule, the great mass of people, do not want freedom. And I believe that the polls that are conducted are correct when they say that the average person would trade his freedom for a mess of pottage. Freedom has always been in the aristocratic tradition. It