Senator HART. In the case that you mentioned as decided in the last week or so, is there any indication whether it is to be appealed, or is there an appealable ground?

Mr. MCKAY. As I say, it was decided just last week. I would assume that the convicted defendant would want to take the case on to the Supreme Court.

Judge Fuld wrote the dissenting opinion; Judge Desmond, and Chief Judge Burke concurred. It seemed to me very striking that they write the dissent. It might be their desire to test again the continuing validity of Schwartz v. Texas, after the Benanti and Pugach cases, particularly as to the applicability of the doctrine of Mapp v. Ohio.

Senator HART. I am grateful that the record will include the witness' testimony. It demonstrates, I think, the difficulty of putting into words the concern that all of us share as we move into this area. I am struck by a statement that, on first reading, seems rather extreme. If you would care to comment on it, Professor McKay, I would be glad to have it.

In your statement, you make the point that there are a lot of effective things that could be brought to bear in the elimination of crime, but merely their effectiveness does not authorize their use. You suggest that among these effective devices are the third degree and star chamber proceedings. Then you say that they are threats to freedom and to the presumption that all men are innocent until proven guilty and that outweighs their effectiveness. This last sentence is what struck me: "Wiretapping poses an even greater threat to liberty." You have bitten off a very big piece there and I would like you to expand on it.

Mr. MCKAY. I would be very happy to.

Star chamber proceedings, third degree that is, involuntary confessions, and so on-and violations of search and seizure as we know it in the fourth amendment of the Constitution, are all serious and all clearly unconstitutional under our present system, and no one, I suspect, urges that they be permitted. Yet each of them is subject to limitation in some way, because they deal with the visible, with the here and now, and some kind of limitation which is necessarily physically built into it. This is not true with wiretapping. The wiretap is imposed upon a telephone. We like to think it is on a private telephone. But in New York, for example, we find that almost half the taps in recent years have been on public telephones. So not only is every call that an owner of a telephone made subject to monitoring, but every one he calls, everyone who calls him. No matter how innocent the business, no matter how guilty, all is subject to monitoring without any of those individuals or groups being aware of what is happening.

The other thing that seems to me particularly noteworthy is that not only is it unrestricted because of its immediate nature, and because of the individual's inability to know what is being done to him, but also it is unrestricted as to time. The administration bill proposes 45 days or 30 days. But the present bill says 45 days plus unlimited opportunities for renewal upon again a showing of the same basic need for the wiretap. So that there is a complete invasion of a person's home. It is as though the FBI or State prosecuting authorities

were to be allowed to sit in the closet of a person's home for 45 days, then for 20 days, subject always to lack of detection-no way of detecting their presence. We would consider this unthinkable as an invasion of a person's privacy if the man were to sit physically in the chamber and listen.

But since it is the tap on the telephone, which has the same quality to it, except that it is unknown and unknowable, we tend to think that perhaps this is justifiable. I find the reasoning not persuasive. Senator HART. Thank you very much.

Professor, as you read this bill, the administration bill, suppose a tap is authorized based on an application reciting probable cause to believe that a robbery ring was at work. Suppose a tap is put on a phone and then conversation over this tap leads them to a narcotic violation, is the evidence admissible?

Mr. MCKAY. Under the administration bill, I take it the evidence would be admissible. This seems to me undesirable, even under the administration premise, and perhaps a technical oversight. I do not know if that was contemplated or not.

Senator HART. I wonder if it might not be an oversight, because is it not true that in the traditional area of search and seizure under a warrant, if you make your application alleging theft, suspect property on the premises, a television set, and then go in and look under the rug and pick up a narcotic drug, that is not admissible?

Mr. MCKAY. That is right. There are only limited circumstances under which evidence not within the scope of the warrant may be seized, evidence of a crime or contraband, the thing itself which is not lawful.

Senator FONG. You talk about prejudice to society. This law, the law which we are considering divides itself into two parts: one on the Federal level, one on the State level.

Now, it is debatable as to whether society has been prejudiced by crimes like gambling and larceny. Now, on the Federal level, where we deal with the crimes like sabotage against the national security, would you still hold to your theory that society has not been prejudiced there?

Mr. MCKAY. Yes, sir. We have considered this very carefully and we believe that wiretapping at all levels, in connection with all potential offenses, is undesirable.

Mr. FONG. Now, situations on the national level arise very quickly. Things happen in Laos, in Germany, et cetera. Situations may arise where national security is prejudiced, where you would like to repose certain powers in the hands of the Attorney General in the matter of wiretapping. Has your committee considered that?

Mr. McKAY. Yes, sir; we have considered this. If a showing can be made at some time in the future of a pressing necessity, there might be an occasion. We do not believe that at the present time, or in any situation we can visualize, the need is that pressing.

Senator FONG. Do you not think this situation may arise very quickly and that with the slow process of legislation, it would be too late for our national security?

Mr. MCKAY. Senator, that is too late on the assumption that wiretapping is the only way to get the kind of information that is necessary. Our commitee has thought that the FBI has long proved it

self to be effective in getting evidence in other clearly permissible ways. We consider the threat not that substantial.

Senator FONG. You have stated that prohibition against wiretapping should be absolute?

Mr. McKAY. Yes, sir.

Senator FONG. That the Attorney General should not have the right to wiretap, which presently he can now conduct because of Executive order. You want to prohibit that?

Mr. MCKAY. Yes, sir.

Senator FONG. Can your committee conceive of a situation where it is permissible for the Attorney General to wiretap to get the information that he needs?

Mr. McKAY. We can conceive of no situation that we can see now which would justify such legislation this year.

Senator FONG. How large is your committee on the Bill of Rights? Mr. MCKAY. Nineteen including the chairman.

Senator FONG. And you stated that there was a majority vote on this proposition?

Mr. McKAY. Yes, sir; both last year and this year.

Senator FONG. Outside of two members that did not vote, would you give us the number of votes on each side?

Mr. McKAY. Yes, sir; it is 11 in favor of the position which I stated, 5 opposed to the position, and with some variation within their position, and actually 3 not voting, although I recorded only 2 because they had special reasons because of their positions to make it clear they could not vote on the issue.

Senator FONG. Eleven to five

Mr. MCKAY. Eleven to five with three not voting.

Senator FONG. Have you had any previous vote on this question, prior to this vote you just told me about?

Mr. MCKAY. Yes, sir; the committee voted by about the same majority last year, when I was not a member of the committee.

Senator FONG. How are members on the civil rights committee appointed?

Mr. McKAY. In the same way as members of all commitees of the association. All members of the association are asked to indicate the committee or committees on which they would like to serve. From that group, the president of the association and the chairman of the committee, in consultation with the executive committee or with whom else they want to consult, decide those who are best able to serve, whom they would like, and offer invitations.

Senator FONG. Any other questions?

Senator HRUSKA. No, except I want to join with the Senator from Michigan in saying how gratified I am for this witness coming here. I do not agree with your position, Mr. McKay, but I have rarely heard the position you have taken expounded so well and effectively and I want to commend you on your grasp of the subject and the facility with which you speak upon it.

Mr. MCKAY. Thank you, Senator. I can only hope that some time it will be persuasive to you.

Senator FONG. Thank you for coming and giving the committe your views and the views of your committee.

The next witness is Whitney North Seymour, Jr., chairman of the Committee on Civil Rights, New York County Lawyers Association.

STATEMENT OF WHITNEY NORTH SEYMOUR, JR., CHAIRMAN, COMMITTEE ON CIVIL RIGHTS, NEW YORK COUNTY LAWYERS ASSOCIATION

Mr. SEYMOUR. May it please this honorable body, my name is Whitney North Seymour, Jr. I am a member of the New York Bar and I am here in my capacity as chairman of the Committee on Civil Rights of the New York County Lawyers Association. I also have the right to present on behalf of the full association its position.

Although in our association as well as the New York City Bar Association, we pride ourselves upon our independence of position and thought, by some remarkable feat we have been able to come out with a uniform, common view on this. I have the honor of presenting a report not only of my committee but of the committee on criminal courts, a report subsequently adopted by the committee on Federal legislation and approved by our board of directors. That means that our report has run the gamut of at least 93 committee members, and under our bylaws, the board of directors can speak for our membership of 10,000.

We have some pride in being the largest local bar association in the United States and I believe in the world.

I do not mean to suggest that 93 lawyers have been unanimous in their views; quite the contrary. Our committee, the committee on civil rights, which is obviously the most sensitive committee for discussing this subject, passed it by an extremely close vote, but I still think it is a very good posture to be in to be able to present this report commonly. I will not read the report to you, and being somewhat of an amateur appearing before distinguished committees, this body, I have not prepared a written statement. If I may, I will just touch very informally on a couple of highlights of our position.

No. 1, I do not think there is anyone who takes a more zealous view of civil rights than we lawyers in New York, who are constantly faced with the problems in our own community, and we take liberty in editorializing our problems in other communities.

Yet, speaking for our own committees, our zeal in protecting those civil rights has taken, I think, the proper practical turn of viewing that civil rights will be much better protected by the enactment of legislation such as that which is being considered than by taking a headin-sand approach that no wiretapping should be permitted. We think, in fact, that that approach has, in part, contributed to the general state of confusion which we think is actually injuring civil rights in our own community and possibly at large in others.

I refer, of course, to the fact that the state of the law is in terrible confusion. Conscientious law enforcement officers really do not know what to do. In the Federal courts, of course, the pattern is now clear, but in the State courts where we have a very heavy volume of criminal investigations and prosecutions, the prosecutors are having a terrible time.

As you have already heard, our district attorney in New York County has taken the view that he will not subject law enforcement officers to possible prosecution for violating Federal law by using wiretap evidence. Yet the highest court of our State has just ruled, albeit 4 to 3, that such evidence is admissible.

Now, we submit that this confusion in the law really lends to its current disrepute and a very understandable and, indeed, maybe even very proper view on the part of the conscientious law enforcement officers that they have the right to disregard Federal law as it now stands and to try to apply their own standards as they go along.

We think this hurts civil rights. We think, indeed, the proper solution is to establish a uniform Federal policy to cover the entire country, available to the States if they want it, which spells out in very clear terms what this bill in general terms does, a specific set of criminal standards to be met as to the type of crimes that can be invoked in connection with wiretap orders, provision for judicial review of the application, and again, judicial review before the evidence can be used, or at least the availability of that to any defendant in a criminal case, a reporting system, and clear sanctions for violation of the law, both in intercepting as well as in divulging. It is our conclusion that the existence of these particular qualities in this bill provide a much greater practical safeguard of the civil rights of citizens generally than to take an absolutely negative position on the bill.

Now, we do have, as all lawyers naturally would, a few suggestions. I think they are brief and I think they are not extensive, and I will give them to you very briefly.

No. 1, we are against the provision to permit the Attorney General to authorize wiretapping on his own. There are some men with prosecuting experience who are on the various committees that passed on this, and through it all no one has really been able to figure out sufficient justification for removing the protection of applying to a judge for establishing probable cause and to insure some form of reporting at some point as to the extent to which wiretap orders are used in national security cases.

We think that the bill needs to be clarified as to whether evidence of other crimes which are recorded during the course of a wiretap designed to pursue one particular crime could be used in evidence. For example, that you used in questioning Professor McKay, used to pursue a particular type of crime and evidence of another type of crime. We think possibly the bill could stand clarification one way or the other, because we do not know if that is permissible or not.

Also, I think possibly you might want to look at the ceiling provisions in the bill in order to make sure that it does not create doubt as to the right of the defendant, both in the Federal court and the State courts, to have the order and the supporting papers made available to him on application in connection with a motion to suppress. Of course, there is a provision to have the order turned over to the defendant 10 days before trial, but we think that this provision is not necessarily clear in terms of a defendant who might know about a tap in advance. He might want to make his motion in ample time to have it passed on.

Our fourth suggestion is that the statute should only be forward looking. That is, in its present terms, once it becames effective, it would affect all pending prosecutions and we do not think that would be fair to States that have already conducted wiretaps, have cases on the calendar, and are going to trial.

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