5. Consideration should be given to an express provision to the effect that the authorization to disclose intercepted communications does not embrace otherwise confidential and privileged communications, such as those between attorney and client, priest and penitent, doctor and patient, and husband and wife. Two basic criticisms of the bill have been expressed by law enforcement officials in New York City which we believe should receive our further comment. A. The first concerns the provisions of section, 5, containing the list of crimes with respect to which wiretap orders may be granted by Federal and State courts. Opposition has been expressed to the present provisions both on the prosecuting and police levels, because the bill's list of crimes as to which State wiretap orders may be granted excludes gambling violations. We take no position as to the inclusion or exclusion of specific crimes from the lists proposed in S. 2813. However, we do believe that some limitation on wiretapping should be incorporated in such legislation, limiting it to a group of more serious crimes, in view of the many continuing questions affecting the use of this device. Experience with this legislation could, at a later date, justify its extension to other specified crimes if necessary. B. The police commissioner of New York City has recently raised a second criticism of this legislation, in that it restricts the right to seek wiretap orders on the State level to the attorney general of any State or the principal prosecuting attorney for any political subdivision thereof. Under the present Constitution and laws of New York State, such application may be made not only by prosecuting officials, but by any police official above the rank of sergeant, and a number of wiretap applications are made by, and orders are granted to, police officials each year. After considering the apparent reasons for the bill's limitation and the possible impact of prohibiting wiretap applications by police officials, we conclude that the limitations in the proposed bill should be retained, and that they would not result in any substantial and unjustified limitation on the discovery and prosecution of crime. We believe that there would be no substantial hardship to the police in requiring them to secure wiretap orders through the local prosecuting attorney or, where he refuses to assist them for improper reasons, through the attorney general of the State. The advantages of such a procedure are many. It would result in more centralized knowledge of wiretap orders in effect in any locality, and in review of any wiretap application, before it is submitted, by local legal counsel, giving greater assurances to the courts that the various requirements of the law, such as unavailability of other means for obtaining the information, are being met. CONCLUSION We are conscious of the duty of the bar to guard the civil rights of all citizens as zealously as possible. We are persuaded, however, that a workable and enforceable wiretapping law which permits limited interception under rigid controls, and attaches strong sanctions against unauthorized interception, will tend in the long run to provide a more genuine protection to civil rights generally than continuation of the present situation of confusion and unenforceability. Accordingly, we support the enactment of S. 2813, subject to the particular criticisms set forth above. In any event, we believe that any wiretap legislation enacted by Congress should meet the following basic criteria : 1. It should be restricted to wiretapping under the supervision and by authority of a competent court of general jurisdiction; 2. It should be limited to specified crimes of a more serious nature; 3. It should be restricted to applications by prosecuting officials, who could also apply for such orders on behalf of police officials; 4. It should contain strong prohibitions and effective punitive measures against unauthorized wiretapping whether or not the wiretapping information itself is disclosed; 5. It should contain clear provisions authorizing judicial review of wiretap orders in the case of both Federal and State defendants. 6. It should require periodic reporting of authorized wiretaps to a central agency and to the Congress, in order to permit periodic reevaluation of the legislation; 7. It should restrict the effectiveness of such orders to a limited length of time, in order to require periodic reevaluation of the order by the issuing court; 8. It should, through every means possible, protect the rights of individuals to the privacy of their homes and conversations, perhaps even to the extent of permitting an individual to apply for a court order to remove any wiretap which is placed on his telephone and comes to his attention. In the event that no wiretap legislation is enacted, it is the view of the committee that the Congress and the executive branch of the Federal Government should give prompt guidance to local law enforcement officials as to the effect and implementation of present section 605 of the Communications Act, so that such officials, acting in good faith, may know the extent to which they may apply for, use, and disclose intercepted wire communications under appropriate State law. U.S. SENATE, June 22, 1962. Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senate, DEAR MR. CHAIRMAN: Will you kindly make the enclosed letter from Col. David A. Espie, the director of the division of Kentucky State police, a part of the official record on S. 2813. You will note that he makes certain suggestions as to extending the scope of the bill. Sincerely yours, THRUSTON B. MORTON. Hon. THRUSTON B. MORTON, U.S. Senator, Senate Office Building, DEPARTMENT OF PUBLIC SAFETY, DEAR SIR: Senate bill 2813 now before the Senate Judiciary Committee provides for a system of authorized wiretaps and penalties for unauthorized wiretapping along with appropriate amendments to section 605 of the Communications Act of 1934. The proposed bill is of vital concern to the Kentucky State police and other law-enforcement agencies throughout the United States as it represents one step in attempting to equalize the present unbalance of power between effective law enforcement and syndicated crime from the local to the international level. The general feeling of law-enforcement officials everywhere was stated very clearly by Leonard E. Reisman, deputy commissioner, Police Department, City of New York, in his testimony before the U.S. Senate Committee on the Judiciary at its hearing on S. 2813, May 10, 1962, when he stated in part: "Law enforcement 'officials everywhere are becoming more and more vocal and increasingly bitter over what we regard as an unjustified curtailment of our activities in the enforcement of criminal laws of our respective jurisdictions. We, too, are citizens, and we, too, are vitally interested in civil rights. We protect civil rights with our minds and bodies 24 hours a day 7 days a week. Therefore, we feel our views should receive great weight when legislators meet to consider these problems." Inasmuch as adequate safeguards are incorporated in S. 2813 to prevent its indiscriminate use, we feel that it is definitely in the public interest to secure its enactment into law. However, we would urge that the scope of the bill be extended to permit interception of communications in investigations of gambling law violations, as illicit gambling is the taproot which nourishes syndicated crime. The Honorable Glenn Lovern, commissioner of public safety, and I, therefore, respectfully request your careful consideration of the merits of Senate bill 2813. Sincerely yours, Col. DAVID A. ESPIE, Director. STATEMENT OF THE NATIONAL COUNCIL OF JEWISH WOMEN, INC., NEW YORK, N.Y., ON S. 2813 BEFORE THE COMMITTEE ON THE JUDICIARY, U.S. SENATE, JUNE 1962 The National Council of Jewish Women wishes to state its opposition to proposed legislation which would, under certain conditions, legalize the practice of wiretapping and allow the introduction in court proceedings of evidence obtained by wiretapping. The national council for more than 50 years has concerned itself with legislative action which affects the social welfare of the individual and his dignity as a human being. It is our practice to study carefully proposals within our area of interest, to reach conclusions after group discussion conducted independently in sections across the country, and to offer these conclusions to our lawmakers as an expression of our interest as a citizen group. According to our practice we, therefore, submit the following comments as the position of the National Council of Jewish Women on wiretapping legislation: 1. The National Council of Jewish Women has consistently maintained that personal dignity and freedom of expression are values basic to our American way of life and must be strengthened and safeguarded. We believe that the practice of wiretapping, by definition, violates the individual's freedom to express his thoughts secure in the belief of the privacy of his words. Because of the nature of the wiretapping process, it is not possible to limit this invasion of privacy to conversations between persons suspected of crime. All conversations on a tapped wire are overheard and/or recorded. A tap applied to public telephone, for example, could monitor hundreds of conversations between citizens not remotely connected with the criminal act under suveillance. Moreover, a skillfully applied tap cannot be detected by parties to a conversation. Thus a citizen must be aware, if wiretapping is legalized, that he may be overheard without his knowledge. He will be as effectively limited in his freedom of expression as if he were advised that someone was actually eavesdropping on his conversation. 2. While aware of the dangers to freedom of expression inherent in legalized wiretapping we also recognize that our law enforcement officers must have the use of every rightful tool for combating crime and safeguarding the national security. To be independent and effective our society must function in an atmosphere of order and freedom from violence. We are deeply concerned with juvenile delinquency and are thoroughly cognizant of the menace, to our young and old alike, presented by the many facets of organized crime. In the area of international organization with which we are also concerned we know well that our Nation's security is a precious prerequisite to our leadership in the solution of world problems. 3. Certainly the authority to tap wires would be a useful device for the apprehension of criminals and the prevention of crimes against our national security, our youth, and our citizenry in general. Whether it is an indispensable tool is another matter. Law-enforcement officers are not in complete agreement here. There is little evidence that lack of authority to present wiretap information in court proceedings has prevented convictions which would otherwise be obtained. We do know that the array of other crime detection techniques is formidable and effective. We are confident that law-enforcement aunorities can deal effectively with criminal acts without having to violate the basic rights of the individual. 4. And so we arrive at a question of values-Is it of greater importance to our national strength and character that an additional tool be provided our law officers which would simplify and speed up detection of criminal acts and intentions, or that the individual be protected in his freedom of expression without concern for the ear of the eavesdropper? The National Council of Jewish Women wishes to state its clear conviction that the individual's right to privacy for his thoughts and freedom for his utterances are of paramount concern. To diminish these rights is to chip away at the very foundations of our democratic way of life. Surely our Federal Government must not be placed in a position of leadership in the curtailment of civil liberties. We fully subscribe to Justice Brandeis's observation that, "The makers of our Constitution sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone the most comprehensive of the rights of man and the right most valued by civilized men." We strongly oppose legislation which would infringe upon the individual's right "to be let alone" through the sanction of wiretapping or eavesdropping by other mechanical means. Re Federal Wire Interception Act. STATE OF LOUISIANA, OUACHITA AND MOREHOUSE PARISHES, DEAR SENATOR EASTLAND: I have before me a copy of the letter of the Attorney General to the Vice President attaching a copy of the proposed bill, together with the analysis of the bill by the Department of Justice. It has been called to my attention that the Judiciary Committee of the Senate, of which you are chairman, is now holding hearings on the advisability of enacting this legislation. Personally, I am heartily in favor of some bill that will carry out the purposes as explained by the Attorney General in his letter to the Vice President when he states: "In summary, the present law with respect to wiretapping is chaotic; the right of privacy is not being protected and law-enforcement agencies are being hampered unduly. Therefore, to clarify the law, protect the privacy of our citizens and give law-enforcement agencies another tool-with strong safeguards--to combat subversive activities and organized crime, I urge the early introduction and enactment of this legislative proposal." As the National District Attorneys' Association and the Association of Attorneys General of the various States are both deeply interested in the passage of the bill to accomplish the desired purpose, I respectfully suggest that these organizations be given an opportunity to be heard by your committee prior to any definite conclusion being reached. I would respectfully suggest an invitation to Hon. Frank Hogan, district attorney of New York City, and Hon. Edward S. Silver, district attorney of Brooklyn, for the reason that both of these gentlemen have made complete and exhaustive studies of the subject of wiretapping and undoubtedly could give real beneficial testimony before the committee. It seems to me that the bill, in general, would be most helpful to all lawenforcement agencies. It does seem wise, however, to increase the crimes affecting States to include gambling, for many obvious reasons. The telephone has become the principal vehicle for the placing of gambling bets and information, which cannot at present be controlled by the States, and, unless the control is given to the States, along with the Federal Government, a wide gap will probably exist in the law allowing these criminals to carry on their nefarious acts without apprehension or conviction. I, also, would suggest serious consideration being given to that portion of the act requiring all Federal and State applications and orders to be reported to the Administrative Office of the U.S. Courts and to the Congress, as these reports might become the basis of information to crime syndicates to allow circumvention of the purpose of the law. I believe, further, that the purpose of the report when made only to the Attorney General of the United States will be properly fulfilled. In this connection, I call to your attention that portion of the procedure under section 8 where all applications are ordered sealed and made public only by order of the court, which probably would be in conflict with the prior requirements of furnishing reports to the Congress et al. It is very probable that these orders, etc., would be reported to the Congress on an annual basis prior to the trial or even arrest, if strictly enforced. As stated above, we believe that this act can be most helpful and make these suggestions only as they occur to us. With warmest of personal regards, I am ALBIN P. LASSITER, District Attorney. CITY OF COLUMBUS, OHIO, May 21, 1962. CHAIRMAN, SENATE JUDICIARY COMMITTEE, DEAR SIR: I am extremely interested in Senate bill 2813. I believe that municipal police should also be given the means to utilize this investigative tool. I have long contended that the legal use of wiretapping by the law-enforcement agencies of political subdivisions was more than justified providing a court order was obtained to provide for such wiretapping. At the present time, the laws of the State of Ohio prohibit such wiretapping. I have found that our present State law has only deterred police agencies from performing such taps but the low penalty, even though a felony in this State, has no deterring effect whatsoever upon the criminal element against tapping phones of both police an other public officials as well as other private citizens. I am definitely opposed to any wiretapping by a police agency unless it be through a court order and would even recommend that the penalty for such taps without authorization be substantially increased. Very truly yours, GEORGE W. SCHOLER, Chief of Police. U.S. SENATE, COMMITTEE ON THE JUDICIARY, April 18, 1962. MR. CHAIRMAN: James Bookie Turner, sheriff of Hamilton County, Tenn., has had wide experience in law enforcement both in the armed services and as the very capable sheriff of one of Tennessee's largest counties. He is a student of law-enforcement problems and is appreciative of the right of protecting the legitimate rights of individuals. He has written me a thoughtful letter relative to setting forth his position with reference to the wiretapping bill, S. 1086, now being considered by the subcommittee. He has given me permission to submit his letter for the record. I ask that it be printed at this point in the record. ESTES KEFAUVER, U.S. Senator. CHATTANOOGA, TENN., March 13, 1962. Senator ESTES KEFAUVER, Washington, D.C. DEAR SENATOR KEFAUVER: I'm extremely concerned about the wiretapping bill being proposed by U.S. Attorney General Robert Kennedy. I am sure that you realize that for such a law to be passed giving all lawenforcement officials in the various States this extraordinary authority, it would become so abused in political campaigns and blackmail that it would almost result in anarchy and widespread fear and distrust. However, I am definitely in favor of a restricted Federal wiretapping law which would permit only Federal agencies such as the CIA, FBI, and the narcotics agencies to use wiretapping in limited violations only and that the law be restricted to the following crimes : 1. Espionage. 2. Spying activities. 3. Communistic activities. 4. Narcotics traffic. 5. Kidnaping. There should be no law passed giving any State authorities this right, but I would favor a wiretapping law permitting only the above Federal agencies to tap wires in only the above-mentioned crimes. If wiretapping had been legal in your last campaign, there would have been many cheap politicians in this State who would have tried to crucify you even more than they did, and I want to go on record absolutely opposing a "freefor-all wiretapping bill." If such a law were passed for general usage, we might as well pass one legalizing "Peeping Toms" in every man's and woman's bedroom in homes throughout the United States. I am speaking not only as a law-enforcement official, but as a private citizen. I trust that you will give this matter your most serious consideration, as it is a very serious matter, and for unscrupulous people to be given this kind of authority would do far more damage and harm than any good it would ever hope to do. With kindest personal regards and best wishes, I remain, Your friend, JAS. B. TURNER. P.S.-I don't write you very often about personal matters or politics, but I feel my opinion in this matter should be given every possible consideration. |