their general interest in basic civil liberties, and in the basic liberties that Americans have traditionally anticipated they could preserve. Senator FONG. What I am trying to do here is to show you at the present time and with the present state of the law that as far as the labor movement is concerned and the question of segregation is concerned, you are being wiretapped, and there is no violation of the law.

Mr. ROVNER. I don't disagree with you that the law should be tightened, I feel that the interpretation of the law which holds-I guess was a ruling starting in 1940-holding that when one policeman talks to another that is not disclosure.

Let me say that as a lawyer I found great difficulty in understanding this interpretation. But as a policy question, I have no hesitation in saying, this should not be. As a matter of policy, the disclosure by the person who listens to any other human being or to a device which subsequently reports it to another human being is disclosure.

Senator FONG. The fact remains that this is now done.

Mr. ROVNER. Yes, and we think it should be stopped.

Senator FONG. And since it is being carried on, then having safeguards against these things would help you in your cause, would it not?

Mr. ROVNER. It would help us but for the other dangers that are introduced simultaneously. The position of the CIO in 1954-and, again noting the exception with regard to national security-remains our position today.

We would have the "and" changed to an "or" in section 605. And we would prohibit all wiretapping, all eavesdropping of this sort. We think it is bad practice for a democracy. We agree I am sure you have heard Justice Holmes' description of it as dirty business quoted time and again, and we are in complete agreement that it is a dirty business.

Let me make one other point, if I might. And this goes to the question of law enforcement.

We do not question for a moment that it would be much easier to enforce the criminal laws if wiretapping were legalized. This is a simple fact of law.

But I can think of a dozen other ways in addition to this where the lot of the policeman, to paraphrase Gilbert and Sullivan, would be a good deal easier. But some of it we would just never accept.

For example, suppose you said that the police could come in no more than once a year without a warrant, but once a year they could come into anybody's house and search it. You would deter a good deal of crime. You would change one of the basic freedoms of American citizens, but you would in fact make law enforcement a good deal

easier.

You could wiretap people. You could allow policemen to go and look in people's windows.

All of these things would make it easier for policemen, just as a curfew after sundown would make it easier for the policemen to enforce the law.

But we think this is a price way out of line with what you hope to achieve.

The labor unions and the freedom-loving citizens have always supported vigorous police protection, vigorous law enforcement. have supported appropriations in municipal areas calling for more policemen, for better pay for policemen, for better training for policemen, better recruiting. And we feel that the answer to law enforcement is to arm them with the maximum amount of assistance consistent with the freedoms that they are in fact now charged with protecting. We think that Philip Murray once said that the dumber the cop the bigger the stick.

What we want is larger cops-brighter cops and smaller sticks. We think that the answer to law enforcement lies more in the area of more and better policemen with training, with the scientific equipment that is consistent with the freedoms that we hold so dear.

The measure would thus open the widest possible door for illegal State intrusions on the pretext that the State is merely enforcing its laws against bribery or extortion. S. 2813 cannot really be termed a "limited" wiretapping bill, for it will result in indiscriminate and wholesale tapping to the detriment of our standards of privacy and decency.

Organized crime is truly a major national problem. We do not question the good faith of some law enforcement officers who have called before and continue to call for increased powers of detection. But crime detection and telephone espionage are not synonymous. We call upon Congress to do everything in its power through prevention and cure to assist in legitimate law enforcement in the United States. But we urge every Member of the Congress to look to his conscience before voting to legalize methods as inimical to the spirit of freedom as police use of telephonic evesdropping. For in the long run, we can secure neither democracy at home nor freedom abroad if we adopt the methods of dictatorship in the mistaken view that liberty has become an unworkable principle in the governance of our own affairs.

I thank the committee on my own behalf, and more particularly on behalf of President Carey for this opportunity and for your patience. Senator HART. Is it fair, to risk oversimplifying a little, to say that your position is that we should authorize wiretapping in the defined espionage field, and not authorize it for State crime, and not permit it for Federal crimes other than espionage?

Mr. ROVNER. That, in a nutshell, is just it. This is the historic position of large segments of the labor movement. The only variance in it is the one exception you mentioned, the national security crimes carefully defined as they have been in S. 2813.

Senator HART. Thank you very much.

The concluding witness this afternoon is Mr. Paul Berger of the American Jewish Congress.

STATEMENT OF PAUL S. BERGER, PRESIDENT, WASHINGTON CHAPTER, AMERICAN JEWISH CONGRESS

Mr. BERGER. Mr. Chairman, and Senator Fong, I am Paul S. Berger, president of the Washington chapter of the American Jewish Congress, and a member of the bar of the State of New York and Washington.

I am appearing here on behalf of the American Jewish Congress. and the congress has prepared a statement on the various bills concerning wiretapping. And we will submit that statement for your consideration.

(The statement referred to is as follows:)

STATEMENT OF THE AMERICAN JEWISH CONGRESS, STEPHEN WISE CONGRESS HOUSE, NEW YORK, N.Y.

INTRODUCTION

The American Jewish Congress is a voluntary association of American Jews committed to the dual and, for us, inseparable purposes of defending and extending American democracy and preserving our Jewish heritage and its values.

The American Jewish Congress has, therefore, always been unequivocally opposed to communism, fascism, and all other forms of totalitarianism. We know full well the meaning and nature of Communist tyranny and of its debasing and dehumanizing effects on all who have been forced to live under its dictates. Together with all Americans who prize the blessings of freedom, we have repeatedly affirmed our readiness to make those personal and collective sacrifices reasonably calculated to safeguard our democracy. We have also insisted that our Nation's security is not enhanced when we resort to measures that violate the essential liberties whose preservation is our basic purpose. Accordingly, we urge particular care when proposals are offered in the name of security that infringe upon basic liberties.

POSITION OF AMERICAN JEWISH CONGRESS

The American Jewish Congress believes that all persons, including Federal and State officials, should be prohibited from engaging in wiretapping. Wiretapping, we believe, gravely violates the right of privacy, one of the basic rights guaranteed by a free society. Political surveillance of private conversation is one of the distinguishing characteristics of all totalitarianisms; it is abhorrent in any democratic society.

Resort to wiretapping, we believe, can be justified only by an unanswerable demonstration that it would yield results clearly decisive for our national security. We submit that no such showing has been made. We are confident that we can protect ourselves against disloyalty and treason by other less oppressive measures.

THE EXISTING LAW

The most significant case in the area of wiretapping is probably Olmstead v. U.S., 277 U.S. 438 (1928), which held, by a 5-to-4 vote (over the strong dissents of Justices Holmes and Brandeis) that telephone conversations were not protected under the search-and-seizure provisions of the fourth amendment. The majority of the Court limited the protection of those provisions to physical trespass and seizure of material objects.

In 1934, Congress passed the Federal Communications Act, which provided that no persons shall "intercept *** and divulge or publish" any telephone communication (47 U.S.C. 605). This provision would seem to handle the problem but it does not. The Justice Department has consistently taken the view (a) that the act prohibits interception only when coupled with divulgence and (b) that the communication of the contents of a tap by one Government agent to another is not divulgence within the meaning of the act. Since no conduct deemed legal by the Department is likely to be prosecuted, the result is that there is no effective ban on wiretapping by the Government.

The Department's strained interpretation of the statute has never been upheld by the Supreme Court, since the State Department does not prosecute wiretappers and thus the Court has never been given an opportunity to rule on the question. Wiretapping questions come before the Court only in cases which offer wiretap evidence in prosecutions for other crimes. In such cases, the Court has consistently ruled against the use of the evidence. The controlling judicial expression on the validity of wiretapping itself is that of Judge Learned Hand who has stated that it is "well-settled law that 'wiretapping' is forbidden by statute." United States v. Coplon, 185 F. 2d 629, 636 (1950).

Of course, the Supreme Court has unequivocally established that evidence obtained through police wiretaps may not be divulged by using it as evidence in Federal criminal prosecutions. In Nardone v. United States, 302 U.S. 379 (1937) and 308 U.S. 338 (1939) the Supreme Court held that evidence obtained from wiretapping by Federal agents was not admissible in a Federal court proceeding. More recently, in Benanti v. United States, 355 U.S. 96 (1957), the Court held that evidence from a wiretap placed by State police officials was likewise inadmissible in Federal proceedings. In the unanimous opinion delivered by Chief Justice Warren, the Court repeatedly used language indicating that the interception itself was illegal. Thus it said that "* * * the plain words of the statute created a prohibition against any persons violating the integrity of a system of telephone communication ***" It referred to "* ** evidence obtained by means forbidden by section 605 ***" thus implying that the prohibition refers to the obtaining of evidence, not its divulgence. Furthermore, in holding that it made no difference that the wiretap in that case was placed pursuant to a New York statute expressly permitting it, the court made it clear that the prohibition applied to the interception itself.

It is evident that wiretapping and search and seizure problems are at least analogous, and it is important to note that in June 1961 the Supreme Court upset a doctrine of long standing in the case of Mapp v. Ohio, 367 U.S. 643 (1961). The Supreme Court there held that evidence obtained by State officers through unconstitutional search and seizure was no longer admissible in State courts. Although it was clear that the due-process clause of the 14th amendment made it unconstitutional for State officers to engage in unreasonable searches and seizures, the court had earlier held (Wolf v. Colorado, 338 U.S. 25 (1949)) that the Federal Constitution did not require the exclusion from State court criminal trials of evidence obtained through such illegal searches and seizures by State officers. Until Mapp v. Ohio, each State had been left free to adopt the exclusionary rule or not, as it saw fit, in the area of search and seizure.

In 1952, in Schwartz v. Texas, 344 U.S. 199, the Supreme Court said that the State courts could consider wiretap evidence obtained through illegal wiretapping on the part of State officers. The Court in Schwartz, reasoning by analogy, said that the situation came under the doctrine of Wolf v. Colorado. Wolf, as noted above, has since been overruled by Mapp v. Ohio. Although the wiretap cases which relied on Wolf have not been expressly overruled, their authority has at least been undermined by the Mapp case.

From the time that Justice Holmes dissenting in Olmstead, branded wiretap and other illegal evidence "dirty business," the practice of wiretapping and electronic eavesdropping has been generally condemned. Yet the Department

of Justice continues to use wiretapping (as does the Federal Bureau of Investigation) under a strained, if not absurd, interpretation of the Federal Communications Act.

PENDING BILLS

We turn now to a consideration of the pending bills. In describing them, we point to certain defects which we believe, at a minimum, should be corrected if any bill licensing wiretapping is to be enacted. We wish to stress, however, that we believe that no such bill is necessary and that the only action called for, at this time, is clarification and reaffirmation of the present prohibition of wiretapping. Our reasons for taking this position are set forth below.

S. 1086

One bill presently before the Senate is S. 1086, originally introduced by Senator Keating. The bill has been amended and reported out favorably by the Subcommittee of the Senate Judiciary Committee.

S. 1086 deals only with wiretapping by State officials. It authorizes any State law-enforcement officer to obtain from any State court of record an order authorizing him to tap in cases involving gambling, liquor, narcotics, prostitution, or any other offense punishable by a maximum sentence of 5 years or longer. The court order could authorize wiretapping for up to 60 days, and is renewable for 30 days, with no limitation upon the number of renewals. Any evidence obtained pursuant to such an order could be introduced in any criminal proceeding in Federal and State courts.

S. 2813

Senator McClellan has introduced a wiretap bill (S. 2813) which conforms to the views of the Justice Department and has the support of the administration. The theory of this bill is that some wiretapping is strictly necessary to

proper law enforcement and that, if this indispensable wiretapping were legal and evidence derived from it admissible in court, it would be possible to make all other wiretapping, interception, and divulgence illegal.

This bill permits wiretapping through three separate procedures. In the case of espionage, sabotage, and crimes involving national security and the Atomic Energy Act, the Attorney General is authorized "in his sole discretion" to authorize wiretapping upon a prior finding that (1) the commission of the specified offenses presents a serious threat to the security of the United States, (2) that facts concerning the offense may be obtained through wiretapping, (3) that application to a court would be prejudicial to the national interest and (4) "no other means are readily available for obtaining such information."

The second specified procedure in the administration bill authorizes the Attorney General or any Assistant Attorney General (but not any U.S. attorney) to apply to a Federal judge for an order authorizing wiretapping in any offense involving national security, murder, kidnaping, extortion, narcotics, bribery of a public official, and the new gambling offenses which depend upon the use of the facilities of interstate commerce. The wiretap application would have to state all the relevant facts of the alleged crime and the suspect's relation thereto, the location of the telephones concerned and all previous applications which have been previously made to any judge concerning the same telephones or individuals. The judge could issue a 45-day wiretap order, with an unlimited number of 20-day extensions, if he finds there is reasonable cause to believe (1) that an offense specified in the act has been or is about to be committed, (2) that facts concerning the offense may be obtained through the requested interception, (3) that no other means are readily available for obtaining the information, and (4) that the facilities to be tapped are leased to, listed in the name of, or commonly used by the person suspected of the offenses.

The court is required to transfer to the Attorney General and the Administrative Office of the U.S. Courts copies of all unsuccessful applications (within 30 days after they are denied) and all orders and successful applications (within 30 days after the tap ceases). The Administrative Office is then required to submit to Congress each year "a full and complete report" showing the number of applications, on whose behalf they were requested, the number of orders issued by each court, and the applications tabulated with resepect to each of the enumerated offenses.

The third procedure for obtaining a wiretap under the administration bill is for the attorney general of any State "or the principal prosecuting attorney of any political subdivision thereof" to make application to "a State judge of competent jurisdiction" for leave to intercept wire communications to produce evidence concerning the commission of the crime of murder, kidnaping, extortion, bribery, or dealing in narcotics. An application to a State judge must contain the same information as an application to a Federal judge, and the State judge is required to follow the same standards as his Federal colleagues. The same reporting provisions to the U.S. Attorney General and the Administrative Office of the U.S. Courts also apply.

If a tap has been authorized under any of the three foregoing procedures, the contents of the intercepted communication may be received in evidence in any criminal proceeding in a State or Federal court. In Federal trials the defendant is entitled to receive a copy of the wiretap order not less than 10 days before trial, and he may move to suppress on the grounds that the interception was not made in accordance with the statute or, in the case of a court order, that there was not probable cause to issue the order.

All other wiretapping is made illegal. The statute is expressly amended to prohibit interception, without regard to disclosure. Any information received by a law-enforcement officer within the terms of the act may, however, be disclosed to other law-enforcement officers in the regular course of the officer's duties.

In general, we believe that the administration's bill fails to provide adequate controls. Specifically, we would criticize the administration's bill on the following grounds: the Attorney General, under the terms of the bill, is not required to report to anyone with respect to taps authorized by him without court approval in cases involving espionage, sabotage, and the Atomic Energy Act. The standard imposed on both the Attorney General and the courts is, in any case, much too loose. That standard is that they must find that no other means of obtaining the necessary information is "readily available." Convenience and expediency rather than necessity may well prove to be the standard used in practice.