tice has in its possession evidence obtained by interception of communications which might well convict other spies and traitors, but which it cannot use at the present time because of the rule of evidence which bans its use."11

In the last sixteen years more than thirty measures dealing with wiretapping have been introduced in Congress, four of which passed one house.12 Since 1940 various Attorneys General have urged legislation.18 We believe the present legal and practical situation is unsatisfactory in the public interest, and calls for Congressional action.

The evils and benefits of wiretapping have been thoroughly discussed in the recent debate in the House of Representatives (which occupied two days and 60 pages of the Congressional Record"). Rather than attempt a catalogue of these factors, this report will only summarize them.

On the one hand, a succession of Attorneys General of both political parties have forcefully urged that wiretapping is vital for the effective enforcement of laws involving the national security. In these critical times officials charged with the enforcement of these laws should have every facility made available to them for their work, except for the strongest reasons. It has also been said that crimes affecting the national security such as treason, espionage and sabotage are crimes which involve organization to a peculiar degree and, with organization, the use of communication facilities such as the telephone.

Unfortunately, no Attorney General has cited data or instances where wiretapping was the only feasible way of acquir ing information of crimes affecting the national security, or where, without the use of wiretaps, the course of an investigation would have been seriously impeded. Though the lack of such a showing may itself be for security reasons, it does mean that even the legislature, and much more this committee, must rely on the Department's general though emphatic assertion of the need for this instrumentality in the area presently involved.

On the other hand, wiretapping is an insidious intrusion on rights of privacy and on the right, even more important in a democracy, of a citizen to be secure in his political thoughts. Wiretapping affords a means by which government authorities can learn more easily than in any other way these private political thoughts, without the persons whose conversations have been tapped even knowing of it. Furthermore, a wiretapper intrudes upon not only the person whose phone is tapped but also on every other person who makes or receives a call on that wire. Although no authorization to wiretap can guarantee that no conversations of innocent persons will be tapped, it should be the goal of any bill, as will be discussed shortly, to confine the authorization to those wires most likely to be employed by those guilty of crimes against the national security.

Mindful of the dangers of permitting wiretapping, our committee supports the authorizing of wiretapping for crimes affecting the national security if such authorization is subject to the safeguards outlined below, the most important of which is a prior court order. The committee has reached this conclusion because it believes that in this area such an effective tool should not be denied to the proper authorities, and that to obtain effective enforcement of a prohibition against unauthorized forms of wiretapping it will be necessary to give the Attorney General enough authority to wiretap in the most critical areas.

TWO DIFFERENT OBJECTIVES

There is a sharp difference in both terms and purpose between the bill passed by the House (H.R. 8649) and the bill introduced in the Senate by Senator McCarran (S. 3229). The House bill deals with authorizing the admission of wiretap evidence in certain national security cases; it does not prohibit or regulate wiretapping as such. The McCarran bill deals with authorizing the tapping of wires in like cases (under prior court order), and prohibits all other tapping.

In the House debate there was little consideration or support for the latter approach, and by far the most attention was given to two alternatives for the admission of wiretap evidence: (1) Should a court authorization be required for any wiretap which is to be admitted in evidence (which would automatically exclude evidence heretofore obtained)? or (2) Should the Attorney General have the sole power to authorize admission of wiretap evidence, including specifically any heretofore obtained? (The discussion involved use of wiretaps only for espionage, treason, sabotage and other national security offenses, and seems to have taken for granted that any legislation would be confined to crimes of this sort.)

The House bill as passed represents a compromise which combines these two features. Information obtained by wiretapping before the effective date of the bill (with the "express written approval of the Attorney General") is made admissible in evidence,—without any reference to any court order. Information thus obtained after the effective date is made admis sible only if the wiretap has been authorized in advance by a federal judge; the judge must be satisfied that there is reasonable cause to believe that the specified crimes have been or are about to be committed and that the communications may contain information which would assist in the investigation of such crimes. The full text of this second provision is given in the Appendix, with a summary of the remainder of the bill. The legislative history in committee and on the floor is summarized in a footnote.15

It is important to note, as already indicated, that the House bill speaks only in terms of making wiretapped information admissible in evidence. It does not purport to forbid wiretapping. Accordingly, the House bill would not change the existing state of the law on the legality or illegality of wiretapping by the Government which is not used in evidence. During the House debate all who spoke of this problem showed they considered that none of the proposals under debate purported to make any change in existing law on this point. Thus

Representative Willis, the sponsor of the substitute bill which ultimately passed, confirmed this point flatly, as follows:

"MR. HALLECK

May I ask the gentleman from Louisiana whether under his substitute amendment, the FBI could continue to intercept telephone messages in the future as they have in the past?

"MR. WILLIS. Let me convey my exact feeling. Let us be accurate about it. I want to face the issue head on.

"We are changing the rule of evidence in this limited area of treason, sabotage, sedition, and so forth. In those cases, if you want to go to court and convict, then it must follow the pattern of this act. However, there is nothing in either the Keating proposal or in my proposal, because they are identical, which bars specifically or by implication the continuance of whatever practice has prevailed in the past to tap wires in other areas.

"MR. HALLECK. That is my understanding of it and I am very glad we have that understood at this point."

Thus, though there was dispute as to what the existing law is on this point, the legislative record shows that the bill passed was understood as not changing it.

An entirely different approach is taken by S. 3229 (McCarran). This is primarily an addition to the U.S. Code Chapter on Civil Rights, and its first paragraph would provide as follows:

"Whoever, without authorization from the sender and the recipient of any wire communication by common carrier, willfully intercepts, or attempts to intercept, or procures any other person to intercept or attempt to intercept, or conspires with any other person to intercept or attempt to intercept such wire communication, except in compliance with the second paragraph of this section, shall be fined not more than $5,000 or imprisoned not more than ten years, or both."

Under its second paragraph application may be made when directed by the Attorney General to a district judge the district in which the interception is sought and, if the judge determines there is reasonable ground for belief that such interception will result in the procurement of evidence of the commission of specified national security crimes, he shall issue an order allowing the interception, specifying the persons whose communications may be intercepted, the purpose thereof and the identity of the individuals authorized to do so. There are supplemental provisions for time limit and for retention of papers by the individuals authorized and by the judge. The bill does not attempt to change the operative language of section 605 of the Communications Act, but contains a proviso removing from the application thereof any communications intercepted in compliance with the bill's second paragraph.

The McCarran bill, accordingly, goes much further than the bills considered by the House, because it makes criminal any interception except as authorized by the court order procedure set forth in its second paragraph. Furthermore, the bill makes an interception pursuant to court order entirely legal, and thereby eliminates any need for any provision concerning the introduction of the intercepted information in evidence. The bill makes no attempt to deal with intercepted information heretofore obtained, and accordingly such information would continue inadmissible.

Our committee endorses the objective of the McCarran bill as opposed to that of the House bill. Wiretap evidence has been excluded from the federal courts not because the Supreme Court has found it a violation of a common law or constitutional right, but because of the provisions of section 605 of the Communications Act. Wiretap evidence is presently inadmissible because the method of its acquisition and use violates a Congressional prohibition. Treating the wiretap problem as one of mere introduction of evidence is to ignore this background and leave the question of effective prohibition unresolved. If Congress now decides that its general prohibi