tion is wrong. Congress should authorize wiretapping to the extent it deems desirable, and the admissibility of such legally obtained evidence will then follow as a matter of course. The evils of wiretapping are inherent in the practice itself, rather than in its admission in evidence.

4 PRIOR COURT ORDER

Although the House bill still leaves much to be desired, it represents a marked improvement over the House Judiciary Committee bill.- which imposed no court order requirements whatsoever. (Under the House bill, before installing a wiretap, the Department would need to consider whether there was reasonable likelihood that the Department would later want to use the results of the tap in evidence, and then either obtain the required court order or run the risk of not being able to introduce either the transcript itself or any information developed as the result thereof.)

The House bill, however, would in practice still leave free from any court supervision a large area for wiretapping,— open not only to the Department of Justice but also to all other branches of the Government (and, as a practical consequence, to everyone else). This is the use of wiretapping as an ordinary method of investigation, to keep anyone under surveillance, or just for "snooping", as President Roosevelt called it. Here the contrast with the McCarran bill is most conspicuous, as the latter not only requires a court order as a condition precedent to any interception (ie whether to be used in evidence or not), but also requires the judge to determine that there is "reasonable ground for belief that such interception will result in the procurement of evidence of the commission" of any of the specified national security crimes. This standard for the degree of proof is the same as that fixed by the New York statute.17

We believe that this approach of requiring a court order for all interceptions is sound, and should be adopted by the

Congress. The vital objective is that the need and justification for wiretapping should be the subject of independent examination in each instance. This is not provided by leaving as the sole judge of its propriety the head of the department which will use the wiretaps and is in a position to abuse them. In our system the judiciary is the only body which can furnish the assurance of an independent examination.

District Attorney Miles F. McDonald testified favorably as to his experience under the New York statute requiring a prior court order for any wiretap. Speaking of such a requirement he said: "I might say in my own opinion that is a necessary part of proper interception Asked why he thought a court order necessary, he said in replying: "I think prosecutors, myself included, can be overzealous the judge is a safeguard. He is a check and a balance that prevents you from being too rash.”’1a

Although, as we have indicated, under the views of a majority of the Supreme Court wiretapping does not violate any constitutional protections, the importance of a prior court order for any wiretap is much the same as in the case of a search warrant. The requirement of a search warrant is made "so that an objective mind might weigh the need .. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing

"19

Two main reasons have been mentioned for not requiring a court order before each and every wiretap: (1) the need for security, i.e. the avoidance of "leaks," and (2) the need for speed. Our committee feels that neither reason is adequate.

As to the first, only one additional person need learn of a contemplated wiretap if a court order is required—the judge himself. If New York procedure can serve as an example, the affidavits in support of an order to permit a wiretap are submitted in confidence to the judge and need not go through any clerk or other court functionary. The order granted is not published. The order and affidavit are filed in the judge's

own safe. The danger of a leak in letting one additional person, and a federal judge at that, learn of the wiretap is miniscule when one considers the number of people who are necessarily aware of any wiretap. Each tap involves a large staff to locate the proper wires. install the equipment, keep the equipment under surveillance and transcribe any information secured, let alone the telephone company personnel who provide information as to the leads, and the people within the Department of Justice who have ordered the tap or to whom the information is sent.

In the circumstances, the testimony of District Attorney McDonald is not surprising:

"Mr. Keating: But so far as leakages in the court are concerned, have you ever had any bad experience?

"Mr. McDonald: Never."'"1

As to the second objection, the supposed need for speed, this committee has been informed that a good wiretap cannot be installed within a short time, and that in the time it would take to complete the arrangements for the tap, there would be adequate opportunity to obtain a court order. In a city, for example, though the telephone company may furnish the locations of the multiple terminal outlets available, it requires a field "casing" of each location to make the best selection, after which must follow the difficult and time-consuming task of finding a secure listening post. In remote sections of the country it would take some time to bring in the equipment and the wiretap personnel.

In addition to achieving greater secrecy and speed, Attorney General Brownell expressed the opinion that wiretap technique would be attended by better supervision by Congress if no court order was required." He also asserted that it would be necessary to go to a number of judges to obtain orders in conspiracies stretching across the country, "since a Federal judge in one district cannot grant an order for interception of a communication in another district." While the McCarran

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bill specifically provides that the order is to be made by a federal judge for the district within which the interception is sought, the House bill does not, and we see no need for such a restriction. Congress has power under the Constitution to ordain and establish inferior courts,23 and assuming that appro priate language is used to make clear that this special grant of jurisdiction extends beyond the district lines. there would be no application for the doctrine that a district courts jurisdiction is geographically limited where the statute conferring jurisdiction is silent.24

The objections which have been made against the require ment of a court order do not seem to be serious. They are certainly insignificant when weighed against the purposes which the order is intended to serve. We know of no reason why the procedural requirements25 for obtaining a search warrant should not apply to the installation of a wiretap. The secrECY and continuing character of the latter make such a requirement imperative.

ADMISSION OF WIRETAPS ALREADY OBTAINED

The House bill draws a sharp distinction between the requirements for the admissibility in evidence of wiretaps prior to the effective date of the bill and those which may be made thereafter. Taps prior to the effective date are to be admissible in evidence if they were made on the written approval of the Attorney General. No prior court order would be required for the use of such taps in evidence, as would be the case for taps made after the effective date of the bill.

The clear intention of this section is to enable prosecution of particular individuals against whom the Department of Justice claims it has evidence obtained through wiretaps sufficient to convict of crimes involving national security 2

On this provision dealing with taps heretofore obtained, most of the members of our committee are of the opinion that the provision does not offend the Constitution, and they would not

condemn a bill because of its inclusion. Six of our members believe that this provision raises grave constitutional issues, violates the spirit of the Constitution, and creates a dangerous precedent of special legislation affecting and confined to known individuals. These respective views are amplified in a footnote.27

A MORE WORKABLE DEFINITION

As already stated, one of the principal considerations which leads the committee to support a safeguarded form of authorized wiretapping is the need for obtaining effective enforcement of prohibition against unauthorized wiretapping; a necessary step to that end is an amendment or supplement to section 605 so that either interception or divulgence is illegal. Such an amendment, besides eliminating all doubt as to the interpretation of that section, would remove a formidable hurdle which now makes prosecution of unlawful wiretappers extremely difficult. As the law now stands, it might be argued that proof of interception and lack of authority therefor us not sufficient to support a conviction; thus, although we know that in fact a wiretapper almost invariably communicates the information to someone, catching him in the act of wiretapping may not be enough to prosecute. It is hard to see how unlawful wiretapping can be stamped out unless the statute is changed to cover this point.

The McCarran bill (in its first paragraph, quoted at page 7 above) seeks to deal with this problem by prohibiting willful interception and procurement thereof, with no reference to divulgence. Possibly this is a little too sweeping, as it might include telephone company employees who intercept in the normal course of their duties, and probably would include listeners-in on a party line where every subscriber knows full well that he talks at his own peril. The Federal Communications Commission has suggested that it be made illegal "to intercept any communication with intent to divulge, publish or use it", and that the act of tapping should constitute a