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Philadelphia, with Pennsylvania following national norms as to crime rates. So it was more of a seasonal fluctuation than it was anything of a direct relationship to the wiretapping ban.
The police commissioner of Philadelphia made the following comment. He said that he could have solved a particular case, and he was talking about some sort of a gambling case, he said, he could have solved this in 24 hours with a wiretap whereas it had taken him 4 weeks to solve it using nonwiretap surveillance and normal police methods.
My own reaction to that is I think that society can afford to pay the difference between 24 hours and 4 weeks if it is protecting the right to privacy of the citizen and also trying to keep out of the hands of the police a kind of weapon which is highly volatile and dangerous. I thought when Police Commissioner Gibbons said that, he felt he was making a perfect argument for wiretapping, but my opinion is. that the social cost of longer investigation is one we should pay.
Senator CARROLL. I want to say to you that the question of mari-. juana and heroin coming from Mexico is not a question of wiretapping. It is a case of two Government agencies not cooperating in their efforts.
The largo States have enormous problems and that is why I don't like to pass judgment on what is happening in New York or in Illinois or in Pennsylvania.
They are areas where the people know what their problems are and perhaps we can get some leads from them; but I do not think that we should be stampeded into legalizing all of this. I think we ought to take a very careful look at it and you, yourself, have been very helpful this morning.
Mr. Chairman, I hope we haven't kept you from your lunch. Senator ERVIN. No, sir. Senator CARROLL. Have you concluded ? Mr. WESTIN. Yes, I have. Senator ERVIN. Do you have any questions, counsel ? Mr. CREECH. Yes, Mr. Chairman. Mr. Westin, you have alluded to the position of Attorney General McBride, of Pennsylvania. He appeared before this committee and stated he felt all wiretapping should be banned and you also have alluded to the position of the city council of Philadelphia and, of course, to the district attorney there.
Now I wonder, sir, does your study indicate why there is such a disparity in views between the position of Philadelphia vis-a-vis New York which are both large, metropolitan areas, and Pennsylvania vis-a-vis New York State ?
Would you care to indicate to the committee whether you have any feelings on the disparity of views?
Mr. WESTIN. I gave a great deal of thought to this because, as a political scientist, I had a strong interest in trying to see how these laws were passed. When I was looking at how these bills were passed in 1957, I tried to find out why it was that two States like Illinois and Pennsylvania had reached such a different result than States which seemed to be quite similar in terms of their problems of crime and their problems of powerful law enforcement bodies.
I don't think that I ever came to a complete conclusion, but some of the things I felt were these. The general political situation in Philadelphia and in Pennsylvania was such that the Governor himself, believed that a wiretapping ban was a good thing. There was some talk that wires in Harrisburg, Pa., the State capital, were being tapped and there was even some talk that the Governor's wire had been tapped so that immediately you start off with a difference that in Pennsylvania the Governor favored a ban.
In New York, on the other hand, both the Democratic Governor, Averell Harriman, and the Republican Governor, Nelson Rockefeller, took the law enforcement viewpoint. Governor Harriman vetoed once and Governor Rockefeller twice vetoed legislation which came out of the Legislature of the State of New York which would have made inadmissible, evidence in criminal trials, evidence obtained in violation of the eavesdropping or wiretapping statute.
There was also the issue of the right of police to go in without a warrant at all, the so-called hot pursuit issue, for a period of 24 hours; after the 24-hour period is over, requiring them to go into court and justify their electronic eavesdropping and if they have not justified it, to stop it immediately, that was vetoed.
Thus, one difference that struck me immediately was that the executive position was different in the two cases.
Another thing that struck me was that in both Philadelphia and Chicago you had the local bar association taking an emphatic position in favor of a total ban. This went to a membership vote in the city of Philadelphia so that every person who came to the general meeting of the Philadelphia Bar Association cast a ballot to decide how the association would vote. In Chicago also, the bar association was very vocal.
This was not the case in New York. The bar association of the city of New York has generally taken a position in favor of tightly controlled and carefully limited court order wiretapping. I think that this is another important element that was different.
Very influential leaders of the Philadelphia Bar Association took a strong position against wiretapping. The comment was made that these were persons who were engaged in the practice of defending criminals and therefore they had something of a defendant's outlook in their approach to controlling wiretapping. But I don't think this is an explanation of why all the Philadelphia Bar Association reached that result.
Senator CARROLL. As a political scientist would you say there was also some difference in these areas because of the nature of the population and the scope of the criminal activity?
Mr. WESTIN. If I took a city like Chicago and compared it to New York, I think there is a similar sense of police officials feeling themselves harassed, feeling the need to have every weapon. There is no rural-urban division between Chicago and New York.
Philadelphia might be an intermediate kind of metropolitan area, although they have many serious law enforcement problems there. They face the problems of vice and narcotics and have many law enforcement difficulties in group 1 crimes, the major crimes dealing with violence.
I was not satisfied, when I thought about this, that we had here a difference in outlook between a rural, oriented kind of State and a highly metropolitan State.
I think an explanation of the 1957 acts may be the fact that Illinois and Pennsylvania passed their statutes quickly at a peak point of public hostility to wiretapping. It was in 1955 that the Broady wiretap net in New York was disclosed. That got more national publicity than anything previously. It was followed by two or three television broadcasts about the evils of "the third ear” and of “the snoopers."
Perhaps both States managed to get their legislation through and passed before the wave of public indignation died down. This might be another element that would help to explain it.
Mr. CREECH. You have also stated that you would like to see any law enacted concerning wiretapping and eavesdropping, provided that the Federal Communications Commission would have control over the wiretapping.
It was suggested in earlier testimony before this subcommittee that the Attorney General should be given the right to issue orders rather than the courts being given this authority, and the reason suggested for this is that the Attorney General would then be in a positon to apprise the Congress or any interested agency of the extent of wiretapping.
I wonder, sir, what your view is with regard to this earlier suggestion.
Mr. WESTIN. If one assumes, as I do, that the judicial check on the executive's desire to wiretap is a good thing--the only danger in doing it through the judiciary is the assumption in your question that somehow Congress would not know how the wiretapping situation lay. This can be rectified by requiring Federal law enforcement agencies which intercept telephone communications or electronic eavesdroppers to report to an agency such as the FCC on the wiretaps that they have engaged in and the extent of them.
This I would see as perfectly within the legislative power to require annual reports of this character. I don't see it as infringing in some way on the privacy of the judicial branch since you are not requiring the judge to come forward and testify why he did or he didn't grant the warrant. You are just requiring the law enforcement officials to slip a carbon in, as it were, in their request and make this available, plus a statement by them as to what has happened in the cases in which they have used wiretapping.
I think some of the most illuminating statements that have come out as to how wiretapping works, have come from the district attorney's office in New York City where Mr. Hogan has made it a practice -not because he is required by law, but because he sees this, I am sure, as a way of supporting the case for guarded legalized wiretapping—he has published yearly statements in the last few years of how many times his office has applied for orders, what cases these are in, what the result of each case was in which the wiretap has been placed, whether it went to trial, what was the result of the trial, were the wiretaps introduced in evidence, and so forth. I think that perhaps Mr. Hogan's self-developed system of reporting could be something that could be looked to by Congress.
I would not think that you gained that much by having the Attorney General have all the power in his own hands to authorize wiretapping and I don't see that you lose anything because I think you could provide for the reporting otherwise.
Mr. CREECH. I see that you propose it should be limited to the FBI, the military, and the narcotics agents.
I wonder, would you have a law specify the various bureaus or agencies of the Government, or do you feel that such provisions should be in broader terms, that is, specifying the Department of Defense, the Treasury Department, and the Justice Department. What is your view with regard to the detail that you feel is desirable ?
Mr. WESTIN. On the one hand, I am persuaded that not everybody who has the role of investigator for enforcement purposes in the Federal Government ought to have the authority to wiretap and eavesdrop.
The reason I am persuaded of this is that I think there are too many sectors of this kind in our Federal enforcement setup for the power to be distributed that widely.
I would like to see the narrowest group set up. Perhaps this would be something that would cause trouble because it would mean that agencies that normally engaged in their own wiretapping and eavesdropping or would normally do it now would have to go to the FBI or ask the FBI to do it.
I think of the analogy to the Solicitor General who is the central law officer in presenting cases to the Supreme Court and controls the litigation for reasons of uniformity and consistency. By that analogy you might say all of the law-enforcement agencies scattered throughout the Federal branch should be required to let the FBI run the wiretap in cases involving espionage, sabotage, and crimes directly affecting national security or crimes directly affecting the safety of human life.
Since my own view is to limit it in that way, I don't include for wiretapping the problems of tax evasion for which the Treasury might want to tap. There was a great deal of wiretapping incidentally, for income tax evasion in earlier periods in our history in the 1920's and early 1930's, but one doesn't hear too much about it at the moment.
Mr. CREECH. I wonder what your feeling is with regard to whether the passage of such bills as the subcommittee has before it would encourage most States to legalize wiretapping?
Mr. WESTIN. If the congressional measure were to require a State court order, then I would think that it would stimulate States to take their antiquated statutes that don't deal with the modern problem in any effective terms and would lead them to set up a court order provision and would be a development all to the good.
Perhaps if the question was if Congress did this would it some how put in the minds of a lot of law-enforcement officials who today for various reasons do not engage in this practice, the idea that they should, I think I would have to be frank enough to say I would not be surprised if that might not be a side effect. There might be some lawenforcement officials who just don't do it today because they see trouble for them with the Federal Communications Act as it is presently interpreted, but they might then feel that it is legitimate and might feel their communities almost expected them to engage in
this if they are to be 100-percent effective in coping with crime and, therefore, it is possible you might stimulate some wiretapping.
Mr. CREECH. Professor, I would like to have you comment upon an excerpt from an editorial which appeared in the Denver, Colo.,
Post of April 16, and which you incorporated in your statement. The last paragraph of that says that the newspaper finds that the privacy which is accorded the U.S. mails does not unduly hamper enforcement officers in their work and it concludes that telephone conversations deserve equal protection and immunity.
Will you comment on that?
Mr. WESTIN. I have a feeling that our law develops very differently, perhaps should not, but does develop differently according to whether things are concrete or abstract and perhaps this goes to something in the American temperament.
A piece of paper that has writing on it and is a physical thing which is given to the Government as proprietor of the mails has
ways been given the highest protection. I think that it is the combination of reasons. It is something physical which fits into our notion of the protection of the written word and at the same time, the fact that the Government enjoys the monopoly of mail delivery and one doesn't deliver his letters to a private carrier who would not open it. So that I think that the whole development of the law has been very different as far as the two are concerned.
The intermediate step which seems to me interesting to raise in light of your question is, What happens to the telegraph?
Back at the time of the impeachment trial of Andrew Johnson, for example, the committee that was prosecuting the impeachment seized telegraph messages that had been sent between one of Johnson's generals, one of his supporters in the Army, and several clerks that were out in the field. The general claimed that these were privileged; they were privileged because they were private communications and the Government had no right to expose them, claiming something of an immunity from search and seizure on this ground.
Congress was not impressed and the State courts have not been impressed on this. It is the law that you can, for purposes of congressional committee hearings or for law-enforcement purposes, compel Western Union to bring into the hearing room or into the
court any written copies that they have of messages that are with them, filed with them.
You have a curious situation. There are laws against the tapping of telegraph wires, but the messages themselves, once written down as duplicates by the company, can be required to be produced for purposes of investigation and law enforcement.
Senator CARROLL. Can you compel the Post Office Department to submit the letter that is going through its mails?
Mr. WESTIN. That is presently in the possession of the Postmaster General ?
Senator CARROLL. Yes.
Mr. WESTIN. I am not wholly familiar with the law on mail, but I do know that there is a section which gives a limited right of search to the postal authorities to look for certain types of things—contraband and explosives and obscenities. I think this latter has to be on a post card. I am not familiar with the question whether the U.S.