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analysis of the report and if you want to quiz me about it later, I will be very happy to answer any questions.
Senator CARROLL. I would like to have your analysis and we can have copies of it later on.
Mr. SILVER. It is not in a form to be submitted, I will endeavor to put it in proper form for submission to you.
Senator CARROLL. I think without objection at this time we ought not to put it in the record, but ought to put it into the files, both the report of the committee and your analysis.
Mr. SILVER. The analysis is not in shape, but I will submit it to the committee when I put it into proper form.
Senator HRuska. I have a question or two of the witness at this point pertinent to the first full paragraph on page 2. Reference is made there to a showing under oath to the court. How is that showing made, Mr. Silver?
Mr. SILVER. It is made in two ways. It is made by way of an affidavit of the district attorney. Also under the statute in addition to affidavits setting forth the facts, he must state under oath, based on his statements of facts that he has reasonable grounds to believe that he will get evidence of crime. He must also, under section 813A, submit to the judge any witnesses that the judge might want to examine to fortify the statement of the district attorney. If the judge is not then satisfied he will deny the request.
I made copies of section 813A that I want to submit in evidence and if the Senator desires to take a look at the actual section I can show it to him.
Senator HRUSKA. We can submit it in evidence. I wouldn't care to examine it now. I think it would be helpful if it were inserted in the record at this point. I also suggest that this would be a good place to have inserted in the record an affidavit which Mr. Silver would consider typical or representative of the type of affidavit used in such situations, together with a copy of an order which would be issued by the court in this type of case so that we may see the precise mechanical working of this procedure and not indulge in speculation which might distort the picture.
Mr. SILVER. Rather than get one up, and it might look as though it were manufactured, I will get an order we actually submitted.
Senator HRUSKA. That is precisely what I had in mind.
Mr. SILVER. Except I will delete the telephone number we actually tapped of the individual. And I will be very happy to submit that to the committee.
Senator ERVIN (presiding). That will be just fine; we will insert it in the record at the appropriate place.
(The following memorandum and documents were subsequently received from Mr. Silver:)
In accordance with the request of Senator Hruska I am herewith submitting an actual afidavit submitted by my office to a judge of the county court for an order to intercept two telephone conversations. It should be noted that the affidavit sets forth facts on which the court could make such an order; that the affidavit specifically mentions the telephones to be intercepted, by whom they are maintained, and where they are. Also, we indicate that no previous application has been made for this order. The order, as it will be noted, specifically sets forth the telephone numbers to be intercepted, where they are located, and whose telephones they are.
COUNTY COURT: Kings COUNTY
In the Matter
STATE OF NEW YORK,
being duly sworn, deposes and says:
19----, at 9:10 p.m. one was shot and killed in front of
Street, in the Borough of Brooklyn, City of New York. That deponent's detective squad, together with others, have since been conducting an intensive investigation to apprehend the person or persons guilty of said homicide. That on 19----, the
ship ".--was docked at Pier Brooklyn, New York, taking on cargo. Part of the cargo placed in a locker located in the Number hatch of the said vessel consisted of
revolvers. During the loading of the revolvers
were stolen. Each revolver was marked with a serial number. It has not been established that the murder weapon is one of the 00 revolvers stolen. Examination of the longshoremen engaged in the loading of the locker of Hatch Number o of the vessel, led to the thieves of the said revolvers, and investigation shows that 00 of the revolvers were sold to by the thieves. The said
has been missing from his home at --
Street, Brooklyn, New York, for the past two weeks. He is married to
who is the daughter of --who resides at
Street, Brooklyn, New York. That a telephone instrument bearing number 000000 is maintained by
-- Street, Brooklyn, New York, and a telephone instrument bearing number ---- is maintained by at
Street, Brooklyn, New York. It is your deponent's belief that the said telephone instruments are being used to assist
in remaining a fugitive, and by reason thereof there is reasonable grounds to believe that evidence of crime may be obtained if the Police Commissioner, or his duly authorized agents, be permitted to intercept telephone messsages being transmitted over said telephone instruments.
WHEREFORE, deponent prays for an order permitting the Police Commissioner of the City of New York, or a duly authorized agent of the Police Department of the City of New York, to intercept any communications transmitted over the telephone instrument bearing numbers which instrument is located at
Street, Brooklyn, New York, and listed in the records of the New York Telephone Company under the name of
-- and permitting the Police Commissioner of the City of New York, or his duly authorized representatives, to cut, break, tap and make connections with any and all wires leading to and from said telephone instruments. Your deponent further requests that the said order be effective up to the
19---No previous application has been made for the relief berein sought.
Sworn to before me this
COPY OF COURT ORDER
COUNTY COURT: KINGS COUNTY
In the Matter
It appearing from the annexed affidavit of
an Acting Lieutenant in the Police Department of the City of New York, and Commanding Officer of the 00th Detective Squad, verified
19----, and he being now present before me, that there is reasonable ground to believe that evidence of the commission of the crime of Homicide, may be obtained by permitting the interception of the aforesaid telephone instruments, and it appear. ing that the ends of justice will be best served thereby, it is
ORDERED, that the Police Commissioner of the City of New York and his duly authorized agents be, and they hereby are, authorized and empowered to intercept, listen to, overhear and make copies of any and all telephone communications made to and from or to be transmitted over the telephone instruments bearing the number --, located at
Borough of Brooklyn, City of New York, and listed in the records of the New York Telephone Company under the name of
and the telephone instrument bearing the number
---, located at Borougb of Brooklyn, City of New York, and listed in the records of the New York Telephone Company under the name of
.; and it is further
ORDERED, that the Police Commissioner of the City of New York, and his duly authorized agents be, and they hereby are, authorized to cut, break, tap and make connections with any and all wires leading to and from the aforesaid telephone instruments bearing the numbers
-- and and to do all things necessary to permit the communications being transmitted over the aforesaid telephone instruments to be intercepted; and it is further ORDERED, that this order shall be effective up to the
day of 19.--Dated : Brooklyn, N.Y.,
(Judge of County Court) Senator CARROLL. After you get the order, what is the next step?
Mr. SILVER. The next step we take is we go with the order to the telephone company and the telephone company will then point out to us the pairs
so that we can get our plant. Senator CARROLL. What is that
Mr. SILVER. The telephone company points out the particular wire mentioned in the order so we can then set up our plant where we set up our apparatus to record or listen to the telephone conversation.
Senator CARROLL. When you set up your plant, is that within the telephone company?
Mr. SILVER. No, no. The plant might be in the cellar of a building, but not in any premises of the telephone company.
Senator CARROLL. Where a line leads into a box perhaps?
Mr. SILVER. Not necessarily. It can be done a distance away from the box. One of the most difficult things in this is to get a plant that will not reveal what you are doing. For example, because if you want
to tap a wire in a rural area—and we have rural areas even in the city of New York, strange as it might seem—it becomes very difficult to get a plant because people are wondering who these men are who are going in and out of the basement and before long, the police are down there investigating what you are doing.
Senator CARROLL. And is there a termination date on this order!
Mr. SILVER. There is a 60-day termination date with the ability to get renewal orders on a showing that the interception is productive. You may get additional orders for 30 days additional time by showing a need or that the interception is proving profitable to the law enforcement agency. There is no limit to the number of extensions you may get if you can show proper grounds to the court.
Senator CARROLL. Obviously, this hearing in court is an ex parte hearing.
Mr. SILVER. Yes, sir.
Senator CARROLL. Is there any testimony taken under oath or is it just an advocate hearing!
Mr. SILVER. That is up to the judge to whom you submit the order. Some judges require additional testimony and they will ask us to bring witnesses in and they will question the witnesses to see whether what we put in-in other words if we have an informant, an important informant, we will not put the name of the informant in the order obviously because even though it is supposed to be retained only by the judge, we know that other people must have access to these papers No man can watch these things himself, so very often we will bring in additional witnesses in addition to what we put in the af. fidavit. Witnesses who will testify, and supply the court with additional facts which we are wary of putting into the affidavit either because we are afraid to disclose our source of information or possibly endanger the informant's life.
Senator HRUSKA. But you don't notify the suspect's attorney so he can come and cross-examine the witnesses, do you?
Mr. SILVER. We do not, obviously.
Senator CARROLL. What do you do if the suspect is on more than a one-party line, but on a two-party line, what is the situation there?
Mr. Silver. Well, as you indicated there are not many party lines involved in the situation.
Senator KEATING. But there are some in other parts of the State.
Mr. Silver. We would intercept. But I want to say again, in 20 years of our operation and under a very extensive investigation which went on for quite some time, never once did they find that a district attorney violated this right; meaning that he never disclosed information not pertinent to his criminal investigation.
Senator HRuska. Is it required that any return be made upon the issuance of a court order, namely a report to the court that the tap was made and it was in effect so many days?
Mr. SILVER. No sir.
Senator HRUSKA. You go back to the court only in the event there is an extension desired beyond the 60-day period of this original authority?
Mr. SILVER. Yes, sir.
May I continue, Mr. Chairman?
Mr. SILVER. As I said, as a result of Benanti, the interception and divulgence of telephone conversations became unlawful even in a State like New York.
May I state those in favor of giving this right to law enforcement agencies under the New York law find themselves in a semantic trap. The word "wiretapping” has become a dirty word. I am sure our task would be a lot easier if we could find a word that would mean the following-"the interception of a telephone conversation of a person engaged in criminal activities and using the telephone to further those criminal activities." I want to say that is what I mean when I use the words "wiretapping."
Senator KEATING. How about "crimitap”?
Mr. SILVER. Either "crimitap” or any word that we can get that is acceptable. I would vote you some kind of an award. But, unfortunately, as I say, “wiretapping” is just a bad word.
When you say "prostitute you get a picture of somebody and you are stuck with it. Now we are stuck with the word "wiretapping.” Do-gooders, both individuals and groups, have asserted every effort to confuse the public into the belief that this is a problem of civil liberties. Nothing could be further from the truth. There are socalled liberals who are recklessly and perhaps willfully conjuring up dire consequences that would result from the power to intercept wires with a court order. They used the words "dirty business” in connection with telephone interceptions and persons engaged in a crime by quoting Justice Holmes and Brandeis. They refer to the Olmstead case which has no bearing in a State like New York where the use, by law enforcement agencies of interception of telephone wires used by criminals is carefully circumscribed and properly so. They do not quote Mr. Justice Holmes when he said, I quote:
At the present time in this country there is more danger that criminals will escape Justice than they will be subject to tyranny. (Kepner v. 0.8., 195 U.S. 134) (1903.)
I guess that is the bad part of Mr. Justice Holmes. One thing is sure. No criminal elements have ever advocated wiretapping
If being a liberal means that one is concerned with the preservation of the Bill of Rights and the Constitution of the United States then I too wish to be listed as a liberal.
As a result of what is considered good entertainment by mass media prosecutors are depicted as persons who have no interest in justice and would willfully prosecute an innocent person if it would further their political ambitions. Generally, this political ambition is depicted as becoming a Governor of the State. For some reason, they have not fixed their ambitions as high as the U.S. Senate.
Senator KEATING. Some district attorneys have been known to run for Governor.
Mr. SILVER. To show you how false this concept is, may I state that, for example, the New York State District Attorneys' Association has introduced more legislation to protect the rights of the defendants than the Civil Liberties Union or any bar association in our State.
The details of this legislation to protect the rights of defendants,