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the State assembly, and his counsel will be of great assistance to this committee, I am sure. I am very happy to introduce Mr. Savarese.
Senator ERVIN. I am delighted to have him here as a witness. STATEMENT OF ANTHONY P. SAVARESE, JR., CHAIRMAN, NEW
YORK JOINT LEGISLATIVE COMMITTEE ON PRIVACY OF COM. MUNICATIONS AND LICENSURE OF PRIVATE INVESTIGATORS, ACCOMPANIED BY HOWARD F. CERNY, COUNSEL
Mr. SAVARESE. I am grateful for the very nice remarks and compliments, Senator, and consider it a privilege to be able to speak to you from some limited experience in this field.
New York is vitally interested in the bills before you today. The Supreme Court's Benanti decision of 1957, as elucidated by later circuit court opinions, has deprived New York and 49 other States of a large part of the police power reserved to them in the Bill of Rights.
It has done this by putting a penal interdiction on the use of wiretapping evidence in law enforcement, even though obtained in accordance with State law. As a result, a large number of known criminals have gone unprosecuted and free to continue their ugly conspiracies.
I appear here in support of Senator Keating's bills, S. 1086, and S. 1221, and in qualified sympathy with Senator Dodd's bill, S. 1495.
But above all I wish to plead the urgent need that Congress take action to clarify its own intent about eavesdropping, including wiretapping, that it do this in its own unmistakable words, and not abandon this legislative function to the overburdened judges of the Federal courts.
As to action, it is clear that this subcommittee has been impeded by the incapacitating illness and death of its previous chairman. But I most seriously and sincerely submit that action is long overdue.
Senator Keating's bill, S. 1086, was reported to the Senate last year by the Judiciary Committee but died on the calendar. I trust it will be pressed soon again for passage.
It was conceived as an emergency measure as a result of two 1960 cases in New York's circuit court of appeals, a very simple bill which does not attempt to cover the entire complex subject of eavesdropping: Basically it is a negation of the Supreme Court's finding in the Benanti case that “Congress did not mean to allow” the States to order their own affairs as to police wiretapping and wiretap evidence.
This bill contains another provision of the utmost importance. It authorizes the use of wiretapping only upon the determination of a State court that there are reasonable grounds to believe that evidence of crime may thus be disclosed.
This is a paraphrase of the provision initiated by New York's constitutional convention in 1938, requiring court orders for law enforcement wiretapping. This great advance was derived directly from the fourth amendment of our Federal Constitution.
Certainly wiretapping is dirty business, but so were search and seizure in the 18th century. But the Founders were realistic men. They did not ban reasonable search and seizure, but put it under court control by search warrants.
This same principle was adopted by New York to control wiretapping. The system worked well, to the general public satisfaction, and has recently been adopted by other States.
This New York law was adopted 4 years after the Federal statute with which we are concerned. I sometimes imagine how incredulous the learned jurists at that 1938 convention would have been if they had been then told that, 19 years later, the U.S. Supreme Court would discover that Congress not only had the power to prohibit, but did not mean to allow, the great advance in civil rights which they had accomplished.
Our district attorneys are better qualified than I to teil you the extent to which prosecutions have been prevented or impeded by Federal court rulings. But I wish to summarize the two cases on appeal which gave rise to Senator Keating's short, emergency bill.
Early in 1960 two defendants appealed to the Court of Appeals, Second Circuit, seeking injunctions against the introduction of wiretap evidence against them, citing the Benanti case. The circuit court denied the injunctions on what might be called administrative grounds, though agreeing that wiretapping and its disclosure constituted a Federal crime.
But in a remarkably blunt concurring opinion, Circuit Judge Sterry R. Waterman launched a thunderbolt. He said it would be "presumptuous to assume that any New York trial judge will acquiesce to the commission of a crime against the United States in his presence in his courtroom by a witness testifying under oath; "but he admonished the U.S. attorneys of New York that it would be "a most extraordinary offense to this court” if such a crime were committed and remained unprosecuted.
Here at last was the dreaded implementation of the Benanti decision. Hitherto it had been the invariable rule in the New York courts to receive competent wiretapping evidence. Indeed, only last year the Supreme Court refused to upset convictions obtained thereby.
Immediately after this decision, the Nassau County court refused to receive wiretap testimony and directed the acquittal, for lack of evidence, of John O'Rourke, vice-president of the International Brotherhood of Teamsters—the Jimmy Hoffa of the East—who had been on trial for more than 10 weeks.
This was a major racket prosecution. O'Rourke, with 14 others, was accused of using a fake union local to extort money from juke box operators. He went free, but though much of this important case was wrecked, five defendants were convicted and given substantial sentences.
To Mr. O'Rourke this was doubtless a great victory for civil liberty. But what of the 150,000 union members whose economic lives are under his jurisdiction? I for one think they are entitled to a full determination of his innocence or guilt as a common extortioner.
In the other wiretapping case appealed to the circuit court, a Bronx attorney, Bernard N. Pugach, was accused of having conspired with three others to throw lye on a young woman who had rejected him as a suitor. She was partially blinded and severely scarred. When arrested, Pugach was found carrying an unauthorized gun. He was at first adjudged insane, but successfully contested this finding, stood trial for the gun offense, and was sent to jail for a year.
Meanwhile, his attorney carried his injunction plea to the Supreme Court, which denied it last February 27, by a vote of 7 to 2. The district attorney had won another hollow victory. He and the Bronx County court are in the same position as their Nassau counterparts a year ago.
Pugach was recently trying to get the judge and district attorney arrested for violation of the Federal Communications Act. Just this week he went on trial; as this statement was prepared, the wiretapping issue had not been determined. Whatever the state of the defendant Pugach's mental health, this macabre story has an irrational aura of unreality about it which surely lends no dignity to the statutes of Congress.
If this were not all so deadly serious, I would be tempted to say that nothing in the 19th century law provided so apt a subject for the satires of Gilbert and Sullivan. I strongly urge amendment of the Federal law on wiretapping in the first instance by passage of S. 1086
Senator Keating's S. 1221, which has been before the Senate much longer than his shorter bill, proposes a comprehensive scheme for the control of eavesdropping, including wiretapping, under the Federal jurisdiction. In general this is an adaptation for the Federal purpose of the scheme of laws adopted over the years by New York State. Naturally we are immensely gratified by this evidence of Senator Keating's confidence in our legislature's enactments.
Having been steeped in this subject for the last 6 years, I could easily lecture for hours on the law searching and soul searching that went into recent legislation, but I shall spare you that. I simply summarize the high points, and hope that you will ask questions about points that concern you.
Howard F. Cerny, counsel to our joint legislative committee, who actually drafted much of our legislation, is here with me, and his special knowledge is equally available to you.
Senator Keating's bill establishes the crime of eavesdropping, of which wiretapping is one form, along with the use of devices, usually electronic, to overhear willfully without consent any conversation to which the listener is not a party. Eavesdropping by any private person is made a crime, whether by wiretap or secret microphone, within the jurisdiction. Eavesdropping by Federal law enforcement officers is permitted only when authorized by a Federal court, on reasonable grounds.
This represents the same philosophy as our basic New York law, in which our legislature has substantially extended the protection of private communications. While recognizing, however reluctantly, the necessity for court-controlled wiretapping in the pursuit of modern criminals, we have insisted that police use of secret microphones be controlled in a comparable way.
And we have established the private use of secret microphones, quite unregulated elsewhere and notably in this city, as a felony. Just last week New York County indicted a private detective for using a secret microphone. This character had been recently working, mostly in Washington, where such services are not penalized and, I understand, are much in demand. That is the Duchess of Argylle case that I am sure that you read about in recent newspaper articles.
I need not labor my points here. Obviously, the Keating bill would clear up the anomalous and embarrassing fact brought out by this subcommittee, that our Department of Justice has continued to use wiretapping despite the frowns of the Supreme Court, on the ground that interception is no crime unless the wiretaps are disclosed.
It would establish standards for the proper and improper use of the 397 pocket-size wire recorders which, as this subcommittee revealed, were purchased by various departments of the Government. It would relieve the Supreme Court of such close decisions as the recent one in the Silverman case, in which an eavesdropping spike intruded fivesixteenths of an inch too far into a gambler's house, and his conviction was thereby reversed.
In that case a fine blow was struck for liberty, but it would be much better that the police of the District of Columbia were provided with proper statutory procedure than that constitutional rights be measured in fractions of an inch. In that case, let us note, the Supreme Court emphasized that the intrusion on Silverman was without a warrant. Perhaps the court would not be entirely hostile to law enforcement eavesdropping under court order.
At any rate, I commend Senator Keating's bill for your most serious consideration.
My support of the Keating bills is not in derogation of the intelligent approach and conscientious bill drafting in Senator Dodd's proposal. I do have misgivings about this bill. It lacks the very important provisions for court orders; it deals with wiretapping only; and it adopts a form of the widely discussed proposal that wiretapping be authorized for certain crimes only.
I have yet to understand how you can limit a criminal detection measure to a few crimes without, in effect, giving immunity to others which in certain circumstances may be quite as vicious. But I do wish to emphasize
that the Dodd bill would be immensely superior to the law now in the Federal statutes.
I have assumed, gentlemen, that you are all thoroughly familiar with the 31 words in section 605 of the Federal Communications Act which are the only Federal statute on the interception of communications.
You are cognizant of its shortcomings, but I feel compelled to add a few comments of my own.
Even its origin is worse than dubious. This brief clause was a tiny part of a very complex act of some 20,000 words setting up Federal regulation of the national communications system. It was enacted by the first New Deal Congress, overburdened with a host of monumental bills.
So far as any actual intent was concerned, that was clearly lost in the crowd. Neither the debates in 1934 nor the committee reports on the Federal Communications Act made any mention of this clause, or wiretapping, or wiretapping evidence.
As a legislator of some experience, I conclude that there was in reality no intent of Congress, that the clause simply slipped through unnoticed-the common legislative phenomenon known as a sleeper, which is usually corrected at the first opportunity. It is inconceivable that, if its purport had been recognized, especially with the meaning now attributed to it, there would not have been strenuous debate.
Though the Congress did not give it attention, the courts have labored
endlessly, trying to define its meaning. As of last year, that basic legal volume, 47 United States Code Annotated, had 24 fineprint columns of annotations concerning this section of the law alone, and many cases have been added since. This is almost a column of court case summary for each word of the disputed statute, representing uncounted thousands of words of judicial opinions.
1 The 31 pertinent words are: “ ... no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any per
In all this vast superstructure of court-made law it has never yet been discovered whether the statute made a crime of wiretapping or only of interception with disclosure. The pinnacle was reached, of course, when the Supreme Court in the Benanti case made the astonishing discovery that Congress did not mean to allow the courtsupervised, constitutionally authorized system of law enforcement wiretapping in New York State, a meaning which had escaped thousands of capable judges in the previous 19 years.
This disproportionate amount of opinion law, as compared with the 31 words of the statute, is like some fantastic situation in Alice's Wonderland. Or possibly I should simply say, quoting New York's august Court of Appeals, that the statute is "not clear."
This is perhaps the most devastating comment that can be made of any penal statute; for, when ignorance of the law is no defense, ambiguity is an offense against justice.
But one thing is clear. The anonymous, unsung drafter of this clause, whatever his inscrutable purpose, did an inadequate, bungling job with a complex, important subject. With all due respect, gentlemen, I suggest that in neglecting to clarify its intent, and abandoning this function to the puzzled courts, the Congress has ignored the basic tenets of legislative responsibility.
I do not believe for a minute that Congress ever meant, or means now, to trample upon the police power of the States. To do so would wreck our entire system of criminal justice. The police power is the major great responsibility remaining to the States; and to no State is this more important than to New York, whose crime problem exceeds that of dozens of other States put together.
This subcommittee has a great opportunity of correcting a longstanding failure of Congress. I hope that Senator Keating's emergency bill will again be reported, and with enough motive power to obtain its enactment.
If I am wrong, and Congress does mean to preempt the police power of the States, and to forbid the use of court-controlled wiretapping in the pursuit of criminals, then it has the duty to say so in its own words.
These words would be clear beyond quibble-clear not only to the judges of our State courts but also to all the people, including the professional criminals and spies who would be the primary beneficiaries.
Senator ERVIN. I think it is a very fine statement. I certainly enjoyed your statement, especially your closing comment.
Senator KEATING. Ít shows what we can do when we really get started.
Senator ERVIN. Do you have some questions, Senator Keating?
Senator KEATING. I wanted to ask Assemblyman Savarese about the testimony of Mr. Sam Dash. He testified that he found a widespread fear among professional people and persons in high political positions to use their telephones. "He offered to submit detailed evidence for