it be murder, should it be gambling, should it be prostitution-where do you draw the line with any sense? We could not simply do it and we abandoned it.

On the Federal level, of course, you can make such a category because you have things like treason, perhaps kidnapping—I am not too sure. But even then you begin to wonder whether kidnapping should come under it, but, certainly, where national security is concerned it is very easy to say: "This is one crime for which we should be able to tap wires." That category you might be able to establish. I doubt whether you can intelligently set up a long list of Federal crimes and say which ones we should be able to tap wires for. Senator KEATING. May I interrupt there to clarify this? I think the question of the chairman was not whether the Attorney General was offered a court order procedure as to Federal crimes generally. But his suggestion was that as to crimes involving national security-and I believe he added kidnaping there

Senator ERVIN. Yes, he did.

Senator KEATING. Ás to those crimes he should be permitted to authorize the wiretap rather than the court. I think that is what the chairman was trying to get to.

Senator ERVIN. Yes.

Mr. SAVARESE. Then my previous discussion is not suitable as a response. I think the problem that you run into with your Attorney General authorizing it is obvious to most legislators.

In this case, you will have wide discretion in a single law-enforcement authority as to who the taps should be placed upon. Properly exercised, exercised with good conscience, with responsibility, with restraint, we have no problems. Exercised otherwise, you have some elements of the police state which could creep in. This may be a fear.

This can be overweighed, of course, by the tremendous world conflict that we find ourselves in, which may intensify later, which may justify so drastic a remedy.

I am not one to say on the Federal level whether you should place that kind of authority in the Attorney General or not, but certainly court control, I can see.

Senator ERVIN. As you suggest, it can be rather dangerous to vest in an executive officer a discretionary power which cannot be controlled by courts.

Mr. SAVARESE. I am inclined to think so. The emergencies may warrant it at times but for general purposes that is a strong power that you give him and a pretty dangerous one.

Senator KEATING. I think the Attorney General-to pursue the other point you are making-did then say that there should be only a certain list of terms, as on the Federal level, that designated certain crimes, as in the Dodd bill, and your feeling is that is pretty hard to do?

Mr. SAVARESE. Relatively, impossible on a State level. Maybe your Federal crimes run into different areas that you could categorize. I doubt it, though.

I would say one thing in fairness to your Attorney General: If he wants, or if the proposal is to authorize wiretapping for security purposes, then in fairness to him, we must admit that if that type

of tapping is put under the jurisdiction of courts, it will be, obviously, less effective as a security measure because there is always the possibility of court leaks, in the administration of getting the ordersstenographers, clerks, and things of that sort.

So, in fairness to him, there may be some point to it.

Senator ERVIN. The Department of Justice informs us that under the interpretation placed on section 605-that it permitted the wiretap where there was no disclosure by the Department, this has been the practice by the FBI; and that on the day before the witness made his appearance, 85 wiretaps were in existence under FBI supervision.

I wonder if you have heard any facts or rumors which indicate that there has been any substantial abuse of the power by the FBI?

Mr. SAVARESE. We have never uncovered anything which said there was abuse of the power, only the fact that they are doing it. There is ample evidence of the fact it has been done and we so indicated in our reports.

Senator ERVIN. I judge that you would favor a bill which would make it clear that section 605 is not to be construed to deny the States the power to resort to wiretapping under court order, if the State law 80 states?

Mr. SAVARESE. Yes, we desperately need that.

Senator ERVIN. Is it not true that in certain areas of the country we have different problems with respect to crimes and, particularly, with reference to what we call organized crimes and for this reason it should be done on a local basis so that each State could deal with it?

Mr. SAVARESE. I think that is a very keen observation. And it is very difficult to generalize on the problem of eavesdropping and wiretapping as it applies to the States because it is so vastly different in every State.

Senator ERVIN. Mr. Frank Hogan appeared before the subcommittee yesterday and, speaking with reference to classifying crimes, said that he did not think that it was wise in the case of wiretapping, because some of our greatest evils arose out of crimes which were not considered the most serious of crimes. He stated, in substance, that organized criminals depend upon financing for their existence. He said some crimes such as gambling, prostitution and crimes of that nature may be classified as minor crimes, but provide means by which the underworld gets financing. Also, that in many cases these crimes led to serious crimes of violence such as homicides. In his opinion, it was just as essential to have the power to wiretap to appre hend a person who engaged in gambling and prostitution and things of that nature as it would be to have the power to wiretap for what we considered major crimes.

Mr. SAVARESE. He so testified before us on a number of occasions. And we have reason to respect his judgment as one of the finest and most respected law enforcement people in the country.

Senator ERVIN. Thank you.

Mr. CREECH. I apologize for not sending Senator Hruska's bill, S. 1822, to you at an earlier date. I believe that you have now had a chance to look at that bill. I would appreciate any comments which you might have on the approach in that bill that a finding must be made of probable cause to believe that a particular telephone has been

or will be used in furtherance of a crime, for which a court order has been granted.

Mr. SAVARESE. As I read it hastily, it would appear that you must show that the order is obtained for a particular phone for a particular crime, and you must have evidence that this phone will be used for the commission of that crime.

It is highly restrictive. I have never seen any such proposal like it before and I think it is somewhat unrealistic.

Senator KEATING. In other words, under this bill, as I read it, the telephone itself must have been an instrument in crime. A murderer talking to an accomplice on the telephone would not be using the telephone in the commission of his crime so you could not get a wiretap on that as I read it.

Mr. SAVARESE. No, I do not know that it is that. It says, probable cause must exist for a belief that a crime has been or is about to be committed, that a particular phone or telegraph instrument is being or will be used in the furtherance of the commission of that crime pursuant to which leave was granted to intercept.

Senator KEATING. In other words, that the telephone is being or will be used as part of the commission of that crime?

Mr. SAVARESE. You take somebody, some known criminal, in the organized crime syndicate, who may be committing many, many crimes, you go in and say: "As I see it, we want to tap Mr. Jones' phone because we know that he is going to commit the crime of burglary tomorrow morning at half past 8 on 122d Street and Liberty Avenue in New York." That is exaggerated; it is an oversimplification; but unless you can show that that phone will be used to further that particular crime, you cannot get the order. All they want to do is to exercise surveillance over his phone to find out what crimes he is going to commit. That is the whole purpose of law enforcement tapping. If they know that a certain crime is going to be committed, there is no point in tapping his wire. It is to find out what this known criminal is going to do that you want the surveillance over his phone.

Mr. CREECH. In the court order you would not specify any particular crime?

Mr. SAVARESE. Take, for instance, the Schuster murder in New York City; young Schuster, killed in connection with the Sutton capture. Long after that murder they tapped the telephone of the man they believed did the crime. For a long period of time they had it tapped to see whether or not they could find out whether he committed that crime; but that would not be allowed under the Dodd bill. They would not be able to get such a tap.

This is for a future crime, as I see it, and you have to name the crime in your application. If you know what the crime is going to be, three-quarters of the value of the tap is gone.

This is quite restrictive and unrealistic. I do not think this will serve the purpose of law enforcement to any great degree at all. In other words, tapping under this bill would not be a measure of surveillance except for a particular incident and if you know it, three-quarters of the value of the tap is lost.

Mr. CREECH. I would like to clarify one point.

L

Is it your feeling that when you go before the court for an order for wiretapping, that you should not necessarily specify the particular crime that you are seeking to uncover?

Mr. SAVARESE. No. I do not say that at all. But the legality of the tap should not be dependent upon your ability to identify the commission of a particular criminal act and the identity of that phone with that act. Otherwise, you would have a devil of a time getting the order, in the first place, and in the second place, it serves no use. If you have got that much information about the crime and who is going to commit it, the tap is surplus. You do not need it. Mr. CREECH. In S. 1221 there is a requirement that before a Federal agent can obtain a court order to wiretap or eavesdrop he must have reasonable grounds to believe that evidence of a Federal crime may be obtained, whereas under Senator Dodd's bill, S. 1495, there is a requirement that interception must be required to gain evidence of or to prevent a specified crime.

În your opinion, sir, are these requirements narrow enough to protect the privacy of the individual and to accord with the constitutional guarantees as to reasonable search and seizure?

Mr. SAVARESE. On wiretapping you have no constitutional problem.
Your search and seizure has nothing to do with wiretapping.
Senator KEATING. You are speaking of the Olmstead case.
Mr. SAVARESE. Yes-605.

Senator KEATING. That is a 5-to-4 decision. He is assuming that the Supreme Court tomorrow might decide the other way.

Mr. CREECH. We have had testimony both ways. We have had some people who said they would refuse to outguess the Supreme Court, and others who indicated they thought there would be a different opinion today. But I would be interested in your views in regard to whether you feel the requirements are stringent enough?

Mr. SAVARESE. If the requirement is that there be in the application for the court order to tap the wire an indication that an investigation has been made and there is reasonable ground to believe that if the order is obtained and the tap goes on, evidence of crime would be uncovered, that is sufficient protection, if it is conscientiously followed. And the only way that we can be asured that it will be conscientiously followed is that (1) you have the law enforcement officer who must aver or attest to the facts on which he bases his reasonable assumption, and (2) you have court supervision to review it.

And in New York the courts, many of them, require the affiant to come in and they examine him independently to see that the material in the affidavit is sufficient, or to supplement it. Nobody can guarantee that the court will not slough it off or that the law enforcement officer will not slough it off, but I think in these days where we are so attentive to the problems of civil liberties and where the public eye is on the activites of Government officials and the news media are so extensive, I think we can reasonably assume that they will follow these requirements diligently, and that is sufficient protection in my judgment.

Mr. CREECH. Would you agree with the provision in the Dodd bill which would allow wiretapping for the prevention of an offense? Mr. SAVARESE. For the prevention of an offense?

Mr. CREECH. That is under section 4 (a) (2) of the Dodd bill, S. 1495. Mr. CERNY. What section is that?

Mr. CREECH. Under section 4 (a) (2).

Mr. SAVARESE. Will you bear with me just a moment.

Mr. CREECH. Yes.

Mr. SAVARESE. I find it difficult to distinguish this from any proposal that we have made. It seems to have the element that the law enforcement officer applies to a court for leave to intercept, which is essentially to tap a wire or intercept a telegraph, when such action is required to obtain evidence of or to prevent the commission of any criminal offense.

I wonder if the words "or to prevent" are surplusage in a situation like that.

If the Attorney General comes in to the court and says: "We have evidence that John Jones is about to commit an offense punishable by death, and if we can tap his wire we will be able to obtain evidence of that action," that is the same as, it seems to me, what we now do in New York. It is not necessary for him to commit the crime first and then be apprehended. If you know he is going to commit it and you have done an investigation which gives you reasonable grounds to believe that if you intercept this wire you will get evidence of the commission of this crime, that is the same in principle as what we do in New York.

I think that is all right.

Mr. CREECH. To.that extent you approve of that procedure and you feel it is necessary?

Mr. SAVARESE. Surely.

Mr. CREECH. In the event that wiretapping were not permitted, can you introduce any other evidence which would be sufficient for convictions in some of these syndicate-type cases which have been mentioned to us, or do you feel that wiretapping is essential to conviction in these types of cases?

Mr. SAVARESE. I am not too sure I understand.

Mr. CREECH. Do you feel that wiretapping is absolutely essential for the conviction of criminals in certain types of cases, and do you feel there are no other means provided the police to enable them to obtain evidence adequately?

Mr. SAVARESE. Yes, such testimony as we have gotten in our hearings from the New York City district attorney indicates that wiretapping is probably the only way that they can reach syndicated crime in certain areas of their activities. Primarily, gambling itself.

Senator KEATING. District Attorney Hogan gave us quite a list of well-known hoodlums who, he said, would not have been convicted, including one over in New Jersey, where they used wiretap evidence to secure convictions, and he said they would not have been convicted, every one a well-known gangster, if it had not been for the wiretap evidence.

Mr. SAVARESE. My position is much the same as yours. I can tell you what we have gotten from the district attorney just as you have gotten it. And what I tell you now is hearsay because I get it from them. We have not gone into a study of the techniques of crime detection and how important wiretapping is to it, except as we have gotten it from the district attorney, Mr. Hogan, and others like him.