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Senator KEATING. In other words, the criminal order on wiretapping did not cover bugging. Is that what you mean?

Mr. SILVER. That is right. It has been added to the statute lately. Senator CARROLL. But now you have to get a court order to bug an office or home on the proper showing?

Mr. SILVER. On the proper showing.
Senator CARROLL. On the proper showing?
Mr. SILVER. Yes.

Senator CARROLL. You can bug, therefore, any place or home, office; any official of any branch of the Government on proper showing! ?

Mr. SILVER. Yes.

Senator CARROLL. And by the New York statute you can intercept any message of any individual, any official, any branch of the Government upon a proper showing?

Mr. SILVER. Upon a proper showing except I want to say this, that I think Senator Carroll will agree with me that in the last analysis no law is much better than the person who has to administer the law, and I know for a fact not only with regard to public officials is it a rare thing, this situation would have to be a burning situation before a district attorney in our State would even attempt to get an order to intercept a lawyer's telephone or a doctor's telephone because of the confidentiality of his type of business.

In 14 years I think there was only one lawyer whose wire was intercepted. But I can't think of any public official whose wire was tapped. I mean so far as my own office is concerned. And I am quite sure it is true of my colleagues. I can't think of any public official's wire that has ever been intercepted or an order asked for it. It is the rarest thing that anyone who has a confidential relationship with others has had his wire tapped.

I am sure, for example, that never has a cleric's wire been tapped, even though technically under the statute it is a possibility. But it is just not done.

Senator CARROLL. What about this? Doesn't this put a tremendous power into the hands of the judge who, upon showing which is not shown as probable

cause but upon reasonable grounds Mr. SILVER. As I say

saySenator CARROLL. It puts it in his hands to issue an order to bug or to intercept a conversation

Mr. SILVER. Senator-
Senator CARROLL. May I finish for the record, please?
Mr. SILVER. I'm sorry.

Senator CARROLL. It puts it into his hands the power to permit the law-enforcement officers to bug a house of a man who has been elected by the people, a man who is on the Supreme Court, or in any branch of government

I recognize the great problems of law enforcement. I have had years of experience in the field. And, in the Senate Juvenile Delinquency Subcommittee hearing in Los Angeles, Calif., it made me ill to see the amount of heroin coming over the border, the amount of marihuana coming over the border, and I am not opposed to the use of interception to keep informed on such illegal activities. This is a power that can be very, very easily abused, it would seem to me. Even my office as a Senator could be bugged.

Men exercise power, and men sometimes abuse power, and I thinkas, in the words of Justice Holmes, “It is a dirty business.” This is what worries people.

On the other hand, men like you who have difficult problems of law enforcement, how are you to meet them?

So this, again, is why I raised the question. If we are going to go into this field, it would seem to me we have got to have very strict surveillance. If we modify the Federal law we then have an obligation to set up strict surveillance standards, even over the Federal Government itself!

I have talked to my own district attorney at home. I have talked to my police department at home. They know this is difficult. Their problems are not like your problems. Your problems are a hundred times more difficult than ours in an area of a city the size of Denver. For many reasons you have got very, very difficult problems. For my part, your testimony has been very, very helpful this morning, and I thank you for it.

Senator HRUSKA. Mr. Silver, I am wondering of course, there is a great deal of responsibility that would be cast upon a judge if this bill became law, and there is a great deal of responsibility for the New York judges who now and for the last 20 years have been concerned with these intercepted wires. But isn't it true and hasn't it been true for many years, that the judges have had responsibility for searches of premises so that the residence of a person, or the quarters and offices of a public official have been subject to searches and seizures upon proper court order being issued ? That is the fact, isn't it

Mr. SILVER. That is right.
Senator HRUSKA. It has been for centuries.
Mr. SILVER. That is correct.
Senator CARROLL. Is there a difference will the Senator yield?

Is there a difference in the type of proof you get with a search order? Mr. SILVER. I am just trying to get the words here. It is difficult.

. “Reasonable ground" are the words we use in our statute, not “probable cause." As I said before, I wasn't sure about it. And I wanted to make sure.

It says here than an ex parte order for eavesdropping, as I find this in subdivision 1 which takes care of bugging as well, and section 813(a) (N.Y. Code Crim. Proc.), that it may be issued by any Justice of the Supreme Court or judges of the county court upon oath on affirmation of the district attorney or attorney general or officer above the rank of sergeant of any police department of the State or any political subdivision thereof, that there is reasonable ground to believe, and so forth.

Senator HRUSKA. I just can't understand that anyone called upon to judge reasonable grounds for wiretapping would be under greater temptation to use it than he is in the case of seizures. Certainly as against the proposition of depending upon the integrity of the judge on the one hand, and, on the other hand, putting up with a lawless community that is allowed to go forth and inflict its depredations on the community at large, I know where my sympathies would be. They would be on the side of trusting these people who are carefully selected as judges and law-enforcement officers. Therein lies that

say this:

balance between the constitutional rights and liberties of the individual and the rights of the individual to be protected against lawless elements in his communities.

Mr. SILVER. May I, Senator, respectfully say this: I am just as concerned as you would be with any breakdown of the free use that a man wants to make of anything he wants to do in our country. And the Senator has depicted a rather rough picture about public officers and Senators and judges that may be tapped. But I only want to

We have had, as I said before, a fairly good laboratory. We had 20 years in our State, like New York State which has a variety of populations that covers almost every part of this country, rural areas, villages, towns, small and large cities. Never have the things that you have depicted happened in 20 years.

If one would look at the debates when our own Constitution was being considered and discussed for adoption, which we are now concerned with preserving, the Bill of Rights and our own Constitution, some of our greatest patriots-Patrick Henry and others got up and said that they would rather have a House of Lords and a Queen than this document, our Constitution, which is now being put to them. Our Founding Fathers had great minds. Concerned with our liberties, they conjured up all sorts of dangers that might happen to their freedom if this Constitution was put into being.

I recall that Patrick Henry said that nobody is going to tell him that New York and Pennsylvania aren't going to send down a large number of troops and make his State subservient to theirs.

I am not finding fault with the great patriots. When one is concerned with freedom, it is only right that they concern themselves with anything that might endanger that freedom. But we have a laboratory in New York State and those imaginary ills don't exist. Twenty years is a long time to carry on an experiment.

Senator CARROLL. Mr. Silver, now there is a great distinction between getting a search warrant and a wiretap order. A search warrant is for a specific place, to move in quickly, and it is normally executed within a very short time. Is that not so?

Mr. SILVER. There are distinct differences between a search warrant and an interception of a telephone, yes.

Senator CARROLL. A wiretap may go on a long period of time. What I am trying to say is that, somehow, we have got to bridge this gap. We want law enforcement. We want law-enforcement officers to gather information. And the question of Federal surveillance is raised by this committee's report here.

I am not only talking about New York now. I am talking about if we were to modify this law so that it extends into the Federal agencies, too. How do we do this?

Mr. SILVER. Senate 1086, I submit respectfully, would not affect the Federal Government.

Senator KEATING. That is right, Mr. Chairman. There are separate bills here.

Senator CARROLL. Is there some reason why we grant this power to the State and not to the Federal Government and their law-enforcement agencies?

Senator KEATING. There are other bills, several bills dealing with the Federal picture, but S. 1086 is designed only as something in the

a

nature of an emergency measure to permit the State to use in evidence what they obtain by interception provided they do it under a court order in accordance with the State statute.

Senator CARROLL. I am familiar with the emergency nature of this. I am speaking not so much against your bill but in terms of the whole situation.

The Federal Government has great problems in this area, too. I agree 100 percent with your conclusion that we do not have a proper understanding of the relationship of the whole gambling picture to organized crime. This is why I feel that although we may say that tapping can only be done in certain types of crime, if we go into it at all, we may have to go all the way to hii the big cities.

So this is a difficult problem. I don't want any of my remarks this morning to be construed as being in opposition to what you have said, but we must continue to think this out and see how far we go. It may be that S. 1086 is sort of a stopgap measure, but it doesn't to me quite answer the whole problem of what is the responsibility of the Federal Government in surveillance, and, as you have indicated, in the State of New York you have gone along here for 20 years. I don't profess to know what the background is in the New York statute for both bugging and interception, and we will get that, I hope, later on from the members of the New York City bar.

Are there any further questions?

Senator KEATING, Mr. Chairman, I want to make a comment on the possible action against public officials.

It might be that public officials would like to have an exemption from law enforcement, but I feel sure that the public generally would not feel the same way, and that if there is evidence of the commission of a crime which a district attorney can present to a court with regard to a public official, be he a U.S. Senator or a sheriff or a constable or any other

Mr. SILVER. Or a district attorney.

Senator KEATING (continuing). Or a district attorney, and that is more than a moot question because, as Mr. Silver knows, it could be & district attorney, then certainly there should be no exemption on their part from the operation of the law. I know that you agree with me.

Mr. SILVER. And may I say, Senator, under S. 1086 there would only be about five States that would come under the interception because there are only about five States in the Union that require an order to intercept. Any State where an order is not required could not intercept and would still be in violation of section 605 of the Federal Communications Act. Any State that saw fit to decide that they would rather not give law enforcement the right, they don't have to do it.

Each State will have a right to determine whether they should have a statute, what crimes should be covered by it, what provisions there should be, how long the order should be in effect. Each State can determine for itself, and States do have various problems.

The things that bother me in Brooklyn may be of no concern to somebody in a State that is 2,000 miles away. Let each State determine for itself how it wants to use this right that we feel so strongly the Senate, the Congress should give law-enforcement agencies.

Senator CARROLL. I would like to comment, for the record, on Senator Keating's remarks.

What Senator Keating says permits of no opposite discussion. If Senators, or Governors, or judges commit a crime, of course, they are responsible under the law. This is Hornbook law. Every freshman knows this. What we speak of here is whether the power can be used and abused. This is the real question, the centering of power.

Men who have been in the law-enforcement field know how search warrants are issued; not with great holding of hearing and presentation of evidence. It is often very quickly done. And I suspect this would be true in some bugging operations, too, and I suspect this would be true in interception. So these are the problems, which it is the purpose of this hearing to thrash out.

Does counsel on this side have some questions?
Mr. CREECH. Thank you, Mr. Chairman.

Mr. Silver, you have stated that you apply for approximately 50 to 55 orders a year for wiretapping. You indicated that you didn't have figures on the number of orders which are granted. I wonder if you would care to provide that information for the record, sir.

Mr. SILVER. For how long a period of time?
Mr. CREECH. I would think for the last several years.
Mr. SILVER. I will give it to you for the last 10 years.
The figures of my office show that the following orders were granted :

Rackets bureau (January 1950-July 1960)
Orders granted.--

415 Telephone numbers involved.-

71 Other than rackets bureau (January 1951-July 1960) Orders granted.-

101 Telephone numbers---

166 Total, 516 orders involving 877 telephones.

Mr. CREECH. Thank you, sir.

You said also that some policemen may engage in illegal wiretapping, but that you prefer to believe this isn't widespread, and that you would disagree with the information which Mr. Dash stated in his book several years ago, that there were perhaps as many as 13,000 or 16,000 illegal wiretaps in New York. Would you care to comment very briefly on Mr. Dash’s allegation?

Mr. SILVER. Well, in the article that I wrote for the Minnesota Law Review I show that Mr. Dash himself says that he is speculating with regard to that amount. And I was rather disappointed in Mr. Dash's failure to make the clear distinction between the amount of illegal wiretapping which he claims exists and which, from my point of view, the more illegal wiretapping exists the more we will require some regulation such as this so they can be prosecuted, because in a State where there is a law that forbids any wiretapping and law enforcement takes the fruit of it, they are less likely to prosecute those who are, even if caught, illegally wiretapping.

In our city the police know that I will not brook any interception without a court order because it is my feeling if they are entitled to the order, they can get it, and if they cannot get the order they have

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