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If I am not able to be here when they testify, I did want to express my personal appreciation to these fellow New Yorkers for coming to give us help in this very important area.

Thank you.

Senator ERVIN. We will stand in recess until 2 o'clock.

(Whereupon, at 12:50 p.m., the hearing was recessed until 2 p.m. this same day.)

AFTERNOON SESSION

Senator ERVIN. Counsel, call your next witness.

Mr. CREECH. Our next witness will be Dean Daniel Gutman, New York Law School.

STATEMENT OF DANIEL GUTMAN, DEAN, NEW YORK LAW SCHOOL,

NEW YORK, N.Y. Mr. GUTMAN. Mr. Chairman and Mr. Creech, I appreciate the opportunity to appear before your honorable committee through the invitation extended by suggestion of Senator Keating.

With your permission, I will consider the statement which I have filed with Mr. Creech to be my statement of today and there will be just one point upon which I should elaborate because I think it is of vital importance.

Of course, as you know, I have indicated in my statement, sympathy with bills that would strengthen law enforcement agencies by providing for authorized admission of evidence obtained by wiretapping, to remove the cloud of illegality by authorizing wiretapping in the States which now permit such activity pursuant to court order and also legislation which would extend this to the Federal courts.

One of the things that troubles me very greatly, speaking now from an academic view point, is the difficulty in explaining to students or to lawyers who are interested, the apparent conflict in recent important U.S. Supreme Court decisions and their conflict with the decisions that have prevailed in the court of appeals of the State of New York.

The leading case, of course, is the case of Benanti against the United States.

I should like to read a brief quotation from the decision in that case and then a quotation from the decision in the Pugach case in which the U.S. Supreme Court affirmed the action of the Federal district court which refused to issue an injunction against the admission of evidence obtained as a result of authorized wiretapping in the State courts of New York.

In Benanti, the U.S. Supreme Court said: Despite the warrant issued by the New York State curt pursuant to New York law, we have no alternative other than to hold that by tapping the wires, intercepting the communication made by appellant and divulging at the trial what they had overheard, the New York police officers violated the Federal statute.

Then it refers to 47 U.S.C.A. 605, which provides :

No person not being authorized by the sender shall intercept any communication and divulge or publish the existence and so on.

There apparently is no argument about the fact that Benanti held very clearly that evidence obtained through wiretapping could not be admitted in Federal criminal proceedings. There was nothing new about that, but then there was something else: The Court said, referring to section 605 :

Congress, setting out a prohibition in plain terms, did not mean to allow State legislation which would contradict that section and that policy.

Now reading from Judge Bryan's decision in Pugach we find this statement :

Since the Benanti case, there is little doubt that State officers who engage in telepbone wiretaps and divulge the contents of communications so obtained not only are acting in violation of the Federal statute, but are committing a Federal crime.

The fact that they act in aid of law enforcement and under purported authority of State constitution and statutes does not make their acts any less a violation of Federal law.

The Court, in Pugach, denied an application for an injunction against the admission of evidence that had been obtained as a result of authorized wiretapping. The U.S. Supreme Court, in a divided Court, upheld the decision.

That decision was in line with rulings that had been made by the New York State court of appeals in a series of cases.

It is with interest that I find the rationale in the Pugach case set forth in the opinion. Judge Bryan stated :

Congress, by enacting 605, did not intend to thwart a State rule of evidence. The policy of the State of New York as reaffirmed by its court of appeals subsequent to Benanti, is that wiretap evidence even though illegally obtained is admissible in a State criminal trial. And the Court went on to say that, This is simply an additional factor for a State to consider in formulating a rule of evidence for use in its own courts. Enforcement of the statutory prohibition in section 605 which can be achieved under the penal provisions of section 501. As I have pointed out, plaintiff may also have a remedy in civil damages.

I do not think it is helpful to have to reconcile our laws and our important decisions by rationalization of this kind. I think as I have stated previously at hearings of the New York State commission of investigation and in the press and in public addresses, that it is a fortunate thing for our State that the court of appeals has taken the position that evidence obtained by authorized wiretapping is admissible in criminal trials.

The position of the court is, briefly, that until the U.S. Supreme Court says, in so many words, that you may not admit evidence obtained as a result of authorized wiretapping in the State courts, until that time we say this is just a rule of evidence, and the States have the right to formulate their rules of evidence.

Now, this is fortunate because if the court of appeals held otherwise, law enforcement would be thrown into chaos in New York State. I believe that law enforcement is badly hampered on the Federal level because of the inability to cope with crime with these modern devices that so frequently are employed by criminals.

Fortunate or unfortunate, it is my considered opinion that there is a great demand first for the immediate passage of a bill which would carry out what Senator Keating's bill, S. 1086, would do, and that is to legalize wiretapping activities where authorized pursuant to court order in the various States.

Secondly, I think that this medium of fighting against crime of all kinds should be extended to the Federal courts by an appropriate amendment of section 605.

Thirdly, I would respectfully suggest to the committee that in relation to matters concerning subversion, sedition, and treason and related crimes, that these be considered in a separate category because of the great danger, for security reasons, in requiring the disclosure of the underlying facts. This is something that I think needs grave consideration. I do not think it calls for the sacrifice of this important weapon which we can employ in combating subversion. I believe that this area requires the consideration of the Congress, and I am thankful to you for the opportunity to express my views.

Senator Ervin. Do you have any questions?
Senator HRUSKA. No questions.
Senator ERVIN. Counsel ?

Mr. CREECH. Dean Gutman, with regard to three of the four bills which are before the sụbcommittee, there is a requirement in S. 1221 that before a Federal agent can obtain a court order to wiretap or eavesdrop, he must have reasonable grounds to believe evidence of a Federal crime may be obtained while in S. 1495 there is a requirement that the interception must be required to gain evidence of or to prevent certain crimes.

Are these requirements, in your opinion, enough to protect the privacy of the individual citizen and to accord with the constitutional guarantee against unreasonable search and seizure?

Mr. GUTMAN. I think they are. I think if enacted by Congress these provisions would be held to be constitutional. I believe there is sufficient protection, and ample safeguard, and if I may just add this thought : that I consider these in the light of the other safeguards that so properly surround the person on trial for commission of a crime.

Mr. CREECH. Dean Gutman, have you given any consideration to the possibility that under pending legislation, confidential communications between lawyer and client and physician and patient might be the subject of interception and disclosure?

Mr. GUTMAN. Frankly, no. I think it is an interesting item, however, but this raises a question. For example, if you were "bugging" a conversation between an attorney and his client, my offhand thought at this moment is that it might be best to safeguard such disclosures in the manner which is already employed by the law

Senator HRUSKA. Will counsel please yield?
Mr. CREECH. Yes, sir.

Senator HRUSKA. I want to thank Mr. Gutman and state that the court where application is made in such a situation would be governed pretty much by the same considerations you have expressed and only in the case of a very flagrant or very extreme situation would he be inclined to authorize and issue that kind of an order.

Mr. GUTMAN. I am sure the judges would take this into consideration if it appeared on the face of the application.

Senator Hruska. If a showing were made for example, that the relationship of an attorney and client surely existed but also there existed the relationship of coconspirators in a very, very serious case, that the court might be apt to disregard one in favor of the other and say go ahead and get those criminals because that is what they would be. Is that not what it amounts to!

Mr. GUTMAN. It might be. But in that event, I am sure the exclusionary rule would have to be applied to what communications might be considered confidential, because they are made to one another in their respective capacities as lawyer and client. Senator HRUSKA. That goes to the point of admissibility.

Mr. GUTMAN. Yes, admissibility of evidence. I can see where it is possible that cases may exist where it may be impossible to draw the line in the obtaining of evidence.

Senator HRUSKA. Thank you.

Mr. CREECH. In your opinion, Dean Gutman, which, if any, of the Federal agencies should be allowed to intercept communications—the FBI, Treasury Department, Defense Department or are there any other agencies which you feel should have this authority.

Mr. GUTMAN. I would be inclined to limit this to agencies that are engaged in law enforcement activities. If necessary, extend the definition of that scope. I do not think it would be wise to permit many departments this power. I would rather personally see, unless it is essential for other departments to have this, but to see it vested in the FBI and I think the approval of the Attorney General should be required in cases involving Federal crimes in Federal wiretapping.

Mr. CREECH. And, sir, would you limit it to the approval of the Attorney General rather than obtaining a court order?

Mr. GUTMAN. No, I did not mean to say that. A court order should require the approval of the Attorney General.

Mr. CREECH. Before the court order was issued ?
Mr. GUTMAN. That is right.

Mr. CREECH. Dean Gutman, previously the subcommittee has received testimony on the subject of wiretapping and eavesdropping and the suggestion has been made at these previous hearings that one Federal judge in each district should be appointed by the Supreme Court to grant court orders to intercept communications. The advocates of this proposal alleged that there is some danger of judge-shopping; that is, that a district attorney, if he is not able to get an order from one judge, might go to another.

I would like to ask, sir, your opinion of this?

Mr. GUTMAN. Administratively, if that is deemed feasible, I do not know. I think it is a matter of selectivity which may boomerang in the other direction and it may be felt that one judge selected is too prone to grant orders on like presentation. I think that such a provision might create a public reaction which would endanger the passage of any legislation.

As practical proposition it might be well to make assignments from month to month as the divisions in various areas assign the judges of their courts, but I think the selection of one judge to pass on these might be dangerous procedure and might rightfully provoke a great deal of opposition.

Mr. CREECH. Which judges do you think should authorize interception of communications?

Mr. GUTMAN. I would say all Federal judges, that is district and circuit court judges. The New York State courts follow procedures which I think are adequate.

Mr. CREECH. With regard to the bills before the subcommittee, insofar as they describe the judges and courts which are authorized to grant wiretapping orders, what are your views ?

Mr. GUTMAN. I think that is adequate. I like the provisions in all of these bills insofar as they indicate the persons who may authorize.

Mr. CREECH. Dean Gutman, you mentioned the modern devices which are employed by criminals today.

In your opinion, does wiretapping today pose the same constitutional and practical problems as such electronic eavesdropping devices as spiked microphones and similar modern devices?

Mr. GUTMAN. Yes, I think so. I heard your colloquy with District Attorney Silver this morning. As a matter of fact, I heard the very sound questions put to him by members of the committee and yourself and I agree with most of the answers he gave. We have worked together in this area in connection with State legislation. I think they are all in the same category and law enforcement officers should be permitted to employ them all with the same safeguards.

Mr. CREECH. I gather from your testimony that you feel that it would be appropriate for one piece of legislation to cover both wiretapping and eavesdropping.

Mr. GUTMAN. I think you can combine it all instead of separate bills.

Mr. CREECH. Now, S. 1221 provides a fine of $5,000 and up to 1 year imprisonment for unauthorized eavesdropping, while S. 1495 provides a fine of $10,000 and up to 2 years imprisonment for unauthorized interception and disclosure of communications.

In your opinion, sir, what sanction should be imposed for wrongful eavesdropping ?

Mr. GUTMAN. I prefer the stronger penalty. I think that unauthorized eavesdropping is what has been called—a dirty businessa more than dirty business. I think crime is a dirty business also and it is regretful that we have to employ these media, but we are hampered without them. I think that a 1-year penalty is rather light for this sort of an offense. Personally, I would favor the 2-year penalty.

Mr. "CREECH. Would you differentiate between unlawful eavesdropping and wiretapping by law enforcement officers and private individuals with regard to penalty?

Mr. GUTMAN. I think that law enforcement officers who commit crimes of this nature are much worse than private individuals, and I believe this is something of which the courts would take cognizance, or there might be a separate provision in the legislation as we have in New York State making it a crime and providing for a separate penalty.

Mr. CREECH. Will you indicate, sir, your opinion with regard to type and nature of crimes in which interception ought to be countenanced ?

Mr. GUTMAN. Yes. I think the major offenses of kidnapping, racketeering, treason, with a proviso that I have already referred to that it be considered'in a separate category, narcotics, and of course, the major offenses.

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