fact is, however, that when people conspire to overthrow the Government, if they are a very small group they are of no consequence and the moment the groups become larger the ordinary methods of police investigation have in this country, at least, and in most of the countries of the world proved sufficient.

In other words, while espionage by the police is something to be deplored there are certain narrow, legitimate functions. We have always had the police spy. We don't like him. We realize too often indeed that the same individual is sometimes in the pay of both sides and that the story that he tells is unreliable.

Mr. BARNES. If you don't have the police doing that, how are you ever going to apprehend any individual?

Mr. FRAENKEL. I am not saying we shouldn't do that. That is one of the chances a person takes when he goes into a criminal conspiracy.

Mr. BARNES. Leaving out conspiracy.

Mr. FRAENKEL. If it isn't a conspiracy it isn't important enough to concern us. If there are a few cranks somewhere who are talking about overthrowing the Government and there is no conspiracy and there are very few exchanges of telephone conversations and we are certainly not justified in putting into the power of the Government the right to tap wires to apprehend such cranks as those.

Now, I believe that wire tapping is barred by the constitutional guarantees. I know the Supreme Court has held otherwise in the Olmstead case, but as was pointed out in that case by the dissenters, the essential nature of the fourth and fifth amendments to the Constitution, at least the fifth insofar as it deals with the privilege against self-incrimination, the essential nature of those protections was to insure the ordinary citizen against an infringement of his privacy by Government compulsion.

The Government was not permitted to enter his home. It was not permitted to look at his papers.

It was not permitted to put him on the winess stand.

Now, it is true there is an exception in the fourth amendment. Reasonable searches are permitted and search warrants may be obtained, but as the Supreme Court held in the Gouled case, in 255 United States Reports, a search warrant may not issue for matter that is mere evidence.

The search warrant was a device for the purpose of getting either contraband such as liquor or opium or something of that sort illegally possessed, or the instrumentalities of crime such as burglar tools.

Now, wire tapping is not like a search warrant. You cannot limit the tapping of wire to the recovery of specific things found in a particular place, believed to be the property of a particular person.

Wire tapping is necessarily general and pervasive. You tap maybe one person's wire but in the process you hear the conversation of hundreds of persons maybe focusing into that one point.

You tap a person's wire because you suspect to be able to discover the testimony about the participation of a crime, but you cannot limit your listening to that. You necessarily hear not merely all sorts of irrelevant and maybe innocent things, but other things as well that are barred by constitutional doctrine. That is the mere evidence of the commission of a possible crime is not constitutionally admissible.

Mr. BARNES. You cannot conceive then of a situation in this country where by any circumstances wire tapping should be permitted.

Mr. FRAENKEL, I do not believe

Mr. BARNES. Regardless of how limited it may be.

Mr. FRAENKEL. I do not believe there is such a situation. I may say this in that connection, it is always urged in the interest of any restrictive legislation, and I consider this to be restrictive legislaion, that is, restrictive of the liberties of our people, it is always urged in support of such legislation that there is a crisis, that there is a particular problem which requires that limitation.

There have been crises in our history, of course. In the Civil War, for instance, there was a grave crisis and it is true that President Lincoln, in acting under that crisis, did some things which historians have indicated were not in accordance with law.

I will not argue the point whether he was justified in disregarding the law when he ordered the arrest, for instance, of Maryland legislators. He did it and the event we may say justified it, but the importance of it is that he did not seek to have the law changed. He did no seek to have a great principle of constitutional government disregarded because the thought there was an emergency

Mr. MICHENER. You believe, then, that the Chief Executive, regardless of the Constitution, should just go on and do that which he thinks is best and pay no attention to the Congress or the Consitution?

Mr. FRAENKEL. No, no; I did not say that.

Mr. MICHENER. Then afterward justify himself on the ground that it might be he knew better what to do than the Congress?

Mr. FRAENKEL. No; I regret any deviation from the law, but I say this, just as I would rather have somebody lose his temper occasionally and do a cruel act than have somebody do a cruel act in cold blood.

So I say if in a moment of intense crisis it is believed that something has to be done, human nature is such that it will be done and afterward it will be judged.

Mr. MICHENER. You think, then, that the Department of Justice should not come up to Congress and openly ask for this right, that they should just go right on and do it regardless of the rights of individuals if they think that is for the best of the country?

Mr. FRAENKEL. No; I don't think that, although I may say they have done that in the past.

Mr. MICHENER. Well, as a matter of fact, wire tapping was practiced from the beginning of the Government down to the twenties, when the prohibition question became a live issue, and as a student I don't think you will find any discussion of any consequence before that.

Mr. FRAENKEL. Well, it is true that prohibition produced a lot of strange doctrines and undoubtedly some bad law. It is true on the other hand, however, that I do not see any basis for the doctrine that important constitutional safeguards should be frittered away because a department of Government is fearful. Mr. MICHENER. How about the Olmstead case? it is legal?

Doesn't that say

Mr. FRAENKEL. The Olmstead case was a 5-to-4 decision.

Mr. MICHENER. Yes; but that is the law of the land.

Mr. FRAENKEL. The law of the land at the moment; yes.

Mr. MICHENER. And you can't argue or do yourself any good by arguing that we reverse it because this committee is going to accept the law as laid down by the Constitution and the Supreme Court. Mr. FRAENKEL. Of course.

Mr. MICHENER. And the only question we have before us is whether or not, we should give the department that which it asks for in this bill.

Mr. FRAENKEL. Well, of course, no committee of Congress nor perhaps any House of Congress can overrule the Supreme Court, but I have never accepted the doctrine nor do I think that.

Mr. MICHENER. Wait a minute. We are not interested in whether you have accepted the doctrine or whether you agree with the Supreme Court.

Mr. FRAENKEL. I appreciate that. I don't believe that the doctrine is sound that because the Supreme Court has held a particular law constitutional that Congress may not for its determination, whether under the changed conditions that law still is constitutional, bearing in mind, of course, what you yourself indicated a short time ago, that the Supreme Court has recently changed its view very much.

Mr. MICHENER. Not much since the Olmstead case.

Mr. FRAENKEL. Oh, yes; the dissenters in that case were Holmes, Brandeis, and Stone, whose dissents in many other cases are now the accepted view of the Supreme Court.

The CHAIRMAN. But what the Congressman is trying to convey to you is that this committee is sitting here as a subcommittee of the Judiciary Committee and we are bound by that decision.

Mr. FRAENKEL. You are not at liberty to say it is unconstitutional, but you are at liberty to consider doubts about it and I think grave doubts exist on that subject.

Mr. BARNES. Leaving the constitutional question out, I think what we are primarily interested in is whether it is advisable or necessary. Mr. MICHENER. That is right.

Mr. FRAENKEL. Well, I think that one thing that this committee might be interested in on that phase of the subject is this: There has been a good deal of wire tapping in recent years. No thorough study of that subject has ever been made. There was an investigation by a Senate committee which proceeded in a certain direction. There have been judicial determinations regarding wire tapping, as has been pointed out. Convictions have been reversed because of it. Certainly without a full study of the facts relating to wire tapping in the past, the way it has been used in particular cases, the kind of testimony that has been brought in, the extent to which it has been necessary-no committee of Congress can see how far-reaching may be the results of the opening of a door and, therefore, I earnestly request that before this committee reaches any conclusions on the subject, it do conduct a factual study of the way wire tapping has actually worked, not merely hearing people's opinion on the wisdom of it, but a study of how it has worked by reference to the decided cases and the departments which have engaged in it and then I think you will find from that study that it is not possible to restrict wire tapping in any way which will not put into the hands of minor officials

of Government grave powers with regard to possible blackmail and even the possible framing of defendants because of all forms of evidence that which is overheard over the telephone, both as to the identity of the person making the statement as to the things said, is most liable to interpretation.

The CHAIRMAN. I think we have your position pretty well in mind, Mr. Fraenkel.

Mr. FRAENKEL. May I add just one more thing.

Of course this particular bill which is now before the committee is a broad bill. It is not limited. There has been some reference here to defense problems and so forth. This bill is no way limited. There are no safeguards. It covers any felony and moreover it is not merely the Department of Justice which is concerned, any department might have the right to authorize wire tapping.

The CHAIRMAN. We understand that.

Mr. FRAENKEL. Moreover, while I do not believe that it is possible to write safeguards into a bill dealing with wire tapping, I may point out that this bill has no safeguards at all, because the defendant who for the first time finds that his wires has been tapped has no way of checking the probable cause to which there is reference. The certificate of the department head is conclusive.

But my final thought is this: We are not concerned, the Civil Liberties Union is not concerned primarily with the rights of defendants in criminal cases. That is merely the forum in which the rights

of all the people are acted out.

When you have an important criminal case then you find out what are the rights of everybody and how are they being infringed upon by the officers of government.

It is because we fear that wire tapping will be an infringement on the rights of innocent people the people who are in no way involved in the criminal law who have done no wrong, who are merely suspected by some one as the result of gossip, hearsay or whatnot, their private affairs, their personal affairs will be brought to light because we believe that there is no basis in policy

The CHAIRMAN. May I say to you that that has been stressed here time and again and very well.

Mr. ROBSION. I would like to ask the gentleman one question.

I had hoped the gentleman would direct his testimony more to this point: Assuming that we have these criminal elements in this country and they are a threat to the Government what is the gentleman's idea as to the effectiveness of this measure in ferreting out criminals and apprehending criminals?

Mr. FRAENKEL. Well, I don't profess to have any qualifications for answering that question, but I think this, that a study of the cases in which there has been wire tapping will show that it is much less effective as a means for detecting crime than generally supposed in fact.

Mr. ROBSION. Would these criminals use the wires if we had this law?

Mr. FRAENKEL. Well, they certainly would not use their own wires. They might use wires but going around to a pay station here and there.

The only effect of such a law would be perhaps to make it a little. more difficult for them to use telephones but it would also, of course,

have the effect of making anybody who was in the public eye avoid using the telephone.

It is just that sort of thing, the influence, the almost corrupting influence of power in government to that extent which we fear and we do not believe there is any situation which requires such a change nor that any useful, really useful purpose can be accomplished.

Now, of course if the bill were made general it would make it easier to send some people to jail. That is true of any relaxation of our fundamental rights. It is always a price we have to pay between liberty for everybody and the ability to send a few more people to jail.

Now, in certain countries, of course, in Eugope they have decided how they want to pay that price and they send the people to jail and they use all these methods for sending or getting evidence against

them.

In Germany and in Russia all of these recent political trials, they proceeded on the basis of wire tapping, espionage, third degree, selfincrimination, and everything else.

Now, we don't believe in that way of life and here I think is a fundamental problem that cannot be glossed over by saying that there is a defense crisis-there are some people who are going to plot sabotage here and there. It can't be restricted that way. Nobody knows except this, that the moment you give Government power over individuals you make it easier for that power to be abused and that has been the lesson of history and we therefore strongly urge this committee to adhere to the previous policy of our Government and not legalize something which is dangerous and should not be legalized.

The CHAIRMAN. Thank you, very much.

I want to say to the other witnesses that this committee does not want to be in the position of foreclosing anyone but we have been at this for sometime now and we have other hearings on other bills, but none of them, I don't think, any more important than this, so if we attempt to limit you we don't mean to foreclose you, but we are doing the very best we can.

STATEMENT OF S. D. KAPELSOHN

Mr. KAPELSOHN. My name is S. D. Kapelsohn. My address is 24 Commerce Street, Newark, N. J.

I appear here this afternoon on behalf of the National Federation for Constitutional Liberties. The federation is a voluntary nonprofit organization with headquarters here in Washington. Its individual members and affiliated various local and State committees, and church, civic, and labor groups are scattered throughout the United States of America.

The CHAIRMAN. What is the membership?

Mr. KAPELSOHN. I don't have the figures with me but if this hearing continues beyond today I will be glad to bring some sort of showing as to the actual membership.

Frankly, it is a question I did not anticipate.

Mr. MICHENER. Well, is it 100 or 10,000?

Mr. KAPELSOHN. Well, now, Congressman, that is the start of a series of questions which would seek to pin me down.