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proceedings. It is a very serious matter to divulge anything that transpires in the grand jury room, a very serious offense.

Mr. GRAHAM. And nobody is allowed in the grand jury room excepting United States attorney or a special assistant delegated by the Attorney General.

Mr. HOLTZOFF. Yes, sir. I would not want to see grand jury proceedings excluded. I think all judicial proceedings ought to be covered by the bill.

Now, I want to say this-that prior to December 1939 the law had never been construed as prohibiting wire tapping by law-enforcement agencies. So far as the F. B. I. is concerned, because of the rather drastic nature of this method of investigation, wire tapping was used only in very aggravated and important cases-kidnaping, of course, espionage, and a few others of a very aggravated nature, just for example, one case involving the theft of several hundred thousand dollars of bonds from a New York bank, and their transportation to Florida. In other words, only in cases of very serious and aggravated crimes.

Mr. BARNES. Right there let me ask you another question. I do not mean to interrupt your thought again, but I wonder if you can prepare from the records of your department, without divulging the same, an estimate, as accurate as you can make it, of the number of crimes and persons involved now, at the present time, whereby this might be used? In other words, to show the existing need for this type of legislation other than general statements.

Mr. HOLTZOFF. Well, I can say this-that, of course, we do not know; no one can foresee how many espionage cases might arise in the future. We have had a number of spy rings maintained by foreign governments here in this country. There was one case that was prosecuted in the southern district of New York, as you will remember, 2 or 3 years ago, and there have been other espionage rings. I hope you will excuse me from getting the information as to the number of which we have knowledge.

Mr. BARNES. I did not want the specific cases, because I appreciate fully that you could not divulge the facts offhand in your situation. It may not be compatible to even show the figures.

Mr. HOLTZOFF. I would rather not. Of course, off the record, I will be glad to furnish any such information to any member of the committee, but I would dislike to do so in open session, and likewise I would not care to have it go into the record.

I also wish to refer to just one other matter before I conclude, and that is this: A number of the witnesses have suggested that after all this is not a very efficient means of investigation. Of course, that suggestion comes from witnesses who have had no experience in criminal investigations. And the suggestion has been made more than twice to the effect that "if you pass this bill the spies will stop using the telephone." Nobody has said that they would stop using the short-wave radio, but let us assume that they do. If by passing this bill you accomplish nothing else but discourage the use of the telephone and shortwave radio by persons engaged in espionage you will have passed a valuable measure in the interest of national defense, because you will cripple to a considerable extent the facilities for operations and communications used by espionage agents.

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So far as kidnaping cases are concerned, I should be very glad to explain privately to members of the committee just how wire tapping has been used in the solving of kidnap cases, but I will say for the record that it has played a very large part in breaking a good many of the kidnaping cases.

And then I would further say that the witnesses who have contended that wire tapping was illegal ever since 1934 are in error, because until the Supreme Court decisions of 1939 it was never so regarded.

In concluding my remarks I want to say, as was indicated by Mr. Hoover in the short statement that I read into the record over his signature, that as a means of investigation the right to tap telegraph, telephone, and radio messages is very important in espionage cases; and, of course, sabotage goes hand in hand with espionage. It is very important in kidnaping cases; and, of course, extortion goes hand in hand with kidnaping.

Mr. BARNES. Right there, you do not intend, and it never was intended, that it should go so far as to interfere with the mail?

Mr. HOLTZOFF. I will say for the record that this bill was never intended to permit interception of the mails, and it was never for a moment thought that it was subject to that construction. In fact, I do not believe it is.

Mr. BARNES. Right on that point, what differentiation do you make between this type of communication and communication by mail? Mr. HOLTZOFF. You mean legally or ethically?

Mr. BARNES. Ethically.

Mr. HOLTZOFF. I would say that tapping a telephone wire or listening in on a radio communication is, from an ethical standpoint, nothing but a form of eavesdropping eavesdropping by remote control. It is ethically no different than having a law-enforcement officer walk back of you and listen to what you are saying to your companion, or listening through a keyhole. Ethically, that type of investigation was never banned or considered improper. If you are going to forbid all forms of undercover investigation, there are any number of persons committing heinous crimes that will never be brought to justice, and the safety of the community would be endangered.

Mr. BARNES. Let us try it from another angle, then. By custom and heritage you would consider it a violation of the right of the individual to intercept the mail, it being privileged, but you are intercepting the spoken instead of the written word in this case; and because there is no background for it like there is with the mail, you are for granting it in this case? Is not that the substance of your thought?

Mr. HOLTZOFF. Well, I would say this, that, after all, I do not thinkI am not trying to hedge the question, but it seems to me that all of our ethical concepts are based on tradition, and there is a tradition in reference to the sanctity of first-class mail which does not attach to telephone and radio communications.

Mr. GRAHAM. In the case of the mails, I address a letter to you which I entrust to the Government to deliver to you.

Mr. HOLTZOFF. Yes, sir.

Mr. GRAHAM. Which is a confidential communication between ourselves.

Mr. HOLTZOFF. Yes, sir.

Mr. GRAHAM. I pick up the telephone, and my message may pass through an operator's ears; it may pass through a connecting link,

and I do not know who is receiving the message at the other end at all. One is the widest publicity; the other is the most narrow extreme of confidence.

Mr. HOLTZOFF. I thank you for the observation, Mr. Graham, because you have stated the case much more aptly than I could myself. I certainly am in full accord with what you have said.

Mr. BARNES. If it was not for that tradition, would you believe in extending that right as a purely practical matter to the interception of mail? You do not need to answer the question if you do not care to.

Mr. HOLTZOFF. No; I will answer the question. My answer is this: That it is impossible for any human being to say what he would think about anything if he were free from the tradition that he inherited through the centuries from his ancestors. I do not know. I cannot psychologically free myself from this tradition which I have inherited, and which you have inherited.

Mr. BARNES. But the thing that is bothering me in this whole matter is that I cannot make a great deal of differentiation between the spoken and the written word.

Mr. HOLTZOFF. Well, I think I would like to adopt Mr. Graham's observation as my answer to that, because I think he has so conclusively, to my way of thinking, demonstrated the difference, that I do not see how it could be improved upon. The Government is a trustee of the first-class mail entrusted to its care. It is not a trustee of a conversation that is sent through the air or wires, or without wires. And in this connection I want to refer again to Chief Justice Taft's remark which I read at the opening of my statement this afternoon. He said, "The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside

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After all, you never know when a telephone operator is listening to what you are saying on the telephone, and if you are talking on long distance there may be three or four operators in between the two termini. When you send a telegram, at least two persons read the telegram and maybe more--the clerk at each end of the wire. So there is not the same privacy attaching to the telephone, telegraph, and radio that attaches to sealed, first-class mail.

Mr. TOLAN. I want to ask just one more thing. The witnesses here who testified in opposition, the record will disclose it is replete with quotations from the Attorney General and especially Mr. Hoover, with general and specific denunciation of wire tapping. Have you got anything to say about that?

Mr. HOLTZOFF. I have this to say about it, that all those quotations are, I submit, explained in Mr. Hoover's statement which was submitted by me during these hearings. Mr. Hoover indicated in that statement that he was referring to the practice of unrestrained, uncontrolled wire tapping, to which he has always been emphatically opposed, and to which he is emphatically opposed today. In other words, he would be opposed to a law which would permit any law enforcement agent on his own initiative to tap anyone's wire at any time he deems wise. He has always taken the position that wire tapping should never be permitted except by an order or authorization from the head of the department, because of the drastic character of this method of obtaining evidence.

Mr. TOLAN. He made the statement that he did not want to make crooks out of the boys.

Mr. HOLTZOFF. That is right. In other words, he did not want every employee of the Bureau to have the authority at any time to tap anyone's wires, and that is what he had reference to when he made that statement. But he did not have in mind, and he was not discussing at the time he made the statement, an arrangement whereby one's wire could be tapped only by written authority of the head of the Department for a particular purpose, where reasonable ground is shown, and then only in connection with specific grave crimes. That is the explanation of those statements. Those statements are not inconsistent with Mr. Hoover's present position, or with the position the Department has taken in connection with this legislation.

Mr. BARNES. Also, for the purpose of the record, I would like to move the committee, since we have granted permission to extend remarks in the record and enlarge statements to various witnesses, and the time limit has gone by on them and I presume they are all in the record at the present time, but if some are not I suggest that all statements must be in by Friday morning of this week.

Mr. TOLAN. I think we took that up and gave them the right to have them in by Saturday.

Mr. BARNES. Then I will amend my motion to Saturday of this week.

Mr. TOLAN. If there is no objection, it will be so ordered.

Mr. HOLTZOFF. In concluding my statement, Mr. Chairman, may I, on the record, thank you and the other members of the committee for the courtesy and the patience that you have extended, both to me and to the opposition witnesses, and I think I can thank you in behalf of the opposition witnesses as well as in my own behalf.

Mr. TOLAN. If there is nothing further, the committee will now adjourn.

(Whereupon, at 3:25 p. m., the subcommittee adjourned.)

LETTET TO PRESIDENT ROOSEVELT FROM HON. THOMAS H. ELIOT, M. C., REGARDING H. R. 2266

The PRESIDENT,

White House, Washington, D. C.

FEBRUARY 20, 1941.

MY DEAR MR. PRESIDENT: There has been introduced in the House a bill, H. R. 2266, to permit wire tapping by Government officials. The bill would legalize wire tapping by an employee of any executive department having any investigatory functions, if the head of the department certified to a reasonable belief that a felony had been or would be committed.

As you know, proposals have been made heretofore to legalize wire tapping for purposes of national defense. The present bill, of course, goes far beyond national defense.

A general authority to listen in on telephone conversations was not held unconstitutional by the Supreme Court in the Olmstead case, but the words of Mr. Justice Holmes' dissent retain their force: "I think it a less evil that some criminals should escape than that the Government should play an ignoble part.” Surely a showing of both dire necessity and great probable advantage should precede any change in the present law which makes wire tapping illegal.

It has been suggested that wire tapping might be more valuable than harmful if it were confined to the detection or prevention of sabotage and espionage. But it has also been pointed out that in other countries, sabotage and espionage were not prevented even though wires were tapped.

In view of the bill's possible importance in connection with national defense, and its certain effect upon personal freedom in America, I would greatly appreciate an expression of your views.

Sincerely yours,

(Signed) THOMAS H. ELIOT.

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LETTER FROM PRESIDENT ROOSEVELT TO HON. THOMAS H. ELIOT, M. C.
THE WHITE HOUSE,
Washington, February 21, 1941.

Hon. THOMAS ELIOT,

House of Representatives, Washington, D. C.

DEAR TOM: I have your letter of February 20th in which you have asked me for an expression of my views on H. R. 2266, a bill to permit wire tapping by Government officials. I understand hearings have recently been held by a subcommittee of the House Judiciary Committee on this bill.

I have read the bill and I have no hesitation in saying that it goes entirely too far and that its provisions are unnecessarily broad. As presently drafted it provides that if the head of any executive department has reasonable ground for believing a felony not only may have been committed, or is being committed, but may be about to be committed, his investigators may tap wires.

The use of wire tapping to aid law-enforcement officers raises squarely the most delicate problem in the field of democratic statesmanship. It is more than desirable, it is necessary that criminals be detected and prosecuted vigilantly as possible. It is more necessary that the citizens of a democracy be protected in their rights of privacy from unwarranted snooping. As an instrument for oppression of free citizens, I can think of none worse than indiscriminate wire tapping.

Somewhere between these two conflicting ideals we must find balance. We must find that balance whereby society is protected against the criminal and at the same time the citizens of that society are protected against overzealous prosecution by law-enforcement officials. We will not achieve perfection, because it does not exist. In general, my own personal point of view is close to that of Justice Holmes in his famous dissent in the Olmstead case, when he said:

"We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part."

You may rightfully ask, then, where I would draw the line, where wire tapping by the Government should end. I do not believe it should be used to prevent domestic crimes, with possibly one exception-kidnaping and extortion in the Federal sense.

There is, however, one field in which, given the conditions in the world today, wire tapping is very much in the public interest. This Nation is arming for national defense. It is the duty of our people to take every single step to protect themselves. I have no compunction in saying that wire tapping should be used against those persons, not citizens of the United States, and those few citizens who are traitors to their country, who today are engaged in espionage or sabotage against the United States.

This power may, of course, be abused; abuse is inherent in any governmental grant of power. But to prevent that abuse as far as it is humanly possible to do so, I would confine such legislation to the Department of Justice and to no other department. I would also require that the Attorney General be acquainted with the necessity for wire tapping in every single case, and that he himself sign a certificate indicating such necessity.

There is only one domestic crime which ought possibly to be included; that is kidnaping. It is a heinous crime for which never is there any justification. Further, wire tapping is a peculiarly effective instrument in the detection of such offenders because of the nature of the crime and the subsequent negotiations surrounding it. This includes extortion.

Very sincerely yours,

(Signed) FRANKLIN D. ROOSEVELT.

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