of a department talking to another representative of the same department. Obviously, the head of the agency is not going to be accessible when the authority is sought, and if he is he is going to be too busily engaged to bother with things of this sort.

Now, it seems to me that if legislation of this sort must be enacted, that we have a very well-established method of inquiring into the privacy of an individual's affairs, namely, through a search warrant, and it seems to me that this bill can be amended so as to compel whatever investigative officer feels that acts of sabotage are being committed, or are about to be committed, to appear before an agent other than the one to whom he is answerable. If you please, it certainly seems to me that this is another step toward the abandonment of our fundamental theory of a separation of the powers in our Government.

If an agent is required to appear before a United States judge, or a United States commissioner, there will be two advantages; first and foremost is the preservation of our fundamental theory of a separation of powers; and, secondly, it is not probable that every case of sabotage or suspected sabotage is going to be committed in the District of Columbia. If the act complained of is being committed in any one of the States it is going to be very difficult for the investigator to come on back to Washington and secure this permit, and then go back and tap the wire of the suspect many miles away. However, if the authority is given to the Federal courts, then the agent will have to appear before the authority, the commissioner, or the judge, and then, in my judgment, he ought to be compelled to do this: He ought to be compelled to make out a case of probable cause, because, certainly, the tapping of a telephone wire is just as much an invasion of the privacy of a citizen as is a search of a home of a citizen, and it would seem to me that if the agent is required to make out a case of probable cause, and then secure a permit which would be in the nature of a search warrant, then there could be an inquiry made at the time of the trial, if evidence were secured in that manner, as to the sufficiency of the evidence introduced at the time the permit, in the nature of a search warrant, were secured.

Mr. TOLAN. Without expressing an opinion myself, I thought someone said here the other day at the general committee meeting that that method would result in public disclosure and make it ineffective.

Mr. WALTER. That is perfectly ridiculous. Those of us who have nad experience in the general practice of law and in the Federal courts know that United States commissioners do not call up people and tip them off that a search warrant has been issued, and certainly our judges have never been suspected of that. I do not think there would be a great likelihood of that happening as there would be of a leak in a department.

Mr. BARNES. Would you permit a little interruption there, Mr. Walter.

Mr. WALTER. Yes, indeed.

Mr. BARNES. This bill does not limit it to national defense, or to national-defense projects, but it is a general bill, as I understand it, to cover all crime. Do you take the position in your testimony that you would allow wire tapping for all crime?

Mr. WALTER. I do not. I think that this extraordinary power should be granted only in cases of people suspected of conspiring to commit acts of sabotage.

Now, I have not the appropriate language that would carry out my ideas in this important matter, but a mere casual examination of sections 611 through section 616, certainly offers many fine guideposts, and we ought to be very hesitant in reenacting something that we found was not fair and was not American, and I venture the prophecy that, in the event this legislation is enacted, we are going to have just as many scandals as we had before. We have already been through this thing, and we know just exactly what it means.

Mr. MICHENER. You mean prohibition?

Mr. WALTER. Yes, sir.

Mr. MICHENER. Of course, there is this difference: In the case of prohibition, a great many people did not believe in prohibition, and did not believe in any law that would enforce prohibition, and Members of the Congress took the floor and opposed the observance of the prohibition law. I remember one distinguished Member made a speech in which he said he did not believe it was constitutional, and he was not for enforcing it, and he advised all of his constituents to violate it with impunity.

Mr. WALTER. Of course, it would be awfully difficult to distinguish crimes which are malum prohibitum. We are now embarking on something, Mr. Michener, that is awfully dangerous.

Mr. MICHENER. Of course, I cannot imagine anybody who would dare come out in the open and say he was in favor of any of this conduct that this bill is primarily intended to stop, whereas, in prohibition days, in certain communities, it was popular to violate the law and to circumvent the law in every way one could.

Mr. WALTER. Well, of course, I am not, and you are the last person in the world that would make the accusation that I am attempting to uphold any subversive activities, but I am a firm believer, Mr. Michener, in our fundamental philosophies, from which we have departed too far already.

Mr. MICHENER. I do not want to be misunderstood, as I sit with the gentleman on the committee, and I agree with him most of the time. I am sure that he is thinking further than the moment in the position he is taking here.

Mr. TOLAN. I want to see if I understand you correctly, Mr. Walter. The real objection that you have to this proposed legislation is that you think the controlling power should be lodged in the courts instead of in an executive department?

Mr. WALTER. That is it.

Mr. BARNES. And, you would go one step further, and limit it to national-defense projects?

Mr. WALTER. I would limit it to sabotage, or conspiring to commit acts of sabotage.

Mr. TOLAN. Thank you very much, Mr. Walter.

Mr. Hobbs, Mr. Walter has to get away on a very important engagement, so the committee heard him first. We will be very glad to hear you now, Mr. Hobbs.

Mr. HOBBS. Go right ahead, Mr. Chairman, and hear the others do not mind, as I would prefer to wait.

first,

if

you

(The following telegram was offered for the record by Mr. Walter for inclusion with his statement.)

Congressman FRANCIS E. WALTER,

Washington, D. C.

SMITHTON, Pa.

The House Judiciary are holding hearing on H. R. 2266 to legalize wire tapping. Mr. Hoover, of the Federal Bureau of Investigation, claims infringement on the Bill of Rights. We agree with Mr. Hoover and say the bill is un-American and unconstitutional and gross abuse against civil liberties and an instrument against organized labor. We therefore ask you to use your influence against this bill and vote against it. I speak for 10,000 miners and their wives and friends.

Yours truly,

JAMES MALONE,

Executive Board Member, United Mine Workers of America, District
Five of Pennsylvania.

Mr. TOLAN. Mr. Holtzoff.

STATEMENT OF ALEXANDER HOLTZOFF, SPECIAL ASSISTANT TO
THE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WASH-
INGTON, D. C.

Mr. HOLTZOFF. Shall I proceed, Mr. Chairman?
Mr. TOLAN. Yes.

Mr. HOLTZOFF. Mr. Chairman, I was very glad that my friend, Congressman Walter, made the suggestions that he did, because it gives me an opportunity to discuss one or two points that otherwise perhaps, I would not have had a chance to bring to your attention.

The Department of Justice is just as anxious as anybody not to depart from our fundamental principles, and this is no mere lip service. I think the Department of Justice has shown that in its daily work.

Wire tapping is no departure from our fundamental principles. After all, when you come to analyze it philosophically, tapping a telephone wire is no different in principle from listening through a keyhole, or any other undercover investigations which have been carried on, necessarily, by law enforcement and police agencies from time immemorial.

We agree that unrestrained, unlimited wire tapping engaged in by law-enforcement officers, without any control, might give rise to abuses, and, therefore, there should be direct control, so that an individual law-enforcement agent should not take it upon himself to tap telephone wires. That is why the bill would provide that this should not be done except with the authority of the head of the executive department to which the law-enforcement officer is accredited.

Congressman Hobbs, in his bill, limits this authority only to felonies, and it could not be resorted to in case of misdemeanors or petty offenses. The suggestion was made by Congressman Walter that the authority to tap telephone wires, even in these limited cases, should be procured from a Federal judge, or from a United States commissioner, rather than from the head of the department. We hope that this will not be done. We do not think that this is desirable, either from a practical standpoint, or from the standpoint of the protection of the individual. Let us consider the practical picture as it would be presented. In the first place, we have about 250 Federal judges,

and each judge would apply a different standard, or a different test as to what constitutes a proper case in which to permit wire tapping. You might have one rule in Philadelphia and another rule in New York, and the lack of uniformity that would result would be utterly undesirable.

Mr. MICHENER. You would have to decide each case on its own merits. Could you lay down any general rule?

Mr. HOLTZOFF. If all the cases have to be passed on by the same authority as to what constitutes probable cause you would not have varying results.

Mr. MICHENER. Well, the Secretary of Labor, for instance, is head of a department, and might take a different view than the Secretary of the Treasury or the Attorney General.

Mr. HOLTZOFF. That is indeed so, but you would have 10 Cabinet officers as against 250 judges.

Mr. MICHENER. For my part, I would rather trust the good sense of the 250 judges than I would the half dozen politically appointed Cabinet officers.

Mr. HOLTZOFF. Well, you would have a tremendous lack of uniformity if you did.

Mr. BARNES. I was going to elaborate right there on Mr. Michener's thought. Your bill reads:

whenever the head of any executive department of the United States has reasonable ground for believing that a felony cognizable under any law of the United States the enforcement of which is under his jurisdiction.

Under that language does that open up all departments?

Mr. HOLTZOFF. Yes; it opens up all departments insofar as felonies are concerned. Of course, there are some departments that do not enforce any laws where felonies are involved.

I want to refer to another difficulty and to another objection to leaving the authority with the Federal judges, and it is this: In a metropolitan center like Philadelphia or New York, it is a fairly simple matter to find a judge, because there are several judges in the district in a comparatively small territory. However, when you come to some of the rural districts of the country, it may be necessary to make a 200- or a 300-mile trip in order to secure a warrant or permission from a Federal judge, and if the judge happens to be away on his vacation, and there are many districts in which there is only one Federal judge, there is no possibility of getting permission.

Mr. MICHENER. If the judge is not available, would you object to giving the responsibility to a court commissioner? There is always a commissioner available in every community.

Mr. HOLTZOFF. No; not in every community. They are available in the densely populated districts, Mr. Michener, but you take some of the vast rural areas, and sometimes you have to go several hundred miles to find a commissioner, and the commissioner might be away on a fishing trip, or might be away attending to some other business, you know, because they are only part-time officials.

Mr. MICHENER. Well, but the head of a department might be away on his vacation, or away on a fishing trip.

Mr. HOLTZOFF. There is always an acting head of a department. If the Attorney General is away, the next officer becomes the Acting Attorney General. These matters sometimes have to be acted upon without delay. A law-enforcement officer in the field could wire in

to Washington and get a prompt reply, sometimes much more promptly than he could find a Federal judge, or find a United States commissioner, who might be away for the week end, or might be attending a theatrical performance, or a concert, or doing any one of a dozen different things.

Mr. MICHENER. Or he might be attending grand opera.

Mr. HOLTZOFF. Yes; he might be attending grand opera.

Mr. TOLAN. How do you differentiate now between the proceedings necessary before you can obtain a search warrant and proceedings under this bill?

Mr. HOLTZOFF. I would differentiate them in this way, Mr. Chairman: This is not in the nature of a search; that is, listening to a conversation or eavesdropping is not a search. It does not involve any physical invasion of a person's premises or his body, and is not regarded as a search. In the famous Olmstead case the Supreme Court held that wire tapping is not an illegal search and seizure, and does not come within the ban of the Constitution relating to such procedures.

I want to make one more point, which is very important, and that is the necessity of observing secrecy in these cases, because lack of secrecy defeats the purpose. When you have to present papers to a judge and have them filed in court there is always the possibility of a leak. We have had occasional leaks in connection with search warrants. Congressman Walter said that is impossible. It may be that it has never occurred in the eastern district of Pennsylvania, but we have had cases where it has occurred, and if it occurs in a case such as this, why, the purpose of the provision would be completely defeated.

Mr. BARNES. As a general proposition, before you go to the bill and before you leave that point, Mr. Holtzoff, what is the necessity, from your point of view, for so broad a statute at this time?

Mr. HOLTZOFF. I want to answer that in this way, Mr. Barnes, and that also might answer one of Congressman Walter's points. Congressman Walter suggested that this statute be limited to sabotage. Well, there is an equal need for such a statute for espionage, and I say almost a greater need in the case of espionage, because to me it seems inconceivable that foreign spies should be permitted free and unsupervised use of our telephone and telegraph systems. The safest thing today that a foreign spy can do is to get on a telephone because he knows nobody is permitted to listen in on his conversation. Certainly, we want this authority not only in cases of sabotage but we want it in connection with espionage also. We need it, also, for some of the crimes which do not affect national defense. For instance, in cases of kidnaping, tapping the telephone wires of the victim's home is one of the necessary things in every kidnaping investigation, and without permission to do so, if a kidnaping should occur in the future, the Department would be greatly handicapped. It is equally necessary in extortion cases, and I venture to say, although this applies to the Treasury Department, that such permission should exist in narcotic cases. If you want to enumerate certain felonies, instead of using the word "felonies" generally, why, that is all right, but certainly do not limit it to sabotage. I hope, certainly, you will include espionage, sabotage, kidnaping, and extortion, and I suggest also narcotic violations.