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for misuse to help centralize power in the hands of a dictator or small group
How real is this menace? Among its antidotes is the high pro fessional standard now set for their investigators by the Federal Bureau of Investigation and other federal agencies. 165 This standard has its counterpart in several European and other countries where the penalties for misconduct by a policeman can be quite severe. Another safeguard is the division of investigative jurisdiction among several federal agencies, and the limitation of the Federal Government to the detection and punishment of only those crimes with “federal” significance, others being punished by state agencies. Against this institutional background, the dangers to democracy from a “national” police force seem exaggerated.
There is another strong argument that supports proposals to legalize some federal wire tapping, whether or not state investigators are allowed to tap wires. At the present time, it seems clear that some wire tappir. is being done by the Federal Bureau of Investigation.166 Apparently, a major motivation for this wire tapping has been a belief that it was ar. essential instrumentality for detecting certain dangerous enemies society, such as spies. Convinced of the necessity to tap wires in certain cases where national security is at stake, the FBI agent feels morally justified in tapping the wires in such instances. It is unlikely that he will be dissuaded by any statute from tapping wires in a case where he feels that such investigative methods are essential. Thus, he is thrown in conflict with some of the very laws that he is called upon to defend. Aside from the difficulties of conscience that this entails, this conflict lowers him in the eyes of the community. Moreover, having once tapped wires in the interests of necessity, the investigator may find "necessity” to be a relatively flexible concept in subsequent investigations.
On the other hand, to provide the investigators with authority to tap wires in certain well-defined instances-particularly those involving espionage or sabotage—where the arguments of necessity are especially
*** Admittedly, police forces with a very high professional standard in some respects can become engines of totalitarianism. This seems to have been true in Nazi Germany and elsewhere, efficiency having been united with tyranny. However, this writer has been unable to discern a real danger in that respect in this country, in so far as federal investigators are concerned.
16 This came to light in the Judith Coplon prosecutions. United States v. Coplon, 191 F.2d 749 (D.C. Cir. 1951), cert. denied, 342 U.S. 926 (1952); United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), cert. denied, 342 U.S. 920 (1992). See also Westin, supra note 144, at 169.
convincing, 47 may reduce considerably the pressure for the federal agent himself to utilize a prohibited investigative technique. And, as one writer points out, it may induce the Federal Government to institute more wire-tapping prosecutions—a course of action difficult to adopt when federal agencies are themselves engaged in illegal wire tapping.'
The criticism will be voiced that this argument involves a lowering of legal standards to accommodate the illegality of the investigator and a failure to utilize the law to elevate standards of behavior. Still, even the power of law to reform police behavior can only be exercised within reasonable bounds; and the limitations today on federal wire tapping may have somewhat transcended those bounds.
CONCLUSION For the most part, the investigator, using new scientific techniques, has not been unduly handicapped by the courts, although as to wire tapping, some mitigation by Congress of the legal restrictions on federal agents would probably be helpful. Legislation at either the federal ar state level might also be desirable: to impose restrictions on access to information from police fingerprint and photograph files; to require the licensing of polygraph operators; and to provide more expressly for the circumstances under which body fluids can be obtained from a suspect.
In a few instances, the courts have reached unfortunate results in this field-chiefly when they departed from usual American practice and relied on sweeping generalizations, instead of piecing out solutions on a case-by-case basis. However, as of today, a reasonable balance seems to exist between the need of society for efficient law enforcement and the needs of the individual to have some area of privacy and of protection against humiliation or pain at the hands of the police.
See Rogers, supra note 153; Westin, supra note 144. But cf. Donnelly, supra note 149; Schwartz, On Current Proposals to Legalize Wire Tapping, 103 U. PA. L. Rev. 157 (1954).
Westin, supra note 144, at 169. Of course, the Department of Justice does not seem to consider that its wire tapping is illegal. Id. at 179.
Mr. CREECH. The next witness is the Honorable Frank O'Connor, district attorney of Queens County, N.Y.
Senator KEATING. Mr. Chairman, may I have the privilege of introducing my distinguished constitutent, the district attorney of Queens County, N.Y. Mr. O'Connor is the president of the New York State District Attorneys Association and has had a distinguished career as a prosecutor and is one of our ablest public servants. I am very happy to have the benefit of his advice.
Senator ERVIN. The committee is delighted to have you with us. We have had, necessarily, to delay hearing you until this hour. STATEMENT OF FRANK O'CONNOR, DISTRICT ATTORNEY OF
QUEENS COUNTY, N.Y. Mr. O'CONNOR. I appreciate your kind words.
Since the famed decision in the Pugach case, which held as the previous witness testified, that no Federal court would enjoin a law enforcement official in the State of New York from using the fruits of wiretapping, there has been considerable confusion in our State.
As a matter of fact, Professor Everett referred to it in very kindly terms as an "unfortunate" situation.
I think Senator Keating, in some of your very excellent talks in support of your bill on the floor of the Senate and elsewhere, you have referred to the situation in'stronger terms as being “intolerable" and I think that perhaps better describes the situation.
Those of us in law enforcement in the State of New York find ourselves in a completely compromising position, and, frankly, all of the members of our association, which consists of 62 district attorneys in the State, have been looking to me for some kind of guidance and some word as to whether or not there is any likelihood that the Congress at this session will do something to clear up the situation.
We have many, many prosecutions that are pending right now in which we have devoted not only days, but weeks and months, and I think frankly we have in many cases done years of investigation where we have presented the fruits of our investigation to a grand jury, where we have received valid indictments. Those indictments have been sustained against attack on motions to dismiss and now, because of the wiretap situation, we are uncertain as to the legality of the prosecution. For example, in the county of Monroe where
the city of Rochester is located, the district attorney recently dismissed 22 cases pending on his criminal calendar because the evidence in those cases had been gathered through wiretaps.
Mr. Silver has in excess of 200 cases pending in the county of Kings. I have at least 10 to 15 pending in Queens, and Frank Hogan will testify tomorrow to the number he has pending in New York County, in which part, at least, of the evidence was uncovered through legal wiretaps.
Now, these are cases involving serious crime. I don't subscribe to the tendency in some quarters to sweep under the rug cases involving gambling. I feel very strongly that gambling is a very integral part of organized crime.
These cases involve not only gambling: they involve in my county, for example, criminal abortion. It is my opinion we will never be able to prosecute cases involving this crime without the assistance of wiretapping
If we are to slough these cases off and not prosecute them because we can't secure the necessary evidence, I think it is going to put a dent in the moral fabric of our community.
We have cases involving extortion, robbery, and so on. The situation is utterly intolerable and impossible and as Professor Everett said, the time has come and is long overdue for a decision one way or the other.
When we discuss wiretapping, there are those who seek to group together in one swoop legal wiretaps and illegal wiretaps. That is the pitfall that Sam Dash fell into when he made the wild claim that there are between 16,000 and 25,000 wiretaps in the city of New York alone.
When we hear that kind of talk I think every decent person becomes morally outraged. They say this is indeed a dirty business. They overlook the fact that when Mr. Justice Holmes made that reference he was not saying that wiretapping was a dirty business but that wiretapping by Federal officers, in violation of law, was a dirty business.
I think all of us, whether for legal regulated wiretapping or not, believe strongly that illegal wiretapping is a dirty business and should be stopped
We in the State of New York take such a dim look at it we have made it for the past 20 years, a felony. We support any efforts by the Congress to make it a felony in the Federal system.
We have a situation here where we are concerned on the one side with the rights of individuals as opposed to the rights of society. I think there is danger in any choice, but the test should be this. The protection for individual rights cannot be disproportionate to the loss of protection for our society.
In the State of New York we have struck a happy medium where we have set up now for 23 years a system under judicial scrutiny where competent, elected or appointed responsible law officers can procure an order upon application showing reasonable grounds to exist.
Senator KEATING. May I inquire?
Senator KEATING. One point was raised by the previous witness of going to a court of record. Under the New York statute, are you required to go to the New York court of record ?
Mr. O'CONNOR. Yes, we are and I think it is a good, reasonable requirement. It should be put into the lap of a very responsible court and we would be very much in favor of it.
I think it is important to place it on record. The result of a survey made by the New York State District Attorneys' Association.
Now our survey indicates in the State of New York there is annually not in excess of 500 valid, legal wiretap orders a year.
The reason I bring this out and why I think it is important in the light of the extraordinary statement that there exists in the city of New York between 16,000 and 25,000 wiretaps per year.
Senator KEATING. But you have to put that in perspective. When the question was put to Mr. Dash, he said that was based on his conversations with a dozen or two dozen people.
Mr. O'CONNOR. Yes.
Senator KEATING. Several of whom were detectives who had been thrown off the force for illegal wiretapping.
Mr. O'CONNOR. Yes.
Senator KEATING. And obviously, they were trying to make an excuse for their own misdeeds by saying, “Oh well, it is general. Everybody does it so I wasn't doing anything improper."
Now I don't think any weight can be given to his statement. He had nothing more to back it up, than Justice Douglas did at hearings where he stated that 50,00, wiretaps were going on in New York per year.
Mr. O'Connor. Yes, I think the figure was 58,000.
Mr. O'CONNER. I want to nail that down, Senator, by saying this. Taking the median figure that Dash uses which is 16,000 to 25,000, incidentally, a most unscientific variance. We have 500 legal wiretaps in the State of New York. I have one of the largest staffs in the State of New York. I have over 150. I have a large staff of assistants; a large staff of New York City detectives and large staff of county detectives. I don't think I have more than three men in my entire staff who are capable of doing a wiretap. I don't think anyone could do a wiretap without going first to the telephone company and tracing down the pairs which is quite involved. To me it is preposterous that anything remotely like the figure Dash uses could exist.
More than that, we frequently get complaints from civilians either by anonymous letters or by 'phone calls or letters signed, complaining of police corruption, complaining of instances where the police have turned their head when they should be looking, where they have accepted graft or done this or done that.
We have never received a complaint from a civilian that private rights have been invaded by illegal wiretapping. If there was anything like the number of illegal wiretaps banded around in this room yesterday, we certainly would have received many, many complaints.
Senator KEATING. You have never had a complaint?
Mr. O'CONNOR. Yes, it is a felony I would like to place on record that we have had in the State of New York our system of supervised wiretaps for 23 years.
In that connection I would like to read a report of the New York State Bar Association Committee on Civil Rights for 1956. I don't know whether this has been placed in the record before or not. I quote:
We want to make clear that we do not assert that there has been any wide spread illegal wiretapping activity or even resort to lawful use of wiretapping by public officials. We are fully aware of the problems which they have. Such officials in this State are fine, public servants, zealous in the discharge of their duty.
Here is a 1957 report of the New York State Joint Legislative Committee and they said:
We know of no instance in which an illegal wiretap evidence has been offered by a prosecutor since enforcement of wiretapping was regularized in 1938.
I have tried to analyze the opposition to a thing which is reasonable and proper and essential to law enforcement in the State of New York and throughout the United States.