WIRETAPPING FOR NATIONAL SECURITY
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Collection:
Document Number (FOIA) /ESDN (CREST):
CIA-RDP59-00224A000100130001-0
Release Decision:
RIFPUB
Original Classification:
K
Document Page Count:
94
Document Creation Date:
December 9, 2016
Document Release Date:
September 4, 2000
Sequence Number:
1
Case Number:
Publication Date:
July 8, 1953
Content Type:
REPORT
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WIRETAPPING FOR NATIONAL SECURITY
SUBCOMMITTEE NO, 3
COMMITTEE ON THE JUDICIARY.
HOUSE OF REPRESENTATIVES
EIGHTY-THIRD CONGRESS
H. R. 408
TO REGULATE THE INTERCEPTION OF COMMUNICATIONS IN THE
INTEREST OF NATIONAL SECURITY AND THE SAFETY OF
HUMAN LIFE
H. R. 477
TO AUTHORIZE ACQUISITION AND INTERCEPTION OF COMMUNICA-
TIONS IN INTEREST OF NATIONAL SECURITY AND DEFENSE
H. R. 3552
AUTHORIZING ACQUISITION AND INTERCEPTION OF COMMUNICA-
TIONS IN INTEREST OF NATIONAL SECURITY
H. R. 5149
TO AUTHORIZE THE USE IN. CRIMINAL PROCEEDINGS IN ANY COURT
ESTABLISIIED BY ACT OF CONGRESS OF INFORMATION INTER-
CEPTED IN NATIONAL SECURITY INVESTIGATIONS
HEARINGS
0
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1958
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COMMITTEE ON THE JUDICIARY
CHAUNCEY W. REI1D, Illinois, Chairman
LOUIS E. GRAHAM, Pennsylvania
CLIFFORD P. CASE, New Jersey
KENNETH B. KEATING, New York
WILLIAM M. McCULLOCH, Ohio
EDGAR A. JONAS, Illinois
RUTH' CIIOMPSON, Michigan
PATRICK J. HILLINGS, California
SH7)PARD J. CRUMPACKER, JR., Indiana
WILLIAM E. MILLER, New York
DEAN P. TAYLOR, New York
USHER L. BURDICK, North Dakota
GEORGE MEADER, Michigan
LAIJRENCE CURTIS. Massachusetts
JOHN M. ROBSION, JR., Kentucky
DEWIT'.P S. HYDE, Maryland
EMANUEL CELLER, N,ew York
FRANCIS E. WALTER, Penn ylvania
THOMAS J. LANE, Massachusetts
MICHAEL A. FEIGHAN, Ohio
FRANK L. CIIELP, Kentucky
J. FRANK WILSON, Te::as
EDWIN E. WILLIS. Louisiana
JAMES B. FRAZIER, Jr., ;Tennessee
PETER W. RODII;IO, JR, New Jersey
WOODROW W. JONES, North Carolina
E. L. FORRESTER, Geo:gia
BYRON G. ROGEIIS, Colorado
HAROLD D. DONOHUE, Massachusetts.
SIDNEY A. FINE, New York 1
BESSIE M. ORCUTT, Chief Clerk
VFLMA SMInLEY, Assistant Chief Clerk
WILLIAM R. FOLEY, Committee Counsel
MALCOLM MECARTNFY, ComnLittce Coun8el
WALTER H. BESTERMAN, Legislative Assistant
WALTER R. LEE, Legislative A.88i8tant
CHARLES J. ZINN, Law Revision Counsel
SUBCOMMITTEE No. 3
KENNETH B. KEATING, New York, Chairman
SHEPARD J. CRUMPACKER, JR., Indiana EDWIN E. WILLIE, Louisiana
DEAN P: TAYLOR, New York HAROLD D. DONOHUE, Massachusetts
SIDNEY A. FINE, New York
WILLIAM R. FOLEY, Counsel
1 Elected to committee March 30, 1953 (H. Res. 194). Hon. Joseph R. Bryson, of South
Carolina; a member of this committee, died on March 10, 1953.
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CONTENTS
Page
Text of bills, H. R. 408, H. R. 477, H. R. 3552, and II. R. 5149 -------- 1-4
Statements of-
Hon. Kenneth B. Keating, a Representative in Congress from the
State of New York----------------------------------------- 4
Charles R. Wilson, Office of Chief of Naval Operations, Department
of the Navy ----------------------------------------------- 7,50
Gilbert R. Levy, Directorate of Special Investigations, United States
Air Force--------------------------------------------------- 11
Hon. Chauncey W. Reed, a Representative in Congress from the
State of Illinois, and chairman of the Committee on the Judiciary- _ 13
Hon. Emanuel Celler, a Representative in Congress from the State
of New York ----------------------------------------------- 14
William P. Rogers, Deputy Attorney General, Department of Justice- - 27
Rosel H. Hyde, Chairman, Federal Communications Commission---- 43
Franklin L. Welch, on behalf of the Department of the Air Force___ 52
Maj. D. R. Greenlief, on behalf of the Department of the Army---- 52
John J. Gunther, legislative representative, Americans for Demo-
cratic Action----------------------------------------------- 55,57
Irving Ferman, on behalf of American Civil Liberties Union -------- 60
Andrew Biemiller, member, national legislative committee, American
Federation of Labor_________________________________________ 65
David Whatley------------------------------------------------- 67
Miles F. McDonald, district attorney of Kings County, Brooklyn,
N.Y-------------------------------------------------------- 71
Letter from former Attorney General of the United States, Hon. J. Howard
McGrath, addressed to Hon. Emanuel Celler, former chairman of the
Committee on the Judiciary, dated February 2, 1951_________________ 20
Section 813 (a), New York Code of Criminal Procedure. Ex parte order
for interception------------------------------------------------- 23
Comments of the Federal Communications Commission on H. R. 408,
H. R. 477, and H. R.3552---------------------------------------- 45
Statement submitted by the National Lawyers Guild opposing pending
bills to legalize wiretapping ---------------------------------------- 53
Statement submitted for the record by Joseph L. Rauh, Jr., on behalf of
Americans for Democratic Action__________________________________ 56
Letter from Rosel H. Hyvde, Chairman, Federal Communications Com-
mission, dated June 8 1953, commenting on H. R. 5149-------------- 90
Letter from Rosel H. $yde, Chairman, Federal Communications Com-
mission, dated May 28, 1953, commenting on a suggested amendment
to H. R. 477.-- -------------------------------------------------- 90
Letter from Hon. Herbert Brownwell, Jr., Attorney General of the United
States, addressed to the Speaker of the House of Representatives, dated
May 7, 1953, recommending legislation to authorize wiretapping in
certain cases---------------------------------------------------- 13
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WIRETAPPING FOR NATIONAL SECURITY
HOUSE OF REPRESENTATIVES,
IIBCOMMITTEE No. 3 OF THE
COMMrrrEE ON THE JUDICIARY,
Washington, D. C.
The subcommittee met, pursuant to notice, in room 346, Old House
Office Building, at 10 a. nl., Hon. Kenneth B. Keating, chairman,
presiding.
Present : Messrs. Keating, Crumpacker, Taylor, and Willis.
Also present : Mr. William R. Foley, committee counsel.
Mr. KEATING. The committee will come to order.
We have before us three bills, H. R. 408, H. R. 477, and H. R. 3552,
all relating to the same general subject.
(H. R. 408, H. R. 477, and H. R. 3552 are as follows; also H. R.
5149.)
[II. R. 408, 83d Cong., 1st sess.l
A BILL To regulate the interception of communications in the interest of national security
and the safety of human life
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That the Director of the Federal Bureau of
Investigation of the Department of Justice, the Director of the Military Intelli-
gence Division of the Department of the Army, the Director of Office of Special
Investigations, Inspector General, United States Air Force, and the Chief of
the Office of Naval Intelligence of the Navy Department under rules and regula-
tions as prescribed by the Attorney General, are authorized in the conduct of
investigations involving the safety of human life or to ascertain, prevent, or
frustrate any interference or any attempts or plans for interference with the
national security and defense by treason, sabotage, espionage, sedition, seditious
conspiracy, violations of neutrality laws, violations of the Act requiring the
registration of agents of foreign principals (Act of June 8, 1938, as amended),
violations of the Act requiring the registration of organizations carrying on
certain activities within the United States (Act of October 17, 1940 (54 Stat.
1201) ), violations of the Atomic Energy Act of 1946 (60 Stat. 755), or in any
other manner, to require that telegrams, cablegrams, radiograms, or other wire
or radio communications and copies or records thereof be disclosed and delivered
to any authorized agent of any one of said investigative agencies, or, upon the
express approval of the Attorney General, to authorize their respective agents
to obtain information by means of intercepting, listening in on, or recording
telephone, telegraph, cable, radio, or any other similar messages or communica-
tions, without regard to the limitations contained in section 605 of the Communi-
cations Act of 1934 (48 Stat. 1103).
SEC. 2. Information acquired or obtained pursuant to section 1 of this Act
shall be admissible in evidence, but only when offered in criminal proceedings in
United States courts arising out of any of the foregoing investigations.
The existence or contents of such application or order shall not be disclosed
except in connection with a criminal prosecution in which information obtained
by intercepting communications pursuant to such order is sought to be introduced
in evidence.
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CU:RITY
Sue. 3. Notwithstanding the limitation;, contained in section 605 of the Com-
munications Act of 1934 (48 Stat. 1103) and without regard to any other pro-
visions of this Act, information heretofore obtained, upon the express approval
of the Attorney General, by means of intercepting, listening in on, or recording
telephone, telegraph, cable, radio, or any other similar messages; or communica-
tions, shall be admissible in evidence in United States courts in any criminal
prosecution arising out of investigations of any of the violations enumerated in
section 1 of this Act.
SEC. 4. No person shall fail to comply forthwith with the req zest of any duly
authorized person, pursuant to section I. of this Act, for the disclosure and
surrender of any telegram, cablegram, radiogram, or other wire or radio com-
munication, or copies or records thereof in his possession or under his contol.
SEC. 5. No peson shall divulge, publish, or use the existence, contents, substance,
purport, or meaning of any information obtained pursuant; to the provisions of
this Act otherwise than for the purposes hereinbefore enumerated.
SEC. 6. No person, other than those authorized pursuant to this Act, shall
intercept. listen in on, or record telephone, telegraph, cable, radio, or any
other similar message or communication, unless transmitted for the use of the
general public or authorized by one of the parties to such message or communi-
cation, or his employment as a part of the message or communication system.
requires such action.
SEc. 7. Any person who willfully and knowingly violates any provision of this
Act shall be fined not more than $10,000 or imprisoned not more than two years,
or both.
SEC. 8. If any provision of this Act or the application of such .provision to any
person or circumstance shall be held invalid, the validity of the remainder of this
Act and the applicability of such provision to other persons cr circumstances shall
not be affected thereby.
SEC. 9. For purposes of this Act the term "person" shall include: any individual,
partnership, association, business trust, corporation, or any organized group of
persons, whether incorporated or not.
SEc. 10. The Attorney General is hereby authorized to prescribe such rules and
regulations as he may deem necessary to carry out the provisions of this Act.
[H. R. 477, 83d Cong., 1st sess.]
A BILL To authorize acquisition and interception of communications in interest of national
security and defense
Re it enacted by the Senate and House of Representatives of tl.e United States
of America in Congress assembled, That (a) the Director of the Federal Bureau
of Investigation of the Department of Justice ; the Director of the Military Intel-
ligence Division of, the Department of the Army; the Director of Intelligence,
United States Air Force; and the Chief of the Office of Naval Intelligence of the
Navy Department are authorized under rules and regulations as prescribed by
the Attorney General, in the conduct of investigations, to ascertain, prevent, or
frustrate any interference or any attempts or plans for interference with the
national security and defense by treason, sabotage, espionage. seditious con-
spiracy, violations of neutrality laws, violations of the Act. requiring the regis-
tration of agents of foreign principals (Act of June 8, 1938, as amended (52
Stat. 631) ), violations of the Act requiring the registration of organizations
carrying on certain activities within the United States (Act of October 17, 1940
(54 Stat. 1201) ), cr in any other manner, to require that telegrams, cablegrams,
radiograms, or other wire or radio communications and copies or records thereof,
or, upon the express written approval of the Attorney General, that any informa-
tion obtained by means of intercepting, listening in on, or recording telephone,
telegraph, cable, radio, or any other similar messages or communications, be
disclosed and delivered to any authorized agent of any one of said investigatorial
agencies, without regard to the limitations, contained in section 605 of the Com-
munications Act of 1934 (48 Stat. 1103). The information thus obtained shall
be admissible in evidence, but only when such evidence is offered in a criminal
or civil proceeding involving any of the foregoing violations in which the United
States Government is a party : Provided, That prior to acquiring or intercepting
the communications from which the information is obtained, an authorized agent
of any one of said investigatorial agencies shall have been issued a permit by a
judge of any United States court, authorizing the agent to acquire or intercept
such communications.
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(b) Upon application by any authorized agent of any one of said investigatorial
agencies to acquire or intercept communications in the conduct of investigations
pursuant to this section, a judge of any United States court shall issue a permit,
signed by the judge with his title of office, authorizing the applicant to acquire
or intercept such communications, if the judge is satisfied that there is reason-
able cause to believe that the communications may contain information which
would assist in the conduct of such investigations.
(c) No person shall fail to comply forthwith with the request of any duly
authorized person, pursuant to this section, for the disclosure and surrender of
any telegram, cablegram, radiogram, or other wire or radio communication, or
copies or records thereof in his possession or under his control.
(d) No person shall divulge, publish, or use the existence, contents, substance,
purport, or meaning of any information obtained pursuant to the provisions of
this section otherwise than for the purposes hereinbefore enumerated.
(e) Any person who willfully and knowingly violates any provision of this
section shall he guilty of a felony and upon conviction thereof shall be fined not
more than $10,000 or imprisoned not more than two years, or both.
(f) If any provision of this section or the application of such provision to any
circumstance shall he held invalid, the validity of the remainder of this section
and the applicability of such provision to other circumstances shall not he affected
thereby.
(g) For purposes of this section, the term "person" shall include any indi-
vidual, partnership, association, business trust, corporation, or any organized
group of persons, whether incorporated or not.
(h) The Attorney General is hereby authorized to prescribe such rules and
regulations as he may deem necessary to carry out the provisions of this section.
[I-i. 1.. 3552, 83d Cong., 1st less.]
A BILL Authorizing acquisition and interception of communications in interest of national
security
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That (a) the Director of the Federal Bureau
of Investigation of the Department of Justice; the Director of the Military Intel-
ligence Division of the Department of the Army ; the Director of Office of Special
Investigations, Inspector General, United States Air Force ; and the Chief of
the Office of Naval Intelligence of the Navy Department are authorized under
rules and regulations as prescribed by the Attorney General, in the conduct of
investigations, to ascertain, prevent, or frustrate any interference or any at-
.tempts or plans for interference with the national security and defense by
treason, sabotage, espionage, seditious conspiracy, violations of neutrality laws,
violations of the Act requiring the registration of agents of foreign principals
(Act of June 8, 1938, as amended (552 Stat. 631) ), violations of the Act requir-
ing the registration of organizations carrying on certain activities within the
United States (Act of October 17, 1940 (54 Stat. 1201) ), or any other manner,
to require that telegrams, cablegrams, radiograms, or other wire or radio com-
munications and copies or records thereof, or, upon the express written approval
of the Attorney General, that any information obtained by means of intercepting,
listening in on, or recording telephone, telegraph, cable, radio, or any other siini-
lar messages or communications, be disclosed and delivered to any authorized
agent of any one of said investigatorial agencies, without regard to the limita-
tions contained in section 605 of the Communications Act of 1934 (48 Scat. 1103).
Such information shall he admissible in evidence, but only when offered in a
criminal or civil proceeding involving any of the foregoing violations in which
the United States GovernmelLt is a party: Provided, That prior to acquiring or
intercepting the communications from which the information is- obtained, an
authorized agent of any one of said investigatorial agencies shall have been
issued a permit by a judge of any United States court, authorizing the agent to
acquire or intercept such communications.
(b) Upon application by any authorized agent of any one of said investiga-
torial agencies to acquire or intercept communications in the conduct of,investiga-
tions pursuant to this section, a judge of any United States court shall issue a
permit, signed by the judge with his title of office, authorizing the applicant to
acquire or intercept such communications, if the judge is satisfied that. there is
reasonable cause to believe that the eomniunications may contain information
which would assist in the conduct of such investigations.
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(c) No person shall fail to comply forthwith with the request of any duly
authorized person, pursuant to this section, for the disclosure :end surrender of
any telegram, cablegram, radiogram, or other wire or radio communication, or
copies or records thereof in his possession or under his control.
(d) No person shall divulge, publish, or use the existence, contents, sub-
stance, purport, or meaning of any information obtained pursuant to the pro-
visions of this section otherwise than for the purposes h.ereinbefore enumerated.
(e) Any person who willfully and knowingly violates any ;provision of this
section shall be guilty of a felony and upon conviction thereof shall be fined :not
more than $10,000 or imprisoned not more than two years, or both.
(f) If any provision of this section or the application of such provision to
any circnrnstanees shall be held invalid, the validity of the remainder of this
section and the applicability of such provision to other circumstances shall not
be all'ected thereby.
(g) For purposes of this section the term "person" shall include any individual,
partnership, association, business trust, corporation, or arty organized group of
persons, whether incorporated or not.
(h) The Attorney General is hereby authorized to prescribe such rules and
regulations as he may deem necessary to carry out the provisions of this section.
[Fi. R. 5149, 83d Cons., 1st sess.1
A BILL To authorize the use in criminal proceedings in any court established by Act of
Congress of information intercepted in national security investigations
Be it enacted byt the Senate and House of Representatives of tie United States
of America in Cor!,gress assembled, That, notwithstanding the provisions of sec-
tion 005 of the Communications Act of 1934 (48 Stat. 1103), information hereto-
fore or hereafter obtained by the Federal Bureau of Investigation through the
interception of any communication by wire or radio upon the cypress approval
of the Attorney General of the United States and in the course of any investi-
gation to detect or prevent any interference with or endangering of, or any
plans or attempts to interfere with or endanger, the national security or defense,
shall be admissible in evidence in criminal proceedings in any court established
by Act of Congress.
STATEMENT OF HON. KENNETH B. KEATING, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW YORK
JIr. KEATING. Since I am the author of H. R. 477 which has been
introduced in this and two preceding Congresses, :I ash leave of the
committee to make a short statement regarding the problem before us.
We are here today to study the entire problem of wiretapping.
Several bills on the subject are before us. I desire to say a few words
in support of Il_. R. 477, a bill to authorize certain Federal agencies
directly concerned with national security to acquire, intercept, and
divulge telephone, telegraph, and radio messages under certain cir-
cumstances.
I introduced bills similar to H. R. 477 in the 81st and Sid Congresses.
While I have no pride of authorship in this particular bill, and no
doubt it should be open to amendmetlts, as this is a complicated mat-
ter, I think the importance of a good, clear Federal law on the subject
of wiretapping cannot be overemphasized. I have been concerned
with this matter ever since I came to Congress. In the hearings this
morning and those which will follow I hope we can work out a meas-
ure, that will end present confusion and unshackle our law-enforce-
ment agencies, once and for all, to use this technique, with proper
safeguards, in performing their duties.
Tile laws and court decisions affecting wiretapping have left the
whole situation in a hopeless muddle. The Communications Act of
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WIRETAPPING FOR NATIONAL SECURITY 5
1934 provides that "no person not being authorized by the sender
shall intercept any communication and divulge or publish" its con-
tents. This language has been held by the Supreme Court to apply
to law-enforcement officers as well as private citizens. Some of the
agencies that need to use wiretapping in their activities go right ahead
and use it under this provision, in the belief that they can intercept
messages so long as they do not. divulge or publish them. The lan-
guage is "intercept * * * and divulge." The Federal Communica-
tions Commission does not agree with this interpretation. And the
courts have had a very difficult time deciding whether messages so
intercepted can be used-even indirectly-as evidence in criminal
prosecutions.
This problem was brought out dramatically in the trial of Judith
Coplon. Her attorneys turned the trial into a fiasco, and won out
for her on appeal, to a large extent because this law is so vague and
unsatisfactory. The predecessor bill to H. R. 477 was introduced by
me just a short time after the court of appeals reversed the conviction
of Judith Coplon.
On the other hand, there, is little or no protection for the privacy
and sanctity of individual rights, as things now stand. Since wire-
tapping is more or less illegal, no matter who does it, the agencies-
and even private investigators and plain snoopers-are tempted to
use it more freely than they should. If they are caught, they always
have the argument that they did not intend to divulge what they
were listening to.
My bill, H. R.. 477, is aimed at correcting this situation in both
directions. On the one hand, it gives specific authority to all the
Federal agencies that are responsible for national security to use wire-
tapping and similar techniques when they are investigating any ac-
tivity that touches on treason, sabotage, espionage, or similar offenses;
and it makes information they get in this fashion admissible in crimi-
nal prosecutions for such offenses. On the other, it requires approval
of the Attorney General before information obtained in this fashion
can be disclosed, and it requires an order, issued by a Federal judge
on a showing that there is reasonable cause for the order, before
any wires can be tapped or any messages can be intercepted in the
first place.
This last provision is based on a law which has been in force in
my own State of New York for a number of years. It has worked
very well for us. Before any of our law-enforcement officers can put
a tap on a telephone, they have to apply to one of our judges and
show him why the tap is necessary and what they hope to discover
by it. In this way, the public is protected against mere spying and
"fishing expeditions I think that is very important; none. of us
want a situation in which the police or anybody else can listen in
on our private conversations' unless there is a very good reason.
Our New York law works well in the other aspect, too. Once the
judge has been shown that there is a reasonable cause for issuing
the order, the officers have full authority to demand cooperation from
the communications companies, the taps can be most effectively used,
and there is no question that the evidence which is obtained in this
matter will be properly admissible in court.
I don't think we should be the least bit soft or sentimental in con-
sidering this bill. A lot of people have raised a fuss about the dangers
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6 WIRETAPPING FOR NATIONAL SECURITY
of a police state, and invasions of rights, which tend to cloud our
thinking and obscure the issues. I believe it was Judge Learned Hand
who once pointed out something we tend to lose sight of : Law-enforce-
ment agencies, and the Nation itself, have important, rights which
must be protected, too, if our laws are to be properly enforced and
our Nation is to be fairly safeguarded against the designs of its
avowed enemies.
We do not want to trifle with the great principle that every man's
home is his castle. But we cannot apply it blindly. It is one thing
to restrain interferences with what a man may do within his own
four walls; it is quite another to let him use our modern network
of communications media to plot the commission of crimes all over
the country, or even all over the world, from behind the same
protection.
11. It. 477 is limited to the detection of crimes which affect our na-
tional defense and security. That is the most important point of
all to reach. Recent revelations concerning Communists and fellow
travelers of American citizenship in the United Nations have fur-
nished additional evidence of the imperative necessity that we pro-
tect our Nation from these enemies within. This danger is a con-
tinuing threat to our free institutions. Proper surveillance of ene-
inies like Klaus Fuchs and the Rosenbergs would have made us much
stronger in the face of threatened aggressions than we are at this
moment.
We are faced each day with a sinister threat to the security of our
Nation from traitors, spies, and saboteurs. It is both foolhardy and
inexcusable to give them the protective privileges afforded by our
present laws. If we are to cope successfully with the menace they
present, we must untie the hands of those charged with the responsi-
bility of apprehending these vicious characters who infest our precious
land.
We have been spending billions of dollars in an effort to contain
communism in Europe, the Middle East, and the Far East. Today we
are still spilling the precious blood of our sons in actively fighting
Communist aggression in Asia. At such a time it seems negligent
and foolhardy in the extreme to delay placing this additional weapon
in the arsenal of our Federal investigating bodies right here at home.
The use of the telephone is vital to the work of potential and actual
saboteurs and enemy agents. At the present time there is no question
that wiretapping is being carried on by both private and Govern-
ment investigators-but they are compelled to go about it almost as
furtively as the criminals they are watching. The passage of this
proposed measure would not mean that we condone its unlimited or
indiscriminate use. It would be limited to crimes involving the secu-
rity of our country.
Invasion of privacy is repugnant to all Americans. And it should
be. Nevertheless, the safety of our Nation and its people must be
paramount.
Some of the Federal agencies which are concerned with this prob-
lem are present here today, and will be called upon. to express their
views and make whatever suggestions they may wish, to offer. Others
will be heard at a subsequent meeting. H. R. 477 has been submitted
to all other interested agencies, and all will be given an opportunity
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WIRETAPPING FOR NATIONAL SECURITY 7
to be heard. I am aware that we must proceed carefully, and not
lose sight of the ultimate requirement that this must be a fair law,
and workable-the very best that we can produce.
At the same time, we must not neglect the urgency of the matter.
This situation must be righted quickly. Every day we lose is so much
additional comfort to our hidden enemies, who are working tire-
lessly among us.
I intend to do everything in my power to impress upon the Congress
the desirability of early action in this field. I have already talked
with a good many Members about this subject and it is my hope that
this committee can report favorably legislation dealing with it as
quickly as possible. We have delayed too long already in coming to
grips with this problem.
Now, we have here today as a witness representing the Department
of Defense, Mr. Charles R. Wilson, of the Office of Naval Operations.
With him is Mr. Gilbert R. Levy, Directorate of Special Investigations,
United States Air Force.
Mr. Wilson, we would be very glad to hear from you if you will
come forward, please.
STATEMENTS OF CHARLES R. WILSON, OFFICE OF CHIEF OF NAVAL
OPERATIONS, DEPARTMENT OF THE NAVY; AND GIL13EAT R.
LEVY, DIRECTORATE OF SPECIAL INVESTIGATIONS, UNITED
STATES AIR FORCE
Mr. WILSON. Mr. Chairman, I was informed that this would be a,
hearing with reference to S. 832. Actually, we have reviewed several
bills: S. 832, H. R. 3552
Mr. KEATING. What is S. 832?
Mr. WILSON. Senate bill 8.32. I was told that this statement would
be a commentary on that particular piece of legislation.
Mr. KEATING. Told by whom?
Mr. WILSON. By our Office of the Judge Advocate General of the
Navy.
Mr. KEATING. Who is the author of S. 832?
Mr. FOLEY. I believe that is Senator Wiley's bill.
Mr. WILSON. I think it is Senator Langer, Mr. Chairman.
Mr. FOLEY. Senator Wiley and others.
Mr. KEATING. I imagine that that is a duplicate of H. R. 477.
Mr. WILSON. It is quite similar, yes, sir ; but our statement is slanted
along the lines of supporting S. 832.
Mr. KEATING. Have you compared it with H. R. 477?
Mr. WILSON. It has been compared. It compares quite similarly
to H. R. 477. I have not compared it identically but it is quite similar.
Mr. KEATING. I am reading from the Congressional Record of Feb-
ruary 6, 1953-and I know A followed a conversation which Senator
Wiley had with me back in the previous Congress. In this statement
at the time lie introduced the bill
Mr. WILSON. These are Senator Wiley's words?
Mr. KEATING. Yes, sir.
Therefore introducing a companion bill to H. R. 477 introduced by
Congressman Keating of New York-and he goes on.
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8 WIRETAPPING FOR NATIONAL SECURITY
So I think it is identical, or substantially identical, with H. ll. 477.
Mr. WILSON. I believe that is right, Mr. Chairman. I just wanted
to make the point that our comment had been basically on S. 832.
Mr. KEATING. Thank you.
Mr. WILSON. Mr. Chairman, I am Mr. C. R. Wilson of the Office of
Naval Intelligence. The opportunity to testify on behalf of the
Department of Defense before this subcommittee is very much
appreciated.
Our position is that the enactment of legislation designed to author-
ize the interception of communications in certain cases will serve to
enhance the internal security of the United States. To this practice,
thtere must and should be certain safeguards. Such legislation should
apply only to cases in which the United States will be a party in
crmmnal action and should be authorized only when certain categories
or suspected categories of offenses are raider investigation.
The need for legislation of this type as a protection for the mass of
Americans is obvious. It seems contradictory that we would jeop-
ardize the welfare of our citizens for the benefit of any individual or
group by refusing to provide for measures to counter such efforts.
S. 832 is a constructive step in the bolstering of our laws relating to
internal security. The Department of Defense recommends several
changes in S. 832 as presently written. Very briefly, these changes are :
Amend the bill to vest in the Attorney Generaa authority to author-
ize the rules and regulations governing the acquisition or interception
of communications where such pertain to investigations within the
investigative jurisdiction of the Department of Justice.
Amend the bill to authorize the Secretary of each of the military
departments similar authority for investigations within the jurisdic-
tion of his department.
Amend the bill to extend its coverage to case=s, involving the safety
of human life.
Amend the bill by strengthening the authority for the actual inter-
ception of communications without regard for the provisions of sec-
tion 605 of the Communications Act of 1934. This appears in. line
with the intent of S. 832.
This is a statement of general support in behalf of S. 832, subject
to the amendments enumerated above. Operational matters under
such legislation will, I am sure, be discussed as required by qualified
representatives of the affected agencies. I request very respectfully
that such discussion be held in executive session.
This statement has been coordinated within the Department of De-
fense, lack of time has precluded coordination with the Budget
Bureau.
Notice has been taken of the provisions of II. R. 3,552,114. R. 408, and
Ii. R. 477 which are similar in some respects to S. 832. The comments
included herein regarding S. 832 are applicable to those bills as ap-
propriate to each.
I am grateful for the committee's thoughtfulness in permitting
testimony in behalf of S. 832.
Mr. KEATING. Let me ask you, Mr. Wilson, regarding the proposals
for amendment to invest in the Attorney General authority to issue
rules and regulations governing those investigations in the jurisdiction
of the Department of Justice and similar authority to the Secretary of
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the military departments. You did not, mean that they should be
given any authority which might be in derogation of or to overrule
the court authorization for the interception, did you?
Mr. WnsoN. Mr. Chairman, our thought was that it would be
preferable to have the authority governing this centralized in the
Attorney General with authority for the Defense Department agencies
to operate within their own services in those type cases.
Mr. KEATING. And not have the application made to the court?
Mr. WILSON. Not have the application made before a Federal judge.
The reasoning on that-
-Mr. KEATING. I think perhaps the Attorney General may also favor
that, but I have serious doubt
Mr. WILSON,. The reason for that was one of security in having to
disclose certain facts relating to a case of that nature before it might
become expedient to do so. That was the thought.
Mr. KEATZNG. They can. always seal the papers in a court proceed-
ing where this question arises, and one of the protections afforded by
H. R. 477, and I believe the others, is to have the court pass on the
question because there might be efforts being made to intercept com-
munications which are improper and where a court should have that
authority to stop one of the agencies of the Government which was
acting improperly.
I see your point that you feel the Attorney General or the Secretary
of one of the services should have the discretion in the matter rather
than to have final discretion rest with the court.
Mr. WILSON. That was our point.
We had also made a suggestion there that this authority be vested
with the Secretaries of the respective services rather than with the
Director of Naval Intelligence or the Directorate of Special Investi-
gations of the Air Force, feeling, perhaps, that to vest it in a lower
echelon would tend to create a statutory office and that it would, be
better within the Department for it to stem from the highest authority
within the Department.
Mr. KEATING. On your proposed amendment to extend the bill to
other than cases involving national security, I would think that might
give us some pause because it is something of a departure and it might
be the. feeling of many that it should be limited to national security.
Mr. WILSON. I think that was put in, Mr. Chairman, in line with
the provisions of a clause in 408 which contains that particular
phraseology.
Mr. KEATING. In the present Communications Act?
Mr. WILSON. In line with 408. I think the intent of that is prob-
ably slanted toward kidnaping cases or things of that nature where
human life would be endangered by not being able to take full ad-
vantage of means to effect the recoveries which might be necessary.
Mr. KEATING. We probably will find it necessary to have an execu-
tive session; at least, the committee will take under consideration
your request for that because we appreciate the fact that it may be .
necessary to discuss some of these matters in such a session.
Mr. WILSON. We will be very happy to assist.
Mr. KEATING. Mr. Crumpacker, did you have any questions?
Mr. CRUMPACKER. This amendment which you have referred to
which would extend it to cases involving human life, do you have any
other cases than kidnaping in mind?
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WIRETAPPINGr FOR NATIONAL SECURITY
Mr. WILSON. I have nothing in mind. Actually, that would be
more within the supporting purview of the Department of Justice.
We put it in there as being desirable from our standpoint because it
had appeared in one of the bills which were under scrutiny. It is
quite possible that extortion or blackmail could be included with kid-
naping as the type of investigation which could conceivably involve
human jeopardy?
Mr. CRUMPACICER. Do you have in mind any particular cases that
would. be peculiar to the Department of Defense in that respect?
Mr. WILSON. No; I do not.
Mr. TAYLOR. This one suggestion, to give the Attorney General
authority to authorize rules and regulations--what would you think
of a possible compromise on that? No greater invasion of privacy
takes place than to go into a man's house and search it and examine
his papers, his bed clothing, if necessary, and a warrant could be pro-
cured to do such a thing by appearing before a commissioner. Would
you suggest that perhaps commissioners be authorized to issue war-
rants or authorizations to wiretap under circumstances where probable
cause existed to believe that a crime was being committed ?
Mr. WILSON. I would respectfully ask that I be not requested to
comment specifically on that because I have not given it any consid-
eration. As you say, it is a point which might bear some examination.
Mr. KEATING. Mr. Foley, do you have any questions to ask?
Mr. FOLEY. Yes, sir.
Could you possibly elucidate a little bit more on your proposed
amendment No. 9: there, the strengthening of authority for actual in-
terception of communication with regard to 605?
Mr. WILSON. Yes. The legislation as written seems to contain the
implication that,you would be authorized to intercept but it does not
contain the express authority to intercept. Now, the purpose of that
was simply to amend that wording slightly to allow the agencies con-
cerned under the conditions which are prescribed, to actually intercept
the communications. It is a very minor operational detail, I realize,
but we felt that it would perhaps be well to comment on it.
I think you will find-it appears on about line 8 to 14 in S. 832, and
the change in the wording would be relatively minor, Mr. Foley.
Mr. FOLP,,Y. Let me call your attention to this: Take H. R. 477, on
page 3, subsection (b). If you will notice there the application is
made to a Federal judge.
Mr. WILSON. Yes, sir.
Mr. FOLEY. On line 7, I read :
a judge of any United States court shall issue a permit, signed by the judge
with his title of office, authorizing the applicant to acquire or intercept such
communications, if the judge is.satisfied that there is reasonable cause to believe
that the communications may contain information which would assist in the
conduct of such investigations.
Mr. WILSON. Yes, sir.
Mr. FOLEY. That is the actual authority to intercept under 477.
That is very definite and clear.
Mr. WILSON. All right.
Mr. FOLEY. Just one more question, Mr. Keating.
In your testimony you have properly pointed out the passible rami-
fip`qtions arising from an appearance before a Federal judge to obtain
a. court order to intercept. I would like to point out to you along the
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lines of the chairman what has been a practice in New York in which
1. have been involved, namely this, that we draw our affidavits of rea-
sonable cause. They are drawn in the district attorney's office. They
are taken by the assistant who draws them to a judge of the Supreme
Court, or a county judge, and in most instances. you will find that a
single judge is the one that is always approached. It is an ex party
proceeding. You submit it to him in his chambers. There is nobody
else present but the judge and the maker of the affidavit. He reads
it. If he is satisfied that those are the grounds, he signs the order right
there. He takes the affidavit and the order, seals it in an envelope,
writes his name across the back, and places it in his own safe in his
office. The other copy is retained, of course, by the party making out
the affidavit. That is the procedure in New York.
I just point that out as a possibility from a practical standpoint.
Mr. WILSON. I am very grateful for that information. I are sure
we would have to arrive at, some such way to safeguard the existence
of a pending investigation.
? Mr. KEATING. I agree entirely with that; it must be carefully han-
dled. But I happen to believe at the moment that there would be a
greater public acceptance of the bill and what it is seeking to accom-
plish if the additional safeguard of having the matter passed on by
a Federal judge were in the bill..
However, we will be glad to hear any witnesses on that subject.
Mr. WILSON. Yes, sir.
Are there any other questions?
Mr. WILLIS. So we can get the benefits of what you have in mind,
have you tried to work out some language at the appropriate points
in the bill that would be appropriate to carry out the four proposed
amendments you suggest?
Mr. WILSON. I think that the Defense Department has some lan-
guage proposed; yes, sir. I have not done any composing on that
myself, but I believe the Department would take a stand on that.
Mr. WILLIS. What you ask us to do is, you suggest that we
Mr. WILSON. We will be glad to submit anything the committee
desires.
Mr. WILLIS. To carry out what you generally have in mind so we
can pinpoint it down. If you could submit some language at a line
or point in the bill, what language would carry out what you have
in mind.
Mr. WILSON. If the committee desires, we will be glad to study the
proposition.
Mr. KEATING. Are there any other questions?
If not, thank you very much, Mr. Wilson.
Mr. Levy, would you also like to be heard?
Mr. LEVY. Mr. Chairman, I concur with what Mr. Wilson has said.
There is just one minor point that we may take into consideration.
On line 6 of H. R. 477, there is a reference to the Director of Intelli-
gence, United States Air Force, because of a change within the Depart-
ment of the Air Force, the investigative arm of the Air Force is now
the Directorate of Special Investigations, United States Air Force.
Mr. KEATING. The Directorate?
Mr. LEVY. Yes, sir.
Mr. KEATING. Would you make a note of that?
Mr. LEVY. That is all I have, Mr. Chairman.
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Mr. KEATING. Thank you, Mr. Levy.
Now. Mr. Foley, what day do you think the other witnesses would
be prepared to appear before this committee? We have got to get
these hearings out of the way as early as possible.
Mr. Form. As I have already mentioned to you, Mr. Keating, the
Department of Justice has requested a, minimum of 10 days to 2 weeks
when they will have a report and be prepared to testify.
171le Federal Communications Con mu ssion has requested a minimum
of 2 weeks.
Mr. KLATrxc. Is there anyone here today from the Federal Com-
munications Commission?
Mr. Foi,EY. No, sir.
Mr. KEATING. Is 2 weeks from today all right with the other mem-
bers?
(Discussion off the record.)
Mr. KEATING. Then the committee will stand adjourned until
Wednesday, May 20, at 10 a. in., when we will complete our hearings
on this matter.
I hope the counsel for the committee will notify all of the Govern-
ment, agencies concerned and also any other organizations or groups
who may have expressed interest in this legislation either for it or
against it. We want to give full opportunity to everyone who wishes
to be heard on the 20th.
The committee will stand adjourned.
(Whereupon, at 10:45 a. in., the meeting was adjourned.)
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WIRETAPPING FOR NATIONAL SECURITY
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE No. 3 OF THE
? COMMITTEE ON THE JUDICIARY,
Washington, D. C.
The subcommittee .met, pursuant to call, at 10:10 a. m., in room
346, Old House Office Building, Hon. Kenneth B. Keating, chairman
of the subcommittee, presiding.
Present : Representatives Kenneth B. Keating chairman of sub-
committee), Shepard J. Crumpacker, Jr., Edwin E. Willis, and Sid-
ney A. Fine.
Also present : William R. Foley, counsel.
Mr. KEATING (presiding). The committee will come to order.
At this point we, will have inserted in the record H. R. 408, H. R.
477, H. R. 3552, and H. R. 5149.
(The bills referred to are printed at beginning of this document.)
We are happy to have this morning with us the chairman of the
.ludiciary Committee who has, on May 12, and since these hearings
started, introduced H. R. 5149.
Mr. Reed, we will be happy to hear you first.
STATEMENT OF HON. CHAUNCEY W. REED, A REPRESENTATIVE
IN CONGRESS FROM THE 14TH DISTRICT OF ILLINOIS
Mr. REED. Mr. Chairman, as you have stated, H. R. 5149,
which I introduced, is, I believe, the fourth bill that is now before
this subcommittee on consideration on this subject matter.
On May 7, or shortly thereafter, I received an executive com-
munication which, in its regular order of business, was sent from the
Office of the Attorney General to the Speaker of the House of Repre-
sentatives and by him transmitted to our committee. This executive
communication reads as follows :
DEAR MR. SPEAKER: It is recommended that legislation be enacted to authorize
the use in criminal proceedings in Federal courts of information obtained by
intercepting of communications in the course of investigations relating to the
protection of the national security or defense. Such legislation is -vital for the
adequate safeguarding of-our country and its way of life.
It is quite unrealistic and thoroughly unreasonable that, though evidence is
obtained showing clear violations of the laws against subversions, the hands of
the prosecuting officers are. tied and their efforts to maintain the security of
the Nation are thwarted.
As the law now stands, the Government of the United States is under a serious
handicap in protecting itself against spies, saboteurs, 'and others who are
intent on interfering with or endangering national security..
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WIRETAPPING FOR NATIONAL SECURITY
I believe that legislation should be enacted which would, under proper safe-
guards, permit the use in evidence in Federal courts of information obtained by
wiretapping.
The attached proposal which I commend to your consideration is limited in
,everal respects :
In the first place, its application would be restricted to investigations relating
to the national security or defense.
,Secondly, wiretap evidence would be admissible only when obtained by the
Federal Bureau of Investigation.
Thirdly, wiretapping within the contemplation of the bill would require the
express approval of the Attorney General.
Finally, wiretap evidence would be admissible only in criminal proceedings
in Federal courts.
Convinced of the need for such legislation and satisfied that the attached bill
aeontains the necessary safeguards and limitations to warrant its favorable
consideration, I invite your cooperation in bringing it before the Congress.
The Bureau of the Budget has advised there is no objection to the submission
of this recommendation.
Sincerely,
HERREnT BeOWNELL, Jr.
Attorney General.
!s a: result. of this executive communication, I i:, troduced 5149,
which is one of the four bills now before the subcommittee for con-
sideration, and Mr. Rogers of the Attorney General's office is here
today to express the views of the Attorney General in particular with
regards to this legislation.
Mr. KEATING. I imagine, Mr. Reed, you would prefer to have the
c;oinmittee question Mr. Rogers regarding details.
Mr. REED..[ think so.
Mr. HEATING. I think before hearing Mr. Rogers we should hear
our colleague? Mr. Celler, of New York, who is the author of H. R.
408, and we are happy to have him here to express his views with
regard to his bill or this general subject.
STATEMENT OF HON. EMANUEL CELLER, A REPRESENTATIVE IN
CONGRESS FROM THE 11TH DISTRICT O:F NEW YORK
Mr. CELLER, Mr. Chairman, members of the committee, as you indi-
cated, I have offered H. R. 408 to permit use of evidence and informa-
tion obtained from that evidence permit
way of wiretapping.
l[ want to say, Mr. Chairman, I offered a bill of this character 13
years ago, way back in 1940, and have offered bills permitting wire-
tapping ever since; and, incidentally, I was one of the first to offer
that type of bill. I did it when it wasn't very popular to offer or
have considered such a bill. It was at the time just be:fore World War
II when the Nazis and Fascists were afoot and endeavoring to obtain
various secrets of our Government.
I have worked diligently all through those years to pass a bill of
this character, and have had many brickbats thrown at me because I
was attacking or endeavoring to corrode our civil Iibert:ies by the intro-
duction and the attempt to have passed such a bill; brit a climate has
been developed which is entirely changed since then, and I think a, fair
opportunity now is presented to have passed a bill of this chharacter.
Now, if you don't mind, I would like to. go over some ,of the provi-
:iions of my bill and then point out differences between my bill and one
or two of the others that have been offered.
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WIRETAPPIN
In. a word, the bill provides :
That the Director of the Federal Bureau of Investigation of the Department
of Justice, the Director of the Military Intelligence Division of the Department
of the Army, the Director of Office of Special Investigations, Inspector General,
United States Air Force, and the Chief of the Office of Naval Intelligence of the
Navy Department, under rules and regulations as prescribed by the Attorney
General, are authorized in the conduct of investigations involving the safety of
human life or to ascertain, prevent, or frustrate any interference or any attempts
or plans for interference with the national security and defense by treason, sabo-
tage, espionage, sedition, seditious conspiracy, violations of neutrality laws, vio-
lations of the act requiring the registration of agents of foreign principals (act
of June 8, 1938, as amended), violations of the act requiring the registration
of organizations carrying on certain activities within the United States (act of
October 17, 1940)-
that is the Smith Act-
violations of the Atomic Energy Act of 1946, or in any other manner, to require
that telegrams, cablegrams, radiograms, or other wire or radio communications
and copies or records thereof be disclosed and delivered to any authorized agent
of any one of said investigative agencies, or, upon the express approval of the
Attorney General, to authorize their respective agents to obtain information by
means of intercepting, listening in on, or recording telephone, telegraph, cable,
radio, or any other similar messages or communications, without regard to the
limitations contained in section 605 of the Communications Act of 1934.
You may remember that section 605 proscribed and prevented the
use of information obtained by so-called wiretaps.
Now, it would be naive to suppose there is no wiretapping now.
I am almost of the belief that it is a 'most widespread practice,, and
it is probably most widespread right here in the District of Columbia.
It is a practice indulged in by Government officials. It is a practice
indulged in by private individuals, and private individuals do it all
over the country.
Sometimes one is very fearful whether one should ever use the tele-
phone when he wishes to impart something of importance or gravity.
I am sure that feeling has come to every Member of Congress, every
Member of the Senate, right here in the District of Columbia, and
I think the time has come when we must have this two-edged sword:
One, to help the Government agencies having jurisdictions over
these matters to ferret out the crimes of espionage. and treason and
sabotage, and so forth, and thereby try to prevent the carrying out
of nefarious purposes along those lines; and
Secondly, as this bill would provide and other bills would provide,
to make it a criminal offense to indulge in unauthorized tapping or
intercepting of wire communications.
So efforts should be made at all times to acquaint the, public with
the fact that this is also a protection for the public itself against
unwarranted interference with private communications. That is not
expressed enough, and I hope the press here this morning will stress
that phase of it because I have received communications upon the
introduction of the bill claiming that I am trying to hurt and harm
our civil liberties by allowing these interferences by way of taps, and
they never say a word about the protection a bill of this sort would
afford the public-and it. is in that sense a safeguarding of our civil
liberties.
Now, section 2 of my particular bill says :
Information acquired or obtained pursuant to section 1 of this act shall be
admissible in evidence, but only when offered in criminal proceedings in United
States courts arising out of any of the foregoing investigations.
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WIRETAPPING FOR :NATIONAL SECURITY
Now,. I think the Association of the Bar of the City of New York
has criticized that limitation, wherein I say that the evidence can be
used only in criminal proceedings, and. they ask the query : "Why
shouldn't it be used in civil proceedings?"
Now, I, personally, at this juncture don't know why, I don't know
the basis for their statement that the evidence obtained should be used
in civil. proceedings.
The crimes that we are endeavoring to frustrate, which are men-
tioned in section 1, are on the criminal side. They are not on the
civil side.
So, I think in the interests of endeavoring to limit; this power, I
think it is best to limit the use of wiretaps with re,fere.ice to evidence
in criminal proceedings and not bring in civil proceedings.
Now. I may be wrong on that. At this moment I can't conjure up
any reasons why we should include civil proceedings. Perhaps the
chair or members may think otherwise, in which event it would be
perfectly proper to add the words "civil proceeding;," but at this
time I can't conceive why we should expand it to civil proceedings.
NOW, the balance of section 2 I suggest be stricken, and I make
that statement because of a communication our distinguished chair-
man has received from the Deputy Attorney General under date of
February 10, and he states as follows:
CEAn MR. CHAIRMAN. Your attention is invited to an error in II. R. 408-
That is the bill I am discussing-
a hill to regulate the interception of communications in the interest of national
security and the safety of human life-now pending before the Committee on
the Judiciary.
The second paragraph of section 2 of the bill reads as follows-and this is
the language I suggest he excised:
"The existence or contents of such application or order shall not be disclosed
except in connection with a criminal prosecution in which information obtained
by intercepting communications pursuant to such order is sought Lo be introduced
in evidence."
Since the bill contains no reference to or provisions for any application or
order, it is clear that the quoted language was erroneously included and should
be deleted.
I agree with that.
Section 3 of my bill states :
Notwithstanding the limitations contained in section 605 of the Communi-
cations Act of 1934 and without regard to any other provisions of this act,
information heretofore obtained, upon the express-app o. I or. the Attorney
General, by means of intercepting, listening in on, or recording telephone, tele-
cable, radio, or any other similar messages or communications, shall be.
admissible in evidence in United States courts in any criminal prosecution
arising out of investigations of any of the violations enumerated in section 1
of this act.
Section 4-----
Mr, WrLrrs. Is that an admission that this sort of thing; has gone on,
anyway?
Mr. CELLER. I beg your pardon.
Air. WILLIS. Is that an admission now on your part that this thing
has gone on, anyway?
Mr. CELLFR. I think it is a fair inference. I think, as l( said before,
we would be naive if we would say there is no such th ing as wire-
tapping. I know in my own city of New York it is widespread, and I
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WIRETAPPING FOR NATIONAL SECURITY 1
asn sure the distinguished chairman, who comes from my State, knows
that it is widespread in New York State; and we have had many dis-
closures of such activities. However, this is not an investigation of
wiretapping.
Section 4:
No person shall fail to comply forthwith with the request of any duly author-
ized person, pursuant to section 1 of this act, for the disclosure and surrender
of any telegram, cablegram, radiogram, or other wire or radio communication,
or copies or records thereof, in his possession or under his control.
That is obvious. The Western Union or the commercial cable
corporation might have records and they should be disclo.,,ed when
there is an authorized, authorized under this act, wiretap.
Section 5:
No person shall divulge, publish, or use the existence, contents, substance, pur-
port, or meaning of any information obtained pursuant to the provisions of this
act otherwise than for the purposes hereinbefore enumerated.
Section 6:
No person, other than those authorized pursuant to this act shall intercept,
listen in on, or record telephone, telegraph, cable, radio, or any other- similar
message or communication, unless transmitted for the use of the general public
or authorized by one of the parties to such message or communication, or his
employment as a part of the message or communication system requires such
action.
Section 7:
Any person who willfully and knowingly violates any provision of this act
shall be fined not more than $10,000 or imprisoned not more than 2 years, or
both.
That is obvious.
Section 8:
If any provision of this act * * *.
That is a separate bill at this point.
Section 9:
For purposes of this act the term "person" shall include any individual, part-
nership, association, business trust, corporation, or any organized group of per-
sons, whether incorporated or not.
Section 10:
The Attorney General is hereby authorized to prescribe such rules and regula-
tions as lie may deem necessary to carry out the provisions of this act.
Now, there are some who want to spell out in the bill-I think some
may want to testify along those lines, and they did in previous hear-
ings-that the record should be kept secret; that the recordings of
communications, whether it is on wire or wax, shall be kept in a central
place, and that irrelevant material should be excised or the recordings
at some stated time, under certain circumstances, might well be de-
stroyed; that there might be some limitation on the duration of the
authority to tap wires, and many other such provisions.
Now, I don't think they should be set forth in a bill. I think those
provisions should remain fluid, depending upon changing conditions;
and I think we should have faith and confidence in the Department
of Justice and its head, and wherein I said he shall have the power
to make and promulgate, regulations, and he can, therefore, envisage
the need to regulate those items and many more that I have set forth.
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18 WIRETAPPING FOR NATIONAL SECURITY
So, when I say that the Attorney General is authorized to prescribe
rules and regulations, I think this should be sufficient.
Now, I should like to go back just a minute and real from some of
the testimony that was given way back in 1940 on this same bill.
It is interesting to note that every Attorney Ger.Leral from Attorney
General Mitchell on to the present Attorney General has approved
wiretapping under the safeguards similar to the ones i have
announced.
For example, here is a part of the communication from Attorney
(ieiieral Jackson, which was addressed to me way back. in 1940--May
31, 194:0. I will not read the entire letter, just the pertinent para-
graphs:
In a limited class or case, such as kidnaping, extortion, racketeering, where
the telephone is the usual means of conveying threats or information, it is the
opinion of the present Attorney General-
that was Jackson-
as it was of Attorney General Mitchell, that wiretapping should be authorized
under some appropriate safeguard. Under the existing state of the law and
decisions, this cannot be done unless Congress sees fit to modify the existing
statutes.
The philosophy underlying the foregoing remarrks, -which were di-
rected to the activities of the underworld, would seem applicable with
even greater force to the activities of persons engaged in espionage,
sabotage, and other activities interfering with the national defense.
Way back in those days I called attention to the fact that I had
gone on radio, setting forth the provisions of the bill I had offered,
and I said, as a result of the one broadcast, I had received in 1 day
almost 3,000 letters approving the provisions of the bill, and only 20
letters indicated opposition, and that there had been something like
5.000 more communications, roughly, received by the radio stations
approving the bill.
Now, that was rather startling to me at that time, and that seemed
to me an overwhelming sense of approval of the bill.
Then the question arose, even back there in those days, whether or
not the authority to allow the wiretaps should be lodged with the
Attorney General or with a judge of the United States district court--
a-rid I will read a bit of my testimony :
I cannot see how it could be carried on--
carried on if the justice of the district court was to authorize the
wiretap---
because secrecy is absolutely the essence. Someone has sale! three men can
keep a secret if two men die. If they are compelled to go into the court, you J
have the clerk, the person seeking the order, the stenographer, some officer,
and the judge hearing evidence in support of the petition upon which the order
is to be granted. That would utterly destroy the necessary secrecy that must
surround applications of this sort.
I ani still of the opinion, since secrecy, uttermost secrecy, is essential
for the success of any kind of an interception of wire communications,
that by making an application to the court, ex parte,, which would
probably have to be in writing, where the contents could be observed
by more than the judge, where records must be kept, you destroy that
possibility of secrecy and to that degree you make the wiretap useless.
I believe that is the opinion of the Attorney General, and has been
the opinion of the Attorneys General from Mitchell on.
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Beyond that, you have to have some degree of uniformity here. If
you are going to allow a district judge to give permission to wiretap,
you are going to have every judge devising his own plan, a method
whereby this shall be done, and you would, therefore, have a failure
of uniformity and grave difficulties emitting from that lack of
uniformity.
What precautions would the judge use?
Every judge would have his own method of proportions. You
would have considerable confusion.
Beyond that, you take in a case of the State of Montana, which is
600 miles in length-I think that is the area. I would have to
correct the record if it isn't 600-I think there is 1 Federal judge in
the State of Montana. Well, he may be on vacation. It may be neces-
sary to get action quickly. He maybe 300, 400, 500 miles away. How
are you going to get him?
That situation might well also develop in Texas. When you con-
sider the vast expanse of Texas, a district judge may be hundreds of
miles away.
Speed is essential in those matters. If you have to go to a Federal
judge who may be sick or disabled, who may be on vacation, who may
be fishing, then you leave the officials who want to get the authority
stranded; and I believe, therefore, it would be far better to have this
authority centralized in the Attorney General, when members of the
Judiciary Committee could watch this situation.
I have every confidence in the present Attorney General, and I
happen to know hint personally, and I would implicitly give this
authority to the Attorney General without the slightest equi vocation,
without the slightest hesitation.
If at some future time we feel the Attorney General isn't of that
high stamp, we can withdraw the privilege; we can. watch it; we can
investigate; we can do all sorts of things to protect the citizens' rights.
But, after a, great deal of thought on this matter, I think it would
be better to have the matter lodged, the power lodged, in the Attorney
General.
There may be some abuses. You always have to envisage abuses.
You can't help it. That is the price we have to pay for betterments,
although I can't conceive how the Attorney General would be guilty
of any abuses, except that he might in turn delegate the power to
someone. I have confidence in him that he would only delegate it to
someone who in turn was responsible.
Lastly, we have a provision in our New York Code of Criminal
Procedure permitting ex parte order interception of telephone or
wire or radio communications. In New York we provide that it can
only be done upon an ex parte order of a judge.
This is no reflection on any of the jud _ es in New York.
But I fear there. are some abuses which defeat the very purposes
of a court order.
Now, I happen to know that there is no secrecy on occasions in the
granting of these ex parte orders in New York, and I think we ought
to take a leaf from that New York book and be mighty careful.
For that reason, I am of the opinion that only the Attorney General
should have the right and there should be no need to go to a United.
States district court for this order.
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I have also, which I will put in the record, a communication from
then Attorney General J. Howard McGrath, under 6-ate of February
2, 1951, also asking for this authority and approving the bill which I
had offered during his administration.
,%%r. KEATIN . That will be received.
(The letter referred to is as follows:)
OFFICE OF THE ATTOILNvY GENERAL,
I-Vasltington, D. C., February N, 1951.
lion. ElM,ANUEL CELLFR,
Cleiirmau, Committee on the ~ludiciary,
House of Representatives, Washington, D. C.
ill MY DEAR M11. CHAIRMAN : In my letter of January 17, 1951, .1 enclosed for the
con;;ideration of the Congress a proposed bill to regulate the interception of
coinnnlnications in the interest of national security and tl:,e safety of human life.
As you know, the measure was introduced on January 23, 1951, as H. It. 1947.
The early enactment of this bill, in my opinion, is highly desirable. The De-
partment of Justice has been seriously hampered in fulfilling its statutory duty
of prosecuting those who violate the Federal laws relating to the national defense
and security because of the failure of Congress to enact legislation of this type.
It would seem i:hat in view of the present national emergency even more serious
harm to the Government may result in the absence of apps opria to remedial
legislation.
The Department has in the past been adversely affected in its ability to prose-
cute tour major types of national-security cases by reason of the fact that evidence
obtained by wiretapping is inadmissible in the Federal courts. First, there are
cases where all the evidence was obtained by wiretapping and, second, there
are others where some admissible evidence exists but the vital evidence, without
which the admissible information is insufficient, was obtained by wiretapping.
Under present law the Government is completely forestalled from prosecuting,
even though guilt may be clear, in these two categories of eases. Third, there
are cases where telephone taps provided no evidence but did provide leads or
clues from which evidence was obtained and, fourth, there are eases where the
wiretapping activities not only produced no evidence whatever but (lid not even
produce any leads. Present law. does not prevent prosecution in, these, types
of cases, but nevertheless prosecution may well be blocked because the fact that
wiretapping was practiced requires a pretrial inquiry into the nature of the
information acquired thereby to show that independent evidence was used or
that nothing material was Obtained by the taps. However, even though this
could be established, the Government for security reasons might not be willing
to identify the telephones which were tapped or to disclose the information so
obtained In order to establish that it was not germane to the case.
While the number of telephone surveillances in use at any given time is rela-
tively shall and each one is instituted only at the express direction of the Attor-
ney General, there have been a number of cases in past years which could not
be prosecuted under existing law. It is impossible, as you will appreciate, to
identify any of them by name. However, an illustration of the manner in which
law enforcement by the Department is unwarrantedly obstructed in cases where
wires were tapped may he found in the recent prosecution of Judith Coplon for
espionage. It was first necessary to hold an extensive preiliminary bearing at
which every investigative report and other document relating to the case in
the possession of the 'Federal Bureau of Investigation were submitted to the
trial judge. Then, although that jurist was completely satisfied that no evidence,
leads, or clues were obtained by wiretapping and that some of the material---
obviously having no bearing on the case because of such finding- should not be
disclosed to the defense for security reasons, and although the court of appeals
expressly stated that Miss Coplon's guilt was plain, the latter court held it
reversible error not to have made full disclosure of all such material to the
defendant.
In addition to the vital need for the bill in future security investigations, I
may say that section 3 would go far to remedy the defect in existing law in the
cases involved in categories 1 and 2. Information in the Department's possession,
which cannot be used at present, would become available for use in proper cases
where the statute of limitations has not yet run. As to the cases in categories
3 and 4, the section would also be of material assistance because, if wiretapping
evidence is admissible, there would be no need to have a hearing to establish
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whether or not there is evidence independent of leads or clues obtained by that
procedure.
The burden which the failure to enact remedial legislation has imposed upon
this Department is clearly apparent, I believe, from the foregoing. I earnestly
hope that H. R. 1947 may be enacted as expeditiously as possible.
Sincerely,
J.. HOWARD NICGRATH,
Attorney General.
Mr. CELLEiI. I think that is all, Mr. Chairman.
Mr. KEATING. Thank you very much, Congressman Celler. You
have been very helpful to the committee.
I don't want to have anything that I may say or any questions I
may ask of you construed as indicating that the chairman has a closed
mind on this subject at all, because we are trying to devise arid report
out a bill which will work best and will accomplish what we are
trying to do.
I am inclined to agree with your statement that the bill should have
a twofold purpose :
(1) To attempt to meet the problem arising from violations of
statutes affecting our national security ; and
(2) To make it clear that we frown upon illegal wiretapping and
to provide stiff penalties for such illegal wiretapping..
In that respect, I, at the moment, am entirely in accord with the
provisions of your bill. In fact, as I read them, they are, excepting
two particulars, substantially the same, perhaps with a change in
phraseology, with the bill which I introduced; H. R. 477, and those
two respects are, as I see it:
(1) That yours provides for use of this evidence and the authoriza-
tion of intercepting communications in the case of violation of statutes
involving the safety of human life, whereas my bill is restricted to
offenses involving national security and defense.
Mr. CELLER. Does your bill include kidnaping?
Mr. KEATING. No; it does not.
Mr. CELLER. That is the reason why I use that phrase.
Mr. KEATING. I wanted to discuss that with you for a moment.
If we should decide to go beyond espionage, treason, and other
offenses involving the national security, I wonder if that language
isn't rather broad-the language involving the safety of human life.
I suppose that might involve armed robbery, or assault, or---
Mr. CELLER. It might.
Mr. KEATING. I am not
Mr. CELLER. Yes.
Mr. KEATING. Asking. I am thinking out loud.
Mr. CELLER. Well, I used
Mr. KEATING. You had kidnaping in mind?
Mr. CELLER. I used that language because it was in the bills that
had been recommended by Mitchell and Jackson and Biddle and the
other Attorneys General in the old days, and I just kept it in there
because of kidnaping.
You see, the FBI has great difficulty in running down these kid-
napers.
Of course, kidnaping is not necessarily related to national defense.
It would be an expansion of it. I would have no objection if you
would strike that out and leave it out. I am not jealous of that at
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WIRETAPPING FOR NATIONAL SECURITY
all; but if we are going to cover it, we might also cover that very foul
crime of kidnapping.
I can conceive of no more herinous crime than kidnaping. It is
horrible.
Mr..KEATING. Of course, I share your views. T don't know that it
is much more heinous, however, than selling narcotics to minors.
There are crimes that particularly affect our consciences.
It was my thought in drawing H. R. 477 that we should confine
it to those offenses which involve the national security, but that is
something the committee will have to discuss.
1V[r. CEILER. There is merit in that contention.
Mr. KEATING. The other and more fundamental difference is the
one you have mentioned. My bill does provide for application to the
court for an order, and the bill which has been sent up by the Attorney
General, as well as your bill, provides that the Attorney General alone
would have the authority to authorize this action.
CELLER. Off the record.
(.Discussion off the record.)
Mr. KEATiNc.. That is a troublesome problem.
It has been my feeling that it would give a greater measure of pro-
tection if that application to the court had to be made.
We are legislating here in a delicate field, as you recognize, and-
---Mr. CELLER. How many district judges are there'? About 225 ?
Mr. FOLEY. About that. Probably 315 in all.
Mr. KEATING. Yes. '
Mr. CFLLER. I think there are 225 judges, and with the circuit
judges--your bill, I think, says a judge of any United States court.
Mr. KEATING. Yes.
Mr. CELLER. That would mean probably another 75.
Now, my ojection to that would be, as I indicated before, you would
probably have about a hundred or so methods of doing this.
Mr. KEATING. Well, now, the informal inquiry I made about :how
it works in New York differs considerably from what you have told
us. I had understood in New York these applications were largely
made to particular judges, and I was told that when the application
was made it was taken in by the district attorney. or someone in au-
thority; it is in writing; the order explained to the court it was based
on a, short affidavit, and that then the judge signed it and locked it
right 11 in his safe.
Mr. IiELLEII. That is what he should do.
Mr. KEATING. That, of course, is what should be done; and I would
think the objection which you have raised regarding application of the
New York statute arose rather from what would be pretty close to
abuses on the part of the State courts rather than to the law itself.
Section 813 (a) of the New York Code of Criminal Procedure is
very explicit in providing that such an order for the interception of
communications may be issued by j ustices of the Supreme Court---
Mr. CELLEn. Judge of the county court.
Mr. KEATING. Or the court of general sessions.
Mr. CELLER. And then go on. Go on further and see what it says.
Mr. KEATING (reading) :
on the proof of an affidavit showing there is reasonable ground. * ,*
Mr. CELLER. May I interrupt?
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Mr. KEATING. Yes.
Mr. CELLER. "Upon oath or affirmation of"-whom?
,a district attorney, or the attorney general, or of an officer above the ranic of
sergeant of any police department of the State, or any political subdivision
thereof.
You see the many persons who can make the application.
Mr. KEATING. Well, that is true, and perhaps we should cover that
in the wording of our bill, if we should decide to provide for the
application.
I don't say this wording is necessarily right, but certainly courts
should not, as you say, sign these orders in blank or in advance. It
may be a convenience to someone who is in the district attorney's ollice,
but it certainly is not weighing the validity of the application to
handle it that way; and I think we would have to assume if we should
provide for a presentation to the court that the judges of the district
courts would do their duty, and I have felt that it was a rattier wide
authority to vest in the Attorney General.
I am very happy to have your views, but I would want to have strong
evidence to disabuse my mind of the thought that we should give such
wide authority to the Attorney General-not the present Attorney
General, in whom I have the highest confidence, but in legislating, as
everyone knows, we must try to meet a general situation. It does seem
to me a wide authority to give him without any curb or check on that
.whatever.
Mr. CELLER. Even at the present time he can willy-nilly tap wires.
Mr. KEATING. Well--
Mr. CELLER. The FBI, I mean.
Off the record.
(Discussion off the record.)
Mr. KEATING. We can't know that.
Mr. CELLER. We can't.
Mr. KEATING. We can't take judicial or congressional notice of the
fact that this thing goes on.
Mr. CELLER. Off the record.
(Discussion oft the record.)
Mr. KEATING. I think at this point it might be well to insert in the
record section 813 (a) of the New York Code of Criminal Procedure.
(Section 813 (a) of the New York Code of Criminal Procedure is
as follows:)
SEC. 813-a. Ex PARTE oituEm FOR INTERCEPTION. An ex parte order for the inter-
ception of telegraphic or telephonic communications may be issued by any
justice of the supreme court or judge of a county court or of the court of general
sessions of the county of New York upon oath or affirmation of a district attorney,
or of the attorney general or of an officer above the rank of sergeant of any police
department of the State or of any political subdivision thereof, that there is
reasonable ground to believe that evidence of crime may be thus obtained and
identifying the particular telephone line or means of communication and particu-
larly describing the person or persons whose communications are to he intercepted
and the purpose thereof. In connection with the issuance of such an order the
justice or judge may examine on oath the applicant and any other witness he
may produce for the purpose of satisfying himself of the existence of reasonable
grounds for the granting of such application. Any such order shall be effective
for the time specified therein but not for a period of more than six months unless
extended or renewed by the justice or judge who signed and issued the original
order upon satisfying himself that such extension or renewal is in the public
interest. Any such order together with the papers upon which the application
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C)4 WIRETAPPING FOR NATIONAL SECURITY
was based shall be delivered to and retained by the applicant as authority for
intercepting or directing the interception of the telegraphic or telephonic com-
mneications transmitted over the instrument or instruments described. A true
copy of such order shall at all times be retained in his possession by the judge
.nr justice issuing the same.
ld-T. KEATING. There is one other thing I would like to ask you
about. The bill submitted by the Attorney General gives this power
only to the FBI and eliminates all the other investigative agencies.
Have. you any views on that subject?
Air. CELLFR., I think it would be unwise to just limit it to the :FBI.
Since it is national defense, I think these other agencies might well
participate in that right-the Director of Military Intelligence, Chief
of Naval Intelligence, and so forth. After all, they are also vitally
concerned with our national defense and endeavor to ran down crimes
involving espionage, sabotage, probably even more so in a certain
sense than the FBI, although I don't want to diminish the importance
of the FBI1 which indeed is highly important in our system; but I
think we should give that right to these other agencies.
Mr. KEATING. Mr. Crumpacker.
Mr. CELLER. Of course, there you would have the. Attorney General
only with the power to authorize.
I just want. if I may, to put in the record, just to get the record
pretty well rounded out, two opinions-they were minority opinions
of Justice Holmes and Justice Brandeis-wherein there is a claim
that wiretapping is a violation of the Constitution. I don't agree
with it, but I think it would be well to have that in the record.
Mr. KEATING. Well, should we--
Mr. CELLER. You want me to read it?
Mr. KEATING. For the record, also have. the majority opinion?
Mr. CrLLER. It might be well to put the Nardone opinion. in.
What is the other opinion, Mr. Foley?
Mr. FoLEY. Nardone.
211r. CELLER. Nardone, and what is the other case?
Mr. FOLEY. Weiss-W-e-i-s-s-.
Mr. CELLER. I think it might be well to put those two cases in.
Do you think so, Mr. Chairman?
Mr. FOLEY. They are quite lengthy opinions.
Mr..k'EATING. Are they long opinions?
Mr. CELLER. Well, then, leave it out.
Mr. KEATING. We probably will print the proceedings, and I don't
tI tin k we want them in the record.
Mr. CELLER. All right.
Mr. FOLEY. Perhaps, Mr. Chairman, we could just give the citations
of those cases.
Mr. CELLER. Yes.
M r. BEATING. Yes ; I think we might give the citations.
Mr. FOLEY. The Nardone cases were 302 U. S. 879; 308 U. S. 838;
the Weiss case was 308 U. S. 321.
Mr. KEATING. We appreciate your appearing here, Mr. Celler.
Mr. CELLER. Thank you.
Mr. KIIATiNG. Mr. Willis has questions.
Mr. WILLIS. May I ask you a couple of questions $
Mr. CMLER.. Yes.
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Mr. WULIs. Do you think-is it your idea-under your bill, the
first part of which is quite similar to the Keating bill and then winds
up differently, in that in. the Keating bill a Federal judge must be
consulted-by taking similar parts of the bill, is it your idea that the
directors of the several. agencies enumerated on page 1 would have to
authorize the tapping in each instance in advance or that they, the
agencies, would proceed under the rules prescribed by the Attorney
General?
Mr. CEi1 t. You see, setting forth in the bill that there should
be a specific tap, with reference to a specific person-if there is some
general investigation they want to conduct, it would be idle to just
limit it to one person through wires to be tapped; therefore, rather
,~. than to set forth all of those details in the bill, I think it is better
to let the Attorney General promulgate his regulations to cover all
those factors.
Mr. WiLLis. Well, now, in reading your bill and comparing it very
hurriedly with the Keating bill, I notice that the first part, of your
bill, as does the Keating bill, provides that the different directors
of the FBI, Military Intelligence, and so on, are authorized; then
jumping to
Mr. CELLER. They are authorized with the express approval of the
Attorney General.
Mr. WILLIS. I understand. With the approval of the Attorney
General
Mr. CET.Lria. Yes.
Mr. WILLIS. To do what?
Mr. CnLLrim. To require
Mr. WILDS. That is on--
Mr. CELL n. Page 2, line 15.
Mr. WILLis. Line 10.
Mr. CELLER. Yes; line 10-to require
Mr. WILLTs. To require telegrams, cablegrams, .and so on, to be dis-
closed and delivered.
Mr. CELL E11. That is, to go to the Western Union and get those
wires.
Mr. Wn is. Right.
Then, starting on line 13, you have this language, not in the Keating
bill :
* * * or, upon the express approval of the Attorney General, to authorize their
respective agents to obtain information by means of tapping-
And so on.
Mr. CELLwwt. That is the very nub of the bill.
Mr. WILLIS. And that is the very important difference, to my mind.
There not only would the several directors have control, but then they
might subdelegate that function to their agents.
Mr CELLrx. That is right.
Mr. WILLIS. Now, that is broadeninoo it considerably.
Mr. CELLF.R. It is, and I thought about that. I didn't know how
we could get around it.
I would prefer to have the authority limited to the heads of those
bureaus, but how can you do that?
Mr. WILLIS. Well
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26 WIRETAPPING FOR NATIONAL SECURITY
;1Ir. CELLER. I mean, you can't expect, in the conditions under which
we live
Mr. WILLIS., I was coming to the point of uniformity. Under those
circumstances, wouldn't you have a greater disuniformity
Mr. CELLER. No.
Mr. WILLIS.. In the matter
Mr. CELLER.. The Attorney General
Mr. WILLIS. In the promulgation of it by the various agents of the,
directors than you would by the hundred-and-some-odd Federal
judges?
That is the point I wanted to ask you about.
Mr. CELLER. Yes. It is possible that interpretation is possible, but
I hope there also that the regulations of the Attorney General would
cover that.
I will say to the gentleman from Louisiana, I think there again I
would hope that the regulations promulgated by the Attorney General
would cover that. We have to rely a great deal on that; otherwise, you
would have to pinpoint so many factors in the bill that you would have,
a bill 20 pages long probably. You couldn't cover everything. You
have got to lodge power somewhere.
Mr. WILLIS. I know, but what is in my mind---
Mr. CELLER. Yes.
Mr. WILLIS. And I have an open mind on it
Mr. CELLER. Yes.
Mr. WILLIS. Is that your point, to delegate authority in a Federal-
judge, in each instance
Mr. CELLER. Well, you could
Mr. WILLIS. Would make for nonuniformity. On the other hand,
without that, it seems to me all these agents would have the bare
pamphlets containing regulations and they, themselves, may be inter-
preting those regulations.
Mr. CEI~r,ER. Tel], if jyou wish, you could tighten that language u
and say "authorize them'-just the word "them' would mean theads
I have no pride of authorship there, and I only p~ it "respective
agents" in there because that is the way the bill carne to me originally.
I thought about those words. I tried to weigh every word here, be-
cause it would have great meaning.
If you feel that is too broad, just substitute the word "them" for
"respective agents" and then you would limit it to the heads.
Mr. WILLIS. Yes. I have no particular feeling about it right now;.
Zr. CELLER. I understand.
Mr. WiLLIs. I am inclined
Mr. CELLER. We want to give and take here so we get the best pos-
sible bill.
Mr. WILLIS. I am inclined to agree we should perhaps limit our
selves. to criminal law and not open up wiretapping in civil litigation,..
unless; there are some strong reasons advancedd
Mr. CELLER. I didn't hear that.
Mr. WILLIs. I say I am inclined to agree with you, at':east to begin,
with, we should limit wiretapping evidence to be admissible in crnn.--
inal law---
Mr. CELLER. Yes.
RM[r. WILLIS. Rather than the broad field of civil litigation.
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WIRETAPPING FOR NATIONAL SECURITY 27
Mr. CELLER. Sure.
Mr. WILLIS. Now, there may be reasons for that.
Mr. CELLrR. Yes.
Mr. WILLIS. There may be reasons that I don't know about now.
Mr. FINE. I might point out to the chairman I don't quite agree
with the second part of the language-that is, the language beginning
on page 15 gives the agents the power to make up their own minds ;
but if you go back to the language, it authorizes the directors to au-
thorize their agents to do a certain thing. It is the directors who
have to authorize their agents, not that their agents have any power
given unto themselves.
Mr. WILLIS. My point was, Would you not be giving these agents
the choice?
Mr. FINE. The language doesn't do that; that is the point. I think
the language only gives the power to the director to authorize his
agents because you can't expect the director to go out and wiretap.
Mr. CELLER. Thank you very much.
Mr. KEATING. Anything further?
Thank you very much, Mr. Celler.
We are happy to have here this morning Mr. William Rogers from
the Office of the Attorney General, representing the Attorney Gen-
eral, of the Department of Justice.
Mr. Rogers, we would be very happy to hear you.
STATEMENT OF WILLIAM P. ROGERS, DEPUTY ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE
Mr. RoGERS. Mr. Chairman, members of the committee, I appreci-
ate this opportunity to appear before your committee.
You have a number of bills dealing with the subject of wiretap-
ping-H. R. 408, 477, 3552, and 5149. I appear in support of H. R.
5149, introduced by the chairman of the committee at the request of
the Attorney General.
The bill provides that information obtained by the Federal Bureau
of Investigation, through the interception of any communication by
wire or radio, upon the express approval of the Attorney General,
and in, the course of any investigation to detect or prevent interfer-
ence wth or endangering of the national security or defense
Mr. KEATING. May I interrupt, Mr. Rogers?
Mr. RoGERS. Yes, sir.
Mr. KEATING. Do you have a prepared statement?
Mr. RoGEris. Yes, sir.
Mr. KEATING. We haven't received that.
You probably prefer to complete your statement before being in-
terrupted with questions.
Mr. RoGEICS. Any way the committee prefers, Mr. Chairman.
Mr. KEATING. Proceed.
Mr. RoGEus. Very well. And in irlie course of any investigation to
detect or prevent interference with or endangering of the national
security or defense shall be admissible in evidence in criminal pro-
ceedings in the Federal courts. The bill thus deals only with a mat-
ter of procedure in that it relates merely to the admission in evidence
of information obtained by wiretapping. As pointed out by the At-
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torney General in his letter to the Speaker dated M~ y 7, 1953, this
proposal contains essential safeguards. He said:
In the first place, its application would be restricted to investigations relating
to the national security or defense. Secondly, wiretap evidence would be ad-
missible only when obtained by the Federal Bureau of Investigation.
Thirdly, wiretapping within t:he contemplation of the bill would require the
express approval of the Attorney General.
Finally, wiretap evidence would be admissible only in criminal proceedings
in Federal courts.
I wish to emphasize the third safeguard mentioned by the Attorney
General : that is, the requirement that before the evidence can be used
in a case it must, have been obtained by the Federal Bureau of Inves-
tigation upon the express approval of the Attorney General. The
Attorney General is the Cabinet officer primarily responsible for the
protection of the national security.
This duty, of course, extends throughout the entire I fnited States,
and is not limited to any particular district or area of the country.
He is the officer of the Government in the best position to determine
the necessity for wiretapping in the enforcement of the security laws.
Because the Attorney General is charged with the responsibility
of law enforcement, it is our opinion he should be given the authority
to use his judgment and discretion within constitutional limits to
obtain evidence necessary to protect our national security.
] note that two of the bills before your committee, 9:77 and 3552,
which, I believe, Mr. Chairman, are identical, provide that prior to
acquiring or intercepting communications investigatory agents must
be issued a permit by a judge of a United States court; authorizing
such acquisition or interception.
I might say there, Mr. Chairman and members of the committee,
that I feel Congressman Celler expressed very clearly the views of
the Department and all the previous Attorneys General by saying
that he felt that this authorization should be given to the Attorney
General and not to the court.
While such a provision on its face appears to offer safeguards, it
contains flaws which become apparent on closer analysis. In the first
place, as a. practical matter, the courts would necessarily rely upon the
Attorney General's recommendation in a particular case that the na-
tional security or defense required the permission to use the investiga-
tive technique of wiretapping.
In the -second place, applications by the Attorney General to dif-
ferent district courts for permission would result not on] k, in a diffu-
sion of responsibility but would increase the likelihood of leaks.
I think Mr. Celler made the point very clearly-the possibility of
leaks.
Moreover, security cases do not lend themselves to investigations
on a limited area basis. Tliey often extend tlirough iiiiiiierous judicial
districts.
In that connection, it should be recalled that the (cold espionage
network extended from New York to New Mexico, covering many
points in between. The Attorney General and the FBI have respon--
sibility for nationwide investigations and, in our opinion, should have
the responsibility for making the decision about wiretapping in the
national interest.
You will note that H. R. 5149, unlike the other bills before the com-
mittee, provides for wiretapping evidence to be admissible in Federal
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courts only when obtained by the Federal Bureau of Investigation.
Since the FBI is the only agency of Government charged with inves-
tigating offenses against the national security and defense for the
purpose of prosecution, and since that agency is an arm of the Depart-
ment of Justice, and therefore responsible and responsive to the Attor-
ney General, H. R. 5149 has been limited to the FBI.
It is to be observed that H. R. 5149, in common with H. R. 408, per-
mits the use of wiretap evidence obtained in the past provided such
evidence was obtained upon the express approval of the Attorney
General. This may make prosecution possible in certain cases where
indictment has not been undertaken because evidence was obtained by
wiretapping. This does not offend the prohibition against ex post
facto laws, for the test as to whether a statute is ex post facto is not
whether it changes the rules of evidence, but whether it authorizes a
conviction upon less proof in amount or degree than was required
when the crime was committed-and the leading case on that is
Thompson against Missouri.
It should be emphasized that such a provision is not suggested with
any particular prosecution in mind. Rather, such a provision would
result in a reexamination of a number of matters which are or have
been under consideration within the Department of Justice.
Since 1928, when the Supreme Court decided the case of Olmstead
against the United States, it has been clear that wiretapping does not
violate rights guaranteed by the Constitution.
Mr. IDEATING. Say that again.
Mr. RoGE+:xs. Since 1928, when the Supreme Court decided the case
of Olmstead against the United States, it has been clear that wire-
tapping does not violate rights guaranteed by the Constitution.
The Communications Act of 1934 in section 605 provides in per-
tinent part that-
no person not being authorized by the sender shall intercept any coimmmnieation
and divulge or publish the essence, contents, substance, purport, effect or mean-
ing of such intercepted communication to any person * * *.
Beginning in 1937 there have been a series of cases in the Supreme
Court relating to wiretapping, the result of which is that because of
the provisions of section 005, wiretapping evidence is inadmissible in
court proceedings. Evidence obtained as the result of leads secured
by wiretapping is likewise inadmissible.
The Nardone case and the Weiss case Congressman Celler referred
to are in point.
In other words, Mr. Congressman
Mr. WILLIS. That is the common-law rule now.
Mr. ROGERS. That's right.
The right of privacy should not be perverted into a license for
unhampered conspiracy to overthrow the Government or to steal its
secrets without possibility of punishment. The activities of espion-
age agents here, as well as in Canada and Great Britain, have done
much to eliminate the technological lag of Soviet nuclear weapons
production. The Attorney General in his letter to the Speaker
pointed out that-
It is quite unrealistic and thoroughly unreasonable that, though evidence is
obtained showing clear violations of. the laws against subversion, the hands of
the prosecuting officers are tied and their efforts to maintain the security of the
39118-63--8
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30 WIRETAPPING FOR NATIONAL SECUR:[TY
Nation are thwarted. As the law now stands, the Government of the United
States is under a serious handicap in protecting itself against spies, saboteurs,
and others who are intent on interfering with or endangering national security.
Of the bills under consideration, H. R. 5149 is, in our opinion, best
calculated to eliminate the serious handicap to which the Attorney
General referred., and to afford to the people of the United States the
assurance that every proper and constitutional step is being taken
to protect the security of their country.
Mr. KEATING. Mr. Rogers, the bells have rung for a quorum call.
Some of the members should respond to that. I have questions--I
presume others have-regarding which we would like to get the benefit
of your views. I suggest that we recess now for 30 minutes.
Mr,. WILLIS. Mr. Chairman, I won't be able to come back. Could I
ask one question that bothers me?
Mr. KEATING. Yes.
Mr, WILLIE. The bill provides that the evidence obtained as therein
outlined--
shall be admissible in evidence in criminal proceedings in any court established
by act of Congress.
Now, do I understand correctly th-tt the criminal proceedings may
be much broader than national defense?
In other words, the first part of the bill speaks of wiretapping
information gathered in connection with detecting violation of na-
tional security, but it would appear from this bill that if, in the course
of that tapping, some information is had in connection with any crime,
collaterally to the primary purpose of the tapping, all that evidence
may be used in any criminal prosecution.
Mr. ROGERS. No; that is not the purpose of the bill-and I see the
point you have in mind. We thought
Mr, KE ATING. Shouldn't that be worded the way my bill is, "any
criminal proceeding involving any of the foregoing violations in which
the United States Government is a party"?
Mr. ROGERS. Well, I don't object to any language the committee
wants to add.
I should say we don't object to any language the committee desires
to add.
We, do not think it advisable to specify the crime because you will
find that there will be lots of cases in investigations involving national
security or defense that may not fit a particular crime. It may turn
out when you go to trial it won't be a trial for espionage; it will be
it trial for arson. It will be clear that it involves the national security
or defense, but it may be, in case of legal technicalities, your proof
doesn't measure up to that.
You likewise may find you will have a crime of inciting to riot,
which certainly was perpetrated by people trying to subvert the
national security and defense.
Mr. Wu Lzs. On the other hand, suppose that the tapped informa-
tion leads to the, fact that the man conveying the information is in-
volved in bootlegging
Mr. RoGERS. As I say, in that case, if it has no relation---
Mr,. WILLIS. Or kidnaping--
Mr, RoGERS. If it has no relation--
Excuse me.
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Mr. WILLIS. Or extortion, or anything else, as a sideline, so to speak,
then that information could be used in all criminal proceedings,
as the bill reads, I am afraid.
Mr. ROGERS. Well, we didn't intend it that way, but I hate to limit
it to any particular crime.
Mr. WILLIS. I see.
Mr. KEATING. The committee will recess for 30 minutes.
(Whereupon, at 11: 15 a. in., the hearing was recessed, to reconvene
at 11:45 a. m.)
(The hearing reconvened at 11: 48 a. m.)
Mr. KEATING. We will come to order.
Did you complete your staterrrent?
Mr. ROGERS. Yes, Mr. Chairman.
I might, with your permission, make a few observations about the
last matter we were discussing.
We would have no objection to appropriate language to make it
clear that wholly unrelated crimes like Mr. Willis suggested-boot-
legging or something not be permitted. On the other hand, we do
recognize the real danger in trying to set forth the crimes because very
often an investigation turns out to develop proof of another crime-
arson, perjury, or something-which clearly involves the national
security or defense, but may not have been named in the bill; and, for
that reason, we would hate to have that limitation in our bill.
Mr. KEATING. In other words, you wouldn't want it limited to the
specific violations spelled out in the bill?
Mr. ROGERS. That is right, Mr. Chairman; but we do think the viola-
tions should be related to national security and defense.
As I say, I can conceive of situations where an investigation would
clearly show that persons were engaged in sabotage, but the proof
might not be quite such to proceed on the sabotage case, but you had
a good case on arson. Well, in that event, it would be unwise, it seems
to me, to tie the hands of the Department of Justice in prohibiting
the use of evidence obtained by wiretaps in the arson case; and there
are a lot of other examples you could think of.
Mr. KEATING. You don't have any specific language which you would
suggest to cover that ]Imitation?
Mr. ROGERS. Well, I think that probably the legislative history of
the act, if it is passed, would be important. You might have language
something like this-"but only in cases involving national security or
defense," or "only in cases arising out of such investigation;"- sortie
such limiting language like that to make it clear that it was not to
be used in unrelated offenses.
Mr. CRUMPACKER. Is the FBI. the only Federal investigating agency
which deals with national security?
Mr. ROGERS. No; but they are the only investigating agency which
is charged with the development of information for the prosecution
of offenses involving the national security.
Mr. CRUMPACKER. If the intelligence divisions of one of the mili-
tary services uncovered some act of espionage, or something of that
sort, the prosecution would still be conducted by the Department of
Justice, would it not?
Mr. ROGERS. That is correct, but I think you will find, as a practical
matter, that as soon as any agency,. other than the Department of
Justice, has any facts brought to its attention by the crime you sug-
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31 WIRETAPPING FOR NATIONAL SECURITY
gcst, they are immediately turned over to the FBI, and from that
point on the investigation is conducted by the FBI.
Mr. CRUM PACKER. Well, Su pose, for an exam ple, that. the FBI was
never able to obtain any evidence sufficient to obtain a conviction on
its own after some other investigative agency had uncovered some
such evidence; what would you do then?
Mr. ROGERS. Well, I'm not sure I understand your question.
Mr. CRUMPACKER. Well, some of these other bills here propose to
make it possible for the FBI, the Military Intelligence Division. of the
Department of the Army, the Director of Intelligence, United States
Air Force, and the Chief of the Office of Naval Intelligence of the Navy
Department to conduct wiretapping investigations.
Mr. ROGERS. Well, if you don t mind, I think I see a point, and that's
just-if you don't mind, for a moment-consider it as a practical
matter.
Suppose that the Chief of the Office of Naval Intelligence of the
Navy Department wanted. to operate under H. R. 477. As I under-
stand it, they would first have to get the approval of the Attorney
General.
1; think that's right, isn't it-.---
Mr. CRUMPACKER. Yes.
Mr. ROGERS. As I understand the bill.
Now, right at that point, if they had information showing there
was a possible violation of national security or defense, they would
in?ing it to the Attorney General's attention-the matter from that
point on would be investigated by the FBI, and, the wiretap would
1fe inade by the FBI, because, under the law, the Department of Justice
hay the responsibility for developing cases involving prosecutions
order the national security and defense.
MMIr. KEATING. Suppose it involved-if you just let me ask a ques-
tion right along that line-the discipline of some member of their
own forces?
14 fr. ROGERS. Well, I don't think that-
Let's see if I understand your question. Are you thinking of a case
where a member of the Armed Forces is engaged in espionage or
sabotage?
Well, it is my understanding that, in this case, the FBI would con-
duct the investigation probably in conjunction with the Army or the
-\'avy, but certainly if there was evidence given to the Navy that some-
one in the Navy was engaged in espionage or sabotage, and under
this bill, 477, they came to the Department of Justice and notified
t be Attorney General to that effect and wanted permission to tap the
wires, the Department of Justice would have to pro: Ted from that
point on because we have the primary responsibility for enforcing
laws.
Mr. KEATING. Well, what if they were seeking to get evidence which
might form the basis of disciplinary action within the armed services?
That prosecution, punishment, might take place, might it not,
within the branch of the service itself rather than being turned over
to the Attorney General for prosecution?
~Ir. ROGERS. Well, I suppose there are disciplinary actions that
m night be of that type; but I think if it reached the stature of espionage
or sabotage, anything that directly related to national defense, as
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WIRETAPPING FOR NATIONAL SECURITY 33
distinguished from disciplinary action, the Department of Justice
would be under a statutory obligation to proceed.
Mr. KEATING. Well, the crimes listed are rather broad-all of them,
however, involving the national security-and I am not sure where
the line is drawn there.
We are going to hear the representatives of the armed services. It
may be they would feel the FBI is the only agency that needs this
authority, but it strikes me, offhand, it might be needed by the intelli-
gence departments of the various branches of the armed services.
Mr. ROGERS. Well, I might say, Mr. Chairman, we don't have a
strong feeling on that point, and I don't want to convey that impres-
sion to the committee.
I do think it's important for the future, whichever bill the commit-
tee sees fit to report out, that we limit this as much as possible be-
cause there may be considerable opposition to it; and the Depart-
ment's position is that we're most anxious to have the bill simple
? enough so that we can proceed in these matters of extreme importance
involving espionage and sabotage and would hate to have anything
included in the bill which was not of major importance, which might
weaken the possibilities of passage
Mr. KEATING. Well., the--
Mr. ROGERS. But we don't have any
Mr. DATING. Possibilities of passage would be probably consider-
ably weakened by giving this entire power to the Attorney General
rather than having an outside tribunal, like the court, pass on it.
Now, that may be necessary, but we have to measure the advantages
of a bill strong enough to do the job against a bill with the possi-
bilities of opposition.
Mr. ROGERS. Yes.
Well, I appreciate that', Mr. Chairman.
Mr. KEATING. It doesnt occur to me, offhand, it would increase the
opposition to a bill to give this power to the recognized intelligence
departments of the various armed services, any more than to give
the sole authority to the FBI.
I don't have any preconceived
Mr. ROGERS. Well, another thought in that connection, Mr. Chair-
man, that occurs to me is this : Where do you draw the line?
I notice the Atomic Energy Commission is not given the authority
or CIA is not given the authority.
Mr. KEATING. I don't know as the Atomic Energy Commission has
an intelligence unit. Maybe they do.
Mr. ROGERS. I believe---
Mr. KEATING. Do they?
Mr. ROGERS. I believe so, Mr. Chairman. I am not sure.
Mr. KEATING. Well, we will have to look into that.
Excuse me, Mr. Crumpacker. I interrupted you for that question.
Mr. CRUMrACRER. As a practical matter, does the FBI conduct in-
vestigations on military establishments or do the military services
conduct them, themselves, within their own intelligence agencies?
Mr. RoGERS. Well, I am not sure of that, Mr. Crumpacker. I think
that probably generally the FBI does not conduct them on military
establishments ; but I would have to check on that.
I feel sure if it was a crime involving espionage or sabotage-one
of the important crimes-that the FBI would, in any event--I know,
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34 WIRETAPPING FOR NATIONAL SECURITY
from my own experience in the matter, as a practical matter, on small
disciplinary matters the FBI would not. They would be handled by
the Army, the Navy, or the Air Force.
Mr. ROGERS. But on these major things, I am not sure.
Mr. CRUMPAC:KER. It is my own recollection, from my :Own service in
the Army, that the Army Intelligence investigated everything on mili-
tary installations, including suspected espionage.
Now, there may have been further investigations by the FBI in
progress that I had no knowledge of.
Mr. ROGERS. Well, I think that is probably correct.
But it was my thought that-suppose the investigation. of espionage
is made by the Army or the Navy, and at some point along the line
they think it is developed-at that point they go to the Attorney
General and ask for permission to have their matter presented to the
court. Now, I think at that point the Attorney General would be
under some obligation to proceed himself.
Mr. CRUMPACK.ER. Well, the point I was trying to make a while ago
was: Suppose, for example, Army Intelligence may tap a telephone
on some military installation and gain evidence of some act of espion-
age; then they notify the FBI but the FBI is never able to get any
concrete evidence on this particular individual. Would you not, then,
face the possibility of not being able to obtain any conv'.ction because,
under your recommended bill, any evidence obtained by the Army
through wiretapping would not be admissible in the trial?
Mr.. ROGERS. Well, I don't think, if I understand you correctly, that
the facts as you have outlined them would have occurred, because, as I
understand it, before the tapping takes place, they have to come to the
Attorney General and get his permission.
As I understand your question, you suppose the Army makes the
wiretap first, without any permission-and in that event it wouldn't
be admissible in any of these bills.
Mr. CRUMPACKER. That is correct.
It wouldn't be admissible under H. R. 5149. As I understand these
other bills, they would authorize the military-intelligence agencies to
conduct wiretapping on their own after following proper procedures.
Mr. ROGERS. Yes; but not until the matter had been called to the
Department of Justice's attention.
Mr. CRUMPACKER. I am assuming what Mr. Celle r, for example, was
assuming here earlier today-that a lot of this wiretapping is going
oii at the present time without any statutory authorization, and it
might possibly continue to go on, even after the enactment of some
legislation, particularly inasmuch as H. R. 5149, as I read it, does not
provide any penalty for any unauthorized
Mr. ROGERS. That is correct.
Mr. CRUMPACKER. Wiretapping.
Mr. ROGERS. That is correct.
Mr. CRUMPACKER. Don't you think there might be some hazard
involved in restricting it as closely as the H. R. 5149 does?
Mr. ROGERS. Well, unless further testimony develops that there are
cases where the Military Establishment would have exitlusive auto or-
ity to investigate these cases involving national security, defense, then
our present position is that it should be limited to investigations con-
ducted by the Federal Bureau of Investigation because, as I say, it
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seems to me in any case where the Military Establishment calls to the
attention of the Department of Justice facts which would justify wire-
tapping-in that event, the Department of Justice would be under
obligation to then proceed itself, and anything less than that would
not be admissible, anyway, under any of these bills.
In other words, if the Army made the wirettap first and obtained
evidence, and then came to the Department of Justice, to try to get
the Attorney General to go to court to get permission, it would be
too late. That evidence wouldn't be admissible in court, anyway, as
I understand it.
Am I right in that, Mr. Chairman?
As I read the bill, it says--477 says :
? Provided, That, prior to acquiring or intercepting the communications from
which the information is obtained, an authorized agent of any one of said
investigatorial agencies shall have been issued a permit-
and so forth.
So, nothing they obtain prior to that time is admissible, anyway.
Mr. CRUMPACxER. The position of the Department is definitely
opposed to extending to any of these other Federal intelligence agen-
cies; is that correct?
Mr. ROGERS. Well, as I said earlier, we are opposed to it because
we don't think it's necessary, and we think it is more advisable to have
the FBI do it.
We're not inflexible on it. If it develops on in further testimonq
here that there is a substantial need for it, we certainly wouldn t
oppose it.
But our present position is that it is not needed, and we think it is
better to have the FBI do it.
Mr. CRUMPACxER. That is all.
Mr. KEATING. The most important difference between the recom-
mendation of the Attorney General and H. R. 477 seems to be this
question of whether application should be made to court or whether
this power should rest only in the Attorney General.
There is, of course, also the very important difference that in the
recommendation to the Attorney General there is no provision about
penalties for illegal action in this field.
I want to ask you a few questions about those two differences
between the approach of the Attorney General and the approach in
H. R. 477.
You had some experience in the prosecutor's office in New York,
and at that time was section 813 (a), the law which was amended by
the laws of 1942-I don't remember whether you
Mr. ROGERS. I think I was, Mr. Chairman. I was in that office both
before and after the war. I have forgotten the particular section, but
I know we did operate under a statute which permitted it, and I do
have some experience with it.
Mr. KEATING. Did you yourself have any specific experience under
it?
The point I am leading up to is : I think it is important for us to
find out what the experience has been under it.
I have been firm about my approach, which is initially to feel it is
desirable to have this added safeguard in the application to the court.
However, I might be convinced otherwise were I sure there was no
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36 WIRETAPPIATG FOR NATIONAL SECLPRITT
way of handling it without leading to abuses in the way of breach
of security.
What experience, if any, did you have in that regard when you were
in the prosecuting office in New Yo-k?
Mr. ROGERS. Well, I had some experience with it, Mr. Chairman.
My experience was limited to hand ling several applications, ex parte,
and I have no recollection of how many, by which we obtained per-
mission to tap wires; and I also tried cases involving situations where
wiretaps had been obtained. In other words, I have tried cases where
wwe used the wiretaps pursuant to the court order.
My first reaction to it was the same as yours.
I think that anything we can do to provide safeguards in this field
is advisable.
In New York, of course, I think i he committee should bear in mind
that the situation is not at all analogous to the one we're dealing with
here. In the first place, my recollection is that it covers all crimes-
both felonies and misdemeanors-so that you have a raft of crimes,
bookmaking, prostitution, all sorts of things, which are covered by it;
and if you didn't have some safeguard I suppose, because of the wide
nature of the crimes involved, you would have the possibility of serious
abuse.
The second and important difference is that in New York each county
has its own prosecutor, so that you have each county---if you left it
up to the district attorney in each county, you might have serious
abuses.
In this situation that we're dealir a with, we're dealing with crimes
involving the national security or defense only. Secondly, we're deal-
ing witli the chief law enforcement officer of the United States. .
If any of these bills provided that each United States attorney had
the right to make that decision, I'd certainly be against, it; but some-
where along the line, when you're dealing with national security, you
have to trust somebody and it seems to me that the proper party to
trust is the Attorney General of the United States.
I want at this point to say that I disagree with one thing Congress-
man Celler said. He indicated that the Attorney General might dele-
gate this power.
As I read the law, or the proposed bills, this wou?_d be a power
that he couldn't delegate because it says express permission, as I recall
it.
Mr. KEATING. Express approval.
Mr. ROGERS. Yes; and we certainly intend that that means that the
Attorney General, himself, has to pass on this in each instance.
Now, if I may proceed for just a moment along that line : Assume
that the Attorney General is required to go to court, to district court,
before he can get permission to do this. Certainly it couldn't be ex-
pected that the Attorney General would have to;disclose to the court
the real facts of the case. In the first place, the court wouldn't want
it ; and certainly I don't think it would be advisable in the interests of
the country.
Even within the Department of Justice when we have a matter
like this we only tell the people that need to know. We don't tell
anybody else, because the more people that have this type of infor-
mation, the greater danger there is o1? a leak.
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So, as a practical matter, the court would probably take the recom-
mendation of the Attorney General, which would be in rather general
form. Probably it would be something to this effect : "The Attorney
General certifies that he has information which he feels indicates that
the national security or defense may be violated and that he feels cer-
tain wires should be tapped."
I know that that's the way it's done in New York. The affidavits
aren't very factual. They're just general in nature, and I don't recall
any difficulty in getting the permission of the court. My own experi-
ence is that it's pretty easy.
Mr. KEATING. What does the court do? Aren't those applications
and the orders sealed up and placed in a safe, or are they public
property?
Mr. ROGERS. I don't recall, and I don't believe there's anything you
could do, Mr. Chairman, that would guarantee that anything could be
sealed up and kept from anybody else's eyes. I think with all the
judges we have throughout this country you couldn't make any
provi- sion that would guarantee absolute secrecy Judges have secretaries
whom they trust; they have court clerks whom they trust, and I think
the safeguard that you provide is illusory. I just don't think it exists.
I think, as a practical matter, the courts would go along with the
Attorney General.
On the other hand, I think you would open tip very serious possibili-
ties of a leak, and I think if you talked to people off the record in
New York State, if you talked to police officers or others who have had
experience in this field, you would find that is a serious problem in
New York State.
Mr. KEATING. Well, we hope to have some representatives from the
bar or the prosecuting agencies in New York appear before us.
Mr. ROGERS. Well, as I say, I think the idea is a good one. I think
the safeguards are fine.
I think in this field of national security, when you require the At-
torney General to expressly do it by his own act, that that is sufficient
safeguard.
And I was interested to hear Congressman Celler say that's been the
consistent view of the Department of Justice under both administra-
tions.
Mr. KEATiNG. Well, it is natural for any cabinet officer-that is why
we have the coordinative branches of the Government-to oftentimes
feel that it will expedite matters if he has the sole control of it, and
that isn't a political matter. It is a matter inherent in the administra-
tion of the executive side of the Government, which you will always
encounter.
The problem for this committee is to weigh the protection which is
afforded against abuses, which, it strikes me, is somewhat greater if the
application to the court is made as against the structure of the whole
thing we are seeking to accomplish.
If the information were going to be made public so that the person
under investigation was going to know about everything that was
going on, of course, there would be no point in any legislation at
all
Mr. RoG1u s. That is right.
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Mr. KEATING. And the primary purpose of introduc:.ng legislation
was to meet a serious problem that cur country faces in these disloyal
characters' operations.
You feel the application to the court would throw such a cumber-
some burden upon the Attorney Gen-Iral that you would rather not see
any bill than a bill with such provision?
Ma'. RouanS. .No; I do not, Mr. Chairman. I do not. I mean, if it
conies down to a question of whether we can have a bill Massed, and we
have to get permission, certainly we would prefer that.
I think, though, that when you're dealing with the subject of na-
tional security and defense, and you're dealing with the chief law-
enforcement officer of the United States, there's no reason to suspect he
will misuse that power.
If this applied to other crimes, al i crimes, other purposes, then I'd
certainly think that-well, put it another way : My attitude would cer-
tainly be changed; but in this one field, where the possibility of a leak
can destroy the whole thing, the fever people that know about, the
better; and, as I say, I don t believe it's any added safeguard.
I'm not sure how the bill would work. I in not sure if you have a
ring, an espionage ring, whether you would have to get permission
from each court where the tap was made in that district.
Suppose there were 10 people throughout the country. Would you
have to go to each district court?
Ind, if you did, you would have 10 judges that knew it; you would
have probably their secretaries that knew it.
I don't know of a judge-well, I shouldn't say that-but I think, by
and large, the judges' secretaries know what's happening.
Mr. KEATING. I don't believe, to ar swer your specific objection, that
would be: necessary under the wore .ing of H. R. 477. It says any
judge-a judge of any United States court. I would thank one judge
would sign an order relating to all the members of a ring, even though
the operations were not all in the realm of his district because this is,
of course, an ex parte application.
Mr. ROGERS. Yes. Well, I wasn't clear. It seemed that way to me,
Mr. Chairman.
Mr. K:FATZNG. Of course I thinklax in most cases, the court would take
the view of the Attorney deneral; d if he were going to do so in all
cases, your argument is that really doesn't add a safeguard.
We have to assume, I think, the independence of the judiciary, and
some judges that I have appearead before have asserted that inde-
pendence with considerable force, and
Mr. ROGERS. I guess we've all had that experience, Mr. Chairman.
Mr. KE.ATING. I think most of us have.
'i.'he point is nude: There would not be a uniformity in application,
and I think probably that is true; bu!;, rather than being an objection,
that perhaps is an argument; for the a-Vlication to the court. It would
be of little value were it to become a stereotype proceeding.
I think a good many judges would inquire into the merits of the
application rather fully before they granted the authority.
I would like to return to this other point, about the imposition of
penalities for unauthorized or illegal wiretapping.
Would you present your views on that and the reason for not includ-
ing that in the bill which you submitted?
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Mr. ROGERS. Wel l
Mr. KEATING. Of course, your bill really is designed only to meet
the question of the use of the evidence.
Mr. ROGERS. That's right.
Mr. KEATING. How do you feel about the imposition of penalties
for unauthorized interception of communications?
Mr. RoGERS. Well, let me just speak personally for a moment.
I am very much opposed to unlimited and unwarranted wiretap-
ping, and I think probably it's been abused, although I don't know
that of my own knowledge. Things .1 have heard indicate that, and
I think that some considerable study and care should be given to that
subject, and if appropriate legislation can be worked out, which
would prohibit so the line of demarcation could be clearly drawn,
we'd be inclined to be for it.
The difficulty now is that the law is so nebulous that it's very difficult
to obtain successful prosecutions under it, and we'd have no objection
to that at all.
I do think, though, that if we can avoid tying it up here we'd pre-
fer it because-I mean tying it up with this bill. I think the committee
would want to make a pretty careful study of that, because I can ima-
gine agencies like the Atomic Energy Commission and CIA and others
might have views that they would wish to express on it. I just don't
know enough about that. subject to know.
Certainly as to other wiretapping generally, I am very much op-
posed to it; and we would like-if we had a clear-cut law, we certainly
would proceed against wiretappers.
Mr. KFATING. It would seem to me that it would be appropriate to
deal with this problem in a single piece of legislation, because I do
want to stress what Congressman Celler said: That the purpose in
mind, I believe, of the, authors of all these bills is definitely twofold :
(1) To lay down the narrow class of cases in which this wiretapping
will be permitted and the very definite procedures which must be fol-
lowed to obtain permission; and
(2) On the other hand, to say, after those lines have been laid down,
anybody that steps outside those bounds, is going to face stiff and severe
penalties.
And I think it would facilitate the passage of the legislation to
have both of those problems at a single time, regardless of the language
of any particular bills before us.
In any event, you do not oppose in principle dealing with that side
of the problem; it is only a question in your mind whether it should
be tied up in a single bill?
Mr. ROGERS. That is correct, Mr. Chairman; we agree with it in
principle. We think it is a matter of legislative policy.
Frankly, I don't know enough about the subject in the other depart-
ments and agencies of Government to want to express an opinion on it,
but--
Mr. KFATING. We are anxious
Mr. RoGERS. I agree with the chairman in principle.
Mr. KEATING. We are anxious to hear as many of them as we can.
Mr. Fine, did you have questions?
Mr. FINE. No questions.
Mr. KEATING. I don't know whether we obtained your views on the
subject, or question, whether this permission to intercept cornmunica-
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40 WIRETAPPING FOR NATIONAL SECURITY
tions and then introduce the evidence in court should be limited only
to offenses directly or indirectly involving the security of the country
or whether it should be widened, as it is in Mr. Celler's bill, to laws
involving the safety of human life.
Mr? ROGERS. Well, Mr. Chairman, .[ think the colloquy between you
and Congressman Geller pretty much expressed our views on it.
We, think it is of primary importance that we get sortie legislation
in this field of national security, because it's so important to every
one of us today. l:f you start to make distinctions between other kinds of crimes, it's
rather difficult. As you pointed out, kidnapping is a serious crime
and we all feel very strongly about it; but so is selling narcotics to
minors.
~ certainly have no objection to the extension to include kidnap-
ping;, but I think, though, maybe the first step ought to involve just
the national security and defense.
Alr. KEATING. It strikes me that way, offhand, and if the law then
is not abused, it might be desirable to consider extension to other spe-
cified. crimes. But I would feel that, in any event, if we were going
beyond those designated involving national security, the language
"those involving the safety of human life" is too broad and that we
should get beyond that and spell out the specific offenses which we
are going to have covered by the legislation.
-l]% ROGERS. Yes; I certainly agree with that.
Mr. KEATING. Mr. Foley, do you have questions?
Mr. FOLEY. Yes, sir.
Mr. Rogers, have you given any consideration to the practical trial
aspect that might arise under your bill in laying the groundwork for
the admission of this evidence?
As I see it, you have two conditions :
(1) The express approval of the Attorney General; and
2) The information was obtained during the course of investiga-
tion involving national security.
Mr. ROGERS. 'That's right.
Mr. FOLEY. And realizing that one of the most frustrating aspects
of national security prosecutions, it is just how much evidence -you
want to reveal in open court.
But now, as I read your bill, you are going to have to lay a ground-
work and show some evidence.
Mr. ROGERS. Yes.
Mr. FOLEY. You know, under trial practice, once you open the door,
how far. the defense is able to go on cross examination----
Mr. ROGERS. Yes.
Mr. FOLEY. And that practical problem, I think, is obviated under
Mr. Keating's bill, 477, because, from experience in the prosecutor's
office, you merely put in the court order and thatwould end it. There
would be no question about the evidence that sustained it, because it
was a discretionary act on the part of the judge.
Mr. ROGERS. Well, I think that is a good point.
It was our thought on that that the decision would be made by the
court at the time, just the way it is in the first instance in New York.
In other words, rather than give the court that information and create
this possibility of disclosure, you do it with the some thing at trial-
have the court decide it. I don't think under the stati.rte the defense
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WIRETAPPING FOR NATIONAL SECURITY 41
lawyer would be entitled to it. The judge could just look at the papers
and decide whether the statute was complied with by the Attorney
General and, if so, admit the evidence--admit the wire-ta loping evi-
dence.
Mr. FOLEY. Yes; but don't you think he would have good grounds
to object to its admission on the basis that it wasn't relevant under
the statute?
Mr. ROGEIiS. That, it was what?
Mr. FOLEY. That it was not relevant; that the information was not
obtained during the course of an investigation involving national
security.
Mr. ROGERS. Well, yes; if he. thought that was the case. That is
why I say
I Er. FOLEY. And you know the extremes they will go to in that case.
That is the thing tlitt bothers me-the practical problem of the extent,
to which defense counsel will go.
+ Mr. ROGERS. I would rather take that risk rather than the risk of
leak before time because one leak can destroy the whole investigation.
You can have months of work destroyed by telling one person, and
the FBI uses extreme care in these matters to prevent that.
Mr. FOLEY. That is all, Mr. Keating.
Mr. KEATING. Mr. Fine.
Mr. FINE. Mr. Rogers, I was interested-I assume that. page 4 of
your statement referring to the use of wiretap evidence obtained in
the past was tied in with line 5 of the bill-that is, heretofore
received
Mr. ROGERS. That is correct.
Mr. FINE. Or heretofore obtained
Mr. RoGERS. That is correct.
Mr. FINE. And I am a little concerned as to the fact, even though
you do say that the provision doesn't suggest any particular prose-
cution at the moment--
Mr. ROGERS. Yes.
Mr. FINE. To say it would give you the opportunity to reexamine
a number of cases. Do you know those matters you have in mind, or
would you care to tell us?
Mr. ROGERS. I don't know, and I don't think I would be at liberty
to discuss them if I did.
Mr. FINE. Well, I am concerned about going back in the past in
matters of this sort. I can see if we laid down a rule it might, be all
right for the future, but why resurrect the past for purposes of
Mr. ROGERS. Well, I want to respectfully disagree with you there.
I think it is most important, if we have evidence in our files which
show that people now in this country have engaged in espionage,
sabotage, or some other crime, and we can't-and the statute of limi-
tations hasn't run, and we can't prosecute those members just because
we have a rule of evidence which prohibits the introduction of this
in evidence- my personal feeling is that we're being very unrealistic
as a nation not to prosecute them. That is one of the things that
makes me about as mad as anything I know, Mr. Congressman.
Mr. FINE. You limit yourself by saying only if it is obtained with
the express approval of the Attorney General.
Mr. ROGERS. That's right.
Mr. FINE. Well, who is to prove that?
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42 WIRETAPPING FOR NATIONAL SECURITY
Mr. ROGERS. Well, that's been donu.
Mr. FINE. How do we know?
I mean, you are asking the Congress now--
Mr. ROGERS. Well, when I--
Mr. FINE. To sanction or approve the resurrection of litigation
without telling the Congress specifically what you have ir, mind, No. 1,
and what; evidence-and whether or not the evidence has been obtained
with the express approval, and what evidence has been obtained.
Mr. ROGERS. Well, I think in that connection that certainly we
couldn't proceed unless we had-when we talk about express approval,
we mean the written approval of the Attorney General, ;and we could
only proceed in those cases.
Now, it's no secret-in fact, it's been testified to a number of times
by our predecessors-that that practice has been in effe:,t in the De-
partment of Justice and that's a matter of common knowledge, both
before Congress and in the courts.
Mr. FINE. What I was emphasizing is that here we are sitting and
we are asked to pass upon certain types of legislation to give you a
blank check. If that's what you want, just say it.
Mr. ROGERS. No; I don't.
Mr. FINE. Isn't that what you are asking that we give you?
14r. Rcir,ERS. We don't want any blank check at all.
Mr. FINE. If you don't want a blank check, what do you want?
ir.. Ro(ERs. What we are asking in that regard is: If the Depa:rt,
meat of Justice now has evidence in its possession, w';iich was ob-
tained after express approval by the Attorney General, as a result
of wiretapping, and we can proceed in court, with all. the judicial safe-
guards provided in this country, to prove that a person was engaged
in espionage, and the statute of limitations has not run, we feel tat
just good commonsense dictates that we proceed.
We've got to comply with all the court rules, and we've got to prove
our case beyond a reasonable doubt; and the defendant has all the
safeguards which we provide under our system of constitutional law.
So, we certainly don't think it's a blank check that were asking
for.
Mr. FINE. Well, certainly a blank check with respect: to informa-
tion that we, ourselves, don't know anything about, and we are asked
to give the power to use the evidence you now have in your files in
litigation which may be suspended at the moment.
Mr.. RoGERS. Only in a very limited field-national security and
defense.
Mr. FINE. Well, we don't know---
Mr. ROGERS. Well, that
Mr. FINE. As Mr. Willis points out, any criminal. case.
Mr. ROGERS. Well, I guess you were not in the room when we had
that discussion. We're perfectly willing to limit it to matters involv-
ing national security and defense. Before you came in we discussed
that, and I made it clear we had no objection to that limitation.
Mr. KEATING. Would that give you the authority under the word-
ing of your bill to introduce in court evidence obtained by wiretap-
ping in any case in which an indictment has already been found, or
would it apply only in a new indictment?
Mr. ROGERS. I think it would probably apply to both.
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WIRETAPPING FOR NATIONAL SECURITY 43
I might say, Mr. Chairman, we haven't reviewed this with the idea
of proceeding in any particular case. I made that clear, I think, in
my statement, but I think it would apply to both.
Mr. KEATING. Your feeling is that it would not be subject to ob-
jection as being ex post facto legislation because it would have to do
only with the rules of evidence?
Mr. ROGERS. That's correct.
Mr. KEATING. It wouldn't have to do with defining the nature of
the original crime which was alleged to have been committed?
Mr. ROGERS. That's correct.
In this case I cited there was a prosecution for murder. They tried
the case first and they didn't get a conviction because the person had
written out the prescription for strychnine in his own handwriting,
and in that day you couldn't offer handwriting-expert testimony ;
and after the trial, before the second trial, the law was changed to
permit the introduction of that handwriting testimony arid,-as a re-
sult of that, obtained a conviction. The Supreme Court said that was
not ex post facto.
Mr. KEATING. Anything further? Thank you very much, Mr.
Rogers.
Mr. ROGERS. I thank the committee very much.
Mr. KEATING. You have been very helpful. The committee will
recess at this time until 2 o'clock.
(Whereupon, at 12: 40 p. in., the hearing was recessed, to reconvene
at2p.m.)
Mr. KEATING. The committee will come to order. It is unfortunate
that we have these interruptions.
The next witness is Mr. Rosel H. Hyde, Chairman of the Federal
Communications Commission.
Mr. Hyde, we are glad to have you here, and happy to hear you.
STATEMENT OF ROSEL H. HYDE, CHAIRMAN, FEDERAL
COMMUNICATIONS COMMISSION, WASHINGTON, D. C.
Commissioner HYDE. Mr. Chairman, my name is Rose] H. Hyde,
and I am the Chairman of the Federal Communications Commission.
I sincerely appreciate the opportunity to testify before you concerning
these important bills dealing with the interception of communications.
The bills which you are presently considering all relate to the
existing prohibitions in section 605 of the Communications Act against
the interception of private communications by wire or radio. Each
of the bills would have the effect of modifying the existing prohibi-
tions in section 605 to authorize interception of private communica-
tions by representatives of specified agencies of the Federal Govern-
ment in the course of investigations involving possible violations of
Jaw relating to the national security or national defense.
The Commission has prepared and submitted to your committee
comments on these bills consisting of a rather detailed analysis and
discussion of the provisions of the several proposals and the extent
to which their enactment would change the present Communications
Act. The basic policy questions raised by the proposals, however-
whether it is necessary in the interest of national security to authorize
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44 WIRETAPPING FOR NATIONAL SECURITY
the specified agencies to intercept private communications and the
specific safeguards which should surround any such authorization-
are questions concerning which we have very little information, and
we are not in a position to make a recommendation. We, therefore,
are neither supporting nor objectiiLg to the enactment of any of
the bills.
We do agree, however, with the apparent objective of section 6 of
H. R. 408 in attempting to clarify the existing prohibitions on the
interception of messages by persons other than those who might be
expressly authorized to intercept such messages. As the Commission
has pointed out in its more detailed comments, the present language of
section 605 of the Communications Act is far from clear. And this
has led to a considerable amount of confusion as to. whether unauthor-
ized interception of a message is illegal per se, or whether it is only
illegal where the information secured thereby is publicly divulged or
used in a subsequent court proceeding. This is not an easy question
or one which too readily lends itself to legislative draftsmanship.
Thus, no one would suggest that it should be a violation of law for a
person going out of town to authorize his secretary to open any tele-
grams which might come for him and take any emergency action
that might be required. On the other hand, it seems ~o,qually clear
to its that it was not the intent of Congress in adopting the present
language of section 605 to permit outside parties to intercept private
radio or wire communications and use them for their own ends and
to the possible detriment of the parties to the communication.
We have pointed out in our detailed comments some of the questions
which are raised by the existing language of the Communications Act
and some of the problems which might; result were the specific language
of H. R. 408 to be enacted into law. And we have advanced for the
consideration of your committee a possible way of taking care of these
problems.
We do not wish to take the time of the committee on the details of the
various proposals. We do offer, however, the assistance of our lawyers,
our staff people, and the Commissioners themselves, .Eor any assistance
that we might be able to give the committee.
Mr. KEATING. This document, headed "Comments of the Federal
Coininunications Commission on H. It. 408, II. R. 477, and H. It. 3552,
Bills To Authorize Acquisition and Interception of Communications
in the Interest of National Security and Defense," are the comments
to which you refer, are they?
Commissioner HYDE. Yes, Mr. Chairman.
Air. KFATING. And you suggest that these be made a part of the
record it this point?
Commissioner HYDE. Yes. We believe that they may be helpful to
the further study of the legislation. And if there are any questions
that arise from examination of that analysis material, or any other
services we could possibly offer in connection with your study of this
matter, we would be pleased to be called upon, of course.
Mr. KEATING. Was this prepared by you just recently?
Commissioner HYDE. It was. But, Mr. Chairman, it does include a
substantial amount of material from comment that has been submitted
on previous occasions when there have been bills directed to this
subject matter.
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(The document referred to follows:)
COMMENTS OF TILE FEDERAL. COMMUNICATIONS COMMISSION ON H. R. 408, 11. R. 477,
AND II. It. 3552, BILLS TO AUTIIoItIzE ACQUISITION AND INTERCEPTION OF COM-
MUNICATIONS IN TIIE INTEREST OF NATIONAL SECURITY AND DEFENSE
The provisions of H. R. 477 and II. R. 3552 are virtually identical. Each of
these bills would authorize certain named officials of the United States Govern-
ment, under rules prescribed by the Attorney General, to require that telegrams,
cablegrams, radiograms, or other wire or radio communications be disclosed and
delivered to any authorized agent of one of the Government investigatorial
agencies named in the bill. Each also provides that, with the express written
approval of the Attorney General, information obtained by intercepting or record-
ing telegraph, telephone, cable, or radio communications, shall, without regard to
the limitations of section 605 of the Communications Act of 1934, be disclosed
and delivered to such named officials. The authority which would be given to the
officials named would be used only in connection with investigations to prevent
any interference with national security and defense by treason, sabotage,
espionage, sedition, conspiracy, violations of neutrality laws, violations of the
act requiring the registration of agents of foreign principals, violations of the
act requiring the registration of organizations carrying on certain activities
within the country, "or in any other manner."
The bills provide that information obtained in the manner authorized by this
statute shall be admissible in evidence in criminal or civil proceedings in which
the United States is a party provided that prior to acquiring or intercepting any
communication, a permit has been issued by a judge of any United States court
authorizing the acquisition or interception of the communications. A judge of
any United States court would be required to issue such a permit upon applica-
tion of an agent of one of the named investigatorial agencies if the judge is satis-
fied that there is reasonable cause to believe that the communications in question
may contain information that "might assist in the conduct of such investigation."
There is also a provision in subsection (c) of these bills which would require
all persons to comply with the requests of persons duly authorized under the
statute, to disclose and surrender any radio or wire. communication in his pos-
session or control. Another provision, in subsection (d), would prohibit any
person from divulging or using the existence or contents of any information
obtained pursuant to the provisions of the proposed statute except for the pur-
poses provided in the statute. Finally, the bills contain a provision (subset. (e) )
specifying criminal penalties for their violation, a separability clause (subset.
(f) ), a definition of the word "person" (subset. (g)) and a provision authorizing
the Attorney General to prescribe such rules and regulations as lie may deem
necessary to carry out the provisions of the statute (subset. (h) ).
H. It. 408 is similar to H. It. 477 and H. It. 3552 in that it contains the same
provision with respect to the conditions under which it would be required that
wire and radio communications be disclosed and delivered to any authorized
agent of any of the specified United States Government agencies. However, this
bill would also specifically permit the officials named, upon the express approval
of the Attorney General, to authorize their agents to obtain information by means
of intercepting or recording telephone, telegraph, cable, radio, or similar com-
munications, without regard to section 605 of the Communications Act and with-
out the necessity of first securing a permit from a judge of a United States court.
Admissibility of evidence obtained pursuant to the provisions of this bill would
be limited to criminal proceedings in United States courts arising out of the
types of investigations enumerated in the bill.
This bill also provides that the existence or contents "of such application or
order" shall not be divulged except in a criminal prosecution in which. informa-
tion obtained by intercepting communications "pursuant to such order" is sought
to be introduced. Since the previous provisions of the bill do not make reference to
any applications or orders, it is impossible to ascertain precisely to what the
term "of such application or order" refers, although there is a clause which would
require the express approval of the Attorney General before interceptions would
be permitted.
H. It. 408 would, in addition, make admissible in evidence in the United States
courts in criminal prosecutions arising out of investigations of violatons enu-
merated in the bill information "heretofore obtained" upon the express approval
of the Attorney General, by means of intercepting or recording telephone, tele-
graph, cable, radio, or any other similar messages or communications. Another
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46 WIRETAPPING FOR NATIONAL SECURITY
provision would prohibit any person, except those authorized pursuant to this bill,
from intercepting, listening in on, or recording telephone, telegraph, cable, radio,
or similar messages or communications, unless they are transmitted for the use
of the general public or authorized by one of the parties t:o the :message or com-
munications, or his employment: as part of the message or communications system
requires such action.
The problems inherent in the unauthorised interception of private communica-
tions have long been the subject of consideration by the court. and Congress.
Although the Supreme Court in Olmstead v. United States (277 U. S. 438), held
that tyre use of evidence of private telephone conversations, intercepted by means
of una.ul horized wiretapping, did not constitute a violation of the fourth and fifth
amendments to the Federal Constitution, vigorous dissents to this holding were
registered by Justices Holmes, Brandeis, Butler, and Stone. Moreover, the policy
underlying these dissents was subsequently enacted into law by the adoption of
section 605 of the Communications Act, which for the first time extended the pro-
hibitions of the Radio Act of 1927 against interception and. divulgence of radio
communications to prohibit unauthorized interception of wire communications,
and that policy has been continued in effect until the present section 605 provides :
"No person receiving or assisting, in receiving, or transmitting, or assisting iin
transmitting, any interstate or foreign communication by wire or radio shall
divulge or publish the existence, contents, substance, purport, eff:!ct, or meaning
thereof, except through authorized channels of transmission or reception, to any
person other than the addressee, his agent, or attorney, or to a parson employed
or authorized to forward such communications to its destination, or to proper
accounting or distributing officers of the various communication centers over
which the communication may be passed, or to the master of a ship under whom
lie is serving, or in response to a subpena issued by a court of competent juris-
diction, or on demand of other lawful authority; and no person net being author-
ized bi the sender shall intercept any communication and divulge or publish the
existence, contents, substance, purport, effect, or meaning of such intercepted
coinIII] nien'tion to any person ; amt no person not being entitled thereto shall
receive or assist in receiving any interstate or foreign communication by wire or
radio and use the same or any information therein contained for his own benefit
or for the benefit of another not entitled thereto ; and no person having received
such intercepted communication or having .iecome acquainted with the contents,
substance, purport, effect, or meaning of the same or any part thereof, knowing
that sr;ch information was so obtained, shall divulge or publish the existence,
contents, substance, purport, effect, or meaning of the same or any part thereof,
or use the same or any information therein contained for his owr. benefit or for
the benefit of another not entitled thereto: Provided, That this section shall not
apply to thou receiving, divulging, publishing, or utilizing the contents of any radio
communication broadcast, or transmitted by amateurs or others for the use of the
general public, or relating to ships in distress."
In Vardane v. United States (:x02 U. S. 379), the Supreme Court held that
Government employees, including law-enfor