applied to the validity of a search warrant. While we may disagree with the Court's application of the facts to this test in a particular case, unless the test itself is altered, there is little that can be done to change the results. Only a constitutional amendment could change the standard to be applied.

ALDERMAN AGAINST UNITED STATES

An appreciation of the significance of the Alderman decision requires some background information. After the target of an electronic eavesdropping discovered a device in his office, it appeared that the overhearings so discovered might affect some important pending or contemplated cases. Inquiry resulted in the discovery that this danger did, in fact, exist. The government, under the obligation imposed on the prosecution by Brady v. Maryland, 373 U.S. 83 undertook to advise the appropriate court of electronic surveillance. The view of the government was that its obligation extended to material "arguably relevant" to the case at hand. In the initial decision in Alderman (then denominated Kolod) the Supreme Court, which had been advised of the government's policy. held that the government could not, ex parte, determine the relevancy of any logs of overhearings, but that relevancy had to be determined in an adversary hearing, 390 U.S. 136. On petition for rehearing, the government stated that it would accept the determination that it could not make the determination of relevancy ex parte, but urged that the logs which in the government's view were not arguably relevant should in the first instance be submitted to the court for its in camera inspection, so that it could determine whether a hearing was necessary. The Court granted the petition for rehearing in Alderman, and also granted certiorari in the cases of Ivanov and Butenko, involving prosecutions for espionage, where the surveillances (which were deemed by the government to be not arguably relevant) had been conducted in the interest of national security.

The Court, in its decision of March 10, 1969, held that the records of the surveillance of any defendant who has standing to object to their use should be turned over to the defendant without a preliminary in camera examination by the district judge. [The majority held that a person whose conversation was overheard or one on whose premises the device was installed (whether he was present or not) has standing to suppress evidence obtained by electronic eavesdropping. Other persons, including co-conspirators, have no right to suppress such evidence.] The defendant would be afforded an opportunity to demonstrate at a hearing that the case against him was the fruit of the overhearings, with opportunity to the government to convince the trial judge that its proof had an independent origin. Disclosure to the defense under a protective order against general disclosure was deemed appropriate even if the surveillance was for national security, although the court left open for decision by the district court the question of whether such surveillance was legal. If held to be legal, there would then be no duty to disclose this type of overhearing.

The government had petitioned for rehearing in the Ivanov case with respect to the foreign affairs aspect of that ruling. The effect of the decision on that aspect is covered by that petition and by supplemental memoranda filed in two other cases, copies of which are annexed.

On March 24, 1969, the Court denied the government's petition in Ivanov. On the same day, the Court attempted to clarify its position on electronic surveillance in two per curiam decisions. Giordano v. United States, Taglianetti v. United States (copies attached).

It seems clear that if the District Court finds the surveillance was legal. then no disclosure is required. The District Court is apparently free to determine the legality of a given electronic surveillance in an ex parte in camera proceeding. If the District Court finds that the surveillance was illegal, then Alderman requires that the defendant have access to all records of the surveillance which he has even remotely or incidentally been subjected to. Apparently this would include foreign intelligence surveillance which was found to be illegal.

However, the Court has apparently not decided whether the gathering of foreign intelligence information will be governed by a different applicable standard of reasonableness than the standard applied in domestic surveillance. (See Justice Stewart's concurring opinion in Giordano.)

There is little doubt that the requirement for evidentiary hearings on obviously irrelevant materials will have a substantial impact on our prosecutive efforts. Our experience has shown that the ingenuity of defense counsel is unlimited in advancing specious suggestions of the relevance of material which could not

conceivably have led to any evidence used at trial. Protracted hearings have ensued because, even though a defendant realizes that he has no chance of proving taint, his most precious commodity is time. I am aware of one case where several defendants, found guilty by a jury more than four years ago, have postponed commencement of their sentences for at least two of those years as the result of an unavailing lengthy hearing (and appeal) concerning one overheard conversation, and they will presumably be able to further delay incarceration as the result of another hearing (and appeal)' which will now be required. While we are still in the process of compiling the facts you requested in your March 17, 1969 letter, we have yet to discover a single instance where a case claimed by the Government to have been untainted has been proven to be otherwise by the defense. Needless to say, this constitutes a most wasteful consumption of manpower, prosecutive and judicial. Since this problem will now increase as the result of the requirement for additional hearings in cases concluded long ago, our personnel, already spread thin in our current effort against organized crime, will have to be redeployed to handle these matters. It is clear, too, that the problem will not soon disappear, for under the present state of the law there is no "statute of limitations" on when a defendant can raise this issue. Thus, in 1980, for instance, defendants will still be demanding records of overhearings which occurred twenty or twenty-five years before, and they will still be demanding the protracted hearings which they are now allowed. Of course where an individual was accidently overheard many years ago on national security device which cannot be revealed, he will enjoy, in effect, immunity from prosecution, unless we can convince the courts that the surveillances involved were constitutional.

Hearings in these cases have also posed another substantial problem, that is, they have resulted in the disclosure of facts which have been pieced together by defendants in such a way as to enable them to identify sensitively placed and extremely valuable government informants, with resultant danger to the informants' lives. Some hearings in the future may also result in the revelation of overheard conversations which unjustly reflect upon the integrity of persons discussed therein. Our experience has shown that protective orders have not been effective.

I deeply appreciate your keen awareness of the issues presented by these decisions, your concern for their impact on our prosecutive efforts, and your recognition of the possible need for remedial legislation in this area. I have directed my staff to make recommendations in this regard, and I am hopeful that their efforts will be completed shortly.

Again, I am grateful for your interest.

Sincerely,

WILL WILSON. Assistant Attorney General.

Senator MCCLELLAN. Thank you, sir. Mr. Attorney General, I am going to yield to my colleagues now, but I believe you said that in due time you will send us a report on S. 30, giving us your views. Then the members of your staff or you will be available for further testimony regarding it.

Attorney General MITCHELL. Yes, Mr. Chairman, that is correct. Senator MCCLELLAN. Thank you very kindly. Personally I appreciate your splendid cooperation and your presence here this morning and the testimony you have given.

Senator Ervin?

Senator ERVIN. I have no questions. I would just like to observe, however, that the Attorney General's statement illustrates in very trenchant fashion the extreme difficulties which confront society in its effort to protect itself against organized crime.

Senator MCCLELLAN. Thank you.

Senator Hart?

Senator HART. Thank you, Mr. Chairman.

Mr. Attorney General, in connection with your exchange with the chairman in the statement that you have, on page 14, about the action

of last year's Congress in authorizing controlled use of court supervised electronics surveillance. You say this is a valuable tool and that it will be utilized in appropriate cases. Has it been utilized?

Attorney General MITCHELL. Yes, it has, Senator Hart.

Senator HART. In about how many cases?

Attorney General MITCHELL. A very limited number.

Senator HART. In the range of a dozen?

Attorney General MITCHELL. Less than that, sir.
Senator HART. Less than that?

As I recall the statute, and it is a very-I guess I better start by saying I don't recall the statute.

Attorney General MITCHELL. Very complex.

Senator HART. At some point the action that you have taken in these less than a dozen cases will become known to the subject of the tap; is that right?

Attorney General MITCHELL. Yes, it will, sir.

Senator HART. Has it become known yet in any of these cases? Attorney General MITCHELL. No; it has not, to my knowledge. Is that correct? It has not become known to my knowledge.

Senator HART. Then I will ask no more.

I haven't read either of the Supreme Court cases, but, as the chairman said, with respect to one I read press comment. This is the one that would require the prosecution to disclose to the accused the log of any tap. Is my understanding of that decision correct?

Attorney General MITCHELL. That is correct. That is the effect of the ruling.

Senator HART. You say this disappoints the Department, and you are considering a petition for rehearing which would produce perhaps a different outcome? Why isn't counsel for an accused entitled to see that which has been developed by a tap that didn't go on under the new Safe Streets Act?

Attorney General MITCHELL. Well, the problems are quite numerous, but the basis of the disappointment of the Department is that not only does the court opinion provide for the disclosure of all material relevant to the defendant's rights, but it provides for the disclosure of the entire logs of the operation, and in some of these instances, national security is involved, and in some other instances the very life and existence of witnesses are involved. The Department is perfectly willing to disclose to the court in camera the entire logs for a determination by that court of the material relevant to the prosecution of the defendant, and the relevant material would be turned over to the defendant and his counsel for examination.

Senator HART. Well, I confess to a reaction different from yours when I read the newspaper accounts. I have always thought if I was representing a man accused of a crime I was not able to give him a full measure of counsel nor would he be obtaining complete justice if a third party, even as objective a third party as a judge, was to review the materiality, the relevance of documents without me being given an opportunity to explain why it indeed was relevant.

In developing a defense the relevance of material might be very clear but a judge who was not involved in the development of a defense wouldn't have the foggiest notion as to why it was relevant.

Why don't I have a right to seek to persuade the court as to the relevance or lack of relevance.

Attorney General MITCHELL. Well, Senator, I am sure that that is the argument that has been made in these cases and it is, in effect, the holding of the court.

We are confronted here with the problem, as I say, of national security and defense, of the protection of witnesses, and it is the opinion of the Department that a court in camera is qualified to make that determination.

Senator HART. I would tend, sitting in the bleacher seats, to think that the court acted responsibly. I haven't read the briefs either.

But the assertion merely that the presecution is inhibited or restricted as the result of this or that court decision increasingly in the public tends to indicate that the decision is wrong. Whenever we have a chance we ought to remind, whether it is popular or not, that restraints and inhibitions on the police was the purpose of the Bill of Rights, and the fellow ultimately responsible for delivering on the guarantees of the Bill of Rights is the court. So that merely saying that this makes it tough on the policeman is in a sense a so what argument, because that is precisely what the Bill of Rights is intended to do.

I know that at the moment there is a very broad surge of opinion across the country that anything that inhibits the policeman is wrong. That is an attitude that is wrong and law enforcement leadership itself should say so. Would you agree?

Attorney General MITCHELL. I would certainly agree, sir, that the police should be subjected to the restrictions and restraints of the Bill of Rights. As to the specifics of a particular situation, that, of course, is determinative in the individual case. There is no thought, I am sure, in the Department of Justice or any other place to give the law enforcement officer an unbridled approach to the matter about which we are speaking.

Senator HART. At the cost of repetition, merely responding to a court decision with a comment that that makes it more difficult for the policeman does not contribute to the public enlightement as to the prudence or the appropriateness of the decision.

Attorney General MITCHELL. No, it does not, unless the specifics of the situation are brought out and discussed and evaluated.

Senator HART. The charts that Senator McClellan put in contain a statement attached on the back and it was a part of his floor speech, that very effective floor speech to which you made reference, it quotes the President's Crime Commission, concluding its chapter on organized crime with these words:

"The extraordinary thing about organized crime is that America has tolerated it so long." It is extraordinary, and the charts that are reported here would indicate that the war on organized crime, at least statistically, didn't begin until 1961. Thank you. Thank you, Mr. Chairman.

Senator MCCLELLAN. Yes, sir; thank you.

Senator Thurmond?

Senator THURMOND. Mr. Chairman, thank you.

Mr. Attorney General, I observe that in your statement you outlined a number of steps to focus on the role of the Federal Government on

the matter of controlling organized crime, and in addition you also made the statement that our State and local police and prosecutors are the Nation's first line of law enforcement and that is what I wanted to comment on for just a moment, because it seems that so many people today feel that the Federal Government should inject itself into every facet not only of law enforcement but every other facet of the life of our people.

As I construe your position, it is your intention to work within the Federal structure to enforce the laws by the Central Government. Then in addition you recognize the responsibility of the State and local police and prosecutors of the Nation and you are going to assist them in such way as you can in accord with the Constitution?

Attorney General MITCHELL. That is our full intention, Senator Thurmond. A great deal of crime, particularly street crime, of course, falls within the jurisdiction of State and local government, and it is only by way of assistance by the Federal Government that we can get at that. Such crime is within the province of State and local government and we certainly are not going to impair or direct in any way their activities of carrying out their responsibilities and functions.

Senator THURMOND. The State and the local communities have the responsibility for law enforcement on violation of State laws. I observe you have mentioned a number of things that could be done to assist, and I was impressed with these that you offer the State and local governments the experience and benefits of tested programs that have proved successful in fighting organized crime, and I presume by that that you would forward to the States the experience of the Federal Government and of the other States of the Nation so that any State could get the benefit of that experience?

Attorney General MITCHELL. That is correct, sir.

Senator THURMOND. I notice also to develop model organized crimes laws, crime control laws for the States and to urge their adoption.

You do plan to prepare some model laws that you feel would be worthy of consideration by the States, to become the law of the different States of the Nation?

Attorney General MITCHELL. Yes; we do, Senator. We will prepare them as draft legislation and recommend them to the State legislatures for their consideration.

Senator THURMOND. And also to assist the States, I believe, you have suggested to support and assist in the recruitment and training of special organized crime investigators, prosecutors, accountants, statisticians, and other necessary technical personnel.

Now, for a long time I have felt that the States did not have the facilities or maybe didn't assume the responsibility it should in these fields that you just mentioned here. I wondered just how far you contemplate going in that. Would you bring people to Washington for training, would you set up training centers in different States or sections, areas in the country or just what approach would you use in it? Attorney General MITCHELL. I think it will vary, Senator Thurmond, depending upon the circumstances involved.

Take an activity such as that which is being carried on in Massachusetts where with that States's organized crime commission, if that be the name, they have proceeded down the road on their own to some