And one of the interesting things about a telephone is that if we go back a few years I don't think anybody then assumed a telephone conversation would be private.

Senator ERVIN. In times past on party lines, everybody took down the receiver and listened in.

Mr. KATZENBACH. Privacy in connection with this is something that sort of evolved with technology. Whether or not there are really any rights to privacy on facilities of this kind, which have become instruments of, and can be used for, the purpose of law violation, I think raises a substantial question.

People today do feel strongly that they ought to be secure in their telephone conversations and I am as sympathetic to that as you are. Senator MCCLELLAN. I agree that they should be. At the same time if there can be a showing made, sufficient to convince a court of competent jurisdiction that the instrument which is an instrument of interstate commerce is being used in the furtherance of criminal pursuits, criminal activities in the commission of crime, the question arises: Should the State, should the Government, have the power through the courts vested with the power to direct and inspect, so to speak, to make the determination if a telephone is being used for that purpose?

That is what we are confronted with. I favor, like like you, the strongest possible safeguards, to make certain that only where a courtand we must have faith in the integrity of our courts has issued an order directing a wiretap that such a procedure would be carried out.

We certainly have faith in the courts to issue the search and seizure orders. I think we could trust them in these cases with respect to limited crimes and with respect to what this bill attempts to do--to make a showing of the place, the circumstances attending it and the reasons that are present to indicate or give cause to believe that a crime is being committed.

Let me ask you this.

Would such authority-an instrument made available to you in the law enforcement field-be helpful?

Mr. KATZENBACH. I think every police official in the country believes that it would. I think that

Senator MCCLELLAN. If they all believe that, I don't believe all of them could be wrong.

Mr. HUNDLEY. Particularly in the field of illegal gambling it would be helpful for local officials, but when you are dealing with the hardcore racketeers they just don't say anything on the telephone, so it would not be particularly helpful in that field.

Senator MCCLELLAN. How about kidnaping?

Mr. HUNDLEY. In organized crime

Senator MCCLELLAN. You have those doing it right now.

Mr. KATZENBACH. I don't know any time it was actually used. I would have no hesitation authorizing a wiretap if I felt that a human life was at stake irrespective of whether or not any evidence would be useful in court or could be used. I couldn't in all conscience not do that if the evidence was strong.

I think in kidnaping cases normally you don't need to use wiretapping, normally what you want to do is listen in on one end of the phone and it doesn't get involved in the application of section 605.

One can conceive of circumstances where there is some reason to believe that people are located in a certain area and you are trying to

identify them and you want to wiretap for that purpose in a kidnaping case with a human life at stake.

Even under the present law I would have no hesitation to use it.

Senator MCCLELLAN. Because of such urgency you would use ityou feel justified to even if it is a violation of the law to do so and where a life is involved you would go

Mr. KATZENBACH. I would go on and do it.

Senator MCCLELLAN. The question is: Don't we have the responsibility, as the Congress and you as the highest law enforcement official in the land, to try to find the answer and way to do these things that you would do under such urgency-to do these legally, not only in saving a life but to bring those to justice for such a crime?

Mr. KATZENBACH. That is correct, Senator.

At the moment I have taken as strong a position as I have under the present law which does not effectively bar the door for a lot of illicit uses of wiretapping. It is used for blackmail purposes, business espionage a whole variety of illicit uses.

I think the law needs to be amended-how far you go in authorizing or not authorizing law enforcement officials to use it?

The present situation simply should not be permitted to continue. Senator MCCLELLAN. The present statute should be amended. The question of how far we go is the only thing debatable. The question of whether you should go very far or not may be debatable.

Do you feel that the law enforcement needs today would justify the Congress in going further than this mere outlawing of all wiretapping? Mr. KATZENBACH. As far as the States are concerned the types of crimes we are dealing with every police chief feels that this is important and I have no reason to disagree with this as a step that would be extremely helpful to them in dealing with the crime problem, as Mr. Hundley points out.

From the Federal viewpoint-given national security authorization and there really for intelligence purposes-given that we have relatively less need for anything of this kind than do the local law enforcement officials.

The types of crime we deal with generally-with the possible exception of bribery and extortion

Senator MCCLELLAN. You don't challenge the statement made by all of the law enforcement officials throughout the land.

Mr. KATZENBACH. No.

Senator MCCLELLAN. If given this weapon it would greatly help to solve the law enforcement problem in the country.

Mr. KATZENBACH. They feel so they can produce considerable evidence in support of it.

Senator MCCLELLAN. Have they produced enough so that you are convinced?

Mr. KATZENBACH. I am convinced it would help.

Senator MCCLELLAN. Let's turn to the narcotics bill-generally you feel legislation is needed in this field?

Mr. KATZENBACH. Yes I do, Senator.

Senator MCCLELLAN. And your bill has been introduced and is now pending in the Senate-known as the administration bill-I believe Senator Dodd introduced that.

Mr. KATZENBACH. That is correct.

Senator MCCLELLAN. That bill-as I recall-does not permit a narcotic addict to come into the court voluntarily before he is charged with a crime and ask to be committed for treatment.

Mr. KATZENBACH. No, Senator; it does not.

Senator MCCLELLAN. Do you have any objection to that being done? Mr. KATZENBACH. I don't really have any objection to its being done. Our feeling on this Senator, on the voluntary commitment, has been that the addicts do not stay. In the administration bill he must stay. The addict is charged with the crime then he can go for treatment and we will only take him if we think he is a good bet and when we take him he has to successfully serve out all of this period of time in the institution, in the hospital.

And subsequently, if he falls off the wagon at any point we can continue the treatment or reinstitute the criminal case against him.

So there is a heavy incentive as long as the criminal charge is pending for the person to go through the treatment and it is that incentive that is lacking in the voluntary situation.

There is no problem physically in taking people off the drug. We can accomplish that successfully but they leave before they have had any successful therapy. They live without supervision in the community and the reports out of Lexington on people who have been voluntarily treated on this basis are terribly disturbing.

I think the figure is something around 90 percent are back on the fix in a relatively short period of time.

Mr. MCCLELLAN. You think the voluntary commitment procedure would not be very effective because the addict would not take the

treatment.

Mr. KATZENBACH. That is right.

Senator MCCLELLAN. And that is the objection to it-the only objection to it--you did not object to getting treatment or getting com mitted?

Mr. KATZENBACH. No.

Senator MCCLELLAN. There is no objection.

Mr. KATZENBACH. If we could keep them there.

Senator MCCLELLAN. If it can be made effective?

Mr. KATZENBACH. That is right.

Senator MCCLELLAN. In other words, you don't condemn the effort here?

Mr. KATZENBACH. We don't condemn it at all. It is just a question of making it effective.

Senator MCCLELLAN. We all have some ideas. What I would like to establish here this morning with respect to these bills, and those comments that you added-there is no objection to what the bills really undertake to do.

Mr. KATZENBACH. That is correct.

Senator MCCLELLAN. The question may be-Is this the best? Maybe you would say study them in some areas and let's see if we can improve on them. As far as opposing their enactment, you do not.

Mr. KATZENBACH. They all make major contributions.

Senator MCCLELLAN. Sir?

Mr. KATZENBACH. They would all make major contributions. Senator MCCLELLAN. This bill, as counsel reminds me, would require them to stay for full treatment.

Would there be any constitutional question when one submits himself to the jurisdiction of the court knowing that by doing so he would

accept that authority of the court to commit him and require him to remain?

Mr. KATZENBACH. I am inclined to think that there would be. Senator MCCLELLAN. Sir?

Mr. KATZENBACH. I am inclined to think that he could still get a writ of habeas corpus and get out of there.

Senator MCCLELLAN. He might still be able to do that? That is a matter for further study, that is what I was getting at. I am not arguing against the position you take, but for those addicts, before they commit a crime-if they come to the realization then that they are a victim-that they are hooked and they want to appeal to the courts and the law enforcement agencies to help them and get them treatment, so they will get well and off the hook, we thought we ought to provide some way to do it.

Your only concern is that some may not stay until they have gotten the full treatment.

Mr. KATZENBACH. I don't have any objection to the provision that you talk about Senator for voluntary commitment.

The only thing I would object to is holding off any charge if they had committed

Senator MCCLELLAN. You wouldn't hold off a charge if they had committed a crime.

Senator HRUSKA. Mr. Chairman, will you yield?

Senator MCCLELLAN. The Chair yields to Senator Hruska.

Senator HRUSKA. Before leaving the narcotics bill-and I will limit myself to this-would you anticipate, Mr. Attorney General, any difficulties in prosecuting a case after a substantial period of time has elapsed? Might that be a situation where the accused person would take advantage of treatment for his addiction?

Mr. KATZENBACH. Yes; I would, Senator, and in two ways.

One, it is always harder just as a practical matter to try a stale case in terms of witnesses and evidence and so forth.

I take it you are really asking whether a delay—
Senator HRUSKA. Yes.

Mr. KATZENBACH. I think it raises the question-I think a delay that is requested by the defendant with the advice of counsel and acquiesced in by the defendant with the advice of counsel with an understanding of the terms and conditions would not be an unreasonable delay and would not be unconstitutional.

I am sure that would have to be an issue litigated and it presents somewhat of a novel question, although the courts have taken the view that where the delays are either requested or acquiesced in by the defendant we can continue to try those cases.

Mr. HRUSKA. Could this delay conceivably be

Mr. KATZENBACH. This delay could conceivably be, I think, 4 years— 4 to 5 years.

Mr. HRUSKA. It would be quite hard to obtain witnesses.

Mr. KATZENBACH. We would have to take the risk on that-the experience with narcotics, Senator, is that getting them physically off the drug is not particularly time consuming as a process.

The big danger is when they go back into the community. We would envision under the law close supervision within the community.

62-775-66- -4

If they stay off heroin for 6 months after they are out of the institution, they have a fairly good chance of making it all the way; if they stay off it for a year the chances go up geometrically.

In other words, in general they get right back on in less than a 6-month period of time.

Mr. HRUSKA. Is there any handicap in the possibility of the State prosecuting this entirely?

Would a State be foreclosed from prosecuting addicts for the same offense that the Federal Government gives them the option to commit themselves for cure purposes?

Mr. KATZENBACH. Yes; I believe the States would be precluded from prosecuting during that period of time.

Mr. HRUSKA. In the case of falling off the wagon-would they also be confronted with the same difficulty of delay because of witnesses and the ability to work up a case?

Mr. KATZENBACH. Yes; they would in terms of whether or not a person wanted to take this treatment and is permitted by the Federal Government to take it. You would consider what the State charges

are.

In the administration bill we have eliminated the people who have committed more serious offenses and so forth-actually the addict is unlikely to commit that kind of an offense.

The addict in general does not commit offenses of violence-in general what he is trying to do as pointed out here is to get enough money in a minor, relatively minor offense, to buy some narcotics. Mr. HRUSKA. That is where the bulk of the offenses are.

Mr. KATZENBACH. Yes.

Mr. HRUSKA. Each year some 1,500 narcotics addicts are committed to the Federal correction system-how many are eligible for treatment under S. 2152?

Mr. KATZENBACH. I cannot give you the exact figure-but the great bulk of them would be

Mr. HRUSKA. The ones with a prior offense.

Mr. KATZENBACH. The question of how many had a prior offenseand that would-I believe we have some statistics on that.

Mr. HRUSKA. Could you supply them for the record?

Mr. KATZENBACH. Yes.

Mr. HRUSKA. It is a substantial percentage?

Mr. KATZENBACH. Yes, well

Mr. HRUSKA. It is a substantial percentage.

Mr. KATZENBACH. Yes.

(The requested information was subsequently furnished, as follows:)

Hon. JOHN L. MCCLELLAN,

Chairman, Special Subcommittee on Criminal Laws and Procedures,
Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR SENATOR: During the Attorney General's testimony concerning anticrime legislation before the Subcommittee, on March 22, 1966, he was asked by Senator Hruska to supply for the record the number of persons who would be ineligible for treatment under the Administration's narcotics bill (S. 2152) because they had two or more prior felony convictions.

In answer to this question, a discussion of which appears on pages 59 and 60 of the transcript, a sample of 10 percent of the 1191 narcotic addicts received in the federal prisons during the 1965 fiscal year, disclosed that 387 (approximately 32 percent) would have been ineligible for civil commitment because of two or more such convictions.