Mr. KATZENBACH. There is the number, the statistics, there is no reason the sum cannot Senator HRUSKA. About 3 weeks ago the Federal Communications Commission issued an order banning private eavesdropping. Have you had an opportunity to study that order which is issued as Public Notice G-80564, and with the headline "Federal Communications Commission-Commission Acts to Protect Right of Privacy: Adopts Rules Outlawing Radio Eavesdropping?" Have you had an opportunity to study that order so that you can comment on it? Mr. KATZENBACH. I quite frankly have not studied it. I glanced at it when it came through, I have not studied it in detail. I think it is a good first step in trying to do something about eavesdropping we have studied this to regulate eavesdropping and it is a difficult thing to do in terms of modern technology today and it is getting worse. I have taken the position that if you cannot agree in the simple field of wiretapping what should be prohibited and what should be permitted, that we will have a hard time to agree on in the eavesdropping area. Senator HRUSKA. The reason I asked was to determine whether the executive or administrative order is the proper way to go about this or is it a subject that requires legislation? Mr. KATZENBACH. I think legislation would be helpful but I think you find there is some difficulty-it is conceivable to me that experience under the FCC order could be a very useful background to eventually enacting legislation on the subject. Again the technology gets ahead of the order and the legislation so fast and in this area Senator HRUSKA. Would the Federal Communications Commission be capable of prescribing effective sanctions? Mr. KATZENBACH. Yes-I believe they would under their existingfor instance, a violation of a rule they issue which would be punishable. Senator HRUSKA. In regard to the bill on granting immunity, S. 2190-do you believe that the language of the bill is sufficiently clear to preclude a State prosecution of a criminal charge arising out of the same subject matter to which the witness was granted immunity? Mr. KATZENBACH. I believe that it is-or at least our intention is to do so. Senator HRUSKA. It was suggested at one point-where there is a provision for immunity-that there be inserted the words "in any court." I don't know the exact place. If that were done-would it not then include all State courts, including inferior courts? Mr. KATZENBACH. Yes, it would. Senator HRUSKA. Would there be any objection? Mr. KATZENBACH. There would be no objection. Senator HRUSKA. Is that the intent of the bill, to include any prosecution in any jurisdiction within the Republic? Mr. KATZENBACH. Yes. Senator HRUSKA. In your statement you refer to the bill that you sent up, S. 3063, having to do with accelerating efforts to assist State and local authorities, the amendments to the Law Enforcement Assistance Act of 1965. I understand that the program's budget for fiscal year 1966 was $7.2 million and that you are now asking for $13.7 million for fiscal year 1967. Would you tell me the amount of the request of the Department of Justice made to the Bureau of the Budget? If you don't recall it, will you supply it for the record? Mr. KATZENBACH. I don't recall it-I do recall that in discussions within the Department we felt that we just based on our experiencethought that we would be able to spend not over $25 million intelligently in the next fiscal year and this figure of $13.7 is not a figure that was crammed down our throats by the Bureau of the Budget. I think it is a realistic figure if we maintain the same standard of experimentation and novelty that we presently have. The bill is designed as you are well familiar with-as a sort of pilot program to see what can be done by this police force or that police force or certain programs with respect to identification or communication or something else—so we can test the efficacy of a particular idea-if the President and the Congress should some time in the future come to the conclusion that the Federal support for local law enforcement-financial support was necessary if the figure were 7.2, or 13.7, or 25, or 50. If you got into the area of education and other areas that should actually be subsidized, it would take more money. Senator HRUSKA. Would you say your capabilities in the Department at this time-with the experience you have had in the last 6 months would the capability be greater than $13 million? Mr. KATZENBACH. I don't-we have committed about $32 to $4 of the $7 million-we will probably come around $7 million by the end of the fiscal year and double next year, would seem to make sense, a good many of the programs which are suggested to us are really programs of subsidies rather than programs of experimentation. We have had a number of cities suggest that we provide their lighting system for them-that would cut down on crime. I am sure that would, but that is not the purpose of the act to provide lighting systems. Senator HRUSKA. I would like to ask unanimous consent to insert this public notice of the Federal Communications Commission into the record on the rules outlawing radio eavesdropping. Senator MCCLELLAN. It may be inserted. (The document referred to follows:) [Public Notice G, Federal Communications Commission, Washington, D.C., Feb. 28, 1966] COMMISSION ACTS TO PROTECT RIGHT OF PRIVACY: ADOPTS RULES OUTLAWING RADIO EAVESDROPPING The Federal Communications Commission has unanimously adopted rules to prohibit the use of any radio device for eavesdropping. The rules prohibit, with an exception for law enforcement agencies, the use of any radio device to overhear or record the private conversations of others without the consent of all parties engaging in the conversations. They are applicable to all radio devices, whether licensed or not, and violators will run the risk of the imposition of a fine of $500 a day for each and every day such offenses occur, as well as loss of license or civil forfeitures where those remedies are appropriate. They reflect growing public indignation with increased intrusions into the traditional right of privacy through the use of wireless micro phones, some so small as to be concealed in a pack of cigarettes or the nowfamous martini olive. Aspects of the rules deserving special emphasis are: First, the rules apply unless all parties to a private conversation consent to the use of such devices. In contrast, it may be noted that of the seven states having laws on this subject, five provide that the consent of only one party is necessary on the theory that a person assumes the risk that anything he says may be divulged without his knowledge by any other party to the conversation. The Commission's policy is predicated on the view that the right of privacy is so precious that a person engaging in a private conversation should not be asked to assume the risk that his remarks are being recorded without his full knowledge and consent. The Second, the exception for law enforcement officers makes no change in what constitutes a crime under state law or existing practices in the states. burden of establishing that radio eavesdropping is being lawfully conducted rests with the law enforcement agency. In all other respects, as has always been true, use of radio devices by law officers must be in full compliance with the Commission's rules and regulations. Third, only "private conversations" are entitled to protection. The rules, contrary to some expressed concern, will not interfere with generally accepted broadcast practices in covering public interest events. For example, conversations carried on in public and semi-public places or where they may reasonably be overheard by others are not "private" and therefore not covered. Fourth, the rules cover both the direct and indirect use of radio devices. In the area of eavesdropping, ingenuity knows no bounds; but if in any phase of the operation a radio device is used to transmit a private conversation the rules will apply. Finally, the rules adopted in Commission's Report and Order in Docket 15262 will become effective April 8, 1966. Senator HRUSHA. That is all I have at the present time. Mr. Attorney General we wish to thank you for your appearance here. I appreciate your support of some of these bills and particularly your support of their general overall objectives and, as I said in my opening statement, we visualize your continued interest and assistance as we proceed with these hearings. From time to time, as the committee pursues its responsibilities, we shall be submitting to you possibly written questions and also asking you to some back to give us your answers here before us. Necessarily, we may want you to come back on different issues and problems from time to time. We will submit to you questions requesting that you answer them for the subcommittee so we can make the record more informative and as thorough as time and opportunity will afford. We do appreciate the cooperation you have given us. Mr. KATZENBACH. Thank you, Senator. As I said before I do not know of any Member of Congress who has done as much in this area as you have. Senator MCCLELLAN. Thank you. This is a new subcommittee and we feel we have a real job confronting us. It is challenging to us to go into this fight and try to bring about the correction of some of the conditions that now prevail, to rectify some of the situations that are adverse and detrimental to law enforcement in this country. The Chair, as I announced a few moments ago, will stand in recess until 2:30. I am sorry we did not get to hear the other witnesses this morning but we did the best we could. Again, my thanks. (Whereupon, at 12:15 p.m., the hearing was recessed, to reconvene at 2:45 p.m., this same day.) AFTERNOON SESSION Present: Senators McClellan (presiding), Hruska, and Scott. Senator MCCLELLAN. The committee will resume. We have with us this afternoon, as our first witness, Mr. David C. Acheson, Special Assistant to the Secretary of the Treasury. Mr. Acheson, we welcome you. You have a prepared statement? Mr. ACHESON. Mr. Chairman, I have a prepared statement which I will submit. I will not read it. Senator MCCLELLAN. The statement will be received and printed in full at this point. (The statement referred to follows:) STATEMENT BY DAVID C. ACHESON, SPECIAL ASSISTANT TO THE SECRETARY (FOR ENFORCEMENT) BEFORE THE SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES, COMMITTEE ON THE JUDICIARY, U.S. SENATE, ON S. 2187, S. 2188, S. 2190, S. 2191, AND S. 2578, MARCH 22, 1966 Mr. Chairman, I am here this afternoon to discuss the views of the Treasury Department on several bills which deal with various aspects of criminal enforcement and criminal procedures. I will deal with the bills individually. S. 2187 This bill, if enacted, would outlaw membership in the Mafia and similar organizations. While many of the details of such criminal organizations are shrouded in secrecy, diligent investigation sometimes is able to penetrate this secrecy and to produce evidence of association, participation in criminal designs, and some objective evidence of a furtherance of those designs by overt acts. Such organizations should receive the continuing intensive investigation of federal law enforcement officers. This Department has a strong interest in measures which seem likely to provide useful weapons in its continuing efforts against organized crime. It is not clear to us, however, that S. 2187 would extend the reach of the system of statutes that is already available, or make accessible evidence which investigation cannot now provide. Where the evidence would support prosecution under the provisions of S. 2187, we think it likely that the prosecution could also resort to 18 U.S.C. § 371, punishing conspiracies to commit offenses against the United States, or 18 U.S.C. § 1952, punishing a variety of uses of interstate and foreign commerce facilities in furtherance of criminal activity. These provisions, when coupled with the provisions of 18 U.S.C. §§ 2 and 3, defining parties to criminal offenses, would probably cover the same evidentiary ground that would be encompassed by S. 2187. S. 2188 This bill would supplement the protection against intimidation afforded witnesses under 18 U.S.C. § 1503, by making it a crime to endeavor to obstruct, delay or prevent the communication of information relating to a violation of any federal law to a criminal investigator. Section 1503 has been interpreted to apply only where there is a proceeding pending before a court. The proposed section would apply where no formal proceeding is pending, although it also could be applied with respect to such proceedings. The Treasury Department sees important advantages in punishing the interference with communication of information to investigators, without regard to the pendency of a formal court proceeding. cases are many in which potential witnesses against major criminal subjects have disappeared, died or changed their story during an investigation. We support the enactment of S. 2188. The Organized crime cases present special risks of intimidation before the matter becomes one of judicial cognizance. Organized crime figures commonly employ subterfuge and secrecy. The development of cases against them often involves a protracted investigation before sufficient information is gathered to commence a prosecution. The risk that potential witnesses will be identified and silenced during such extended investigations is substantially greater than in the typical brief police investigation. Two technical matters in S. 2188 deserve mention. First, it appears that the proposed new section should be numbered § 1510, placing it at the end of the chapter dealing with obstruction of justice. Second, because potential witnesses may in some cases be dealing directly with federal prosecutors, it would appear wise to include prosecuting attorneys for the United States within the group to which communication of information is protected. This could be accomplished by adding, after the words "criminal investigator," wherever they appear in subsection (a) of the proposed new section, "or prosecuting attorney," and by adding to subsection (b) a definition of the term prosecuting attorney which would include United States Attorneys, Assistant United States Atorneys, Special Assistant United States Attorneys, and other appropriate Department of Justice attorneys assigned prosecuting duties. The precise language of this definition should reflect the views of the Department of Justice. S. 2190 S. 2190 would add new categories of criminal offenses under Title 18 of the United States Code as to which immunity from prosecution may be granted to those whose testimony is sought. The immunity procedure would apply in proceedings before a grand jury or court of the United States. Most of the offenses to which immunity provisions would be extended are within the investigative jurisdiction of the Department of Justice. As to those, we defer to the views of that Department concerning the advantages which would result from the immunity provisions. This Department's Bureau of Narcotics has had experience with immunity grants under the provisions of 18 U.S.C. § 1406, which authorizes such grants in connection with certain narcotic and marihuana offenses. We have found that grants of immunity to carefully selected individuals can be an extremely helpful tool in penetrating multi-party criminal transactions. Based on our experience, we believe that immunity provisions, subject in every case to procedures like those in S. 2190 as a safeguard against improper use, would be helpful to federal enforcement efforts, if immunity were available generally without narrow limitation to particular crimes. Any review of immunity provisions generally must, of course, come from the Department of Justice and we would defer to that Departments' views on the broad question. Pending any such general review, we see no objection, and some advantages, to attaching immunity provisions to additional criminal statutes where they can be effectively utilized. Investigations of violations of § 1952 of Title 18 involving liquor and narcotics are under subsection (c) of that section, designated to be supervised by the Secretary of the Treasury. Our experience with that section supports the Justice Department's view that it is an effective tool in combatting organized crime operations. Considering the multi-party nature of most of the operations involving liquor and narcotics which would be punishable under section 1952. it might well be necessary to grant immunity to peripheral participants in order to develop certain cases against those principally responsble for the enterprise. We therefore support the addition of immunity provisions to section 1952. S. 2190 would also provide immunity procedure in prosecutions for the offenses set forth in Chapter 11 of Title 18, dealing with bribery, graft and corruption. We agree that immunity provisions would be helpful with respect to such offenses. There is some common ground between that chapter and the offenses set forth in 26 U.S.C. § 7214, which punishes certain similar acts committed by officers and employees of the United States acting in connection with the revenue laws. For the reasons applicable to Title 18 offenses, we believe that immunity provisions should be added to § 7214. S. 2191 This bill would provide procedures for civil commitment of certain classes of of drug addicts who either voluntarily seek commitment, or who have been convicted of a federal penal law relating to narcotics. In addition, provision is made for post-hospitalization care programs and appropriations are authorized for certain grant programs in the field of treatment of narcotics addiction. We view the provisions of S. 2191 in the context of the Administration's support for programs of treatment for narcotics addiction, a position recently expressed in the proposal and support by the Treasury and Justice Departments of |