Attorney General MITCHELL. Yes, Mr. Chairman; we have under study the entire subject of providing appropriate regulations not only in this area of surveillance involving one-party consent, but in the total field. We now, of course, are undertaking different activities in this area than the former Attorney General.

To date, approvals by the Attorney General, where I have continued to approve activities individually, have not been withheld, and I do not believe that there has been any problem in that area.

However, as I become more familiar with the activities in this type of surveillance, I feel certain that we may be able to establish regulations which will permit the appropriate use of this type of surveillance. Where the surveillance involves a consenting party, I think it is quite appropriate that we do so.

Senator MCCLELLAN. I am not entering any complaint. I think very strong control should be retained over the exercise of this power that has been authorized.

Attorney General MITCHELL. As the chairman knows

Senator MCCLELLAN. I don't want to see a loose operation in this area. I don't want to see promiscuous wiretrapping, electronic surveillance, anywhere, anytime, and under any circumstances. I think there must be high authority, must be involved responsibility in exercising control over it. But again, control must not be so rigid or so restrained that this tool loses its effectiveness. There is a balance which must be struck.

Attorney General MITCHELL. I quite agree with the chairman as to the continued control, strict control, of its use by the Attorney General. We have primary reference to cases of emergency where the life of some of the investigating agents may be in jeopardy if this one-party consent surveillance apparatus is not used. We are trying to wrestle with all of the problems involved to make sure that we keep control but, at the same time, we do not impede law enforcement and certainly not endanger the lives of agents who are involved in these various activities.

Senator MCCLELLAN. Yes, sir.

I wonder, too, if you have given some thought-I am sure you have to two recent decisions of the Supreme Court. In the last several weeks the Supreme Court decided Alderisio v. United States, which set out new standards and procedures for determining the scope of taint where electronic surveillance techniques are used unlawfully, and Spinelli v. United States, which set out new and stiffer standards for obtaining search warrants.

I don't know whether you are prepared to answer this at the moment, but I would like to have you weigh your answer and give us an answer to these questions: Will these decisions unnecessarily hamper the effectiveness of the Department in its criminal prosecutions? And what, if any, legislative actions are open to us to mitigate these possible harmful effects?

Attorney General MITCHELL. Well, Mr. Chairman, in the Alderisio case, which, of course, has received such wide publicity-it has been a great disappointment to the Department, obviously because its present holding will affect the Department's activities.

We are, however, filing a petition for rehearing in this matter, and hope for a different outcome.

1 Alderisio v. United States, 394 U.S. 165 (1969). 2 Spinelli v. United States, 393 U.S. 410 (1969).

With respect to the Spinelli case, its holding is somewhat burdensome on the Department. Perhaps, by use of better affidavits provided by the Department, sounder investigation as to the basis of the affidavit for the warrant, although we will still find it burdensome, we can live with it.

Senator McCLELLAN. I see.

Attorney General MITCHELL. With respect to legislation, sir, I am not quite certain that I can answer your quetsion-at least at this time. Senator MCCLELLAN. I have not yet read the Alderisio decision, just newspaper accounts of it, but I have read the Spinelli decision, and it seems to me that the court has gone so far as to hold that probable cause is almost synonymous with guilt beyond a reasonable doubt, and I don't think that was the intention of "probable cause" within the Constitution. But the Supreme Court has so ruled, and I would like to have your later comments upon the impact on your work of these two cases. I don't know what legislative action, if any, the Congress could take, but I feel these decisions-from all accounts-are going to have a terrific impact that will not present any advantage to law enforcement in this country.

sir.

Attorney General MITCHELL. I am sure that is a correct statement,

(The following information was subsequently received from the Department :)

Hon. JOHN L. MCCLELLAN,

APRIL 11, 1969.

Chairman, Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary, Washington, D.C.

DEAR SENATOR: This is in response to your request for the views of the Department of Justice on (1) the effects of the Spinelli and Alderman (Kolod) decisions upon the Department's criminal prosecutions, and (2) what legislative action, if any, would mitigate the possible effects of these decisions.

SPINELLI AGAINST UNITED STATES

As you are aware, the primary issue in Spinelli was the sufficiency of an affidavit in support of a search warrant. The Fourth Amendment requires that "no warrants shall issue but upon probable cause. . . .” The Supreme Court, by a 5 to 3 vote, held the affidavit used to obtain a warrant against Spinelli did not show probable cause.

There is no doubt that the requirements of probable cause have increased as a result of the Court's decision. The Court took notice of the fact that the affidavit in issue was more sufficient than the one in issue in Aguilar v. Teras, 378 U.S. 108. However, it was not sufficient to meet the Court's interpretation of probable cause.

The Court held that where the government relies upon information from an informant, the affidavit must disclose the basis for the belief that the information received is worthy of credibility. This may be either by a statement of how the informant obtained his information or by such specificity of detail as to make clear that the informant was not relying on general reputation. Where the information received from the informant is not of such degree of certainty then the corroborating information on which the government relies must go, not only to the credibility of the informant, but to the criminality of the activities.

In some cases the Court's decision in Spinelli will make neecssary more thorough investigations and more complete affidavits. It is difficult to assess the effects of the added burden at this time, but it does mean an increase in the workload involved in securing any warrants to which Spinelli is applicable, and also fewer search warrants issued because of the greater requirements for showing probable cause.

The Department cannot envision any legislation which could alter the Spinelli decision's requirements. Probable cause is the specific constitutional test to be

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,

Senator MCCLELLAN. Thank you, sir.

WILL WILSON, Assistant Attorney General.

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.