Section 3108. -Section 3109. States Courts is directed to transmit to the Congress a complete report concerning the number of applications made for orders authorizing or approving the interception of private oral communications and the number of such orders granted or denied during the preceding calendar year. The report is to include a summary and analysis of the data required to be filed with the Administrative Office under this section. It is provided in subsection (d) that the Director of the Administrative Office of the United States Courts is authorized to issue regulations dealing with the content and form of the reports required to be filed pursuant to subsection (a) and (b) of this section. These provisions are taken nearly intact from 18 U.S.C. 2519. In requiring that these various reports be made, a foundation is laid for future evaluation of the effects of this subchapter. The reports should serve to facilitate the making of any changes in the law that may become warranted but, in any event, to allow for a comprehensive understanding of the extent and value of authorized interceptions in Federal and State law enforcement. SECTION 3108. NATIONAL SECURITY EXCEPTION This section provides that nothing contained in this subchapter, subchapter C of chapter 15 (Offenses Involving Privacy), section 4102 (Civil Action against an Eavesdropping Offender), and section 605 of the Communications Act of 1934 is to limit the power of the President, under the Constitution, to take such measures as he deems necessary to protect the United States against actual or potential attack or other hostile acts of a foreign power; to obtain foreign intelligence information deemed essential to the nation's security; to protect national security information against foreign intelligence activities; or to safeguard the United States against the overthrow of the government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the government. The section provides further that the contents of oral or wire communications intercepted under the authority of the President and pursuant to the foregoing powers may be received in evidence in an official proceeding only if the interception was reasonable and may not otherwise be used or disclosed except as necessary to implement those powers. For the most part this section employs language now appearing in 18 U.S.C. 2511(3). The changes that have been made are in the statutory references. This section is a continuation of existing law. 39 SECTION 3109. DEFINITIONS FOR SUBCHAPTER A A number of the terms employed in this subchapter are sometimes defined in section 3109 by reference to definitions appearing elsewhere.40 It should be noted that "private oral communication" is defined in section 1525 (f) of the Code to mean "speech uttered by a person exhibiting an expectation that such speech is not subject to overhearing, under circumstances reasonably justifying that expectation." The distinction utilized in present law between wire and oral communications 39 See United States v. United States District Court, 407 U.S. 297 (1972). 40 Section 1525 of the Code; 47 U.S.C. 153 (h). Section 3111. is considered to have such minimal utility that the distinction is not maintained in this subchapter. It should also be noted that a term frequently used in the section, "contents," has been given a broad meaning, when used with respect to communication, to include information obtained from the communication itself that concerns the existence, substance, purport, or meaning of the communication, or the identity of a party to the communication.41 "Intercept" is defined to mean the acquisition of the contents of a communication, and includes the acquisition of such contents by simultaneous transmission or by recording.42 In view also of the above discussion of "private oral communication," it should be plain that this subchapter does not apply where a private conversation occurs within the hearing of another individual, unaided by any special listening device. SUBCHAPTER B. IMMUNIZATION OF WITNESSES (Sections 3111-3115) This subchapter carries forward the present law provisions of the Organized Crime Control Act of 1970,1 Part V of title 18, dealing with the granting of immunity.2 Only minor changes have been made in that recent enactment, and none of these modifications are substantive in nature. The Committee specifically endorses the use of immunity in appropriate circumstances as a useful and necessary tool of law enforcement. The Committee also notes that the Supreme Court has specifically upheld the constitutionality of the current statute upon which this subchapter is based. 1. In General SECTION 3111. IMMUNITY GENERALLY 3 Section 3111 provides that a person who asserts his privilege against self-incrimination in an official proceeding conducted under authority of a Federal court or grand jury, or a Federal agency, or of Congress or either House of Congress, and who is ordered to testify or produce information in accordance with sections 3112, 3113, or 3114, may not refuse to obey the order on the basis of his privilege against self-incrimination. The section further provides that no testimony or information produced in compliance with the order, or any information directly or indirectly derived from the compelled testimony or production, may be used against the person so compelled in a criminal 41 Section 1525(b). 42 Section 1525(d). 1 P.L. 91-452. 84 Stat. 922. 218 U.S.C. 6001-6005. 3 Kastigar v. United States, 406 U.S. 441 (1972). Section 3112. case against him, except in a prosecution for perjury, false swearing, or making a false statement in the course of the testimony or production compelled under the order, or for otherwise failing to comply with the order. 2. Present Federal Law 18 U.S.C. 6002 contains substantially the same provisions as does section 3111. It provides that a witness who refuses to testify or provide information on the basis of his privilege against self-incrimination in a proceeding before or ancillary to a Federal court or grand jury, a Federal agency, or either House of Congress, or a committee, a subcommittee or joint committee of Congress and who is ordered to testify or provide information, may not refuse to comply with the order on the basis or his privilege against self-incrimination. In addition, it provides that no testimony or information compelled under the order, or any information directly or indirectly derived therefrom, may be used against the witness, except in a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. 3. Provisions of S. 1, as Reported Only minor changes in current law are affected by section 3111. The language "under the authority of" is substituted for "before or ancillary to" because the Committee believes that phrase to be broader and more encompassing of the proceedings to which the immunity provision is intended to apply. Thus, e.g., specific reference to committees of Congress can be eliminated in subparagraph (a)(3) of section 3111. "[C]ommitted in the course of the testimony or production" is added in subsection (b) (1) for the purpose of clarifying that the exception to immunity from prosecution applies only to perjury or false statements committed in response to an order compelling testimony or the production of information, and not to such offenses previously committed. This will avoid an ambiguity in the current law which has raised a basis for attacking its constitutionality on the ground that the exception can be interpreted as including perjury or false statements committed prior to the order compelling testimony or information. No change in the purpose or intent of the current law is contemplated by any other modification of the language contained in section 3111 from that set forth in 18 U.S.C. 6002. SECTION 3112. COURT OR GRAND JURY PROCEEDINGS 1. In General Section 3112 sets out the procedures to be followed in applying for, and in the issuance of, an order described in section 3111 in relation to court and grand jury proceedings. Such an order is to be issued by the district court for the judicial district in which the proceeding is to take place, or is taking place, upon the request of the United States Attorney for the district (approval of the Attorney General, the Deputy Attorney General, or of any designated Assistant Attorney General having been secured) if, in the judgment of the United States Attorney, the testimony or information may be necessary to the 4 In re Raldinger, 356 F. Supp. 153 (C.D. Cal. 1973); United States v. Alter, 482 F.2d 1016 (9th Cir. 1973). Section 3113. public interest, and the witness has refused or is likely to refuse to testify or to produce the information on the basis of a claim of a privilege against self-incrimination. 2. Present Federal Law 18 U.S.C. 6003 contains substantially the same provisions as those included in section 3112. 3. Provisions of S. 1, as Reported The only significant change in language contained in section 3112 is the substitution of the word "subpoenaed' 'in subparagraph (a) instead of "called." The purpose of this change is to more clearly conform section 3112 to the basic intent of current law and to limit the type of proceedings in which immunity can be invoked to those in which a subpoena may be issued. In all other respects section 3112 conforms in substance and intent to 18 U.S.C. 6003. Discretion of the court is limited to verifying that the criteria required by subparagraph (b) have been met. The United States Attorney, once approval by a designated official has been obtained, is given full authority and discretion to determine if the testimony or information should be compelled or if the witness is likely to assert his privilege. While approval of a responsible official of the Department of Justice is required, no requirement is made as to the form of the approval or that it be in writing. The Committee intends that an application by the United States Attorney to the court setting forth that the statutory criteria have been met is to carry with it the presumption of administrative regularity. 1. In General SECTION 3113. ADMINISTRATIVE PROCEEDING Section 3113 establishes the procedures to be followed in applying for, and in the issuance of, an order described in section 3111 in proceedings before Federal agencies. Substantially, the procedures follow the same format as in section 3112 except that the agency in question issues the order compelling testimony or the production of information rather than a court. The agency may issue an order when in its judgment the testimony or information may be necessary to the public interest, and the witness has refused or is likely to refuse to testify or produce information. As in section 3112, an order under section 3113 may issue only after approval by the Attorney General, Deputy Attorney General, or any designated Assistant Attorney General. 2. Present Federal Law 18 U.S.C. 6004 contains substantially the same provisions as does section 3113. Under section 6004, an agency, as defined in 18 U.S.C. 6001 (1) (see section 3115, infra), may, with the approval of the Attorney General, issue an order to compel the testimony of witnesses or the production of information when in its judgment the testimony or information may be necessary to the public interest, and the witness has refused or is likely to refuse to testify or provide information on the basis of his privilege against self-incrimination. Section 3114. 3. Provisions of S. 1, as Reported No significant change in current law is contemplated or intended by section 3113. The word "subpoenaed" in section 3113 (a) is substituted for "called" in section 6004 (a) only to conform the former to the substance of the current statute which limits the proceedings in which immunity can be invoked to those in which a witness may be summoned to appear. Section 6004 provides for the approval of the Attorney General for the issuance of an order compelling the testimony of a witness or the production of information. This provision, read in the context of the differing language of 18 U.S.C. 6003 creates an ambiguity. If read in the light of the general rules on delegability, the Attorney General's authority under section 6004 can be delegated by him to any other officer, employee, or agency of the Department of Justice pursuant to 28 U.S.C. 510.5 However, read in pari materia with section 6003, it could be held to be a specific limitation precluding delegation. In order to conform the provisions of sections 3112 and 3113, both provide for approval of immunity orders by the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General. As under current law, the intent of this provision is to limit the delegation of authority to approve immunity orders, in proceedings pursuant to both sections, to those officers. 1. In General SECTION 3114. CONGRESSIONAL PROCEEDINGS Section 3114 sets forth the procedures to be used for the issuance of an order compelling the testimony of witnesses or the production of information in proceedings under the authority of Congress or of either House of Congress. Such an order is to be issued by the district court for the judicial district in which the proceeding is to take place upon the request of a duly authorized representative of the House of Congress or the committee, subcommittee, or joint committee under whose authority or before whom the proceeding is being conducted. In the case of a proceeding before a House of Congress, the request must be approved by an affirmative vote of a majority of its members present in that House. In the case of a committee, a joint committee, or a subcommittee, the request must be approved by an affirmative vote of two-thirds of the members of the full committee. The section provides that the Attorney General must be served with a notice of intent to request the order at least ten days prior to the application to the court. Upon application of the Attorney General, the Court is to defer issuance of the order for a period of twenty days from the date on which the application to the court is made. 2. Present Federal Law 18 U.S.C. 6005 contains substantially the same provision as does section 3114. 5 December 1968 Grand Jury v. United States, 420 F.2d 1201 (7th Cir.), cert. denied, 397 U.S. 1021 (1970). |