Professor BLAKEY. Even before he can sentence to life or death there has to be a finding by a jury that the defendant has been guilty of a crime articulated by Congress, Mr. Chairman. If I could return to the Right of Privacy Act, the second major aspect of this particular section which deeply disturbs me is the provision that no evidence obtained pursuant to the exercise of this power by the President could be used in a court of law or in an administrative proceeding. Quite frankly, the only effect that I can see that this would have would be to direct law enforcement efforts of the FBI and our other security agencies away from the open court, the open process. If we determined that a Member of Congress, a Federal judge. perhaps, had been subverted by a Communist, or some employee or executive of the Federal Government was in fact a double agent, we would not be able to try that man in open court. We would not be able to give him an opportunity to examine the witnesses against him. We would have to take sub rosa action against him. I find this is a disturbing development. Mr. CORMAN. Would the gentleman yield for a question on that! Professor BLAKEY. Certainly. Mr. CORMAN. I really fail to follow your logic that because the evidence is not admissible, that you anticipate we are going to adopt some new and different form of administration of justice outside the Judiciary. I would assume that what the intent of the bill is, that the fruits of such evidence might be admissible, but that some other kind of evidence that was disclosed could be used. Professor BLAKEY. The statute, as I read it on line 16, page 7, says no information obtained directly or indirectly in the exercise of such power may be used. The traditional definitions in this area would indicate that the evidence itself, and any evidence derived therefrom, would be inadmissible in court. If this is true, I cannot see how the executive in possession of the information would fail to take action against the individual. If he took action, he would have to take action outside of our existing administrative and judicial processes. This provision does not allow him to take it within it. If he is going to have to do this, he is going to have to whisper in somebody's ear that so and so is a Communist, you better fire him; or so and so is taking bribes from such and such a person, we better move him out of this position. Again let me say that the traditional genius of the American people has been that if our Government has information that we are acting contrary to the law we should be challenged with that information in open court. The use of this information in a sub rosa way is the kind of thing that simply runs against the grain. That is what is disturbing about this section of the bill. It would seem to me the use of this equipment in the national security area is needed. I have no doubt about that, but I do not see why it could not be done under a court order, and I do not see why the information ought not be admissible in court, so that the accused would have an opportunity to challenge the accuser and submit the judgment to a judge and the jury. The CHAIRMAN. The thrust of your argument is that for crime enforcement we should have wiretapping under an order of the court, is that correct? Professor BLAKEY. Yes, Mr. Chairman. I would say this is true both in the security field and a limited authorization in the area of organized crime. us: The CHAIRMAN. The Attorney General made this statement before Proponents of authorization have failed to make a case-much less meet the heavy burden of proof our values require. Where is the evidence that this is an efficient police technique? Might more crime be prevented and detected by alternate use of the same manpower? If wiretapping is effective, why are jurisdictions which utilize wiretaps sometimes seriously infested with organized crime while areas where they are prohibited are sometimes free of organized crime? Can the public be adequately protected against excessive use if use is permitted? Can innocent people be adequately protected from disclosures of false statements intercepted by wire taps? How many cases will be lost because rights such as that to counsel are invaded, however unwittingly? Do you care to answer those comments? Professor BLAKEY. I really do not like to pick fights with the chairman of this committee or with the Attorney General of the United States, particularly. The CHAIRMAN. You certainly did do that when you said my bill was the worst. Professor BLAKEY. I will have to be frank and answer that question, too. It seems to me that the Attorney General is in an untenable position if he says this equipment is needed in national security cases, and he certainly does he is asking for that authority-he is saying it is effective. He says it can be used effectively to strike at the Communist conspiracy of this country. But when he comes to the organized crime area, I cannot see how he says it is not needed, it is not effective, it is, somehow, useless. He has to blow hot or blow cold. He cannot have it both ways on the Federal level. Let me move from the Federal question to the State question. It may very well be true that if I come to you and say that we need Federal legislation to permit wiretapping and bugging by the FBI in organized crime cases, the burden of proof is on me to show the need. But insofar as this bill would prohibit or outlaw federally the State statutes which are in existence, it seems to me the burden of proof is on the Attorney General. New York has had this legislation since the late thirties. It has had court order bugging legislation since 1959. If that legislation has not worked, if that legislation has not been effective against organized crime, if the New York record is not as good as it is elsewhere, it seems to me that on these questions the burden of proof lies on the Attorney General and certainly not on me. He is seeking to overturn existing legislation and if he is doing that, then the burden of proof is on him. The CHAIRMAN. You are seeking to overturn exitsing conditions. At the present time, you have certain restrictions imposed by Supreme Court decisions. Professor BLAKEY. Mr. Chairman, insofar as the existing state of law would permit the use of electronic equipment in New York, I am inclined to believe that it is constitutional. The only question that we are addressing ourselves to The CHAIRMAN. Do you mean the Berger case will be decided in favor of the Government? Professor BLAKEY. Mr. Chairman, that is the one question I do not think I will comment on. The CHAIRMAN. I understand that you wrote the brief in that case. Professor BLAKEY. I wrote the brief. The CHAIRMAN. You wrote the brief against the Government. Professor BLAKEY. I wrote it in favor of the people of New York. Mr. MATHIAS. Mr. Chairman, if I could interrupt at this point, I think Professor Blakey has written a very important and significant brief in the Berger case. I would like to suggest that we include it as part of the record here because it is a very learned brief. The CHAIRMAN. Should we include then the Government's brief? Mr. MATHIAS. I think it is fair enough. The CHAIRMAN. We will include at this point, briefs for both sides. Mr. MATHIAS. I have a copy which is available for counsel at the conclusion. (The information referred to follows:) No. 615 IN THE Supreme Court of the United States OCTOBER TERM, 1966 RALPH BERGER, Petitioner V. THE PEOPLE OF THE STATE OF NEW YORK, Respondent On Writ of Certiorari to the Court of Appeals of New York BRIEF OF AMICI CURIAE URGING AFFIRMATION On Behalf of Elliot L. Richardson, Attorney General, Commonwealth of Massachusetts; Robert Y. Thornton, Attorney General, State of Oregon; National District Attorneys' Association, 211 East Chicago Avenue, Chicago, Illinois 60611 Of Counsel: G. ROBERT BLAKEY, Notre Dame Law School, Notre Dame, Indiana, 219-284-6626 I. Organized crime and corruption today poses ment A. The constitutional questions raised by this B. The constitutional questions must be placed ... 1. Organized crime has deep roots in our cul- 3. Organized crime today is highly structured 4. Organized crime today has impact which a. gambling b. narcotics c. loan sharking d. legitimate business. e. legitimate unions ... 15 15 17 18 19 2 22222* |