Mr. RICHARDSON. I believe that is an entirely valid statement, Congressman McClory. I would add one other observation: We are in this context talking about a balance of interests as between law enforcement, on the one hand, and the right of privacy, on the other. I served as a law clerk a number of years ago for Judge Learned Hand of the Second Circuit. I also served as a law clerk the following year for Mr. Justice Frankfurter, and if I learned anything from those experiences it is that all hard questions of constitutional law must inevitably require at some point this kind of balancing of competing considerations.

I noticed just today that Professor Blakey briefly quotes Judge Hand, as having said, "There is no escaping in each situation from balancing the conflicting interests at stake with as detached a temper as we can achieve, in the spirit of liberty." In this instance you refer to the fact that the top bosses in organized crime do not assemble in the same room. If they did assemble in the same room at any time, or any two of them, certainly it would be helpful to law enforcement to have planted a bug in the room in advance. I would not, however, advocate the extension of legal authority to engage in electronic surveillance to that point because I think where trespass is involved, there is a violation of the fourth amendment.

On the other hand, if it were possible technically to overhear the conversation in that room through some device that did not require any trepass on the premises, it would seem to me that that should be regarded as legitimate.

In other words, I think we have here epitomized the kind of balancing of competing claims that seems to me inevitable and necessary in this field.

Mr. McCLORY. It seems to me, Mr. Richardson, that you have provided that sort of balance through the legislation to which you make reference and you have testified in support of in the State of Massachusetts, and that you would recommend to this committee. I would also say that that carries out a further balance, and that is something which this committee is deeply concerned with, and that is the balance between the interests of the law abiding citizens whom we are trying to protect and the criminal elements against whom we are trying to wage an increased attack and against whom we are trying to find new and better weapons for deterring and reducing their extremely damaging influence on society.

Mr. RICHARDSON. I could not agree with you more, Congressman. I would like in that connection, if I may, to take an additional moment to allude to another point which, it seems to me tends, to be overlooked. We often hear quoted Mr. Justice Brandeis on the proposition that the law and the courts can have a powerful educating influence, and this is a point sometimes cited by those who would oppose any form or legally authorized electronic surveillance, on the basis that this is not the kind of example that the Government ought to be setting. They tend, I think, to overlook the other side of that coin, which is that organized crime itself deeply corrodes public confidence in the integrity of Government and in its capacity to protect the citizen and to maintain order. This, indeed, I believe to be the most destructive aspect of organized crime. It operates through the infiltration of law enforcement agencies and their corruption and, through political corruption generally. Such a spectacle also has educational signifi

cance a negative significance. It seems to me that when we consider the relative interests that are at stake here we must recognize among them the preservation of respect for Government itself.

Mr. McCLORY. Thank you

Mr. RAILSBACK. No questions.

Mr. BIESTER. No questions.

Mr. ROGERS. Thank you so much, General Richardson. We appreciate your comments.

Mr. RICHARDSON. Thank you.

Mr. ROGERS. Our next witness is Prof. Herman Schwartz who is Professor of Law at the State University of New York at Buffalo. You have submitted a statement which is rather lengthy. I wonder if it would be all right with you to recess until 2 o'clock.

Mr. SCHWARTZ. I am at the pleasure of the committee.

Mr. ROGERS. Let us proceed, then, for about 30 minutes.

Mr. GRUMET. I heard you say that you were planning to recess after this witness is through until 2 o'clock. I assume you are going to do this after this witness is through.

Mr. ROGERS. Yes.

Mr. GRUMET. I assume you will probably recess

Mr. ROGERS. We will start with him and then, if we get through with him, that would be fine. You are to be the next witness.

Mr. GRUMET. May I make a statement?

Mr. ROGERS. Would you like to proceed the way I have indicated? Mr. GRUMET. Well, I am planning to get back to New York this afternoon.

Mr. ROGERS. We will do our best.

Mr. GRUMET. Thank you.

Mr. ROGERS. We will get to you as soon as possible.

Mr. SCHWARTZ. It is a lengthy statement. I would be very happy to answer any questions if this would not in any way cut into the gentleman's plans. I would be willing to accommodate myself to them in some other way if there is a problem. If you want, I am willing to go on at 2 o'clock.

Mr. ROGERS. Would you finish now, Mr. Grumet?

Mr. SCHWARTZ. I have a feeling that the committee may want to ask some questions and I would not like to deny them the opportunity. Mr. McCLORY. May I suggest that we hear Mr. Grumet now, if that is agreeable, and then we recess until 2 o'clock and then hear Mr. Schwartz at 2.

Mr. GRUMET. As a matter of fact, I have my colleague here too, and I am very grateful to Professor Schwartz and the committee for permitting us to do this.

STATEMENT OF JACOB GRUMET, COMMISSIONER, COMMISSION ON INVESTIGATION, STATE OF NEW YORK, N.Y., ACCOMPANIED BY MYLES J. LANE, COMMISSIONER

Mr. GRUMET. We, too, have filed a statement. If you feel we can dispense with the reading in the interest of saving time, I am perfectly willing to do that.

Mr. ROGERS. Go right ahead. We will file the statement for the record.

(Mr. Grumet's prepared statement follows:)

STATEMENT OF CHAIRMAN Jacob Grumet, on BehALF OF THE NEW YORK STATE COMMISSION OF INVESTIGATION

Our Commission is deeply concerned with proposed legislation in The Congress dealing with the very important subject of wiretapping.

In our Third Annual Report, issued in February, 1961, we stated that "criminal law enforcement in (New York) State has been dealt a crippling blow" by Federal Court decisions relating to wiretapping. The decision of the United States Supreme Court in Benanti v. United States thrust law enforcement officials and judges of our state courts squarely on the horns of a most vexing dilemma. As you know, by way of dicta in the Benanti case, the Supreme Court indicated that wiretapping under New York law was illegal and in violation of the Federal Communications Act. As a result of this decision, many judges and law enforcement officials in our state, understandably, refuse to perform an act which, though authorized by state law, has been described as illegal by the Supreme Court of the United States. The public safety and public welfare and important investigations dealing with organized crime and official corruption have suffered.

This Commission and others expert in the problems of law enforcement, presented strong and convincing proof that legal wiretapping, pursuant to court order, and the use of evidence thus obtained, is an obsolutely indispensable law enforcement weapon in the fight against organized criminal activities, racketeering and official corruption. Furthermore, it has been clearly demonstrated that there is no substitute for this investigative procedure in dealing with such cases. In that regard, we refer you to the transcript of our Commission's Public Hearing concerning the wiretapping dilemma which was held in New York City on April 5th and 6th, 1960. We should like to quote but one statement of the testimony given at that hearing by Mr. Frank Hogan, District Attorney of New York County for over 25 years, to emphasize the importance of wiretaps. Mr. Hogan said:

"Wiretapping is a powerful investigating weapon in the field of labor racketeering where the criminals' cunning and the victims', the businesmen's fear, would otherwise combine to conceal crime and make a mockery of law enforcement.

"Our files are full of cases where, but for wiretaps, some of the worst racketeering offenders might well have gone unpunished."

In the years following our public hearing, the need for wiretapping for law enforcement purposes has been proven repeatedly.

Now, almost a decade since the Benanti decision, the damaging situation still prevails. The Congress has failed to act on necessary remedial legislation which has been introduced.

Now, when crime has increased to such alarming proportions as to become recognized as a most serious nation-wide problem, paradoxically, persons both in and out of public office, who lack first-hand knowledge in dealing with the difficult problem of law enforcement, are demanding abolition of all wiretapping. Speaking in the name of "civil liberties," they completely disregard the compelling rights and interest of the public to be protected from the lawless acts of criminal elements. Such persons consistently fail to distinguish between illegal wiretapping and that carried on by law enforecment officers pursuant to law and court order, for the public good. They seek to create the impression that abolition of the latter will somehow eliminate the evils of the former. Nothing could be further from the truth. Moreover, much confusion and unjustifiable concern is being created by gross distortions and misstatements of fact concerning the use of wiretaps.

On March 7, 1967, a letter was sent to Senator John L. McClellan as Chairman of the Subcommittee on Criminal Laws and Procedures, signed by former United States Attorneys for the Southern District of New York, which District, undoubtedly, is one of the largest and most important in this country. This letter urged the enactment of legislation to permit wiretapping pursuant to court order by both Federal and State enforcement authorities.

This Commission full supports the views expressed by these experienced gentlemen and we strongly urge the adoption of their recommendations. In brief, we respectfully propose that The Congress consider legislation which would accomplish the following:

(1) Prohibit all unauthorized wiretapping, with stringent penalties for violators.

(2) Legalize court-authorized wiretapping and the use of wiretap evidence by the states, where state law so permits.

(3) Permit court-authorized wiretapping by federal law enforcement authorities, subject to approval by the Attorney General, in specified areas of major crimes and organized crime.

Such legislation, with appropriate safeguards, would resolve existing confusion and difficulties. It would also be of immense aid to effective law enforce ment. Above all, it would provide society with immeasurable protection against serious criminal invasions into its safety and security.

Mr. ROGERS. Can you epitomize your statement or give us other information we may need in arriving at a conclusion as to this proposal?

Mr. GRUMET. Yes. I merely, at the very outset, want to answer a question that was put by Congressman McClory to the previous witness who, I believe, was the attorney general of MassachusettsMr. ROGERS. That is right.

Mr. GRUMET (continuing). And he quoted the attorney general as having stated before this committee something about the differences between jurisdictions where wiretapping was used and where it was not used, and he did not think it was effective. Is that a fair statement? Mr. McCLORY. If the chairman will yield, he did cite the statistic, and then when he finished with the statistic he said that on the basis of that "We have to assume that we can be effective without it." Meaning wiretapping.

Mr. GRUMET. But his statistics, as I understand, were offered to prove what?

Mr. McCLORY. His statistic was that there were 25 more indictments, 25 percent more indictments in those jurisdictions which did not use electronic surveillance as opposed to those which did use it.

Mr. GRUMET. 25 indictments?

Mr. McCLORY. 25 percent more indictments.

Mr. GRUMET. Of what crime? I do not know what he means by that.

Mr. McCLORY. In response to my question he stated that the Federal organized crime statutes were the basis of 25 percent more indictments than in the preceding year. The evidence underlying those indictments were not developed by electronic surveillance. He concluded, therefore, "We have to assume that we can be effective without it."

Mr. GRUMET. I do not know where the attorney general gets his statistics. As the gentleman who just testified said, I do not know whether there are any statistics in this area. But I would say that the evidence that we have is very much to the contrary of what the attorney general contends. I just want to illustrate that by pointing out we have just come from the Senate committee, of which Senator McClellan is the chairman, dealing with the same subject, and on March 7th of this year, a letter was sent to Senator McClellan as chairman of the Subcommittee on Criminal Laws and Procedures, signed by, I believe, eight former U.S. attorneys for the Southern District of New York of whom one of them is the distinguished gentleman at my left, Mr. Myles Lane, one of my fellow commissioners and a colleague on the commission.

The U.S. attorneys for the Southern District of New York, which district undoubtedly is one of the largest and most important in the country. Now, in their letter all of these gentlemen-and they go back over a period of 30 years, one of them is old enough to have served under President Hoover-they all urge the enactment of legislation to permit wiretapping. I may say with the greatest respect that these

eight U.S. attorneys who have been appointed by four successive Presidents of the United States covering a period of 30 years, have had more experience in this area than the learned Attorney General of the United States. In addition to that, you have the statement which was referred to here before. The gentleman referred to the statement by Mr. Frank S. Hogan who had been the district attorney of New York County for over 25 years and who had a little to do with this work on wiretapping. I just want to quote from the statement that we presented to you here this morning his statement to us at a similar hearing held as far back as 1960. He says, and I quote:

Wiretapping is a powerful investigating weapon in the field of labor racketeering where the criminals' cunning and the victims', the businessmen's fear, would otherwise combine to conceal crime and make a mockery of law enforcement.

Our files are full of cases where, but for wiretaps, some of the worst racketeering offenders might well have gone unpunished.

Mr. LANE. Congressman McClory, I agree with something you said in your questioning of the last witness about the importance of using certain devices to detect crime. I have always been of the opinion that if something is used as a weapon, a gun or anything else or a telephone to commit a crime, it does not make sense to say that you should not use that same weapon to prevent a crime any more than if a gun is used by a burglar to commit crime, it is like saying "Well, the policemen cannot use a gun to arrest or to detect him."

In the field of organized crime it has been my experience and that of this Commission that there are two crimes which constitute the treasury of the underworld. I am talking about organized crime. That is, the crimes of gambling and narcotics. Now, anyone who has been in that field, anyone that knows anything about the subject must agree that there is no way that you can combat those two crimes without the use of a telephone.

Now, to give you one specific example, we received word from the dean of Cornell that there was a lot of gambling going on in football games, as to the discrepancy in the score, the numbers, and so forth, the point spread. So we sent a couple of investigators up to Ithaca and we had them in there for a few weeks. Then they discovered that there was something more going on than that. They discovered there was a group of professional gamblers that came in every weekend from Pennsylvania, New York, Connecticut, New Jersey, and so forth. They had a setup that was almost like a motion picture setup. They used a private club there. They made them a payment of so much for the use of the club. They had one of these setups where they had a mirror, and behind the mirror they had a steel door, and in order to get up to the game every weekend, the bartender had to press the button.

Anyway, they had a game going on every weekend where they had as much as $20,000 or $25,000 on the table. I believe we were able to get one of our investigators into that, and from there we got some leads. Using the telephone, getting a wiretap order, for the next 6 or 7 months and we did not use too many wiretaps at all, but we got leads from these wiretaps, we were able to discover the 19 upstate counties, just 19 out of the 62 in New York State, that they were doing a tremendous business in gambling. I am talking about professional gambling.