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The directive was followed by Attorneys General Jackson and Biddle, and is being currently followed in the Department. I consider it appropriate to bring the subject to your approval at this time.
It seems to me in the present troubled period in international affairs, accompanied as it is by an increase in subversive activities here at home, it is as necessary as it was in 1940 to take the investigative measures referred to in President Roosevelt's memorandum. At the same time, the country is threatened by a very substantial increase in crime. While I am reluctant to suggest any use whatever of special investigative measures in domestic cases, it seems imperative to use them in cases vitally affecting the domestic security, or where human life is in jeopardy.
A8 80 modified, I believe the outstanding directive should be continued in force. If you concur in this policy, I should appreciate it if you would so indicate at the foot of this letter.
In my opinion, the measures proposed are within the authority of law, and I have in the files of the Department materials indicating to me that my two most recent predecessur's as Attorney General would concur in
this view. (Emphasis added.) While implying that this new directive would be a simple extension of Roosevelt's policy, and thereby reducing any suspicions that Truman might have held about wire tapping and the relationship of this policy to that of his predecessor, Clark had significantly distorted the Roosvelt directive. In his quote from the operative paragraph of Roosevelt's directive, Clark had deleted its last qualifying sentence_"You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.” Moreover, Clark's letter did not convey the essence of the Roosevelt memorandum, whether Roosevelt's concern about the abuse of this authority or his restriction of wire tapping to foreign activities involv. ing sabotage. In addition, Clark's intent went significantly beyond Roosevelt's, in that he proposed that wire tapping be used to investigate domestic crime or "subversive" activities. In the absence of good staff work that would have apprised him of the specific nature of Roosevelt's policy, and accepting the assurances of his Attorney General, Truman signed the letter. By so doing, he provided the basis for a significant change in executive wire-tapping policy.
The manner by which this extension was secured reveals much about the relationship of the President and his Attorney General and the effective control that an executive exercises over his subordinates. Subsequent developments raise questions about Justice Department use of public relations. Thus, when popular concern about FBI wire tapping arose in the Judith Coplon case in 1949 and again in 1950, the Department of Justice sought through press releases to convey the impression not only that wire tapping was tightly controlled and restrained, but that the basis for this authority derived from President Roosevelt. In March 1949, Attorney General Clark maintained that FBI wire tapping had occurred only "in limited cases with the express approval in each individual instance of the Attorney General. There has been no new policy or procedure since the initial policy was stated by President Roosevelt and this has continued to be the Department's policy whenever the security of the nation is involved.” (Emphasis added.)
Knowing how wire tapping was extended and publicly justified during the Truman years sufficient reason for requiring that the legislature delineate specifically the limits to executive "national security" uses of the technique. As matters stand, there is assurance neither that the President will use wire tapping with restraint nor that he will be fully apprised of procedures instituted within his own administration. The complexity and far-reaching responsibilities of the modern Presidency have increased the possibility that the Chief Executive will not be fully informed about the basis for policy decisions or the procedures of his subordinates. Necessarily dependent for advice and information on nonresponsible subordinates, a cold-war President is vulnerable to being manipulated and beyond that, to mainipulating the Congress and the public. The corruption inherent in unlimited grants of power requires that traditional processes of control be established, that the simple affirmation of "national security" not remove constraints that would limit abuse or specifically delineate executive authority.
In this sense, the language of Title III of the Omnibus Crime Control Act of June 1968 is too vague to provide the safeguards that national policy requires. Moreover, when formulating and debating the Act, Congress failed to fulfill its legislative responsibilities and let references to "national security" avert the necessary consideration of Presidential powers and uses of wire tapping. This authorization of wire tapping by federal, state and local law-enforcement agencies demands careful scrutiny as to its constitutionality, wisdom and necessity. Most important, it must be determined whether a simple claim of “national security' seriously restricts the liberties of non-conformists, radicals or dissenters. In this article, I shall discuss the “national security” provision of Title III of the Omnibus Crime Control Act of 1968; the related question of the constitutionality of wire tapping in criminal cases will not be treated.
The major themes of the debate over this authorization were immediately outlined when Ramsey Clark, incumbent Attorney General, after passage of the Act and during testimony before the Senate Appropriations Committee, expressly opposed wire tapping as a general tool of law enforcement. It was not necessary, Clark affirmed, in criminal investigations; constitutional limitations made it virtually useless as a method of crime detection. More effective law enforcement at the local level was the best means to prosecute crime. Consistent with this position, Clark refused to employ the broad grant of authority provided by the Act, restricting federal use to national security cases.
John Mitchell, Clark's successor, does not share this aversion; he has expressed his intention to utilize the authority provided by the Act. His statement of Justice policy, particularly enunciated in a brief filed in Chicago Federal District Court and released in Washington on June 13, 1969, outlined the general objectives and methods of departmental wire-tapping policy. In this brief, the Attorney General maintained that the Department of Justice had legal power, without court approval, to eavesdrop on members of organizations it believed intended to "attack or subvert the Government by unlawful means." Mr. Mitchell further acknowledged that the Justice Department had instituted wire taps on four of the eight defendants in the Chicago conspiracy trial. Outlining the justification for this action, the brief contended :
There can be no doubt that there are today in this country organizations which intend to use force and other illegal means to attack and subvert the existing form of government. Moreover, in recent years there have been an increasing number of circumstances in which Federal troops have been called upon by the states to aid in the suppression of riots. Faced with such a state of affairs, any President who takes seriously his oath to "preserve, protect and defend the Constitution" will no doubt determine that it is not "unreasonable” to utilize electronic surveillance to gather intelligence information concerning these organizations which are committed to the use of illegal methods to bring about changes in our form of government and which may be seeking to foment violent disorders. ...
The question whether it is appropriate to utilize electronic surveillance to gather intelligence information concerning the activities and plans of such organizations in order to protect the nation against the possible danger which they present is one that properly comes within the com
petence of the executive and not the judicial branch. The vagueness of this policy statement, the implication that wire tapping would be used for domestic surveillance without court authorization, at the sole discretion of the executive branch and with no heed either to the prohibitions of the Fourth Amednment or to the court-approved requirements of Title III of the Omnibus Crime Control Act—heightened fears within the legal profession and among certain liberal and radical organizations. This alarm coincided with further disclosures about Justice Department and FBI investigative activities. At about the time of the passage of the 1968 Act, it became known that the FBI had wire tapped not only the Chicago conspiracy trial defendants but also Joe Namath, Mohammed Ali, Dr. Martin Luther King, Jr., Stokely Carmichael, Elijah Muhammad, the Black Panthers, certain anti-war groups, H. Rap Brown, Roy Cohn, Dr. Benjamin Spock, and the other defendants in the Boston draft case. Indeed, one civil libertarian, commenting on the extent of this use, feared that: “Given the nature and manifestations of unrest in our cities, there is a real possibility that eavesdropping could be employed to control the protests of the poor and their supporters who petition for redress of grievances."
In response, the ACLU on June 26, 1969 filed a suit in the U.S. District Court in Washington on behalf of nine anti-war and Black Power organizations and the eight defendants in the Chicago conspiracy trial. Seeking to ban electronic surveillage of political dissenters, and citing the Justice Department's June 13th brief and its implied use of “national security" to justify surveillance of dissident political groups, the ACLU brief condemned Attorney General Mitchell and FBI Director Hoover for having "assumed judicial, penal and otherwise regulatory control over the protesting activities of all dissenting Americans," and for their announced policy of "unfettered executive power to determine possible danger.”
The concern motivating the ACLU suit seemed to be confirmed by a subsequent New York Times story reporting the response of Nixon Administration aides to recent bombing incidents. On April 12, 1970, the Times reported that these unidentified aides viewed the occurrence of domestic bombings as posing a serious internal security threat that required electronic surveillance. One of them remarked to the Times correspondent that had the FBI put a tap on the phone of Diane Oughton, who was killed in a Greenwich Village bomb explosion, it might have been able to arrest her before the bomb exploded The Times writer wondered whether the Administration was making a case for greater surveillance of domestic radicals.
The fear that wire tapping can amount to poltical surveillance of radicals and dissenters leads one to examine the broad authority granted by the Omnibus Crime Control Act. Section 2511, Title III stipulates :
Nothing contained in this statute or in section 605 of the Communications Act of 1934 ... shall limit the constitutional powers of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or aaginst any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence... only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.
(Emphasis added.) The majority report of the Senate Judiciary Committee, issued on April 29, 1968, stressed the same themes. Its language did nothing to define more precisely the limts to executive wire-tapping authority in the realm of "national security.” While emphasizing the need to prohibit unauthorized use of wire tapping and to prevent its abuses, the report nonetheless added :
It is obvious that whatever means are necessary should and must be taken to protect the national security interest. Wiretapping and electronic surveillance are proper means for the acquisition of counterintelligence against hostile actions of foreign powers. Nothing in the proposed legislation seeks to disturb the power of the President in this area. Limitations that might be deemed proper in the field of domestic affairs become
artificial when international relations and internal security are at stake. The report further emphasized :
Paragraph (3) is intended to reflect a distinction between the administration of domestic criminal legislation not constituting a danger to the structure and existence of the Government with the conduct of foreign affairs. It makes it clear that nothing in the proposed chapter or other act amended by the proposed legislation is intended to limit the power of the President to obtain information by whatever means to protect the United States from the acts of foreign powers including acutal or potential attack of foreign intelligence activities, or any other danger to the structure or existence of the Government. When foreign affairs and internal security are involved, the proposed system of court ordered electronic surveillance envisioned for the administration of domestic criminal legislation is not intended necessarilly to be applicable. ... The only limitation recognized in this use is that the interception be deemed reasonable based on an ad hoc judgment taking into consideration all of the facts and circumstances of the individual case. (Emphasis added).
Although the implication of the language of the report and of Title III was that this broad grant of authority was based on the President's constitutional prerogatives and was intended simply to meet a foreign threat, particularly foreign intelligence, the qualifying references to “internal security" and "other danger to the structure or existence of the Government" could be used to authorize surveillance of radical anti-war, Black Power, or socialistic groups. Seeking to quell fears of domestic surveillance, the bill's proponents contended that the authorization was tightly defined, that use of it would be restrained and consistent with constitutional and libertarian principles.
Indeed, the majority report of the Judiciary Committee abounds with reassuring phrases. With the exception of “duly authorized" law-enforcement officials inevstigating "specified type of crimes” pursuant to prior court order, wire tapping was prohibited. Indeed, one reason for the proposed legislation was the threat posed by scientific and technological developments in electronic surveillance. Authority for wire tapping was “carefully circumscribed.” “[T]he Berger and Katz decisions [were used] as a guide in drafting Title III... [which] has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.”
The language of the Act contained the same assurances. This legislation was intended to prevent wire tapping “without legal sanction” and “to define on a uniform basis” the circumstances and conditions where it would be authorized. Electronic surveillance would be permitted only "when authorized by a court of competent jurisdiction” and would be limited to "certain major types of offenses and specific categories of crime with assurances that the interception is justified and that the information obtained thereby will not be misused.” A thirty-day limit was imposed on each tap, although this authority was renewable. Exceptions to the obtainment of a court order were permitted for reasons of “national security” or where an “emergency situation” required immediate action. In the latter case, law-enforcement officials were allowed to tap for a forty-eight-hour period before being required to secure court appproval. Finally, a National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Eavesdropping was to be established and given responsibility to review the use and operation of the law. The commission was specifically directed to report its findings to the President and Congress.
During the Senate debate on the proposed bill, Sen. John McClellan (D., Ark.), the floor manager of the bill, also emphasized that the “first major purpose of the Title III is to protect privacy of communication.” The bill, McClellan added, "has been carefully drafted to meet both the letter and spirit of the constitutional tests set out in Berger and Katz, Electronic surveillance is authorized but only under strict controls. Broadly, Title III creates a court order system of electronic surveillance. Approval may be given only under certain carefully detailed conditions. It clearly and narrowly assures that electronic surveillance is intended to be the exception, rather than the rule. It is envisaged that these techniques will be employed in only limited numbers and kinds of criminal investigations. On the federal level, the two chief areas are national security matters and organized crime. The specific offenses are designated in the statute. Finally, Title III sets out a series of detailed reporting requirements.”
This rhetorical disparagement of unwarranted fears of "Big Brother” was continued after 1969 in public statements by the Nixon Administration and Senator McClellan. The use of wire tapping, both maintained, was restrained ; the number of taps was numerically insignificant. In a June 19, 1969 press conference, moreover, President Nixon described his Administration's wire-tapping policy as being "that it should be used very sparingly, very carefully-having in mind the rights of those who might be involved—but very effectively to protect the internal and external security of the United States.” A House Republican Task Force on Crime, Atty. Gen. John Mitchell, and Deputy Atty. Gen. Richard Kleindienst similarly emphasized the care to be exercised.
And, in a series of press releases, the Justice Department reported the number of court-approved wire taps in use as being 54, 31, 70, 33. These varying figures, however, referred only to court-approved wire taps which had been terminated and did not include "national security" taps. The release, and news stories based on it, did not emphasize the distinction, and the low figures cited seemed to bespeak great caution and minimal use.
Senator McClellan and others in the Senate iterated this contention, while at the same time extolling the successes of Administration use of wire tapping. Disclosing that the Justice Department had reported using wire taps or electronic surveillance in 133 cases in the eighteen-month period since the Nixon Administration had assumed office, McClellan praised the effective use of this technique. He cited the number of indictments, arrests and convictions made possible by taps, and observed that Attorney General Mitchell bad personally studied each request before authorizing application for court approval. The Justice Department, McClellan emphasized, had made a total of 137 court requests, only one of which had been denied, and had used the court authorization in every case but three. However, McClellan's analysis, like the Justice Department's press releases, failed to mention the extent of departmental usage in "national security" cases; nor did it discuss how the President and his Attorney General defined either the executive's "constitutional” powers or threats to the "structure or existence" of the government.
Accordingly, both the constitutionality and the extent of departmental use of wire tapping. outlined in the June 13, 1969 brief, require a determination of the nature of and legitimacy for the authority granted under the Omnibus Crime Control Act. The Act itself—in contrast with McClellan's assurances during Senate debate and the majority report's emphasis-does not define the limits to executive authority. The Act and the report virtually cede to the President unchecked latitude on “national security” grounds, clearly approving an extensive use, though qualifying this grant by references to "constitutional" powers or “reasonable" purposes. The opportunity of Congressional debate, since specific amendments were offered to Title III of the Senate bill (S. 917) and formal opposition was led by Sens. Philip Hart (D., Mich.) and Edward Long (D., Mo.), should have delineated what powers and latitude, what limits to executive authority, the Congress intended to convey by this legislative grant. Presumably, this debate would have made evident whether the June 13, 1989 brief was consistent with the 1968 Act and with the limitations the Congress recognized to the constitutional powers of the President.
In their minority report, Senators Long and Hart contended that Title III was "unconstitutional, as it provides for unreasonable searches and seizures." Hart maintained in addition that section 2511 (3)—"against any clear and present danger to the structure or existence of the Government”-left too much discretion to a President:
Under 2511 (3) a President on his own motion could declare a militant right wing group (i.e., the Minutemen) or left wing group (i.e., Black Nationalists), a national labor dispute, a concerted tax avoidance campaign, draft protesters, the Mafia, civil rights demonstrators, a “clear and present danger to the structure of the Government." Such a declaration would allow unlimited unsupervised bugging and tapping. . . . As drat ea
Section 2511 (3) gives the President a blank check to tap or bug without judicial supervision, when he finds, on his own motion, that an activity
poses a "clear and present danger to the Government." During Senate debate on Title III, Hart again raised the point. The language of the bill as drafted, he argued, failed to provide limits to executive authority or to delineate the basis for the national security exception. Hart's speech drew a response from Senators McClellan and Spessard Holland (D., Fla.) over the meaning of the bill's language. The issues raised in this extended debate, and the specific responses of McClellan and Holland to Hart's queries, because important for an understanding of Congressional intent, warrant extensive quotation.
Introducing the discussion on the meaning of section 2511 (3), Hart maintained that, as he read the language, the President would be authorized to declare that the Black, Muslims, Ku Klux Klan, draft dodgers, or civil rights advocates constituted a clear and present danger. Hart continued, "If that is the case, section 2511 (3) grants unlimited tapping and bugging authority to the President. And that means there will be bugging in areas that do not come within our traditional notion of national security." Hart then pressed McClellan as to whether this reading of section 2511 (3) was a fair one.
In reply, McClellan evasively stated, “This language is language that was approved and, in fact, drafted by the Administration, the Justice Department.