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The United States' entrance into World War II provided a setting different from that in 1940 which had prevented congressional enactment of legalized wiretapping. Accordingly, on April 23, 1942, Congressman Celler renewed his effort to secure a wiretapping bill.55 His 1942 measure, in contrast to that of 1940, specifically provided that section 605 of the Federal Communications Act of 1934 would be waived in the "interest of prosecution of the war.” 56 The report submitted to accompany this proposed bill stressed the need for wiretapping as a device for counter-espionage. Conceding the possible restrictions on individual rights, the report suggested that such fears were unwarranted since the use of wiretapping would be limited to the duration of the war and the activities restricted to necessary counter-espionage.57 Congressman Celler's 1942 effort, as that of 1940, was unfruitful. Throughout the war illegal wiretapping was conducted pursuant solely to the restrictions and authority provided by President Roosevelt's directive and the information so obtained, although helpful for surveillance purposes, could not be used as evidence.
The FBI's use of wiretapping under this directive involved not only clear-cut security cases, such as the tapping of the telephones of the Japanese consulate in Hawaii,58 but also extended to non-security cases presumably not covered by that directive, such as the tapping of Mrs. Franklin Roosevelt's Chicago hotel room by Army intelligence during World War II.59 The termination of World War II brought into question the continued utilization of “illegal” wiretapping under the Roosevelt directive.
Attorney General Tom Clark, concerned over the deterioration of United States-Soviet relations, the prospect of Soviet espionage and the subversive role of the United States Communist Party, in 1946 secured President Truman's assent to a reaffirmation of Roosevelt's 1940 directive.60 By quoting selectively from President Roosevelt's earlier directive-distorting the intent and scope of that directive-Clark secured President Truman's permission for an expanded authorization of wiretapping including a wider spectrum of “national security” cases and criminal activites. Clark's directive of July 17, 1946 stipulated that:
Under date of May 21, 1940, President Franklin D. Roosevelt, in a memorandum addressed to Attorney General Jackson stated : "You are therefore authorized and directed in such cases as you may approve, after investigation of the need in each case to authorize the necessary investigating agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies.”
This directive was followed by Attorneys General Jackson and Biddle, and is being currently followed in this Department. I consider it appropriate to bring the subject to your attention 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 these 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.
As so 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
55 H.R. Rep. No. 2048, 77th Cong., 2d Sess. (1942).
60 Letter from Attorney General Clark to President Truman, July 17, 1946, on file in Truman Library, Stephen Speingarn Papers (emphasis added). Not only had Clark deleted Roosevelt's qualifying sentence, but the national security concern of the Clark directive was broader and vaguer and could encompass surveillance of political and trade union activities.
my two most recent predecessors as Attorney General would concur in this
view.6 Under this new directive, the scope of authorized "legal" wiretapping incorporated a broad range of activities. The provision “vitally affecting the domestic security, or where human life is in jeopardy” would include not only kidnapping but suspect political activities. In those limited cases where FBI resort to illegal wiretapping became public, this more general political aspect was fundamental. Reportedly, United Mine Worker's President John L. Lewis' phone was tapped and an FBI agent was apprehended allegedly installing the tap.62 The phone of Edward Condon, Director of the Bureau of Standards, also had been tapped at various times from 1946 through 1949.63
In 1949, the Department of Justice instroduced a comprehensive internal security bill containing a section legalizaing wiretapping in "national security" cases.
64 Related to this legislative effort, and in the context of the 1949–50 trials of Judith Coplon, a former Justice Departmment employee, the wiretapping activities of the FBI came under critical focus and aroused great concern.65 Arrested on charges of stealing Justice Department investigative secrets for a Soviet agent, Miss Coplon became a cause celebre. Interest in her case centered less on the criminal charge than on FBI investigative tactics and the subsequent disclosure that FBI agents had engaged in illegal wiretapping. 66 Attempting to undercut the reaction precipitated by these developments, FBI Director J. Edgar Hoover 67 and Attorney General Clark defended the Department's actions by relying on President Roosevelt's liberal credentials. Indeed, Clark claimed that resort to illegal wiretapping had not been concealed and had only occurred "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." 68 In January 1950, Clark's successor, Attorney General J. Howard McGrath, offered the same rationale for illegal wiretapping. 69 McGrath, again inyoking President Roosevelt's directive and not
62 N.Y. Times, Oct. 6, 1948, at 25, col. 5.
64 N.Y. Times, Jan. 15, 1949, at í, col. 8. Owing to suspicions aroused by the Coplon case and more general concern over this specific request, Clark subsequently withdrew the request for legislation legalizing wiretapping. Id., April 1, 1949, at 48, col. 7.
65 N.Y. Times, Dec. 1, 1949, at 28, col. 3; id., Dec. 16. 1949, at 20, col.'6 ; id., Jan. 1, 1950, at 12, col. 1; id., Jan. 12, 1950, at 9, col. 3; id., Feb. 2, 1950, at 14, col. 3; id., Feb. 2, 1950, at 14, col.' 3; id., Nov. 3, 1950, at 24, col. 2.
66 Justice Dep't concern over the reaction is reflected in press releases by Attorneys General Clark and McGrath, See Justice Dep't Press Release, March 31, 1949, on file in Justice Dep't Library ; id., Jan. 8, 1950, on file in Justice Dep't Library. During the trials it was disclosed that F.B.I. agents had tapped Miss Coplon's phone, that the taps had occurred before and after her arrest and included privileged conversations between Miss Coplon and her attorneys, N.Y. Times, Dec. 1, 1949, at 28. col. 3 : id., Dec. 16, 1949, at 20, col. 6; id., Jan. 1, 1950, at 12, col. 1; that Mr. Gubitchev's phone (the Soviet agent involved) had been tapped with the prospect that this had involved widespread tapping of the phones of other United Nations employees. N.Y. Times. Dec. 1, 1949, at 28, col. 3; id., Dec. 16, 1949, at 20, col. 6; id., Jan. 12, 1950, at 9, col. 3; that F.B.I. agents in pretrial testimony had denied having tapped "Miss Coplon's phone and subsequently admitted wiretapping when the defense presented tapes of those taps. N.Y. Times, Feb. 2, 1950, at 14, col. 3; and that local F.B.I. agents had destroyed wiretap records immediately prior to trial, N.Y. Times, Nov. 3, 1950, at 24, col. 2.
These disclosures created a furor since they involved not only evidence of illegal F.B.I. wiretapping, but also definite violations of individual rights. Most dramatic were the disclosures concerning taps of Miss Coplon's privileged conversations with her lawyers. the perjured testimony of F.B.I. agents and their seeming effort to conceal their activities by destroying the wiretap records. This was coupled with Department of Justice efforts to prevent the defense attorneys from publicizing the F.B.I. records that Miss Coplon was accused of stealing, recors which disclosed F.B.I. surveillance of the personal and political association of prominent liberals both inside (Edward Condon, David Niles) and outside the Administration (Frederick March, Edward G. Robinson). N.Y. Times, June 2, 1949, at 3, col. 7; id., June 3, 1949, at 2, col. 2; id., June 4, 1949, at 2, col. 3 ; id., June 8, 1949, at 1, col. 2; id., June 9, 1949, at 1. col. 8 ; id., June 10, 1949, at 10, col. 3; id., June 11, 1949, at 6, col. 1 ; id., June 12, 1949, at 1, col. 2; id., June 16, 1949, at 15, col. 5; id., Dec. 16, 1949, at 20, col. 6. See also Coplon v. United States, 191 F.2d 749 (D.C. Cir. 1951), cert. denied, 342 U.S. 926 (1952) ; United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), cert. denied, 342 U.S." '920 (1952).
67 N.Y. Times, April 16, 1950, 8 6 (Magazine), at 9.
68 Justice Dep't Press Release, March 31, 1949, on file in Justice Dep't Library (emphasis added).
69 Justice Dep't Press Release, Jan. 8, 1950, on file in Justice Dep't Library.
President: Truman's of 1946, asserted that the FBI's resort to wiretapping had been based on the earlier Roosevelt directive. McGrath, specifically affirmed that there had been no new policy or procdure concerning wiretapping since President Roosevelt.70
A complex of events, particularly the outbreak of the Korean War and an internal security phobia that dominated American thought, changed the climate in which the resort to wiretapping came to be discussed in Congress. The Copion case led to a reassessment of the rationale for restrictions against the use of evidence secured through wiretapping. The central concern of the Congress no longer centered on possible dangers that the resort to wiretapping posed for constitutional rights, but on whether the prohibition of section 605 of the Federal Communications Act of 1934 should be continued. The implication was that this prohibition possibly endangered, or at least, compromised, the “national security.” In 1951, 1953, 1954, 1958 and 1959, specific legislation was introduced and hearings held concerning legalization of wiretapping in “national security” cases.71 The Department of Justice and the various military agencies emphasized the necessity of wiretapping, and it was asserted that the Act prohibited only the divulgence of information secured through wiretapping.72 Moreover, the Department. of Justice's formerly apologetic attitude over the resort to illegal wiretapping was tacitly rejected by Attorney General Brownell who forthrightly admitted in 1954 that the number of wiretaps in operation reached as high as 200 at any one time. Brownell cited these figures as evidence of Department vigilance.73
The proposed legislation and hearings conducted pursuant to these post-1950 recommendations highlight this shift in priorities and concerns. The legality of FBI resort to wiretapping went unquestioned. At issue were these questions: what procedures or guildelines should be established; what actions would be legalized ; and where should the final authority for approving specific wiretapping be vested, in the Attorney General or in federal judges? 74 Moreover, in hearings held in 1953, Congressman Celler specifically affirmed that the purpose of the hearings was not to investigate incidents of illegal wiretapping, but rather to establish the provisions for the legal use of evidence secured through wiretapping.75 The committee report published subsequent to these hearings stipulated that the resort to wiretapping was not a constitutional but a legislative question.76 The report affirmed that section 605 of the Federal Communications Act had imposed definite restrictions on the use of wiretapping information as evidence. It criticized this restriction as harmful to the "national security” and recommended the enactment of legalized wiretapping legislation in cases generally affecting the “national security.” 77
71 N.Y. Times, Nov. 18, 1953, at 20, col. 2; id., April 3, 1954, at 7, col. 1; id., April 24. 1954, at 1. col.7; id., Feb. 25, 1955, at 1. col. 3 ; id. at 13, col.' 4; id., March 24, 1955, at 22, col. 3; id., May 15, 1958, at 59, col. 3; id., Dec. 16, 1959, at 34, col. 1. In 1965, it was revealed that I.R.S. agents had used wiretaps in the federal government's attack on organized crime in Pittsburgh and that F.B.I. agents had tapped the phones of businessmen in private homes and apartments in connection with investigations involving suspicions of criminal activities. N.Y. Times, July 16, 1965, at 6, col. 3; id., Oct. 24, 1965, at 50, col. 1.
72 N.Y. Times, Nov. 18, 1953, at 20, col. 2; id., April 3, 1954, at 7, col. 1; id., April 21, 1954, at 18, col. 1 ; id., April 24. 1954, at 1, col. 7; id. at 12, col. 7; id., Feb. 25, 1955, at 1, col. 3; id. at 13, col. 4; id., March 24, 1955, at 22, col. 3; id., May 15, 1958, at 59. col. 3; id; Dec. 16. 1959, at 34, col. 1 ; H.R. Rep. No. 1461. $3d Cong., 2d Sess, 3 (1954); Hearings on Wiretapping for National Security Before Subcomm. No. 3 of the House Comm. on the Judiciary, 83d Cong., 1st Sess. (1953) ; Hearings on Wiretapping Before Subcomm. No. 5 of the House Comm. on the Judiciary, 84th Cong., 1st Sess. (1955).
73 N.Y. Times, April 21, 1954, at 18, col. 1. In contrast to this admission by Brownell, in 1931 F.B.I. Director Hoover' had emphatically denied that wiretapping was permitted. Hoover then averred that “we have a very definite rule in the bureau that anv employee engaged in wiretapping will be dismissed from the bureau.” Hearings on Wiretapping in Law Enforcement Before the House Comm. on Expenditures in the Executive Departments, 71st Cong., 3d Sess. 26 (1930).
74 H.R. Rep. No. 1461, 83d Cong., 2d Sess. (1954) ; Hearings on Wiretapping for National Security Before Subcomm. No. 3 of the House Comm, on the Judiciary, 83d Cong., 1st Sess. (1953) ; Hearings on Wiretapping Before Subcomm. No. 5 of the House Comm. on the Judiciary, 84th Cong., 1st Sess. (1955).
75 Hearings on Wiretapping for National Security Before Subcomm. No. 3 of the House Comm. on the Judiciarv. 83d Cong., 1st Sess. 16-17 (1953).
78 H.R. Rep. No. 1461, 83d Cong., 2d Sess. 1-3 (1954). 77 Id. at 4.
During committee hearings in 1953, no effort was made to define the term "national security” with any precision. The language of one of the proposed bills, that of Congressman Celler, delineated national security as encompassing "treason, sabotage, espionage, sedition, sedition conspiracy, violation of the neutrality laws, violation of the Act of requiring the registration of agents of foreign principals . violation of the Act requiring the registration of organizations carrying on certain activities within the United States ... [and] violation of the Atomic Energy Act of 1946 . .
Neither these bills nor the terms under reference clearly defined or delineated what constituted subversive or "certain” activities. Nor did the committee in its hearings or report secure a clear, defined limit. A broad standard was implicitly accepted-tacitly the Department of Justice would be accorded considerable leeway in surveillance of actions or activities that affected the "national security."
The language used in 1954 to define “national security"-"treason, sabotage, espionage, sedition, conspiracy, violation of Chapter 115 of Title 18 of the United States Code, violation of the Internal Security Act of 1950 ..., violations of the Atomic Energy Act of 1948 and conspiracies involving any of the foregoing,” 79 repeated this process. With the exception of Congressman Keating's 1958 bill,80 the same language was used throughout the latter 1950's when similar bills were introduced.81 Despite the changed rationale and focus these various legislative efforts failed. Congress did not enact specific wiretapping legislation although the momentum for passage had increased and a reluctance to prohibit the use of wiretapping on alleged "national security" grounds had emerged.
With the advent of the 1960's a change in emphasis, although not in rationale, took place. As an omen of this change Congressman Celler's 1959 bill included a clause which would have authorized wiretapping in kidnapping cases.82 As a result of the investigative disclosures of the Kefauver 83 and McClellan 84 Committees, the primary concern shifted from “national security" to organized crime. Bills introduced in 1961 and 1962 retained the definition of "national security” as “any offense punishable by death or imprisonment for more than one year under chapter 37, 105, or 115 of title 18 of United States Code, Sections 224–227 inclusive of the Atomic Energy Act of 1954 ..., amended, or conspiracy to commit any such offense.” 85 But to this was added authorization to wiretap for any offense involving murder, kidnapping or extortion under title 18 of the United States Code any offense under sections 201, 202, 1084, or 1952 of title 18 of the United States Code any offense under any law of the United States involving the manufacturing of, importation, receiving, concealment, buying, selling or otherwise dealing in narcotic drugs, marihuana or any conspiracy to commit any of the foregoing offenses.*
During the period of the late 1950's and early 1960's use of illegal electronic eavesdropping by the executive branch continued. In 1959 Attorney General William P. Robers told the Senate committee investigating the use of wiretapping that the FBI had 74 telephone taps all of which were for “national secu
78 Hearings on Wiretapping for National Security Before Subcomm. No. 3 of the House Comm. on the Judiciary, 83d Cong., 1st Sess. 1 (1953). Similar definitions were established in other bills considered by the Committee. Id. at 2-4. The most general of these bills simply refered to but never defined, “national security.” Id. at 4.
79 Hearings pursuant to S. Res. 62 on Wiretapping, Eavesdropping, and the Bill of Rights Before the Subcomm. on Contstitutional Rights of the Senate Comm. on the Judiciary, 86th Cong., 1st Sess., pt. 3, at 1014 (1959).
80 Id. at 1021.
81 Congressman Celler's 1959 bill defined "national security" as: one or more of the crimes punishable under Chapter 7 (dealing with espionage), Chapter 105. (dealing with sabotage), or Chapter 115 (dealing with treason, sedition, and subversive activities) of this title, or section 10 of the Atomic Energy Act of
as amended, or a conspiracy to commit any such crimes. Id. at 1027.
83 See S. Rep. No. 307, 82d Cong., 1st Sess. (1951).
84 See Hearings Before the Senate Select Comm. on Improper Activities in the Labor or Management Field, 85th Cong., 1st & 2d Sess. (1957-58); id., 86th Cong., 1st Sess. (1959).
85 Hearings on S. 2813 & S. 1495 Before the Senate Comm. on the Judiciary, 87th Cong., 20 Sess, 2 (1962).
88 Id. at 3.
rity" cases.87 At the 1961 Senate committee hearings Assistant Attorney General Miller testified that the FBI had 85 wiretaps at that time, all authorized on "national security" grounds.88 Hearings in 1965 disclosed widespread use of wiretapping and electronic eavesdropping by many federal agencies especially by the Internal Revenue Service.89 As a result the Justice Department was forced to admit in more than thirty cases that some of the evidence was possibly tainted resultiing from illegal wiretapping or electronic eavesdropping.90 Among these were Schipani v. United States 91 and Black v. United States 92 In a 1966 memorandum to the Supreme Court in the Black case, then Solicitor General Thurgood Marshall wrote:
[U]nder departmental practice in effect for a period of years prior to 1963 and continuing into 1965 the director of the Federal Bureau of Investigation was given authority to approve the installation of devices such as that in question for intelligence (and not evidentiary) purposes when required in the interest of internal security or national safety including organized crime, kidnapping and matters wherein human life be at stake. Acting on the basis of the aforementioned departmental authorizations the
director approved installation of the device involved in the instant case. 93 Thus, the “national security" exception was expanded to include organized crime cases in practice if not in theory.
In 1967 another bill 94 was introduced in the Congress and further hearings were held.95 This bill prohibited the interception or the divulgence of any wire communication or th use of electronic eavesdropping devices sold in interstate commerce. The “national security" exception was continued, but in different language :
[N]othing contained in this chapter or in section 605 of the CommunicationsAct of 1934 . . . shall limit the constitutional power 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 or any other serious threat to the security to the United States or to protect
national security information against foreign intelligence activity.96 During the hearings Attorney General Ramsey Clark admitted that the Department of Justice presently had approximately 38 wiretaps "in cases directly affecting the national security." 97 He said : "[t]here is no other wiretapping or other electronic surveillance engaged in by the Department of Justice.” 98 He also specifically refused to interpret the language "any other serious threat to the security of the United States” as including organized crime cases.99 This legislation also made no progress in Congress.
87 Hearings pursuant to S. Res. 62 on Wiretapping, Eavesdropning, and the Bill of Rights Before The Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 86th Cong., 1st Sess., pt. 5, at 1481-82 (1959).
88 Hearings on S. 1086 on Wiretapping and Eavesdropping Legislation Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 87th Cong., 1st Sess, 363 (1961).
89 Hearings pursuant to S. Res. 39 on Invasions of Privacy (Government Agencies) Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 89th Cong., 1st Sess. (1965).
80 N.Y. Times, Jan. 30, 1968, at 24, col. 1. The indications from Justice Department sources were that as a result of the Supreme Court's action in Kolod v. United States, 390 U.S. 136 (1968) (per curiam), about twice as many more such instances would be revealed. The Court in that decision rejected the Justice Department's position : that the department would first decide whether the eavesdropping was arguably relevant to any of the evidence for the prosecution. The Court held that this determination must be made hy the district court after full disclosure by the government.
91 385 U.S. 372 (1966). 92 385 U.S. 26 (1966). 33 Supplemental Memorandum for the United States_to the U.S. Supreme Court in Hearings on S. 928 on Right of Privacy Act of 1967 Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess., pt. 1, at 34 (1967).
44 S. 928, 90th Cong., 1st Sess. (1967).
BB Id., pt. 1, at 3.
90 In answer to a question by Senator Long as to whether, under the Attorney General's interpretation, the language "any other serious threat to the security of the United States” could be extended to organized crime cases and other similar criminal cases, the Attorney General answered: “We are speaking only of matters that dirertly effect the national security and are a threat to the Nation. This bill would, therefore. prohibit use of wiretapping for investigation of gambling, numbers, prostitution and such things as that." Id. at 51.