used to justify extensive wiretapping by federal agencies.40 Far more significant with respect to more recent unauthorized wiretapping, however, was the nature and scope of the Cold War. The deterioration of United States-Soviet relations and the resultant concern over domestic subversive activites allegedly legitimized drastic new procedures. In 1947, a permanent loyalty program was instituted.41 The formerly temporary wartime restrictions became an endemic part of American politics, redefining priorities and increasing concern over measures that presumed to protect the national security.

This changed political atmosphere is reflected most dramatically in the position adopted by the Department of Justice.42 Prior to 1950, the Department sought to conceal its wiretapping activities, to deny in specific circumstances allegations that agents of the Federal Bureau of Investigation (FBI) had resorted to illegal wiretapping, or to deny that wiretapping was in violation of existing laws. After 1950, Department spokesmen openly admitted that wiretapping was an established practice and demanded that this action be legailized.43 The sense of embarrassment and apology that characterized earlier reluctant admissions that FBI agents had wiretapped was not characteristic of the post-1950 period. 44

A formal shift in rationale occurred in 1940 with a joint effort by the Justice Department and Congress to legalize wiretapping in "national defense" cases. Congressman Emanuel Celler (Democrat, New York) introduced a bill in 1940 which would have amended section 605 to permit the FBI to wiretap, subject to approval of the Attorney General. This law would have made the information so obtained admissible as evidence in cases involving interference or attempts to interfere with the national defense by sabotage, espionage, conspiracy, violation of the neutrality laws or "in any other manner." 45 The formal shift in Department rationale was expressed in a letter by Attorney General Jackson, dated May 31, 1940, to Congressman Celler affirming the need for legislation legalizing wiretapping.46 Jackson wrote:

In a statement made by me to press on March 15, 1940, the following observations are found on this general subject:

"In a limited class of cases, such as kidnapping, extortion, and racketeering, where the telephone is the usual means of conveying threats and information, it is the opinion of the present Attorney General as it was of Attorney General Mitchell that wiretapping should be authorized under some appropriate safeguard. Under the existing state of the law and decisions, this cannot be done unless the Congress sees fit to modify the existing statutes." 47

The philosophy underlying the foregoing remarks, which were directed to the activities of the underworld, would seem applicable with even greater force to the activities of persons engaged in espionage, sabatotage, and other activities interfering with the national defense. This broad request to weaken section 605's absolute ban on wiretapping encountered studied opposition in 1940 from liberals concerned with the possible ramifications for civil liberties, the labor

40 The outbreak of the war, even before U.S. involvement, had caused administration and congressional concern over subversion. The anti-national role of fascist and communist parties in Czechoslovakia, Austria, and France contributed to this sense of urgency; the war provided a specific time limit for effective action. For a discussion of the wartime loyalty program see E. Bontecou, The Federal Loyalty-Security Program 6-21 (1953). Congressional antipathy to wiretapping was reflected in the tone of the Hearings pursuant to S. Res. 224 on Investigation of Alleged Wiretapping Before a Subcomm. of the Senate Comm. on Interstate Commerce, 76th Cong., 3d Sess. (1940). 41 The Federal Employees Loyalty Program was instituted by President Truman in March, 1947. See Exec. Order No. 9835, 3 C.F.R. 129 (Supp. 1947).

42 N.Y. Times, April 1, 1949, at 48, col. 7; id., Dec. 1, 1949, at 28, col. 3; id., Feb. 2, 1950, at 14, col. 3; id., April 16, 1950, § 6 (Magazine), at 9; Justice Dep't Press Release, Jan. 8, 1950, on file in Justice Dep't Library.

43 N.Y. Times, Nov. 18, 1953, at 20, col. 2; id., April 3, 1954, at 7, col. 1; id., April 7, 1954, at 20, col. 3; 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 19, 1958, at 22, col. 3.

44 N.Y. Times, Feb. 25, 1955, at 1, col. 3; id. at 13, col. 4; id., April 21, 1954, at 18, col. 1. 45 H.R. Rep. No. 2574, 76th Cong., 3d Sess. (1940).

46 Id. at 3.

47 Id.

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movement and political activism.48 Because the United States was not then formally involved in World War II, and indeed the general public mood was one of opposition to formal involvement, the national defense argument carried less weight.

Simultaneously with this House effort, the Subcommittee of the Senate Committee on Interstate Commerce held formal hearings, from May 21, 1940 through February 15, 1941, to investigate previous wiretapping practices and to determine whether further legislative safeguards were needed.49 These hearings reflected concern that despite the prohibitions of section 605 of the Federal Communications Act of 1934, government agencies had used wiretapping to investigate the political activities and beliefs of public employees and private citizens. The Senate Report expressed the Committee's concern that these abuses would be repeated and a fear that police agencies were unlikely to abide by prohibitions on wiretapping.50

These differing priorities and fears precluded congressional enactment of permissive wiretapping legislation. Resort to wiretapping was thereby stymied. Nonetheless, President Roosevelt did issue an executive directive permittpng wiretapping in limited cases involving the "national defense." 51 The effect of this directive was to establish presidential responsibility for the use of illegal wiretapping. Surveillance was permitted based upon the premise that section 605 and Supreme Court decisions in Nardone v. United States,52 and Weiss v United States,53 only prohibited divulgence but not the actual interception. President Roosevelt, principally concerned with developments in Europe, however, sought to allow restricted use of illegal wiretapping. His directive of May 21, 1940 stipulated that:

I have agreed with the broad purpose of the Supreme Court decision relating to wire-tapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and it is also right in its opinion that under ordinary and normal circumstances wire-tapping by Government agents should not be carried out for the excellent reason that it is almost bound to lead to abuse of civil rights.

However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.

It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called "fifth columns" in other countries and in preparation for sabotage, as well as in active sabotage.

It is too late to do anything about it after sabotage, assassinations and "fifth column" activities are completed.

You are, therefore, authorized and directed in such cases as you may approve, after investigations of the need in each case, to authorize the necessary investigating agents that they are at liberty to secure information by listening devices direct to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.54

48 For a general sense of this concern see Hearings pusruant to S. Res. 224 on Investigation of Alleged Wiretapping Before a Subcomm. of the Senate Comm. on Interstate Commerce, 76th Cong., 3d Sess. (1940). Of major concern was whether resort to wiretapping by federal, state, and local authorities had partisan or anti-union objectives. These concerns were directly expressed in the Committee Report in justifying the resolution that the 1940 hearings be held. S. Rep. No. 1304, 76th Cong., 3d Sess. (1940).

49 See note 48 supra.

50 S. Rep. No. 1304, 76th Cong., 3d Sess. (1940).

51 Memorandum from President Roosevelt to Attorney General Jackson, May 21, 1940, on file in Truman Library, Stephen Speingarn Papers.

52 308 U.S. 338 (1939).

53 308 U.S. 321 (1939).

54 Memorandum from President Roosevelt to Attorney General Jackson, May 21, 1940. on file in Truman Library, Stephen Speingarn Papers (emphasis added). The final sentence was subsequently deleted by Attorney General Clark when citing Roosevelt's directive as basic rationale for his suggested new directive.

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

58 N.Y. Times, Nov. 14, 1945, at 3, col. 3; id., Feb. 14, 1946, at 18, col. 1. 50 N.Y. Times, Nov. 1, 1965, at 1, col. 4.

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.61

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 invoking President Roosevelt's directive and not

61 Id.

62 N.Y. Times, Oct. 6, 1948, at 25, col. 5.

63 N.Y. Times, Dec. 16, 1949, at 20, col. 6.

64 N.Y. Times, Jan. 15, 1949, at 1, 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.

6 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, records 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, § 6 (Magazine), at 9.

es 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 Coplon 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

70 Id.

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. 83d 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 any employee engaged in wiretapping will be dismissed from the bureau." Hearings on Wiretapping Law Enforcement Before the House Comm. on Expenditures in the Executive Departments, 71st Cong., 3d Sess. 26 (1930).

in

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 Judiciary. 83d Cong., 1st Sess. 16-17 (1953).

76 H.R. Rep. No. 1461, 83d Cong., 2d Sess. 1-3 (1954).

77 Id. at 4.