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It would, of course, be inconceivable for any closely watched organizationcontinually exposed to public scrutiny (as the FBI is not)—to leap on phrases like "national interest” or “national safety" in a secret document, wrench them out of context and then use them as an excuse to eavesdrop on a bookie joint in Miami. And it is difficult to accept the FBI's reliance on a memorandum that explicitly condemns the trespassory installation of a microphone in a gambler's bedroom as authority for trespassory installation of a microphone in the bedroom of a Las Vegas casino manager.
The most elementary question, however, is how the FBI could rely on a memorandum stating that the department would "review the circumstances of each case in the light of the practical necessities of the investigation and of the national interest" if Hoover did not submit bugs to the Attorney General for authorization on a case-by-case basis. Yet he did not.
In 1964 the scene shifted to the Congress and the courts. Congressional interest had been revived with the internal security frenzy of the 1950s, and again with the Kennedy administration's efforts to fight organized crime in the early 1960s. But no substantive congressional action resulted in either instance.
Meanwhile Attorney General Robert Kennedy (1961–64) listened to tapes of what he thought were local police bugs (permitted under local law) in Chicago and New York, and after great pressure, prodding, insistence and a sort of bureaucratic blackmail (described in Kennedy Justice) he authorized the tapping of Dr. Martin Luther King's telephone under the “national security” theory of the Jackson memo. After Robert Kennedy's death it was explained that it was not Dr. King who was the security risk, but alleged Communist party members in his entourage. And Dr. King was tapped “to protect him”—for in the absence of such a tap, which could prove Dr. King's innocence, the Bureau might disseminate derogatory charges against King that southern members of the United States Senate would use to undermine the strong civil rights bill of late 1963, which the Kennedys considered an imperative.
Hoover had earlier informed Kennedy of tapping procedures in the FBI, but not about bugs, and Kennedy did not ask about them. Both oversights reflect the etiquette which had developed over the years in the electronic surveillance business.
Kenndy's successor, Nicholas deB. Katzenbach, upon discovering that the FBI had indulged in bugging after trespass, had a meeting with Hoover. Hoover informed him that if the bugs were removed forthwith it would spell the end of the Justice Department's organized crime program. They compromised on a phase-out program for the bugs, and Katzenbach instituted a procedure whereby he was notified of exiting bugs on the same basis that he authorized taps.
On June 30, 1965, President Johnson issued a directive prohibiting the use of listening devices by agencies other than the Department of Justice, and authorized the latter to use such devices only where necessary to collect "intelligence affecting the national security.” E. 1966–68
Eavesdropping again came to public attention on May 24, 1966, when Solicitor General Thurgood Marshall filed a "Memorandum for the United States" in the Supreme Court in the criminal tax evasion case of Fred B. Black, an associate of Bobby Baker's. The memorandum told the court that FBI agents had bugged Black's hotel suite early in 1963, at approximately the time when the tax-evasion evidence was presented to a federal grand jury in Missouri. The Solicitor General took the position that the proof was not tainted by the overhearing, although conversations between Black and the lawyer representing him in the tax case were overheard.
On June 13 the court asked details on the kind of listening apparatus used, the authority under which it was installed (including "the person or persons who authorized its installation"), whether recordings existed and the time when government lawyers first learned of this information. The response was drafted in the Solicitor General's office with many personal consultations with Attorney General Katzenbach.
It admitted that there was "no specific statute or executive order . . . relied upon in the installation of the listening device in question.” It stated that since 1940, wiretaps—"limited to matters involving national security or danger to human life”-have required “the specific authorization of the Attorney General in each instance." But, it said, there was no similar procedure until 1965 governing eavesdropping—notwithstanding “records of oral and written cummunications" which reflected concern by Attorneys General and the FBI Director that use of such devices should be severely limited. It then cited the previously quoted "departmental practice” of authorizing the Director to install such devices.
The court on November 7, 1966, vacated the conviction and ordered a new trial (385 U.S. 26). And a month later it did the same with another bugging case in which the Solicitor General had admitted that evidence at trial may have been tainted by trespassory eavesdropping. Many other such cases followed in the Supreme Court and in lower courts, and procedural issues were still being sorted out in late 1971.
Recognizing that the problem was becoming unmanageable, Acting Attorney General Ramsey Clark issued an instruction to the United States attorneys on November 3, 1966, in which he directed that no prosecution "go forward" until all illegally obtained evidence and its fruits were "purged.”
And on June 16, 1967, he issued a detailed policy statement on tapping and bugging. In it, he reiterated that tapping "is prohibited by Presidential directive .. whether or not the information which may be acquired through interception is intended to be used in any way or to be subsequently divulged outside the agency involved.” While noting that nontrespassory eavesdropping had still not been held unconstitutional, Clark observed that there was “support for the view” that any eavesdropping on conversations in a private area was forbidden by the Fourth Amendment. Accordingly, he directed that no such surveillance be conducted without "advance written approval" from the Attorney General. National security investigations were mentioned separately as matters “to be taken up directly with the Attorney General.”
Any remaining doubts about the vitality of Olmstead and the constitutionality of the non-trespassory eavesdropping approved in Goldman were laid to rest by Katz v. United States, 389 U.S. 347, decided in December, 1967. Both Olmstead and Goldman were squarely overruled, the court holding that the government's "activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied . . . and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." And after Katz and Berger v. New York, 388 U.S. 41 (1967), which enumerated the necessary constitutional conditions for court ordered wiretapping, came Title III of the Omnibus Crime Control and Safe Streets Act of 1968. F. Lessons
The history of electronic surveillance, then, is a history of deception, confusion, ambivalence and after-the-fact rationalization, ranging from FDR's May, 1940, memorandum and February, 1941, letter to Jackson's 1911 strained interpretation of the words "intercept and divulge” to Tom Clark's overbroad 1947 note to Harry Truman to Hoover's failure to alert Robert Kennedy to the FBI's microphone surveillance procedures to Katzenbach's pragmatic decision on outstanding FBI bugs ... The practice has been degrading to the President, the Attorney General, the Director, the FBI, the Justice Department, the men who have had to partake in it, the victims of it and ultimately the polity.
This is true regardless of the law-enforcement arguments in favor of wiretapping as a way of catching criminals. What it shows is that general standards, no matter how phrased, cannot restrain excesses if there is no outside agency to scrutinize what is being done. No matter how well-intentioned an Attorney General, no matter how distasteful wiretapping seemed to a younger Mr. Hoover, they found themselves drawn further into practices of dubious legality and constitutionality.
The men involved are not to be condemned personally. The system—the relationship between the Bureau and the department, the permanent Director and the transient Attorneys General-made it possible, probable, perhaps inevitable that without external (court-warranted) supervision, there would be vast abuses in the government's electronic surveillance. Whether or not a wellconceived warrant procedure can cure this problem, it is apparent that in its absence, the executive branch acting on its own has been irresponsible. The short experience of unilateral executive self-restraint under the 1968 Crime Act proves as much.
IV: Questions In view of that failure and in hope of better control, these are questions for which Congress and the public ought to demand answers :
What is the extent of electronic surveillance carried on today? How much control do the President and the Attorney General exercise over the FBI's electronic surveillance practices? Is there more or less than before? Has the new law made a difference? What can be learned from the past? Should the Attorney General, the President and the Director of the FBI ever be trusted-without court supervision-to authorize electronic surveillance in the national security area?
How much tainted evidence finds its way into court without anyone being any the wiser—as a result of inter-agency cooperation in the exchange of information without divulging the manner in which the information was pro- . cured? What more has to be known before recommendations can be made along these lines?
The practice before the Supreme Court rejected a domestic national security exception to the Fourth Amendment is still important for what it tells us about the government's assumptions about its role and power in the area and because national security may egain be used to justify warrantless surveillance. Did all."internal security” electronic surveillance requests automatically bypass the warrant procedure, or was a separate determination made on each case by the Attorney General? To what extent did the Nixon administration extend the national security or internal security umbrella to cover domestic organizations with an international dimension? By what standards did an agent decide to apply for a national security tap? Did Hoover ever turn him down and what standards did he use? How was it decided whether to go to court for a warrant?
Finally, are the provisions of the law requiring service of a notice upon an individual under surveillance and filing of an inventory being complied with? Is any weight given to the countervailing values of privacy protection in this area ?
V: Conference Discussion MR. ELLIFF: Among the Media documents is a summary of a wiretap on the Black Panther headquarters in Philadelphia. It raises some interesting questions about the merits of wiretapping for preventive intelligence purposes and I wonder if you'd comment on this. I'll describe it briefly.
Three or four pages of conversations are summarized. Much of this is extraneous to any preventive or general intelligence needs of the government. But the last conversation reads as follows:
“A called B who advised the neighborhood was saturated with pigs and was asked by B if the machinery was all set up for such things. A said the machinery was ready and that they had everything going for them.”
It seems to me, though the wiretap here reported all kinds of irrelevant data, it did produce an immediate warning of a possible violent confrontation with the police. I was wondering how we weigh the value of that kind of warning, which, if properly used, could help a community relations officer defuse a situation that might be building up into a gunfight.
Balance the need for that sort of information against the clear risks required to obtain it, risks of public paranoia and of damage to principles of constitutional doctrine. How do we balance that?
MR. NAVASKY: That, you know, is the critical question. By what standards do you tap? How do you make that judgment?
When Ramsey Clark was Attorney General, he asked a young attorney in the department to take twelve random bugs—they were all in the organized crime area as it happened—and analyze them for their utility and effectiveness and whether other investigative techniques could have developed the same information.
The attorney came to the conclusion that they weren't worth it. But, then, everybody who considered the evidence reached the same conclusion they already had before looking at it. Most people who didn't believe in wiretapping concluded it wasn't useful. And those who did believe in it concluded it was.
So it's a very difficult problem. But one solution is to set standards and require law enforcers to go to an outside agency like a court and prove they meet the standards.
MR. LEWIN: All I want to add to that is that we have not in this paper, or I think generally, come to any firm conclusion that wiretapping under all circumstances and all conditions is unjustified. In fact, federal law authorizes it.
Certainly, at one extreme, one supposes that if a wiretap were installed on every telephone in the United States, and there were enough agents to listen in on every telephone, random wiretaps would turn up information that might be useful to law-enforcement authorities. But obviously that's an impermissible infringement on constitutional rights. So the only mechanism that has been devised thus far, and which we're constitutionally committed to, is examination by an impartial magistrate of the facts used to justify a tap. Our view is that even in national security cases, that is a mechanism that could and should be used.
I think anybody who's had anything to do with the search warrant system, however, in both federal and state courts, will tell you that the examination by an impartial magistrate is not always what the Supreme Court may think it to be. There are magistrates and judges who just rubber-stamp what's put before them. In fact, as we said, although the act requires that every eavesdropping warrant that's turned down be reported to the administrative office in the U.S. courts, there's not a single report of a warrant being turned down this year.
MR. MARSHALL: As I understand, you've been talking about taps and bugs that were authorized by someone, maybe wrongly authorized, but authorized by the Attorney General'or the Director.
I think people have the impression that Bureau agents are sometimes forced, through the incentives and the pressures on them, to get the job done, to use these devices in ways that are not authorized even within the rules of the Bureau. For example, in cooperation with local authorities. Does your paper evaluate that aspect of it?
MR. NAVASKY: Yes, to some degree, but we found conflicting evidence. As our paper states, Bill Turner will tell you when he was an agent he installed unauthorized electronic surveillance. But other people deny that it goes on and will say it's not within the psychology of the FBI, it's not the way it's run. It's a very tightly run organization. But Bill Turner calls these unauthorized taps suicide taps and says every agent knows what a suicide tap is.
Now it seems to me that a more interesting question is how much the Bureau inspires other agencies to do things they're not supposed to do. If you look at the reports filed with the U.S. courts, there may be 180 federal wiretaps. But there are also 320 state and local wiretaps. The Bureau has access to these because they have contact with local law-enforcement agencies.
How many illegal taps does the FBI inspire? In 1965 it was revealed by a former member of Army intelligence that he had tapped Mrs. Roosevelt's hotel room during World War II. The newspaper report indicated that he did it at the invitation of the FBI. They asked : Can you help us?
But a lot of times this not done. They don't say : Go tap someone's telephone. They say to the local police agency in Georgia, for example: can you tell us when Dr. King will be arriving in New York? And the local police agency in Georgia calls back a week later and says: Dr. King is coming to New York on the four-thirty plane from Atlanta on American Airlines. The Bureau's piece of paper will say, “T 3. a reliable informant, says Dr. King is arriving in New York on the four-thirty plane from Atlanta.” Well, the Bureau may have silently inspired the local agency to listen in on Dr. King's travel plans, and yet the Bureau has done nothing illegal under the arrangement.
MR. BITTMAN: Mr. Navasky stated that one of the major problems with wiretapping and electronic eavesdropping is the fact that these have often resulted from unilateral decisions by the executive branch. There was no external auditing body governing the actions of the executive branch. In 1968, as I'm sure almost everyone in this room knows, Congress gave specific statutory authority for wiretapping and bugging. It has set up certain procedures governing this activity. You must get judicial approval. There are certain built-in safeguards.
Now, I have a few questions. Are you unalterably opposed to all bugging and wiretapping, whether done in national security cases or in organized crime cases? Do you believe the statute is unconstitutional? Do you believe that the requirement of judicial authority is nothing but a rubber stamp? And if you. do not belive there are sufficient safeguards, what additional safeguards would you suggest?
MR. NAVASKY: Number one. We distinguished in our paper between bugging and tapping before and after the 1968 act.
Now as of the 1968 act, which does provide procedures, I don't know whether the procedures for national security taps, as interpreted by the Attorney General and, presumably, the President, are going to hold up in court. The law has language which says, in effect, go to court and get warrants even in espionage, sabotage, treason and riot cases, among others. But then a second part of the law says the President can tap and bug without a warrant if national security is involved.
And so it's under the second part of the law that the Attorney General has found authority to allow Mr. Hoover to tap telephones in the so-called national security area, without going to court.
I would contend, number one, that as a matter of legislative intent that was not what was intended. This interpretation of the law should be struck down.
Number two, if there is a national security exception, that exception still cannot constitutionally apply to domestic groups, like the Panthers.
Number three, you asked if I believe in wiretapping and bugging under any circumstances. We were talking at lunch about that. I told Mr. Lewin that I used to think that the government ought to be able to listen in on hard-core international espionage matters. It ought to be able to listen in on "the enemy.” The more I look into it, however, and the more I see how ingenious the executive branch is at going beyond the little words that lawyers and congressmen draft, the less confident I become that even this ought to be allowed.
MR. LEWIN: I think in answer to Bill Bittman's question, if I can supplement what Vic said, our concern is that the act has really made no substantial difference in restricting what the FBI does. It's expanded it instead. First, the act has given the Bureau a procedure under which it can lawfully wiretap and bug in gambling cases, narcotics cases and the entire range of cases that, before 1968, could not be justified at all. Second, in the so-called national security area, the Bureau and the Attorney General are still not going to court for judicial warrants, even where there is really no need for confidentiality. This is because the national security exception is broadly construed, thereby allow. ing them to keep many cases from judicial scrutiny.
So in answer to one of your questions, I'm in favor of meaningful judicial oversight of wiretapping and electronic surveillance—in other words, based on a warrant for a limited period of time. But I'm afraid that as the act is construed by the present Administration, far too many cases are excluded from its reach by the national security exception.
SUPREME COURT OF THE UNITED STATES
DISTRICT OF MICHIGAN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 70–153. Argued February 24, 1972—Decided June 19, 1972 The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property. In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of "gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.” On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld. Title III of the Omnibus Crime Control and Safe Streets Act,