knowledge of the agents of foreign countries, there is not one of them who will be so naive and careless that he will employ a telephone in order to communicate his treasonable plans. * * *" 11 But this same Congressman recognized the great power that would be granted by such a bill to invade the rights of citizens. For he said further: "If I pay my money to lease a telephone line, I am entitled to have my privacy respected unless I am engaged in criminal activities. There "Who is to determine whether or not I am engaged in such activities? were public officials in this country who said I was subversive. * * *” Congressman Dies thought this evil could be cured by a provision for judicial approval, but we submit that he neglected to read the bill carefully. As we have pointed out, the FBI agent need not show and the judge need not determine that the person whose wire to be tapped is or is likely to be engaged in criminal activities. He need only show that some helpful words will be likely to be uttered over the particular telephone. Anyone's wire may properly be tapped under this bill.-Congressman Dies' wire may still be tapped-and with the approval of a judge-if it can only be shown that conversations concerning national security matters may take place on his phone or that someone under surveillance may be likely to call the Congressman. Any wire may be tapped on the basis that some conversation helpful to a national security investigation may take place on the wire. As the bill is written, the wire of any Congressman, any Cabinet member, any executive officethe White House wire itself-may legitimately be tapped. On any of these wires, conversations likely to aid in a national security investigation may well be expected to take place. directed In pracEven if Thus this bill is not-and no bill authorizing wiretapping can be solely against spies and traitors-or even potential spies and traitors. tice, and by the very nature of the two-way telephone it cannot be. the bill limited interception to the wires of suspected criminals (and it does not), it would still permit the recording of words spoken by everyone who called the suspect or to whom he placed his call-his friends, his wife, his child, his doctor, his lawyer, his religious mentor, or, perhaps, his Congressman. CONCLUSION Will the requirement of judicial approval have any practical effect at all?— We submit that it will not. It will lend the aura of judicial sanction to a dirty business. (For who can say that conduct is lawless if a judge approved it in advance?) It will place ostensible responsibility upon the judiciary rather than upon Congress. (No one back home can complain.) It will make easier the acceptance of the material in evidence. (It will be more difficult for a judge to exclude evidence the securing of which he, or his brother judge, has authorized in advance.) It will do these things. It will lend dignity; it will shift responsibility; but it will safeguard no one. This bill is not-and no wiretap bill can be directed solely against spies and traitors. In practice it cannot be; it is directed against every one of us. It is not an antitraitor bill; it is an anti-American bill. The National Lawyers Guild urges you not to recommend this legislation to the Senate. IS ANYBODY LISTENING?-A REPORT ON PENDING WIRETAP LEGISLATION Would a recording of your last telephone conversation aid in the investigation of a national security matter? "Fantastic" you say. But how can you be sure? The FBI may take a different view. Obviously, to determine whether or not your conversation would assist them they have to listen; so please step aside and let them set up the wiretap equipment. After all, if you aren't plotting to overthrow the Government, if your conversations are wholly innocent, why should you object? What sort of secrets do you have anyway? Rest assured, nothing the wiretapper hears will be divulged (outside the office, that is, and barring occasional regrettable 'leaks'), unless it proves useful as evidence against you or someone else. Is that all right with you? Shall they go ahead? 11 Ibid. If it isn't all right with you, you'd better keep an eye on Congress, because a number of bills now pending say that it's perfectly all right for the FBI to tap your wires and file the records away for evidence, if and when needed. And these bills might pass, in the interest of what is loosely described as "national security." WHAT DO THE PROPOSED LAWS PROVIDE? The so-called compromise bill (H. R. 8649, Keating) approved by the House Judiciary Committee and now before the House itself, would allow the use of evidence heretofore or hereafter obtained by the FBI or by military intelligence officers in the course of a national security investigation. Only the Attorney General's permission is needed to tap the wires (and all FBI wiretapping in the past has been done with his permission). The evidence may be used “in any criminal case arising out of or related to" national security investigations. This compromise bill was arrived at after consideration of a variety of bills introduced in the House and some of the features of these bills, discarded in the compromise bill, may still be considered on the floor of the House. A similar variety of bills is pending before the Senate Judiciary Committee. Some of these bills are broader in scope than the compromise bill, authorizing the use of wiretap evidence past or present, without anyone's permission and with even less limitation on the type of case in which the evidence can be used. Some are narrower than the compromise bill, authorizing only future wiretapping in national security investigations and permitting the introduction of wiretap evidence only in cases involving national security violations, and only if prior authorization to tap the wires in question was obtained from a Federal judge. Such bills provide that the judge must be "satisfied that there is reasonable cause to believe that the communication [to be intercepted] may contain information which would assist in the conduct of such investigations.” (Italics supplied.) Presumably, the judge would ordinarily be afforded no proof of this beyond a sworn statement of an FBI agent that the conversation to be tapped would be helpful. Applications to tap wires would not, of course, be made on notice to the person whose wire was to be tapped. He would never know that an application had been made; he would have no opportunity to oppose it nor would he discover that it had been granted. WHAT PRICE NATIONAL SECURITY? If wiretapping is needed for law enforcement and if it will help the FBI in preserving our national security, why shouldn't it be permitted? What is the nation, and wherein does its security lie? Is a nation nothing but a territory and does its security lie solely in the safety of that territory from invasion? Is a nation something less than the people who compromise it and can its security be divorced from that of its members? If the people themselves are not secure in their persons, in their homes, in their associations and in their most private and confidential relationships, in what sense will the nation be secure? What greater plot against the national security could be devised than one that sought to invade the ideals which gave America birth, to destroy the precepts that made it viable and to sabotage the principles from which it draws its continued vigor and strength? "The makers of our Constitution," Brandeis wrote in his famous dissent in Olmstead v. U. S. (48 S. CT. 564, 572), "undertook to secure conditions favorable to the pursuit of happiness. * * * They knew that only a part of the pain, pleasure, and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men.” And with this concern in mind, they rejected then and for all times these methods of police surveillance and investigation, whatever their merit for efficient law enforcement-which would destroy that personal security which lies at the core of our national security. THE CONSTITUTIONAL QUESTION Opening and reading the mail, issuing and checking identity papers at regular intervals, universal fingerprinting, registration of all residents, a search of everyone's house now and then-just a quick look-see to discover what evidence affect ing national security might turn up-all these, like wiretapping, might now and then afford the police some information they might not otherwise obtain. It is doubtful whether such randon, hapbazard searches of the population at large are very efficient police methods, but efficient or not, the undesirability of most of them was decided a long time ago by the adoption of the Bill of Rights. * * The framers of the fourth amendment spelled out the principle very clearly by announcing, "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." They provided that no search warrant should be issued except "upon probable cause * * particularly describing the place to be searched and the ** things to be seized." Within the framework of the society of their times, they tried to give the American people full protection of the privacy of their homes. But they did not anticipate the science of electronics. They did not foresee the need to protect the privacy of persons talking in their own living rooms half a continent apart. Not dreaming that a man's home and his private conversation in it with his wife, friends, doctor, lawyer, might be effectively invaded by the splicing of a wire down the street, not realizing the possibility of a trespass without breaking and entering, not envisaging the feasibility of a search by police officers who are never seen or heard and whose presence on the wire is not known or capable of detection, they did not guard against it. Or so the Supreme Court found when it announced in the famous Olmstead case-made famous largely by the dissents of four judges, Holmes, Brandeis, Stone, and Butler-that the fourth amendment applies only to tangibles and that when a wire is tapped there is no search and nothing seized. THE PRESENT LAW Since the Supreme Court has said there is no constitutional protection against wiretapping, such protection can come only from an act of Congress. The present law (section 605 of the Communications Act of 1934), while it does not actually forbid wiretapping, does forbid the "divulgence" or "use" of intercepted communications by any person. (And a Federal agent is a person within the meaning of the statute, the Supreme Court decided in Nardone (302 U. S. 379).) It would seem clear that the recording of phone conversations, the creation of files containing such information and made available to Justice Department personnel, and the use of such information in the conduct of investigations would constitute such "divulgence" and "use" as the statute forbids. The view lately adopted by the Justice Department that disclosure to other persons in the Department is not "divulgence" and that use is not "use" unless it is for personal gain, has never been tested in the courts. And it is not likely to be, since nobody but the Justice Department, through indictment of one of its own agents for unlawful wiretapping, could bring it to a test. The Justice Department is understandably reluctant to indict its own agents for following Department policy. The Justice Department thus runs no risk of having its illegal wiretapping activities curtailed as long as it does not attempt to introduce in court evidence which can be identified as wiretap evidence and such identification is not easily produced. But it still cannot boldly produce its wiretap records in court, and it is this defect in the law which the proposed legislation is designed to remedy. SAFEGUARDS AGAINST INDISCRIMINATE WIRETAPPING While the Justice Department seeks legislation which will legalize past as well as future wiretap evidence, some of the proponents of new wiretap legislation will not go that far, and they seek to provide safeguards to the public at large. They recognize that there is considerable popular feeling, in spite of the Supreme Court's several decisions on the question, that wiretapping is a search and that the recording of a conversation is a seizure, and they feel the need, therefore, of providing for something like a search warrant before a wire can be tapped. But the search-warrant requirements of the fourth amendment are that the place to be searched and the thing to be seized must be described in particular in advance of the search, and no amount of good intentions can frame a similar requirement for the authorization of wiretapping. The fault does not lie in the legislative drafting. The impossibility is inherent in the unselective nature of wiretapping itself and in the fact that it is never possible to know in advance what someone is going to say (so that the thing to be seized can be described) nor to whom he is going to say it. When you "seize" a conversation, you must seize all of it. When you tap a wire, you are tapping and recording all calls-both incoming and outgoing—and you "seize" the conversation of the person at the other end of the line as well as that of the person whose line you are tapping. By the same token, you are "searching" the premises at the other end of the line, and you cannot possibly describe these in advance. A search warrant to search the home of an alleged criminal does not give the police the right to search the homes of all his friends, relatives, acquaintances; a warrant to tap his telephone cannot help but do so. A policemen with a search warrant can refrain from looking for or taking objects not described in the warrant, but how can a telephone tapper refrain from taking irrelevant conversations or confidential conversations between husband and wife, lawyer and client, doctor and patient? Nor does the fact that wiretapping is to be confined, under most of the proposed bills, to national security matters add much in the way of protection. The term is not defined and the wiretap need only be likely to "assist" in the investigation. Judging by past performance, with particular reference to the material brought to light in the Coplon case, "limitation" to national security matters will not impair the freedom the FBI exercises to tap (or to ask permission to tap, where that is required) the wires of persons regarded by it as subversive or who associate with present or past members of organizations regarded by it as subversive. It may also see fit to tap the wires-chain-letter fashionof anyone whose conversation was recorded on an incoming or outgoing call on such a tapped wire. Nor will it, again judging by past performance, have any scruples about recording and filing conversations between mother and daughter, husband and wife, attorney and client. BUT IT THEY HAVE THE EVIDENCE, WHY NOT LET THEM USE IT? The extent of wiretapping by the FBI came to general notice for the first time in the exposés attendant upon the Coplon case for up to that time the Justice Department minimized (where it did not deny outright) its wiretapping practices. But of late the Attorney General has been quite outspoken. He makes no secret of the Department's extensive wiretapping and offers no apology for it. Mr. Brownell now claims he has a large number of "cold storage" cases which he cannot bring to trial for the sole reason that the cases rest on wiretap evidence which is inadmissible. If the evidence has already been collected-or can be collected under present law with impunity-should we not then be realistic and allow its introduction in evidence? First we should point out that it cannot be assumed that such evidence, if admitted, would establish the commission of a crime. In the American tradition, a man is innocent until he is proven guilty and a prosecutor's statement as to guilt or the importance of evidence is not tantamount to a verdict of guilty. While it is possible that the Attorney General does possess sufficient evidence to obtain a verdict, it stretches the imagination to suppose that persons engaged in espionage are prone to discuss their plots and conspiracies over the telephone while none of their nefarious activities come to light through lawful means of investigation. But even if Mr. Brownell actually does face such a situation, we say, as we have said before, that the sacrifice of basic civil liberties and traditional constitutional concepts of fair play is too high a price to pay for the possible conviction of a few criminals. Moreover, the question is not primarily that of the use which will be made of the alleged already collected evidence. It is rather a question of what effect the legalization of wiretap evidence will have upon the gathering of future evidence. It is likely that, flagrant as the violation of the present wiretap law by the FBI has been, the practice would have been far more extensive if the information gained by wiretapping could have been openly used in court. An interesting analogy is afforded by a study of State police methods, comparing those in States where evidence obtained by unreasonable searches and seizures is admissible in court with those where it is not. Searches without warrant are prohibited in all States, but State courts vary on the question of whether evidence secured by such illegal acts may be used in court. In a dissenting opinion1 where the Supreme Court majority held that the Fourth and Fifth Amendments of the Federal Constitution did not operate to 1 Wolf v. Colorado (338 U. S. 25). prohibit the use of such evidence in State courts, the late Justice Murphy effectively demonstrated that the rules of the State court on the question virtually controlled the behavior of the State police. In States where evidence obtained by illegal search was inadmissible, police officers were carefully trained and briefed as to the permissible limits of search and seizure. In States where such evidence was admissible no such training (with only a single exception) was given. Commenting on this fact, Justice Murphy wrote: "The conclusion is inescapable that but one remedy exists to deter violations of the search-andseizure clause. That is the rule which excludes illegally obtained evidence." This view was recently quoted and reiterated by Justice Douglas, dissenting in a similar case (Irvine v. California, 347 U. S. 128; decided February 8, 1954), who wrote: "If police officers know that evidence obtained by their unlawful acts cannot be used in the courts, they will clean their own houses and put an end to this kind of action. But as long as courts will receive the evidence, the police will act lawlessly and the rights of the individual will suffer." In the light of this experience, it is reasonable to assume that if wiretap evidence is rendered admissible in court, more wiretapping will take place. Whether or not any more evidence of violation of "national security" will be secured is, of course, debatable. WHAT SHOULD BE DONE? The law as it now stands is not as good as it might be and has not offered the public full protection against invasion of the privacy of the telephone, though there is no doubt that it was intended to do so. But because a law has not been properly enforced is hardly a reason to give legislative sanction to its continued violation. Rather, efforts should be made to strengthen the existing law in those areas where it has been found wanting. Most needed is an outright prohibition against wiretapping, as such, coupled with authority granted to some agency other than the Justice Department-its prime violator-to insure that wires are not tapped. A system of licensing wiretap equipment, a requirement that the telephone companies police their own lines to root out tapping equipment, the authorization of private damage suits by aggrieved persons against law-enforcement agencies which tap their wires, and improvements in the rules of evidence to make it more feasible for defendants to show that evidence was obtained by wiretapping and thus to exclude it are among the many suggestions that have been made for tightening and enforcing the existing law. These deserve immediate study and consideration. But the most immediate task is that of defeating these pending bills, lest the telephone cease to be a means of communication between family and friends and serve merely as a device for canceling an appointment with the hairdresser. As the Wall Street Journal said of one of these bills (editorial of November 19, 1953). "It could create an atmosphere in which people would be afraid to talk on the telephone about anything *** it may be argued that only spies need fear it. But it is not quite so simple as that. Telephone conversations can be misconstrued, innocent remarks interpreted as evil. Who would feel wholly secure knowing that any conversation could be recorded to use against him? Certainly every effort must be made to prosecute as well as discover. But we are confident the effort can successfully be made without infringing the Bill of Rights.” And we, too, are confident that America need not sacrifice national integrity and decency in the name of national security. NATIONAL LAWYERS GUILD, 40 Exchange Place, New York 5, N. Y.: "Is Anybody Listening?" I enclose $-. NATIONAL LAWYERS GUILD, 40 Exchange Place, New York, N. Y. Please send me copies of your pamphlet (10 copies $.50. 100 copies $3.00) Name___ _Street_ -City-. Zone____State_. |