2. The average cost for 1970 was $12,106 per surveillance, which compares, for example, with the New Jersey state attorney general's average cost of a little over $2,000 per wiretap (on a total of eighty-two taps). It cost the federal government, for example, over $84,000 to tap an apartment telephone in California for 20 days and overhear 18 people engage in 266 conversations (of which 34 are listed as “incriminating,” although there were no arrests). Or, to take the most successful case listed, it cost the Bureau $146,300 to listen for eighteen days in September and October, 1970, to a residence telephone in California. Forty-six persons were then arrested and twenty-one convicted, on narcotics charges.

3. Wiretaps are, of course, "general searches" in that they are totally indiscriminate and pick up innocuous private conversations of innocent people along with incriminating conversations of law violators. It was nothing less than remarkable, therefore, to read of Attorney General Mitchell's recent statement to a national meeting of police officials that "more than two out of every three messages intercepted by Federal investigators [under the 1968 act's wiretapping provisions] were incriminating . . ." The law requires prosecutors to report the number of “incriminating communications intercepted,” and an analysis of the 1970 statistics shows how he got his figures.

The statistics show, for example, a tap kept for thirteen days in the latter part of 1970 on a "business-residence" in Michigan where "gambling" was suspected. Eight persons are said to have been overheard engaging in 3,655 conversations. Of these, 3,525 are listed as "incriminating intercepts." Yet under "number of persons arrested," the report lists "none." Another tap, also in Michigan, overheard only one person (is that possible?) engaged in 1,350 conversations, of which 1,300 were "incriminating." Again no arrests.

In fact, the statistical tables show an extraordinary number of gambling taps, each with a phenomenal number of "incriminating intercepts" (presumably calls placing bets or giving information) and a minuscle number of arrests in these cases. Such reports are not limited to gambling cases, or even to wiretaps. Consider, for example, the eighteen-day bug in a Michigan apartment where "extortionate credit transactions" were suspected. Twenty-two people were heard, forty-four conversations are reported to have been intercepted and twenty-four of these are listed as "incriminating.” No arrests.

Indeed, the ratio of success is so phenomenal that it raises some questions about the integrity of the FBI's reporting. In only 6 of the 180 surveillances installed in 1970 were no incriminating conversations overheard. With a society as paraoid as ours on the subject of wiretapping, and with an organized crime network allegedly so sophisticated that it can outsmart ordinary crime-detection techniques, is it within the realm of possibility that so many people are talking freely about their criminal activity into the telephone or on "bugged" premises?

II: Paranoia, Confusion and Ambivalence

Hundreds of thousands of Americans—perhaps millions-are convinced that the FBI is listening in on them personally. True, there is more such surveillance going on than Hoover admitted-but not that much. Yet no matter that there are too few agents, that it takes too many to install and monitor a tap or bug, that the FBI has too many other things to do (most unrelated to electronic surveillance) or that it ,as much as any other organization in the country, is aware of the inefficiencies of tapping and bugging. Nothing can dissuade a man who wants to believe that the FBI Director personally has on a set of earphones and is monitoring his every call.

The public paranoia is not exclusively-and probably not primarily—the public's fault. When Burnett Britton, who served with the internal security section of the FBI's San Francisco office for ten years, was asked why the Bureau, with its public relations consciousness, did not do something to dispel the impression, he replied: "It's very nice to know that the people you're chasing are afraid to use telephones. In fact that's one reason why in chasing the Communist Party we didn't have to use many taps. They were scared to use telephones!"

In addition to the FBI's own reasons for promoting the notion that Big Brother may be watching you (undoubtedly offset now by the public relations reasons for denying it), a number of other variables add to and account for public confusion and misinformation.

Part of it has to do with the inherent nature of the activity-secret surveillance in an open society. Superimposed is the FBI's own cloak of secrecy and its unique freedom from the normal controls exercised over government agencies. Even the Director's boss, the Attorney General, has been, until relatively recent years, ignorant of the particulars of the FBI's electronic surveillance practices and content to permit the Bureau to conduct is own operations under the general guidelines so long as it didn't get him into any trouble. And this hands-off attitude from the nation's chief legal officers was surely encouraged, in part, by the extraordinary circumstance that the Director, with the exception of a brief three-year period under the Kennedys, had direct access to the White House and was able, more or less when the spirit moved him, to bypass the chain of command.

The FBI's independence kept not only the various Attorneys General ignorant; it obscured the facts for line government lawyers who might have flushed the issue earlier. This was because of the FBI's organizational determination not to reveal the identity of its informants, a policy which found expression in the reports and memoranda seen and used within the Justice Department. Language such as "NKT-1, a usually reliable informant, says John Smith will be arriving in New York at 10 P.M. at La Guardia airport on American Airline flight 303" might mean that Smith's travel plans had been overheard on a tapped conversation. But it did not occur to Justice Department attorneys (many of whom are young lawyers who leave after a few years on the job), until the matter became the subject of a minor scandal, that NKT-1 could as easily be an electronic informant as a live one.

One U.S. attorney recalls a meeting with an FBI agent and an assistant U.S. attorney. The assistant was pushing the agent to get more information than his report revealed, but the agent didn't have any more information. The assistant said, "But if your informant was close enough to hear what was being said, surely he can give us a description of these men?" In exasperation, the agent blurted, "The informant is blind." Retrospectively, the U.S. attorney said, "I caught it—but my assistant didn't know what the hell he was talking about."

An additional source of continuing confusion is the distinction between tapping, which is interception of a telephone conversation through a direct link-up to a telephone line, and bugging, which is microphone surveillance of a room. That distinction is critical in evaluating the legal and policy justifications for FBI practices for a number of reasons: First, under the constitutional theory which was the law of the land between 1928 and 1967, a telephone tap could almost never be unconstitutional, while microphone surveillances, which often required a "trespass" on private premises, might well be violations of the Fourth Amendment. Second, until 1968 there was no federal legislation specifically prohibiting bugging, but Section 605 of the Communications Act made interception and divulgence of telephone coversations criminal acts. Third, the FBI publicly announced that it sought the Attorney General's authorization for each and every tap it installed. But departmental procedures-until Nicholas deB. Katzenbach became Attorney General-did not involve either authorizing or notifying the Attorney General on the installation of bugs on a bug-bybug basis.

Part of the misunderstanding today is undoubtedly a cultural lag from the days when federal law differed from state law and tapping law differed from bugging law. At one point, wiretap evidence, barred in federal courts, could be used in the courts of twenty-nine states, with the Supreme Court ruling that the Federal Communications Act made it inadmissible only in federal courts. And evidence obtained in violation of the Fourth Amendment-where a microphone was installed by trespass-could still be used in a state court.

To complicate matters further, electronic surveillance has been a principal tool of the FBI's war against those who would conduct espionage and sabotage against the country-a tool which the FBI has been encouraged to use by Franklin Delano Roosevelt and all his successors to date. It has seemed unpatriotic to question its use for national security purposes; so, again, electronic surveillance has been insulated from effective scrutiny.

In addition to all this, the public itself has been ambivalent-shocked when a congressman like Hale Boggs charges that his phone has been tapped, titillated when treated to thousands of pages of illegally overheard organizedcrime telephone conversations. Such ambivalence on the part of the public and officeholders has marked the history of FBI use of electronic surveillance.

This public ambivalence has been reflected in the attitude of its representatives. Francis Biddle, in his memoir In Brief Authority, relates the following characteristic story of a President's responses to the discovery that the FBI was engaged in dubious electronic surveillance:

.. the Judiciary Committee met to hear objections from a few opposing witnesses connected with the Citizens Committee for Barry Bridges, who testified that they had watched FBI agents through binoculars from a neighboring building tap Bridges' telephone wire in New York City. There was no doubt that an FBI agent had applied the tap. Suddenly realizing that he was being watched, he made such a hasty exit that he left a letterhead identifying him with the Bureau, which was captured by the Bridges group. When all this came out in the newspapers I could not resist suggesting to Hoover that he tell the story of the tap directly to the President. We went over to the White House together. FDR was delighted; and with one of his great grins, intent on every word, slapped Hoover on the back when he had finished. "By God, Edgar, that's the first time you've been caught with your pants down!" The two men liked and understood each other.

III: The Lessons of the Past

In many areas the FBI has commendably been ahead of the rest of the country's law-enforcement establishment in respecting the rights of American citizens. The now much-criticized Miranda decision, for example, requires local officials to give the same warnings to arrested suspects that the FBI had been giving voluntarily for years-namely that all accused have the right to remain silent, that statements voluntarily made may be used against them and that they have a right to consult a lawyer. By and large FBI security over its files has been good, leakage has been the exception, rather than the rule. (The Bureau does, however, tend to make some files public indiscriminately, as Aryeh Neier pointed out with regard to arrest records.)

But the experience with FBI electronic surveillance over the past three decades gives little ground for confidence that discretion left to it-with or without the supervision of the Attorney General-will in the future be exercised in the interests of good government.

The problem was not necessarily a personal one with J. Edgar Hoover. If Hoover in his later years had a permissive attitude toward wiretapping and electronic surveillance, he may, on the basis of the record, be taken at his word that it was a technique he preferred not to use. In his earliest statement on the subject (in 1931) he said, "While it may not be illegal, I think it is unethical, and it is not permitted under the regulations by the Attorney General." He wrote to the Harvard Law Review in February, 1939, that wiretapping was an "archaic and inefficient" practice which "has proved a definite handicap or barrier in the development of ethical, scientific and sound investgative techniques." His Bebruary, 1949, letter to the Yale Law Journal quoted his earlier expressions "opposed to uncontrolled and unrestrained wiretapping by law enforcement officers."

But the best of intentions and the finest-sounding general instructions and guidelines are insufficient guarantees that the executive-even at the level of the Director, the Attorney General, the President-can be relied upon, operating in secret, to respect this or that individual's right to privacy when it conflicts with some immediate concern and apparent national priority. Whether these dangers are alleviated by ex parte court review is uncertain, but the history demonstrates that more control, or abolition of the practice altogether, is necessary.

A. 1920-40

Ambivalence and uncertainty began almost as soon as the art of electronic surveillance was born. After Hoover became Director in 1924, Attorney General Stone issued an order prohibiting wiretapping by the Bureau. That instruction was reaffirmed by Attorney General Sargent in 1928.

The Bureau of Prohibition was not subject to these restraints, and it broke a bootleg "conspiracy of amazing magnitude"-to use Chief Justice Toft's description-by extensive wiretaps in Seattle in 1927, and thereby gave rise to the Olmstead case. By 5-to-4 majority (over now-famous dissents by Justices

Brandeis and Holmes and less-well-known opinions by Justices Butler and former Attorney General Stone), the court ruled that evidence "secured by use of the sense of hearing and that only" was not unconstitutionally obtained because it was not a "search" or "seizure" as those terms are used in the Fourth Amendment.

In the meantime, in 1930, the Bureau of Prohibition was transferred to the Department of Justice, and Attorney General William D. Mitchell directed on January 19, 1931, that the bar on FBI wiretaps be withdrawn and the following department-wide language substituted:

No tapping of wires should be permitted to any agent of the Department without the personal direction of the Chief of the Bureau involved, after consultation with the Assistant Attorney General in charge of the case. Bills to prohibit wiretaps were introduced in the Seventy-first and Seventysecond Congresses, and hearings were held at which Attorney General Mitchell and Prohibition Director Woodcock testified. The Attorney General maintained that he had issued instructions permitting the installation of a wiretap only on "the personal direction of the Chief of the Bureau involved, after consultation with the Assistant Attorney General in charge of the case." The justification given for wiretapping by the Attorney General named Mitchell in 1931 was not much different from what his namesake said later.

The flurry of congressional debate finally culminated in a rider to the 1933 Department of Justice Appropriation Act which forbade "wiretapping to procure evidence of violations of the National Prohibition Act . . ." And with the demise of Prohibition, interest in specific legislative restraint on wiretapping waned.

But in 1934 Congress enacted the Federal Communications Act, and Section 605 of that principally regulatory law forbade the interception and disclosure of interstate telephone messages. In 1937, in Nardone v. United States, a prosecution for conspiracy to smuggle into the United States almost 10,000 gallons of alcohol, it developed at trial that federal agents had tapped the conspirators' phones and overheard approximately five hundred calls. Of these, seventytwo were incriminatory enough to be used directly as evidence at trial. Nine years after Olmstead, seven members of the Supreme Court held that the "plain words" of Section 605 forbade testimony in federal court which would divulge an intercepted telephone message. The majority opinion was written by Justice Owen Roberts.

Without explicitly overruling Olmstead, the court majority rejected its narrow view of privacy, observing that Section 605 may have been passed by Congress for "the same considerations . . . as evoked the guaranty against practices and procedures violative of privacy, embodied in the Fourth and Fifth Amendments of the Constitution." That rejection was confirmed two years later by the Court's second Nardone decision. It held that Section 605 prohibited not merely divulgence of "the exact words heard through forbidden interceptions" but also "derivative use" of such proscribed evidence. The court's understanding of Nardone I was that it was "not the product of a merely meticulous reading of technical language," but "the translation into practicality of broad considerations of morality and public well-being."

Arthur Krock reported in the New York Times (April 4, 1940) that Mr. Hoover had, after the Supreme Court decision, "asked his superiors for a ruling and was informed that wiretapping to obtain leads on criminality was not banned by the decision." This was consistent with Hoover's own statement -made after embarrassing tapping disclosures and congressional concern the following year-on FBI policy:

The Federal Bureau of Investigation has utilized wiretapping as a method of securing information of investigative value only in extraordinary situations and in an entirely legal manner, where either a human life was st stake or where the activities of persons under investigation were of such an aggravated criminal nature as to justify the use of extraordinary means to detect their activities and cause their apprehension. [Emphasis added.]

Whatever Mr. Hoover's personal views may have been (and various statements showed him still cautious about electronic surveillance) the practice authorized by the Justice Department in the late 1930s raises serious legal and constitutional questions. Formal and informal statements and reports of the

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FBI's practices and Mr. Hoover's standards in the late 1930s tend to show that the lines on what kinds of cases warranted tapping were flabby and indistinct. Combating highly organized crime syndicates was mentioned, as were kidnapping, extortion, and “flagrant white slavery.” (One is tempted to wonder why any "flagrant" violations require secret electronic surveillance.)

Obviously, then, the Justice Department's and FBI's view of what warranted tapping went beyond cases where "human life was at stake." How broadly Mr. Hoover exercised the discretion given him by the 1931 wiretap order has never been-and probably never will be-fully or even substantially known. Nor do we know how many individuals were sent off to jail in that period on evidence which was the fruit of wiretaps.

There was similar lack of public scrutiny of the use of bugs. The record in the Goldman case, which the Supreme Court decided in 1942, shows that in 1937-in an ordinary bankruptcy fraud investigation-Bureau agents were planting microphones in private rooms and listening to conversations without the agreement of any of the parties or the occupant of the premises. Apparently the limitations on wiretaps (under Section 605) to certain kinds of cases did not apply to microphone surveillances (controlled by the Fourth Amendment). Nor, indeed, was there even a requirement that a microphone surveillance be approved by the Director-possibly leaving the final decision on its installation to a SAC. Apparently, the only restriction was on disclosure, although the Fourth Amendment-unlike Section 605-has no "non-divulgence". provision.

So the FBI came to the threshold of World War II with apparent authority to tap wires on the signature of the Director and similar authority to bug in the field. Both were highly dubious-the first possibly criminal (under the Federal Communications Act) and both possibly unconstitutional. It was in this context that, in September, 1939, the FBI was given supervisory authority over investigations relating to espionage, sabotage and violations of the neutrality regulations. Its electronic surveillance activities swung into their next stage.

B. 1940-47

Robert Jackson was nominated to be Attorney General on January 4, 1940. In February, 1940, the FBI admitted wiretapping in a celebrated case, and a public outcry ensued. The Director thereupon issued the public release previously quoted. Two days later, a press release was issued out of Robert Jackson's office stating that upon the "recommendation" of Hoover, the Attorney General was repealing the 1931 authorization given by Attorney General Mitchell and superseding it with the pre-1931 language which imposed an absolute ban on "unethical tactics," including wiretapping.

The new policy did not last even a hundred days. Whether President Roosevelt was personally concerned with the effect of the no-tapping rule on espionage investigations or whether a suggestion was made by Mr. Hoover or someone else is not yet known, but on May 21, 1940, Roosevelt sent Jackson a confidential memoradnum which said:

I have agreed with the broad purpose of the Supreme Court decision relating to wiretapping in investigations. The Court is undoubtedly sound in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases and is also right in its opinion that under ordinary and normal circumstances wiretapping by Government agents should not be carried on 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 actual sabotage. It is too late to do anything about it after sabotage, assassination and "fifth column" activities are completed.

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