The Case Against Wiretapping: Some of LBJ's Own Doubt It

Three years ago in Detroit, Internal Revenue agents wired a federal parolee as a walking electronic eavesdropper. The tax men planted a transmitter in one of the man's cowboy boots and a battery in the other and ran wires up his trouser legs to a microphone-belt buckle.

"That sounds like a good way to get electrocuted," said Senator Edward V. Long (D.-Mo.), chairman of the subcommittee investigating the incident last month. The laughter in the committee room was short-lived. One of the tax men, Geoffrey Arn, testified that by "accident" the transmitter relayed a lawyer's private conversation with a client--who has since been convicted and sentenced to prison.

The next day, April 15, Sen. Long's Judiciary Subcommittee on Administrative Practices and Procedures, which has been holding hearings on President Johnson's Right of Privacy Bill since early February, learned that IRS agents also bugged a federal grand jury witness room and the chambers of a municipal court judge. Chairman Long no longer saw any humor in the situation. "All this rather shocks me," he said.

Long is not the only one shocked by the growing arsenal of electronic devices designed to eavesdrop on their most personal affairs. The advent of the transistor marked the end of the Fourth Amendment's protection against "unreasonable searches and seizures." Electronic bugging has become so widespread that Congressman Emanuel Celler (D.-N.Y.) says nobody in Washington can be certain his telephones are private.

A top official in the Department of Justice's administrative division, who has asked to remain anonymous, discussed the problems created by wiretapping and electronic eavesdropping in a recent telephone interview. "There is a real conflict between the rights of the individual and government," he said. "Wiretapping brings it out. Here is an area in which the government is physically doing something that can infringe upon the rights of the individual.

Wins and Losses

"No Attorney General, no FBI agent keeps a won-loss column on criminals convicted. It's our job to administer justice--and that might mean bribing someone or even driving bamboo splints under his fingernails if necessary. Wiretapping is also done to this end. We don't plant mikes to smash the rights of the citizen, but to see justice done."

President Johnson expressed the opposite view in his State of the Union Message January 10. He said:

"We should protect what Justice Brandeis called the right most valued by civilized men--the right of privacy. We should outlaw all wiretapping, public and private, wherever and whenever it occurs, except when the security of this nation itself is at stake--and only then with the strictest of government safeguards. And we should exercise the full reach of our constitutional powers to outlaw electronic bugging and snooping."

On February 6, in his special crime message to Congress, the President requested passage of the Right of Privacy Act of 1967--calling privacy "the first right denied by a totalitarian system ... [and] the hallmark of a free society."

The next day, Sen. Long introduced the administration's privacy bill now before his subcommittee. It would ban all wiretapping and bugging except in cases in which the President himself determines that national security is involved, or in which one party to a conversation consents to the eavesdropping. It would also prohibit the advertisement, manufacture or shipment of bugging devices in interstate commerce.

Persons convicted of illegal wiretapping or bugging would be fined up to $10,000 and sentenced to five years in prison. Violation of the interstate commerce provision would bring an even stiffer penalty--a fine of up to $25,000 and ten years imprisonment. Justice Department officials immediately called the measure the toughest the Constitution would allow.

Old-fashioned Honesty

"I might be old-fashioned," said the Justice official interviewed, "but I think that intellectual honesty is our best check and balance here [against government eavesdropping]. We must attract and train men of integrity. The courts still have the right to search and seizure. And the FBI doesn't prosecute or imprison people--they still have to go to court. That's another check.

"Problems may arise when an agent is out of touch with the administration in some area, or when an area is vague or not understood. When you question the integrity of the individual agent, you're questioning the intgerity of the entire administration. If you can't respect the integrity of the administration, who can you respect?"

Justice Department officials are not the only critics of President Johnson's bill to curb wiretapping and bugging except in security cases. Although it was not known at the time of his State of the Union Message, the President's own National Crime Commission, which did not submit the report of its 18-month study of crime until almost two weeks after the privacy bill was introduced, had on December 30 backed down--under pressure from Johnson aides--from a recommendation for legislation permitting electronic surveillance by police.

A compromise decision, worked out by Nicholas deB. Katzenbach, Under-secretary of State, saved Johnson the embarrassment of being contradicted by his own crime commission. A majority of the group, led by Houston attorney Leon Jawarski, agreed not to oppose the President in the commission's formal recommendations, but it insisted on a statement that electronic bugging by police is necessary to fight organized crime. Jawarski, a personal friend of Johnson, had up to that time been frequently advanced by the press as a possible successor to former Attorney General Katzenbach.

The commission's 308-page crime report, submitted to Congress on February 19, said that "a majority of the members of the commission believe that legislation should be enacted granting carefully circumscribed authority for electronic surveillance to law enforcement officers."

Ammunition

This recommendation, in effect, placed the commission at odds with the President's privacy bill. Jawarski and his group had held firm. The commission technically avoided directly opposing the President's bill by recommending only that "Congress should enact legislation dealing specifically with wiretapping and bugging." The report nevertheless provides ammunition for opponents of the administration bill.

The Justice Department's fight against organized crime, according to the commission's report, reached its peak under Attorney General Robert F. Kennedy '48, but lost its effectiveness in 1965. The commission attributed this decline to press charges of illegal wiretapping made against several federal agencies.

Just what effect, if any, the President's Right of Privacy Bill would have on the Justice Department's fight against crime is not at all clear. The Federal Communications Act, in effect since 1934, already makes it a crime for "any person" to intercept and divulge a telephone conversation. Congress has repeatedly refused to make exceptions--even for national security cases.

The Justice Department gets around this divulgence restriction with a legal "fiction" devised by Attorney General Robert Jackson in 1941. The key words are "any person." Jackson interpreted this phrase to exclude persons inside the government, and all succeeding Attorneys General have concurred. This rational has led directly to the idea that the Attorney General can authorize wiretapping.

The Supreme Court ruled in 1939 that evidence or even leads gained by wiretapping cannot be admitted in federal courts. However, the Federal Communications Act of 1934 does not apply to many bugging devices have never been curbed by Congressional action, even though the Supreme Court has sharply restricted their use.

In 1942, the Court implied that electronic eavesdropping is legal only when the device can be planted without committing a physical trespass. This rule was upheld by the Court in Silverman V. United States, 1961.

By its own admission, however, the Justice Department continued to use the same trespassing bugs outlawed by the Supreme Court. In July 1966, Solicitor General Thurgood Marshall filed a memorandum in an income tax evasion case stating that the FBI had installed a microphone through the wall of a hotel room--in clear disregard for the Silverman decision. Before 1963, the memorandum stated, FBI director J. Edgar Hoover had the authority to order the installation of trespassing eavesdropping equipment "in the interest of internal or national safety."

This revelation led to the dispute between Hoover and Sen. Robert Kennedy over who was to blame for the bugging. No matter which of these men--the head of the FBI or the former Attorney General -- actually ordered the eavesdropping, the important facts remains that he did it in violation of the laws he had sworn to preserve, protect and defend. This is the widespread assumption within the Justice Department -- that the Machiavellian concept of the end jusfying the means holds in the pursuit of criminals and subversives--and it is doubtful that the President's Right of Privacy Bill would do much to change it.

"There is an implication in [Justice] Department policy," said the Justice official, "to use eavesdropping instruments. It is versus the public order not to use them. To the public this implies that we are doing something unsporty.

"If an agent is himself unaware of what is the policy or if there is a lack of clarity--on purpose or deliberately--he must decide his own policy. Whether wiretapping is right or wrong, a given case is decided on the line.

"All this involves another politically philosophical question: should the aim of an agency, like the FBI, be subservient to an official like the President or the Attorney General? Or should it be like a separate branch of government?

"There are two schools of thought on this. One says the FBI is really the fourth branch of government. It's job is to investigate the others--the President, Congress and the Supreme Court. The other school says that if you're going to start doubting the President, you might as well get out of government."

President Johnson has already issued a confidential directive to all departments and agencies halting bugging not "fully in accord with the law and with a decent regard for the rights of others." How this will be interpreted by the FBI or the IRS--or such reputed eavesdroppers as the Pure Food and Drug Administration and the Bureau of Narcotic--is still left to the administrators of those agencies.

"When things get so bad that people are dissatisfied," said the Justice official, "it's time to rack up and start over again. The only real danger is that the government might not let the policy be talked about. The press and other news media are a real check and balance to keep the government form running roughshod. It's only when a political state forgets why it does something that it becomes a real threat.