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?"