Tapping Into History

8/10/2019 Tapping Into History

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Derek Burns

Prof. Williams

Senior Seminar

October 10 2014

Tapping into History

When then President of the United States of America Richard M. Nixon became the first

commander in chief to voluntarily resign from the most powerful elected office in the world, the

peoples confidence in the conduct of theglobes leading democracy wasforever shaken. The events

that predated NixonsAugust 8th, 1974 resignation are among the most controversial pages of American

history. Shrouded in secrecy, wrought with villainy and submerged in a cesspool of corruption, the finer

points of both the Watergate scandal and wiretapping history still remain unparalleled in both scope

and boldness. And yet, were it not for a consistent abuse of authority, as well as the arrest of five

seemingly common criminals in the middle of what appeared to be a simple burglary, the American

public would have had no inclination of the rampant invasions of privacy their bureaucracy had

committed. Watergate and the subsequent congressional investigations broke the dam that had for so

long ostracized the American people from the flood of foul play, for which their so called free society

had been responsible.

At the heart of the Watergate controversy, emerged the concept of unchecked and

unwarranted domestic surveillance. Whether it was telegrams, phone conversations or the postal

system, it emerged that no form of correspondence had escaped the intrusive claws of Hoovers FBI, nor

the curiosity of the executive office. Unbeknownst to the American public and the majority of the public

officials, the delicate line between liberty and security had been eroded to nothing. Absent any type of


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congressional or judicial oversight, the unchecked surveillance powers of alphabet organizations and

Presidents seeped into the lives of any and all political dissidents, most notably those who advocated for

civil rights. Watergate and the subsequent investigations exposed more than most would have

fathomed. The scandal helped publicly promote the concept of governmental abuse framed within a

massive invasion of personal privacy and for a time the populous, as well as the body politic, began to

entertain the concept of what the Fourth amendment alongside both domestic and national security

actually meant. This paper will examine the histories surrounding the domestic wiretap and conclude

that the exposure to the masses of large scale wiretapping for personal and political purposes perplexed

and enraged the already skeptical American public to the point, that their government, in order to

reinstate confidence and maintain continuity, sought to reign in any and all bureaucratic abuses of

authority and by whatever means necessary bring certain factions into the realm of accountability.

Before delving into the fallout that followed the Watergate scandal and how wiretap abuse

affected the lives of countless Americans, a brief examination of the scholarship and secondary sources

surrounding the history of wiretap will be entertained. Firstly, Whitfield Diffie and Susan Landaus

Privacy on the Line: The Politics of Wiretapping and Encryptionpublished in 1998, chronologically

evaluated the legislative evolution of the legality of the wiretap. Rather than inject opinion, Diffie and

Landau claim that the intent of their book was to allow the reader the development of an informed

opinion. They thoroughly outline the inner workings of surveillance mitigation technology and conclude

by advocating for public/private key encryption as a means of circumventing governmental scrutiny.

Their historical analysis of court cases that pertained to wiretapping help substantiate my personal

assertions regarding the judicial divisions surrounding wiretapping as being indicative of the publics

perspective as a whole. Concurrently, the legal cases they investigated offered a healthy scope wherein

I will focus my investigation. Secondly, Edith J. Lapidus Eavesdropping on Trialpublished in 1974

specifically examined wiretapping through the legal, sociological and criminological lenses. With a


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particular focus on the wiretapping debate as it hinged on Title III of the Omnibus Crime Control and

Safe Streets Act, Lapidus in his conclusion, advocates for altering existing legislative language in order to

eliminate the legal ambiguity that bureaucracy, with respect to the wiretap, had routinely capitalized on

and exploited. In his conclusion, he also argued for considerably more committee oversight, above and

beyond the judicial checks already in place. Lapidusreliance on Orwellian comparisons substantiates

the negative opinions many Americans experienced in the seventies and his analytical approach to the

legal framework helps facilitate an understanding for why many Americans felt threated by a system

they were neither able to trust nor understand. This resource will be employed as both a primary and

secondary source, due to the fact that it allows one to gauge both a concerned citizens opinion of the

wiretapping debate in the 1970s, while also serving the scholarship as a reflective work that entertained

the wiretapping saga up until this point in American history.

Thirdly, Alexander Charns Cloak and Gavelpublished in 1992 specifically investigates the

inner workings of Hoovers FBI. Through ongoing FOIA requests which he began filing in 1983, Charns

has been able to paint the image of the FBIsintrusive and secretive relationship with our judicial branch

of government. Charns illustrates the villainous nature of the FBI and how, when coupled with Hoovers

willingness to abuse his authority, created an environment where their domestic surveillance operations

involved, among many, the highest justices in the country. His book further substantiates my claims

that the public and body politic grew distrustful of an agency already endowed with skepticism.

Fourthly and finally, Samuel Dashs The Eavesdroppers, first published in 1959, offers an

exceedingly rare perspective into both the early wiretap subculture of the late 1950s, as well as a

reflective historic perception of previous wiretapping content before the middle of the century. Dash

offers a much more technical example of wiretapping in the physical sense, by depicting the methods

and hardware wire tappers utilized in their pursuit for more information. Unlike the previously


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mentioned authors who address the wiretap chronologically, Dash displays his research geographically.

He traces the wiretapping debate along exposed individual legal briefs along state lines, and even

touches on wiretapping cases that occurred in Great Britain. Dash then, in great detail, offers up

numerous illustrations of the equipment and methods wiretapping culture utilized. In his conclusion, he

rounds off his assertions with an evaluation of the evolution of both federal and state legislation as well

as proposed amendments that involved the legality of wiretapping. Dashs opinions and arguments aid

my research in a two-pronged fashion. First, they provide a sense of how an educated citizen perceived

wiretapping in a decade where Hoover and the presence of the FBI were largely unknown. We see little

to any mention of the FBI in a contradictory sense, but rather gravitation to the wiretapping subculture

as an individual, private community not unlike the computer hacker subculture of the 1990s. Second,

the fact that his research existed before both Title III of the Omnibus Crime Control Act and Freedom of

Information Act requests allows one a truer sense of how and what resources were at the disposal of an

inquisitive citizen in that period of American history.

As evidenced above, a significant degree of scholarship has been devoted to wiretapping as a

concept; nevertheless, historians have made little attempt to gauge the effects the exposure of matters

pertaining to this sensitive topic had upon the public at large. My paper will predominantly focus on the

evolution of the publics perceptions, in light of revelations of the governmentsdomestic wiretapping

and its influence on American culture and vice versa. I will begin at the turn of the century by

entertaining the publically available information surrounding their then wiretap debate, trace this

debate through the middle of the century and conclude my examination with the 1970ssocial response

wherein a society, already underpinned with governmental distrust instituted by the dissemination of

deceit attributed to the Vietnam War, responded to Watergate, the largest wiretapping scandal of their

time.


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In the beginning, there were wires, there were tappers and consequently there was scandal.

The history of electronic communication has never been without electronic surveillance. Concurrently,

the presence of electronic surveillance, in instances when its utilization has been discovered in a timely

manner, has coincided with controversies that, more often than not, were political in nature. A perfect

example illustrating this point occurred in 1916 wherein John Purroy Mitchel, the Boy Mayor of New

York, charged a group of Catholic clergy with the attempted bribery of city officials. The city of New

York was in the process of expanding its jurisdiction and the Catholic clergy in question operated a

charity that was on the fringes of the New York City limit. The charity, not wanting to be included in the

expansion due to among other reason elevated taxes, on numerous occasions sought the audience of

Mayor Mitchel. Their requests were refused. Let it be known that this was election season and the

clergy, interpreting the cold shoulder provided by the mayor as wholly disrespectful, began distributing

political pamphlets against Mayor Mitchels reelection.1 Upon learning of this development, the Mayor

then ordered the responsible Clergy be placed under investigation and that their telephone lines be

tapped. After a three month investigation, the three priests were then officially indicted for bribery. The

indictment was based on the contents of a recorded telephone call between one of the members and a

city official in which they stated their willingness to donate a hundred if their charity were to be kept

out of the proposed city expansion.

At the onset of the case, the prosecution experienced a host of problems including an inability

to locate a judge that would hear the preceding, due in part to the fact that an 1892 New York State law

prohibited wiretapping in its entirety by local law enforcement and the public alike.2 Intriguingly

enough, it would seem that the notion of a law enforcement wiretap was not a foreign concept to the

1No Author, Upholds Priests In Wiretap Case, The New York Times,September 16, 1916. Accessed November 15,

2014,http://timesmachine.nytimes.com/timesmachine/1916/09/16/100339100.html?pageNumber=8.2No Author, Cant Find a Judge For Wire Tap Cases, The New York Times, September 17, 1916. Accessed

November 16, 2014,

http://timesmachine.nytimes.com/timesmachine/1916/06/17/100213605.html?pageNumber=20.


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1916 public. Yet, the clergys councilmounted a defense that asserted their clients had assumed their

lines to be tapped and that the discussion in question was merely a political tactic intended to bait the

police as a means of publicly exposing the oppression they were experiencing at the hands of Mayor

Mitchell. Had the idea of a wiretap been an outlandish concept to the body public then the clergys

claim of foreknowledge to the citys tap would not have been believable. Instead, thedefense was

relatable and the clergy were exonerated. On a side note, after their acquittal, the clergy filed criminal

charges against the policemen who took part in the wiretap squad. The lead investigator, a devout

and vocal Catholic had, through his testimony against the priesthood, disgraced both his family and his

faith. As fate would have it, subsequent the trial, the officer shot himself in the chest but narrowly

missed his heart and survived.3

For the public, this scandal raised many questions as to the frequency with which the New York

City Police department employed taps and eventually led the state of New York to mount an

investigation. The New York Times reported, The state legislature discovered that the police had the

ability to tap any line of the New York Telephone Company. Using this power with abandon, the police

had listened in on the confidential conversations between lawyers and their clients, and between

physicians and their patients . . . in some cases the trunk lines of hotels were tapped and conversations

of all hotel guests listened to.4Two years later in a 43-3 landslide the New York State Senate passed

the Murphy Bill, which effectively extended judicial oversight to the wiretap, Under its provisions,

permission to listen in can be granted only by the Chief Justice of the Appellate Division in each

department.5 Here we see a concerted effort on the part of the New York State government to reign in

an apparently out of control element within its bureaucracy. Were it not for the abuses experienced by

3No Author, Shunned, Wire Spy Tries to End Life, The New York Times,July 27, 1916,Accessed November

18,2014, http://timesmachine.nytimes.com/timesmachine/1916/07/27/100217990.html?pageNumber=1.4Whitfield Diffie, Susan Landau,Privacy on the Line: The Politics of Wiretapping and Encryption, (Cambridge Mass:

The MIT Press, 1998), 155.5No Author, Senate Bans Telephone Tapping, The New York Times, March 20, 1920, Accessed November 20,

2014,http://timesmachine.nytimes.com/timesmachine/1918/03/20/102678722.html?pageNumber=17


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the catholic clergy and the subsequent investigations, the public would have had no inkling that among

other things, their lawyer/client privileges were being violated and that the city police force had

disregarded a number of protections afforded them by the Constitution.

Following the exposure of local law enforcements eavesdropping tactics to the publics

awareness, the wiretap and its legality were openly debated; however, it was not until the onset of

Prohibition in 1928 that the Supreme Court sought to tackle the subject. Olmstead v. United States

involved a federal investigation into Roy Olmsteadsmassive bootlegging operation that spanned the

country and contained a level of complexity that Law Enforcement had not yet encountered. Thus, out

of frustration, the federal agents installed warrantless wiretaps around Olmsteads liquor distribution

points and his central management office. Subsequent his initial conviction, Olmstead appealed the

admission of any and all evidence derived from what he contended were illegally installed wiretaps that

violated both New York State Law and his Fourth and Fifth Amendment rights. The Supreme Court

granted the case a writ of certiorari and after extended debate wherein the tangibility of the wiretapped

content juxtaposed against a literal interpretation of the Fourth amendment occurred, the court

returned a split, five to four decision that the evidence was legally obtained and thus admissible. This

decision was met with great opposition. The dissenting Justices very vocally opposed the ruling as

Justice Brandeis stated among other things:

Decency, security and liberty alike demand that government officials shall be

subjected to the same rules of conduct that are commands to the citizen. In a

government of laws, existence of the government will be imperiled if it fails to

observe the law scrupulously. Our Government is the potent, the omnipresent

teacher. For good or for ill, it teaches the whole people by its example. Crime iscontagious. If the Government becomes a lawbreaker, it breeds contempt for

the law; it invites every man to become a law unto himself; it invites anarchy.

To declare that in the administration of the criminal law the end justifies the


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meansto declare that the Government may commit crimes in order to secure

the conviction of a private criminalwould bring terrible retribution.6

Justice Brandeis illustrated very serious concerns that were inevitably felt by the public. How was it that

federal agents were without recourse able to break the law while in the pursuit of enforcement? This

sentiment resonated through the citizenry, to the point that years later the decision was still hotly

debated as evident by a New York Times editorial featuring then Assistant Attorney General Mable

Walker Willibrant.

In 1929, the First Lady of the Law as she was popularly known, wrote Although personally I

would still use my influence to prevent the policy of wiretapping being adopted as a prohibition

enforcement measure, I nevertheless recognize that the interpretation of the United States Constitution

against the lawbreaker and in favor of the governments right to catch him.7 From Mabels contention

that the governmentsinvasion into personal communication was not in her opinion warranted even in

the furtherance of the governmentsprohibition agenda, spoke volumes. Personal privacy outweighed

government intrusion. Though it was acceptable for government to outlaw the ingestion of mind

altering beverages, for them to commit domestic spying was wholly outside the realm of what 1920s

Americana deemed acceptable. Were it not for the shear scale of Olmsteads operation, accounting for

in upwards of two million dollars monthly, in tandem with the governmentsattempt to appear tough

on Alcohol Prohibition, the tentative ruling would have most assuredly gone the other way. Following

this case it took congress five years to offer up their contribution to the debate, upon which they took it

upon themselves to draft their own interpretation of the legality of the tap.

6Justice Brandeis, Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement, (Federal

Judicial Center: Washington DC june 4, 1928),

http://www.fjc.gov/history/home.nsf/page/tu_olmstead_doc_15.html.7Mabel Walker Willebrant, The inside of Prohibition, New York Times,August 19, 1929,

http://query.nytimes.com/mem/archive-free/pdf?res=9E03EFD61E30E33ABC4152DFBE668382639EDE.


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In 1934, the Federal Communication Act (FCA) tackled this touchy topic. Section 605 of this act

was the prohibitory subset that altered the legal landscape wherein, up until this point, the wiretap had

existed. This section denied the admission of evidence obtained via wiretaps and specifically defined

the disclosure of any information gleaned in a wiretap as illegal and punishable by both incarceration

and up to a $10,000 fine. The language, prohibited the interception and divulgence of wire

communications. While not making wiretaps in and of themselves illegal, the FCA barred law

enforcement from utilizing both direct and indirect wiretap content in the legal construction of their

cases.8 The first legislative element to inhibit the legal influence of warrantless wiretaps was paid

relatively little publicity. Publicity was however paid to the rising tensions invested in the wiretap

debate between Democrats and Republicans in the New York Senate and this tension bubbled over in

the 1938 Constitutional Convention. The Brooklyn Daily Eagle wrote, The Republican controlled Bill of

Rights Committee turned a somersault today in the Constitutional Conventions battle over the

Democratic anti-wiretapping and search and seizure bill.9 Known as the Dunnigan Proposal, this was

the New York State Democratic partys attempt to amend the New York State constitution to include

safeguards firmly directed toward electronic communication. In the same edition, the Eagle also

reported on a local citizen group known as the West Flatbush League who also voted in favor of

including the amendment.10 From its prevalence in the tabloids, it would seem self-evident that the

debate surrounding the wiretap was indeed a very public one. For a local concerned citizensrights

group to include the topic of wiretapping legislation in their weekly agenda, wiretappingspresence

within the economy of ideas must have been paramount. Consequently, the publics ongoing debate

8Sarah Boucher, Edward Cotler, Stephen Larson, Internet Wiretapping and Carnivore, MIT: May 17, 2001,

http://groups.csail.mit.edu/mac/classes/6.805/student-papers/spring01-papers/carnivore.ppt.9Joseph H. Schmalacker, Albany Action Reversed on Wire-Tapping Measure, Brooklyn Daily Eagle, June 15, 1938,

http://www.newspapers.com/image/52696959/http://www.newspapers.com/image/52696959/.10

No author, Albany Action Reversed on Wire-Tapping Measure, Brooklyn Daily Eagle, June 15,1938

http://www.newspapers.com/image/52696984.


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and the unchallenged FCA acted as catalysts that propelled the topic of the tap once more to the

audience of the highest court in the country.

Two cases served to test the grit of the federal governments FCA. The first was the 1939

Nardone v. United States. Nardonebore many similarities to the Olmstead case given that it also

involved a bootlegger, his extended operation and that the honorable Justice Brandeis presided. Where

it differed was that it occurred on the heels of the FCA. After the ruling and on the record, Justice

Roberts stated, The plain words of Section 605 forbid anyone, unless authorized by the sender, to

intercept a telephone message, and direct in equally clear language that no person shall divulge or

publish the message or its substance to any person.11

The Supreme Court ruled seven to two that all

wiretapping evidence against Frank Carmine Nardone was in direct violation of the FCA and

consequently deemed inadmissible. Nardone was exonerated and the Supreme Court established FCAs

influence on interstate investigations. On the same day, the court overturned the intrastate wire fraud

conviction of Joseph J. Weiss in Weiss v. United States, and thus in one fell swoop the Supreme Court

solidified the FCAs presence withinboth inter and intrastate investigations.12 Concurrently, for the first

and only time in wiretap history, the then Attorney General, Robert Jackson, publicly ordered a halt to

all Federal wiretapping activity.13

Thus far, the federal legal history of the wiretap has traversed from almost total impunity, with

Olmstead, to almost total inadmissibility, with Weiss and Nardone. It is here that the wiretapping

history enters into a murky nether region. As already established, the FCA did not allow for both the

interception and divulgence of any content obtained via wiretap; however, it did not classify the act of

11No Author, High Court Bars Testimony Based on Wire-Tapping, The New York Times, December 21, 1939

http://query.nytimes.com/mem/archive-free/pdf?res=9D05E6D7103EE03ABC4951DFB467838C629EDE.

12No Author, High Court Widens Wiretapping Ban, The New York Times, December 12, 1937,

http://query.nytimes.com/mem/archive-free/pdf?res=9500EEDC1E39E532A25751C1A9649D946894D6CF.

13Diffie, 157.


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tapping to be illegal. Concurrently, the FCA side tackled the legal admissibility of tapped content due to

the fact that testimony constituted a divulgence and thus a violation. Herein laid the finer point the

newly established FBI and Attorney General sought to exploit. Diffie puts it well, The Department of

Justice had interpreted the Nardone decisions to mean that it was unlawful to both intercept and

divulge communications, and had decided that it was not unlawful to intercept communications, as

long as the contents remained within the Federal institution.14Armed with this assertion and staged

amid the onset of WWII, the zealous aspirations of a young J. Edgar Hoover began to slowly erode the

precedents established by the Supreme Court.

During WWII, surveillance and security were promoted over liberty. In 1942, Hoover and

Attorney General Francis Bittle responded to the ambush at Pearl Harbor with an appeal to a house

judiciary committee for a partial reinstatement of wiretapping capabilities. Bittle essentially claimed

that the legal framework established against wiretapping impeded the Justice Departments abilityto

monitor communication between the Japanese on the Hawaiian Islands and the Japanese mainland.

The NYT publicly reported on the appeal and concluded their article with paraphrased opinions from

different elements in the military and the public. An American Federation of Labor Representative

publicly voiced his opinion, Paul Scharrenber, . . .said the A.F.L., was willing to withdraw its opposition

to wire-tapping legislation, provided the powers of the pending measure are made to expire at the end

of war.15 When taking the context into consideration, this opinion retains immense historical

significance. Given the United States involvement in WWII, the domestic drive for Nationalistic victory

was intensified. Consequently, the citizenry were content to borrow off certain established elements of

their liberty as to ensure both victory and security, so long as, the pending measures are made to

expire at the end of the war.The public was content with the sacrifice of certain elements of their

14Diffie, 157.

15The United Press, Wiretapping Bill is Urged By Biddle, The New York Times, February 19, 1942,

http://query.nytimes.com/mem/archive-free/pdf?res=9E0CE7DE1439E33BBC4152DFB4668389659EDE.


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liberty under the guise that they would were be returned upon the conclusion of the conflict and that, at

the end of the war, the public wiretap debate continue. However, this was not the case.

Unbeknownst to the general public, the practice of tapping had already resumed. Before the

outbreak of war and before Bittles tenure, Hoover hadalready appealed to President Roosevelt for

wiretapping privileges that he then granted in a secret executive order which given specific conditions

nullified certain elements of section 605 of the FCA:

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. . .You are, therefore, authorized and directed in such cases as you

may approve, after investigation of the need in each case, to authorizenecessary investigating agents that they are at liberty to secure information by

listening devices direct to the conversation or other communications of persons

suspected of subversive activities against the government of the United States,

including suspected spies. You are requested furthermore to limit these

investigations so conducted to a minimum and to limit them insofar as possible

to aliens.16

When Bittle assumed the role of attorney general, he exuded back more authority over tapping

activities and instructed Hoover to secure his personal approval before implementing any new

wiretaps. When the war concluded, the FBI maintained their wiretap authority and through a

clerical sleight of hand, expanded their reach. In 1945 within the Truman administration

Hoover, through the newly appointed Attorney General Tom C. Clark, sought reauthorization of

Roosevelts wiretapping order. Truman was unaware that Hoover had omitted the last

sentences of the executive order and in turn loosed wiretaps of the restraining language, limit

these investigations so conducted to a minimum and to limit them insofar as possible to aliens.

Clark himself also added domestic security or where human life is in jeopardy as viable

scenarios for a wiretap. Truman, believing he was to sign Rooseveltsidentical document

16Alan G. Theoharis, From the Secret Files of J. Edgar Hoover, (Chicago: Ivan R. Dee, Inc., 1993), p 134.


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unwittingly approved the new order, a mistake his aids eventually discovered.17This shift in

directive immensely broadened the scope of the F.B.I.s wiretap authority. By prescribing

domestic securityas a precept for a tap, the surveillance powers were no longer limited to the

national security constraints of the old order. The new order allowed Hoover to turn his

resources inward, with a new focus on domestic intelligence gathering. Indeed, Hoover

successfully accomplished his objective, for intelligence gathering necessitates neither

prosecution nor transparency. Hoover successfully repositioned his wiretap authority outside

congressional oversight and away from public accountability. The implications of this new

directive cannot be understated and will, with the conclusion of my paper, manifest with

intensity.

In the late 1940s with the Nazi threat quashed, the new threat of Communism in

conjunction with the emergence of McCarthyism, took precedence. The 1950 case of Judith

Coplon consumed the country. Coplon, a department of justice analyst, was caught in the act of

passing off sensitive material to Valentin Gubitchev a Russian United Nations employee. She was

then being accused of KGB agent and tried. What emerged was an embarrassment to Hoovers

FBI. An unwarranted wiretap had been placed on Ms. Coplon prior to her unwarranted arrest, a

fact conceded by an involved agent while under cross examination.18 To the public, this exposed

the supposedly illegal F.B.I. tactic of wiretapping and had the potential to upset Coplons

conviction. The media frenzied around the exposure of a secret interdepartmental F.B.I. memo

that, ordered that all wiretap records in the case and this memorandum itself be destroyed

17Diffie, 159.

18Charles Grutzner, Issue of Perjury Raised In Spy Trial, The New York Times,Feburary 2, 1950,

http://query.nytimes.com/mem/archive-free/pdf?res=9A06EFD7143FE731A25751C0A9649C946192D6CF.


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before the start of a pretrial examination.19 Hoover learned much from this scandal and

redefined how the agency handled their taps. He compartmentalized the specific knowledge of

wiretaps and kept many agents who worked active cases in the dark about current taps. Diffie

states, FBI reports of highly, confidential sources, including wiretaps, would not be included in

the main case files. . . Hoover accomplished this by disguising information it derived from

wiretaps when it appeared in the case files. He was largely successful in this strategy.20 This is

corroborated by a 1954 personal memo between Hoover and an unnamed source, As you are

no doubt aware, there is presently maintained in the office of Miss [Helen] Gandy a confidential

file in which are kept various and sundry items believed inadvisable to be included in the general

files of the Bureau.21Again, Hoover improved his agencies methodology as to more efficiently

mitigate any oversight whatsoever through a reorganization of sensitive material thus

complicating the paper trail into obscurity. He sought a blank slate of authority to combat the

Communist threat, a threat that he contended also included the blossoming Civil Rights

movement.

Throughout the 1960s, given Hoovers lack of oversight, he was able to amass a

voluminous collection of intelligence on whoever he wanted, the majority of which were

politically motivated. Consequently, Hoovers boundless focus included, Martin Luther King,

senators, congressmen and various Supreme Court justices along with many others.22 But alas, I

digress, for none of this was privy to the body public. All of this intelligence was entered into

the secret F.B.I. files that were kept behind locked doors amid a veil of secrecy. To the citizenry,

the legal admissibility of wiretap evidence wound its way through the legal system. On

19No Author, F.B.I. Is Criticized in Coplon Appeal, The New York Times,November 3,1950,

http://query.nytimes.com/mem/archive-free/pdf?res=9C05E0D9173DEE3BBC4B53DFB767838B649EDE

20Diffie, 160.

21Theoharis, 384,385.

22Diffie, 163.


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November 15, 1961 upwards of 98 persons were exonerated due to the inadmissibility of

wiretap evidence.23 This action was supported by the editors of the New York Times the

following day, The decision of District Attorney Hogan to discontinue the use of wiretap

evidence was a difficult but we think correct one.24 It would seem apparent that the people

were opposed to governmental wiretapping as a whole. This sentiment was corroborated by the

1967 Katz case.

Katz v. United States was the second wiretap case for which the Supreme Court filed a

writ of certiorari. This 1967 case involved Charles Katz, who was utilizing a public pay phone to

conduct a cross country sports betting operation. Katz was unaware that the FBI had installed a

wiretapping device onto the pay phone that he frequently used. Though Katz was found guilty

by the lesser courts, the Supreme Court Justices disagreed. Due to the fact that Katz had used a

public pay phone and closed the door behind him before he made a call, the Justices contended

that Katz did in fact have a reasonable expectation of privacy and that his 4th amendment rights

had been violated. Furthermore, the FBI had not exercised its due diligence for the electronic

eavesdropping device and secured neither a judicial warrant nor approval from an attorney

general. Concurrently, the Supreme Court ruled seven to one that the evidence be deemed

inadmissible. This case overturned the previously mentioned Olmstead decision by establishing

the precedent that electronic eavesdropping does in fact constitute a Fourth amendment

violation. The concurring opinion of Justice Stewart illustrated that had the agents sought

approval from a magistrate, then the tap would have been considered constitutionally

23No Author, 98 Freedin Day as Judge is told of Wiretap Data, New York Times, November 16, 1961,

http://query.nytimes.com/mem/archive-free/pdf?res=9503E0DC143CEE32A25755C1A9679D946091D6CF.24

Adolph S. Ochs, Control over Wiretapping, New York Times,November 17, 1961,

http://query.nytimes.com/mem/archive-free/pdf?res=9E05E6D8143DEF32A25754C1A9679D946091D8FE.


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agreeable; however, they had not and the charges against Charles Katz were subsequently

dismissed.

In response to this ruling, congress passed the 1968 Omnibus Crime Control and Safe

Streets Act. Title III of which allowed for the admissibility of wiretap evidence, so long as it had

been approved by the executive branch and served to, protect the nation against actual or

potential attack or other hostile acts of a foreign power . . . to protect the United states against

the overthrow of the Government by force or unlawful means, or against any other clear and

present danger to the structure or existence of Government.Both this legislation and the Katz

case served to once again elevate the presence of warrantless wiretapping into the public

consciousness. This notion reverberated throughout the tabloids of the 1960s wherein a degree

of paranoia regarding political taps began to emerge. In 1969, Senator Robert Kennedy was

quoted as saying, I was afraid to talk on my senate phone, because I was always afraid that the

President was tapping my Senate phone.25 For an esteemed state senator to assert his

paranoia as it pertained to warrantless taps, one can begin to grasp how a public distrust of

government activity would logically follow. It now would only take a small flame to incinerate

the veil of secrecy that Hoover had fought so long to establish.

The American people were distrustful and frustrated with the web lies that had

been spun by certain elements of their government, 1970 heralded the failed war in Vietnam

alongside a booming civil rights movements. On June 17th, 1972 at 2:30 am, five men were

apprehend while attempting to break into the Democratic National Convention, one of which

was a Republican party security aid. Two days later, Nixonsformer Attorney General John

Mitchel publicly denied any link between the Nixon Campaign and the burglars. Coincidentally

25No Author, Wiretap Fear Laid to Robert Kennedy,New York Times,April 7, 1969

http://query.nytimes.com/mem/archive-free/pdf?res=9401E6D81E39E63ABC4F53DFB2668382679EDE.


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enough, on the same day, the Supreme Court handed down a landslide verdict in United States

v. U.S. District Court. Referred to as the Keith case, it involved three left wing activists who were

indicted for attempting to destroy government property. One of the men, Lawrence Pun

Plamondon, had already been implicated in the bombing of an Ann Arbor Michigan CIA

recruitment building. All were members of the White Panthers Party and all had been wire

tapped for a number of months. The Omnibus Crime Control and Safe Streets Act of 1968, as

earlier mentioned, had allocated a degree of warrantless wiretapping privilege to the Executive

office so long as the Presidents staff could maintain that the reason for their eavesdropping

pertained directly to national security. Nixons attorney generalmade his case that these

American citizens constituted a foreign threat to the structure and existence of the American

government and authorized a number of taps. The district court questioned the legality of the

wiretap evidence and as the case made its way through the appeals process, the Supreme Court

granted yet another writ of certiorari. The Justices basedtheir decision on previous precedent

and the court sided eight to nil with the defense.

The Justices maintained, given that the three perpetrators were not classified as a

foreign threat, any and all wiretaps had to be approved by a magistrate. The evidence was

deemed inadmissible and the three were exonerated. Justice Lewis Powell, obviously speaking

for majority, delivered this opinion:

The issue before us is an important one for the people of our country

and their Government. It involves the delicate question of the President's

power, acting through the Attorney General, to authorize electronic surveillancein internal security matters without prior judicial approval. Successive

Presidents for more than one-quarter of a century have authorized such

surveillance in varying degrees, without guidance from the Congress or a

definitive decision of this Court. This case brings the issue here for the first time.

Its resolution is a matter of national concern, requiring sensitivity both to the

Government's right to protect itself from unlawful subversion and attack and to

the citizen's right to be secure in his privacy against unreasonable Government


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intrusion. . . History abundantly documents the tendency of Government --

however benevolent and benign its motive -- to view with suspicion those who

most fervently dispute its policies. Fourth Amendment protections become the

more necessary when the targets of official surveillance may be those suspected

of unorthodoxy in their political beliefs. The danger to political dissent is acute

where the Government attempts to act under so vague a concept as the power

to protect "domestic security." Given the difficulty of defining the domestic

security interest, the danger of abuse in acting to protect that interest becomes

apparent. . .The price of lawful public dissent must not be a dread of subjection

to an unchecked surveillance power. Nor must the fear of unauthorized official

eavesdropping deter vigorous citizen dissent and discussion of Government

action in private conversation. For private dissent, no less than open public

discourse is essential to our free society.26

Powell openly addressed the need to reign in warrantless domestic surveillance as evident

throughout his opinion. The question must then be asked, what amount of influence did the

chronological proximity of the budding Watergate scandal play in the Supreme Courtsdecision?

Given that, on the same day the court rendered this decision, Nixons former attorney general

had publicly denied involvement, it would be nave to assume such highly connected members

of government were uninformed. In the interests of their respective political careers, it would

have remained logical for them to distance themselves from the impending political fallout.

Consequently, they resolutely ruled in favor of both the people and liberty. It should also be

noted. Coincidentally enough, that Justice William H. Rehnquist, a Nixon appointee, who was

present during the preceding, chose not to rule on the matter. The New York Times wrote that

Rehnquist had, made statements supporting the Presidents wiretap authority and before

joining the court, did not participate in the decision. . . He gave no reason for stepping aside

today.27 What possibly could have possessed this seemly baseless behavior on the part of

Supreme Court Justice Rehnquist? The answer was Watergate.

26United States v. United States district Court, Case Brief,

http://www.law.cornell.edu/supremecourt/text/407/297.27

Fred P. Graham, High Court Curbs U.S. Wiretapping Aimed at Radicals, New York Times,June 20, 1972,

http://query.nytimes.com/mem/archive-free/pdf?res=9403E6DC1F3EE63BBC4851DFB0668389669EDE.


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As the investigative media sought answers, the flames of scandal began to lick at the

Executive Office. Over the course of three years, the then President Richard M. Nixon became

engulfed. Sufficiently stuffed by the media, about to be roasted by congress and demonized by

the public as being inherently disconnected, the disgraced President had little choice but to

resign. His impeachment order read as follows:

[Nixon] misused the Federal Bureau of Investigation, the Secret Service and

other Executive Personnel . . . by direction or authorizing such agencies or

personnel to conduct or continue electronic surveillance or other investigations

for purposes unrelated to national security. The enforcement of laws, or any

other lawful function of his office; . . . and he did direct the concealment of

certain records made by the Federal Bureau of Investigation of electronic

surveillance28

[Nixon] failed to take care that the laws were faithful executed by failing to act

when he knew or had reason to know that his close subordinates endeavored to

impede and frustrate lawful inquiries . . concerning the electronic surveillance of

private citizens . . . .29

Given the above language, it would be safe to say that Mr. Nixon, effectively, tapped himself out

of office.

The subsequent senate investigations served to quell the flames of the Watergate

scandal. The Senate Select Committee to Study Governmental Operations with respect to

Intelligence Activities exposed government misconduct from 1936 onward. Coined as the

Church Commission, due to it having been spearheaded by Democratic congressman Frank

Church, the committee found a laundry list of abuses from both the alphabet organizations and

the executive branch alike. It intended to expose any governmental activities that were illegal,

improper or unethical. The first major question it sought to ask was, whether domestic

intelligence activities have been consistent with the law and with the individual liberties

28USHR 93b, Book III, pp. 2255-2256, Article II 2.

29USHR 93b, Book III, pp. 2256-2258, Article II, 4.


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guaranteed to American citizens by the Constitution.30The report illustrated, with Hoover at

the helm, the host of cruelties committed by his Federal Bureau of Investigation. Ironically

enough, it emerged that Attorney General Robert Kennedy, who publicly expressed his paranoia

around wiretaps, was listed as having been instrumental in securing taps on the leaders of the

KKK, Malcolm X, Martin Luther King and other civil rights advocates.31 One of the more

profound elements of the report stated:

Since the end of World War II, governmental power has been increasingly

exercised . . . Exposure of the excesses of this huge structure has been

necessary. Americans are now aware of the capability and proven willingness of

their Government to collect intelligence . . . What some suspected and others

feared has turned out to be largely true32

The report goes on to claim that those who participated in peaceful protest were subjected to

government surveillance and retaliation. The report concluded three main focal points that

allowed for abuse; excessive executive power, excessive secrecy and avoidance of the rule of

law.33

In reflection, the Watergate scandal and the surrounding investigations bore many

similarities to the 1916 New York Mayor Mitchel case. Nixon and Mitchel, both powerful

elected officials, abused available capabilities and persecuted their political and social

opposition in an attempt to retain and reinforce authority. The populous and the body politic

reacted in an almost identical fashion. Fervor was formalized and investigations were mounted.

Concurrently, revelations of widespread bureaucratic abuse were exposed and institutional

change was promoted. What existed as the most pressing commonality between both incidents

30Select Committee to Study Governmental Operations with respect to Intelligence Activities United States Senate,

Intelligence Activities and the Rights of Americans, Book II, By Frank Church, John G. Tower, 94th

Congress 94-755

(Washington, D.C.: United States Government Printing Office,1976), 7.31

Intelligence Activities and the Rights of Americans, 62.32

Intelligence Activities and the Rights of Americans, 291.33

Intelligence Activities and the Rights of Americans, 292.


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was the inability on the part of government to sufficiently divulge their tactics in the supposed

enforcement of the peoplesprescribed laws. The lack of transparency coincided with the

publicsand the public servantsdissatisfaction with the subversive behavior exhibited by

factions of the democratic government, coupled with the threat they posed to the citizenry s

constitutionally ascribed liberties.

The wiretaps dynamic historyhas traversed through legality, geography, and society.

By in large and in conclusion, widespread implementation of wiretaps has been indicative of the

larger issue of insecure public officials, due in part to ineffective public policy. Had mayor

Mitchel attended to the catholic clergy, a tap would not have been necessitated. Had Nixon and

previous administrations been honest with the American public, and tended to the civil rights of

their constituency, social unrest would not have occurred and wiretaps would not have been

deemed necessary. Instead these infamous figures solidified their historic acknowledgement as

inept, insufficient, and ineffective. The necessary notion of governmental transparency should

be what one takes away from my analysis. A great man once said governments should fear their

people, people should not fear their government. I say people should tap their government; the

government should not tap its people.


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And thus, Hoover was granted relative free and through a clerical slight of hand expanded his

authorities to newfound heights.

to AttorneyGeneral Jackson at thJ Edgar Hoover interpreted the decision that so longs as what

was intercepted was not divulged no law was broken. , in response to the developing threat of Nazism,

Communism and the war in Europe desperately fought to have Jacksons orders overturned. into

another chapter of

Watergate represented the absence of public information regarding tapping for a number of

decades. Unlike before the 40s where the discourse was open and public the fact that it was behind

closed doors for so long was why the scandal was so large. The lack of transparency!!


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In this case New York state investigators did in fact secure a warrant as prescribed by the earlier

mentioned in the 1918 Murphy bill. However, the Supreme Court

Tapping Into History

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