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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