DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS
BOOK III /// FINAL REPORT
OF THE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO
INTELLIGENCE ACTIVITIES UNITED STATES SENATE
APRIL 23 (under authority of the order of April 14), 1976
WARRANTLESS FBI ELECTRONIC SURVEILLANCE
Technological developments in
this century have rendered the most private conversations of American citizens
vulnerable to interception and monitoring by government agents. The electronic
means by which the Government can extend its “antennae” are varied:
microphones may be secretly planted in private locations or on mobile
informants; so-called “spike mikes” may be inserted into the wall of
an adjoining room; and parabolic microphones may be directed at speakers far
away to register the sound waves they emit. Telephone conversations may be
overheard without the necessity of attaching electronic devices to the
telephone itself or to the lines connecting the telephone with the telephone
company. An ordinary telephone may also be turned into an open microphone — a
“miketel” capable of intercepting all conversations within hearing
range even when the telephone is not in use.
Even more sophisticated
technology permits the Government to intercept any telephone, telegram, or
telex communication which is transmitted at least partially through the air, as
most such communications now are. This type of interception is virtually
undetectable and does not require the cooperation of private communications
Techniques such as these have
been used, and continue to be used, by intelligence agencies in their
intelligence operations. Since the early part of this century the FBI has
utilized wiretapping and “bugging” techniques in both criminal and
intelligence investigations. In a single year alone (1945), the Bureau
conducted 519 wiretaps and 186 microphone surveillances (excluding those
conducted by means of microphones planted on informants). 1 Until 1972, the
Bureau used wiretaps and bugs against both American citizens and foreigners within
the United States — without judicial warrant — to collect foreign
intelligence, intelligence and counterintelligence information, to monitor
“subversive” and violent activity, and to determine the sources of
leaks of classified information. The FBI still uses these techniques without a
warrant in foreign intelligence and counterintelligence investigations.
The CIA and NSA have similarly
used electronic surveillance techniques for intelligence purposes. The CIA’s
Office of Security, for example, records a total of fifty-seven individuals who
were targeted by telephone wiretaps or microphones within the United States
between the years 1947 and 1968. 2 Of these, thirty were employees or former
employees of the CIA or of another federal agency who were presumably targeted
for security reasons; four were United States citizens unconnected with the CIA
or any federal agency. 3 One of the primary responsibilities of the National
Security Agency (NSA) is to collect foreign “communications intelligence.”
To fulfill this responsibility, it has electronically intercepted an enormous
number of international telephone, telegram, and telex communications since its
inception in the early 1950’s. 4
techniques have understandably enabled these agencies to obtain valuable
information relevant to their legitimate intelligence missions. Use of these
techniques has provided the Government with vital intelligence, which would be
difficult to acquire through other means, about the activities and intentions
of foreign powers, and has provided important leads in counterespionage cases.
By their very nature, however,
electronic surveillance techniques also provide the means by which the
Government can collect vast amounts of information, unrelated to any legitimate
governmental interest, about large numbers of American citizens. Because
electronic monitoring is surreptitious, it allows Government agents to
eavesdrop on the conversations of individuals in unguarded moments, when they
believe they are speaking in confidence. Once in operation, electronic
surveillance techniques record not merely conversations about criminal,
treasonable, or espionage-related activities, but all conversations about the
full range of human events. Neither the most mundane nor the most personal nor
the most political expressions of the speakers are immune from interception.
Nor are these techniques sufficiently precise to limit the conversations
overheard to those of the intended subject of the surveillance: anyone who
speaks in a bugged room and anyone who talks over a tapped telephone is also
overheard and recorded.
The very intrusiveness of
these techniques implies the need for strict controls on their use, and the
Fourth Amendment protection against unreasonable searches and seizures demands
no less. Without such controls, they may be directed against entirely innocent
American citizens, and the Government may use the vast range of information
exposed by electronic means for partisan political and other improper purposes.
Yet in the past the controls on these techniques have not been effective;
improper targets have been selected and politically useful information obtained
through electronic surveillance has been provided to senior administration
Until recent years, Congress
and the Supreme Court set few limits on the use of electronic surveillance.
When the Supreme, Court first considered the legal issues raised by
wiretapping, it held that the warrantless use of this technique was not
unconstitutional because the Fourth Amendment’s warrant requirement did not
extend to the seizure of conversations. This decision, the 1928 case of
Olmstead v. United States, 217 U.S. 438, arose in the context of a criminal
prosecution, and it left agencies such as the Bureau of Prohibition and the
Bureau of Investigation (the former name of the FBI) free to engage in the
unrestricted use of wiretapping in both criminal and intelligence
Six years later, Congress
imposed the first restrictions on wiretapping in the Federal Communications Act
of 1934 5 which made it a crime for “any person” to intercept and
divulge or publish the contents of wire and radio communications. The Supreme
Court subsequently construed this section to apply to federal agents as well as
ordinary citizens, and held that evidence obtained directly or indirectly from
the interception of wire and radio communications was inadmissible in court. 6
But Congress acquiesced in the Justice Department’s interpretation that these
cases did not prohibit wiretapping per se, only the divulgence of the
contents of wire communications outside the federal establishment, 7 and
government wiretapping for purposes other than prosecution continued.
The Supreme Court reversed its
holding in the Olmstead case, in 1967, holding in Katz v. United States, 389
U.S. 347 (1967), that the Fourth Amendment’s warrant requirement did apply to
electronic surveillances. But it expressly declined to extend this holding to
cases “involving the national security.” 8 Congress followed suit the
next year in the Omnibus Crime Control Act of 1968, 9 which established a
warrant procedure for electronic surveillance in criminal cases but included a
provision that neither it nor the Federal Communications Act of 1934
“shall limit the constitutional power of the President” 10 — a
provision which has been relied upon by the Executive Branch as permitting
“national security” electronic surveillances.
In 1972, the Supreme Court
again addressed the issue of warrantless electronic surveillance. It held in
United States v. United States District Court, 407 U.S. 297 (1972), that the
constitutional power of the President did not extend to authorizing warrantless
electronic surveillance in cases involving threats to the “domestic
security.” The Court distinguished — but remained silent on — the
question of warrantless electronic surveillance where there was a
“significant connection with a foreign power, its agents or
Without effective guidance by
the Supreme Court or Congress, executive branch officials developed broad and
ill-defined standards for the use of warrantless electronic surveillance. Vague
terms such as “subversive activities,” “national interest,”
“domestic security,” and “national security” were relied
upon to electronically monitor many individuals who engaged in no criminal
activity and who, by any objective standard, represented no genuine threat to
the security of the United States.
The secrecy which has
enshrouded the warrantless use of this technique moreover, facilitated the
occasional violation of the generally meager procedural requirements for
warrantless electronic surveillance. Since the early 1940’s, for example,
Justice Department policy has required the approval of the Attorney General
prior to the institution of wiretaps; 12 such approval has been required prior
to the institution of microphone surveillances since 1965. 13 This requirement
has often been ignored for wiretaps and bugs, 14 and it was not even applied to
NSA’s electronic monitoring system and its program for “Watch
Listing” American citizens. From the early 1960’s until 1973, NSA compiled
a list of individuals and organizations, including more than one thousand
American citizens and domestic groups, whose communications were segregated from
the mass of communications intercepted by the Agency, transcribed, and
frequently disseminated to other agencies for intelligence purposes. The
Americans on the list, many of whom were active in the anti-war and civil
rights movements, were placed there by the FBI, CIA, Secret Service, Defense
Department, and the Bureau of Narcotics and Dangerous Drugs without judicial
warrant, without prior approval by the Attorney General, and without a
determination that they satisfied the executive branch standards for warrantless
electronic surveillance. 15 For many years in fact, no Attorney General even
knew of this project’s existence. 16
Electronic monitoring by the
National Security Agency and the CIA, however, is outside the scope of this
Report. This Report focuses exclusively on the FBI’s use of electronic
surveillance; NSA’s monitoring system is described at length in the Committee’s
Report on NSA. Because the legal issues and the FBI’s policy and practice
regarding consensual monitoring devices such as “body recorders” are
distinct from those of nonconsensual wiretaps and microphone installations, 17
the Report is also confined to the latter forms of electronic surveillance.
II. PRESIDENTIAL AND ATTORNEY
GENERAL AUTHORIZATION FOR WARRANTLESS WIRETAPPING
FBI use of warrantless
wiretapping for limited purposes has received the approval of Presidents and
Attorneys General consistently — with only one three month exception in 1940
— from 1931 to the present day. The legal theories advanced to justify the use
of this technique, however, have been developed almost entirely by the
executive branch itself, and have been “legitimized” largely by the
reluctance of Congress and the Supreme Court to confront directly the arguments
presented by executive officers.
The evolution of executive
branch wiretapping policies from 1924 to 1975, and of the legislative and
judicial reaction to these policies, is summarized below.
Justice Department records
indicate that the first time an Attorney General formally considered the
propriety of warrantless wiretapping for either law enforcement or intelligence
purposes, he found it to be “unethical:” in 1924, Attorney General
Harlan Fiske Stone ordered a prohibition on the, use of this technique by
Justice Department personnel, including those of the Bureau of Investigation
(the original name of the Federal Bureau of Investigation). 18 To implement
this policy, the Director of the Bureau of Investigation, with the approval of
Stone’s successor, Attorney General John G. Sargent, included the following
section in the Bureau’s Manual of Rules and Regulations:
Wiretapping, entrapment, or the use of any other improper, illegal, or
unethical tactics in procuring information in connection with investigative
activity will not be tolerated by the Bureau. 19
This prohibition only applied
to the Justice Department. During the 1920’s, wiretapping was extensively used
by the Bureau of Prohibition, then a part of the Department of the Treasury, in
its investigations of violations of the National Prohibition Act. In Olmstead
v. United States, 277 U.S. 438 (1928), criminal defendants charged with
violating this Act challenged the Bureau of Prohibition’s use of this
technique, but the challenge was unsuccessful. In that case, the Court held
that evidence obtained from wiretapping which did not involve a physical
intrusion or trespass was admissible and that wiretapping was not
unconstitutional because the Fourth Amendment’s protections did not apply to
the seizure of conversations. The Bureau of Prohibition continued thereafter to
employ this technique in its investigations, but the restrictive policy of the
Justice Department remained unchanged for the next three years.
In 1930, the Bureau of
Prohibition was transferred from the Treasury Department to the Justice
Department, and the differing policies regarding wiretapping posed a problem
for Attorney General William B. Mitchell. “[T]he present condition in the
Department cannot continue,” he wrote. “We cannot have one Bureau in
which wiretapping is allowed and another in which it is prohibited.” 20 He
ultimately resolved his dilemma by permitting both the Bureau of Investigation
and the Bureau of Prohibition to engage in wiretapping with senior level
approval for limited purposes.
On February 19, 1931,
instructions were issued at the direction of Attorney General Mitchell stating
that no wiretap should be instituted without the written approval of the
Assistant Attorney General in charge of the particular case, and that such
approval would only be given in cases “involving the safety of victims of
kidnappings, the location and apprehension of desperate criminals, and in
espionage and sabotage and other cases considered to be of major law
enforcement importance.” 21 The Manual provision relating to wiretapping
was consequently altered to read as follows:
Wiretapping: Telephone or
telegraph wires shall not be tapped unless prior authorization of the Director
of the Bureau has been secured. 22
Three years later, Congress’
first pronouncement on wiretapping threatened to invalidate the policy
enunciated by Mitchell: in June 1934, Congress enacted Section 605 of the
Federal Communications Act, 47 U.S.C. 605, which made it a crime for “any
person” to intercept and divulge or publish the contents of wire and radio
communications. The Supreme Court construed this section in 1937 to apply to
Federal agents and held that evidence obtained from the interception of wire
and radio communications was inadmissible in court. 23 The Court elaborated on
this decision two years later, holding that not only was evidence obtained from
such interceptions inadmissible, but that evidence indirectly derived from such
interceptions was equally inadmissible. 24
The Justice Department did not
interpret these decisions as prohibiting the interception of wire
communications per se, however; only the interception and divulgence of their
contents outside the federal establishment was considered by the Department to
be unlawful. 25 Even after the Nardone decisions, the Department continued to
authorize warrantless wiretapping, albeit with the recognition that evidence
obtained through the use of this technique would be inadmissible in court.
B. 1940 to 1968
1. The Roosevelt
Shortly after taking office in
1940, Attorney General Robert H. Jackson reversed the existing Justice
Department policy concerning wiretapping. By Order No. 3343, issued March 15,
1940, he prohibited all wiretapping by the Federal Bureau of Investigation, and
the previously operative Manual section, which described wiretapping as an
unethical practice, was reinstated at his direction.
Jackson’s prohibition proved
to be short-lived, however, for less than three months later President Franklin
D. Roosevelt informed the Attorney General that he did not believe the Supreme
Court intended the 1939 Nardone decision to prohibit wiretapping in
“matters involving the defense of the nation.” The President sent the
following memorandum to Attorney General Jackson, granting him authority to
approve wiretaps on “persons suspected of subversive activities against
the Government of the United States:”
I have agreed with the broad
purpose of the Supreme Court decision relating to wiretapping in
investigations. The Court is undoubtedly sound both in regard to the use of
evidence secured over tapped wires in the prosecution of citizens in criminal
cases; and it is also right in its opinion that under ordinary and normal
circumstances wiretapping by Government agents should not be carried on for the
excellent reason that it is almost bound to lead to abuse of civil rights.
However, I am convinced
that the Supreme Court never intended any dictum in the particular case which
it decided to apply to grave matters involving the defense of the nation.
It is, of course, well known
that certain other nations have been engaged in the organization of propaganda
of so called “fifth column” in other countries and in preparation for
sabotage, as well as in actual sabotage.
It is too late to do anything
about it after sabotage, assassinations and “fifth column” activities
You are, therefore, authorized
and directed in such cases as you may approve, after investigation of the need
in each case, to authorize the necessary investigating agents that they are at
liberty to secure information by listening devices directed to the conversation
or other communications 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. 26
In 1940 and 1941, several
bills were introduced in Congress to authorize electronic surveillance for the
purpose Roosevelt articulated in his letter to Jackson and for other purposes
as well. One of these was a joint resolution introduced by Representative
Emmanuel Celler authorizing the FBI “to conduct investigations, subject to
the direction of the Attorney General, to ascertain, prevent, and frustrate any
interference with the national defense by sabotage, treason, seditious
conspiracy, espionage, violations of neutrality laws, or in any other
manner.” 27 This resolution would have lifted Section 605’s ban on
wiretapping for such investigations.
Both President Roosevelt and
Attorney General Jackson endorsed such legislation. Roosevelt wrote to
Representative Thomas Eliot on February 21, 1941, “I have no compunction
in saying that wire tapping should be used against those persons, not citizens
of the United States, and those few citizens who are traitors to their country,
who today are engaged in espionage or sabotage against the United States . .
The Justice Department also
informed Congress about the theory that had been developed to rationalize
ongoing electronic surveillance under Section 605. Attorney General Robert
Jackson advised Representative Hatton Summers on March 19, 1941, “The only
offense under the present law is to intercept any communication and divulge or
publish the same . . . Any person, with no risk of penalty, may tap telephone
wires . . . and act upon what he hears or make any use of it that does not
involve divulging or publication.” 29
The import of these two
statements was undoubtedly clear to the members of the House Judiciary
Committee to whom they were addressed. The FBI would use wiretaps in the
investigation of espionage and sabotage, despite the Federal Communications
Act, since the results of the wiretaps would not be “divulged”
outside the government. Legislation was needed only in order to use
wiretap-obtained evidence or the fruits thereof in criminal prosecutions; a new
statute was not necessary if the purpose of wiretapping was to gather intelligence
that would not be used in court.”
This policy was explicitly
acknowledged several months later. After an incident where labor leader Harry
Bridges discovered he was under surveillance, Attorney General Francis Biddle
announced that FBI agents were, in fact, authorized to tap wires in cases
involving espionage, sabotage, and serious crimes such as kidnapping after
first securing the permission of the FBI Director and the Attorney General. 31
At the same time Attorney General Biddle advised FBI Director Hoover:
A good deal of my press
conference yesterday was consumed in questions about wiretapping. I refused to
comment on the Bridges incident, on the ground that it would be improper for me
to comment on a case now pending before me.
I indicated that the stand of
the Department would be, as indeed it had been for some time, to authorize
wiretapping in espionage, sabotage, and kidnaping cases, where the
circumstances warranted. I described Section 605 of the Communications Act,
pointing out that under the Statute interception alone was not illegal; that
there must be both interception and divulgence or publication; that the Courts
had held only that evidence could not be used which resulted from wiretapping;
that the Courts had never defined what divulgence and publication was; that I
would continue to construe the Act, until the Courts decided otherwise, not to
prohibit interception of communications by an agent, and his reporting the
result to his superior officer, as infraction of the law; that although this
could be said of all crimes, as a matter of policy wiretapping would be used
sparingly, and under express authorization of the Attorney General. 32
2. The Truman Administration
The permissible scope of
wiretapping was expanded after World War II by President Truman to include
“cases vitally affecting the domestic security, or where human life is in
jeopardy.” The documentary evidence suggests, however, that this expansion
was inadvertent on Truman’s part and that he actually intended simply to continue
in force the policies articulated by President Roosevelt in 1940.
By memorandum of July 17,
1946, Attorney General Tom Clark asked President Truman to renew Roosevelt’s
authorization for warrantless wiretapping issued six years earlier. Attorney
General Clark quoted from that authorization but omitted the portion of
Roosevelt’s letter which read: “You are requested furthermore to limit
these investigations so conducted to a minimum and to limit them insofar as
possible to aliens.” He then stated to President Truman:
It seems to me that in the
present troubled period in international affairs, accompanied as it is by an
increase in subversive activity here at home, it is as necessary as it was in
1940 to take the investigative measures referred to in President Roosevelt’s
memorandum. At the same time, the country is threatened by a very substantial
increase in crime. While I am reluctant to suggest any use whatever of these
special investigative measures in domestic cases, it seems to me imperative to
use them in cases vitally affecting the domestic security, or where human
life is in jeopardy.
As so modified, I believe the outstanding
directive should be continued in force … In my opinion the measures proposed
are within the authority of law, and I have in the files of the Department
materials indicating to me that my two most recent predecessors as Attorney
General would concur in this view. 33
Truman approved the Attorney
General’s 1946 memorandum, but four years later aides to President Truman discovered
Clark’s incomplete quotation and the President considered returning to the
terms of the original 1940 authorization. A February 2, 1950, memorandum
located in the Truman Presidential Library reflects that discovery: George M.
Elsey, the Assistant Counsel to the President, wrote Truman that
Not only did Clark fail to
inform the President that Mr. Roosevelt had directed the F.B.I. to hold its
wiretapping to a minimum, and to limit it insofar as possible to aliens, he
requested the President to approve very broad language which would permit
wiretapping in any case ‘vitally affecting the domestic security, or where
human life is in jeopardy.’ This language is obviously a very far cry from the
1940 directive. 34
Elsey recommended in this
memorandum that “the President consider rescinding his 1046
directive.” An order was drafted which closely paralleled Roosevelt’s 1940
directive, but for reasons that are unclear it was never issued. 35
The wiretapping standards that
were expressed in Clark’s 1946 memorandum and approved by President Truman were
continued under Attorney General J. Howard McGrath. In a 1952 memorandum to J.
Edgar Hoover, McGrath also made explicit the requirement of prior approval by
the Attorney General, which had been informally instituted by Attorney General
Biddle in 1941:
There is pending, as you know,
before the Congress legislation that I have recommended which would permit
wiretapping under appropriate safeguards and make evidence thus obtained
admissible. As you state, the use of wiretapping is indispensable in
intelligence coverage of matters relating to espionage, sabotage, and related
security fields. Consequently, I do not intend to alter the existing policy
that wiretapping surveillance should be used under the present high restrictive
basis and when specifically authorized by me. 36
3. The Eisenhower
The Government’s perceived
inability to prosecute in espionage and sabotage cases where electronic
surveillance had been used, which stemmed from the Nardone decisions in the
late 1930’s, Ied Attorney General Herbert Brownell to press strongly in 1954
for legislation to authorize “national security” wiretapping without
judicial warrant. Rejecting arguments for a warrant requirement, Brownell
contended that responsibility should be centralized in the hands of the
Attorney General. 37 He also saw a “strong danger of leaks if application
is made to a court, because in addition to the judge, you have the clerk, the
stenographer and some other officer like a law assistant or bailiff who may be
apprised of the nature of the application.” 38 Discussing the objectives
of “national security” wiretapping, Brownell observed:
We might just as well face up
to the fact that the communists are subversives and conspirators working fanatically
in the interests of a hostile foreign power …
It is almost impossible to
“spot” them since they no longer use membership cards or other
written documents which will identify them for what they are. As a matter of
necessity, they turn to the telephone to carry on their intrigue. The success
of their plans frequently rests upon piecing together shreds of information
received from many sources and many nests. The participants in the conspiracy
are often dispersed and stationed in various strategic positions in government
and industry throughout the country. Their operations are not only internal.
They are also of an international and intercontinental character …
It is therefore neither
reasonable, nor realistic that Communists should be allowed to have the free
use of every modern communication device to carry out their unlawful
conspiracies, but that law enforcement agencies should be barred from
confronting these persons with what they have said over them. 39
The House Judiciary Committee
accepted Brownell’s reasoning and reported out warrantless wiretapping
legislation in 1954. 40 The full House, however, rejected the arguments in
support of warrantless wiretapping and amended the bill on the floor to require
a prior judicial warrant. 41 Without the support of the Justice Department, the
House bill received no formal consideration in the Senate and no serious
attempt was again made to enact electronic surveillance legislation until the
Because of Congressional
deliberations regarding wiretapping, J. Edgar Hoover wrote a memorandum to
Attorney General Brownell on March 8, 1955, in which he outlined the current
FBI policy in that area and stated that this policy was based on the May 21,
1940, letter from President Roosevelt and the July 17, 1946, memorandum from
Attorney General Clark, which was signed by President Truman. 42 Specifically,
he noted that the current policy permitted wiretapping, with the prior written
approval of the Attorney General, in “cases vitally affecting the domestic
security or where human life is in jeopardy.”
Hoover also asked Brownell if
he believed the Roosevelt and Truman statements constituted sufficient legal
authority for wiretapping at the present time, and suggested that if Brownell
did not believe they did, he “may want to present this matter to President
Eisenhower to determine whether he holds the same view with respect to the
policies of the Department of Justice with respect to wiretapping.” 43
Brownell responded that he did not believe it necessary to obtain further
approval of the existing practice from President Eisenhower as he was of the
opinion that President Roosevelt’s approval was sufficient. The Attorney
General wrote, in part:
In view of the fact that I
personally explained to the President, the Cabinet, the National Security
Council and the Senate and House Judiciary Committees during 1954 the present
policy and procedure on wiretaps, at which time I referred specifically to the
authorization letter to the Attorney General from President F. D. Roosevelt, I
do not think it necessary to reopen the matter at this time. . . . You will
also remember that I made several public speeches during 1954 on the legal
basis for the Department of Justice policy and procedure on wiretaps. 44
4. The Kennedy Administration
The existing policy and
procedures for wiretapping continued in force through the Kennedy
administration. On March 13, 1962, Attorney General Robert F. Kennedy issued
Order No. 263-62, which finally rescinded Attorney General Jackson’s March 15,
1940, order prohibiting wiretapping, and noted that this rescission was
necessary “in order to reflect the practice which has been in effect since
May 21, 1940.” 45 This order also changed the Manual provisions relating
to wiretapping to formally permit use of this technique and reaffirmed the
vitality of “[e]xisting instructions to the Federal Bureau of
Investigation with respect to obtaining the approval of the Attorney General
for wiretapping ….” 46
5. The Johnson Administration
During the Johnson
administration, the procedures for conducting wiretaps were tightened and the
criteria for use of this technique were altered. Until March 1965, no
requirement had existed for the periodic re-authorization of wiretaps by the
Attorney General: some surveillances consequently remained in operation for
years without review. 47 On March 30, 1965, Attorney General Katzenbach
therefore suggested to J. Edgar Hoover that authorizations for individual
telephone taps should be limited to six months, after which time a new request
should be submitted for the Attorney General’s reauthorization. 48 This
suggestion was immediately implemented by the FBI.
One week later, on April
8,1965, Katzenbach sent to the White House a proposed Presidential directive to
all federal agencies on wiretapping. 49 This directive, formally issued by
President Lyndon Johnson in slightly modified form on June 30, 1965, 50 revoked
Attorney General Tom Clark’s wiretapping standard of “cases vitally
affecting the domestic security or where human life is in jeopardy.” The
new directive forbade the nonconsensual interception of telephone
communications by federal personnel within the United States “except in
connection with investigations related to the national security,” and then
only after first obtaining the written approval of the Attorney General. The
President stated, in part:
I am strongly opposed to the
interception of telephone conversations as a general investigative technique. I
recognize that mechanical and electronic devices may sometimes be essential in
protecting our national security. Nevertheless, it is clear that indiscriminate
use of these investigative devices to overhear telephone conversations, without
the knowledge, or consent of any of the persons involved, could result in
serious abuses and invasions of privacy. In my view, the invasion of privacy
of communications is a highly offensive practice which should be engaged in
only where the national security is at stake. To avoid any misunderstanding
on this subject in the Federal Government, I am establishing the following
basic guidelines to be followed by all government agencies:
(1) No federal personnel is to
intercept telephone conversations within the United States by any mechanical or
electronic device, without the consent of one of the parties involved (except
in connection with investigations related to the national security.)
(2) No interception shall be
undertaken or continued without first obtaining the approval of the Attorney
(3) All federal agencies shall
immediately conform their practices and procedures to the provisions of this
Despite this Presidential
approval of “national security” wiretapping, Director Hoover informed
Katzenbach on September 14, 1965, that he was restricting or eliminating the
use of a number of investigative techniques by the Bureau
in view of the present
atmosphere, brought about by the unrestrained and injudicious use of special
investigative techniques by other agencies and departments, resulting in
congressional and public alarm and opposition to any activities which could in
any way be termed an invasion of privacy.
With regard to wiretapping,
Hoover wrote that
[w]hile we have traditionally
restricted wiretaps to internal security cases and an occasional investigation
involving possible loss of life, such as kidnapping, I have further cut down on
wiretaps and I am not requesting authority for any additional wiretaps.. 52
Katzenbach responded on
September 27, with a memorandum setting forth what he believed to be
appropriate guidelines for the use of the techniques Hoover had restricted or
eliminated. He noted that “[t]he use of wiretaps and microphones involving
trespass present more difficult problems because of the inadmissibility of any
evidence obtained in court cases and because of current judicial and public
attitudes regarding their use.” 53 He continued:
It is my understanding that
such devices will not be used without my authorization, although in emergency
circumstances they may be used subject to my later ratification. At this time I
believe it is desirable that all such techniques be confined to the gathering
of intelligence in national security matters, and I will continue to approve
all such requests in the future as I have in the past. I see no need to curtail
any such activities in the national security field.
It is also my belief that
there are occasions outside of the strict definition of national security (for
example, organized crime) when it would be appropriate to use such techniques
for intelligence purposes. However, in light of the present atmosphere, I
believe that efforts in the immediate future should be confined to national
security. I realize that this restriction will hamper our efforts against
organized crime and will require a redoubled effort on the part of the Bureau
to develop intelligence through other means. 54
While suggesting the
possibility that warrantless wiretapping might appropriately be used at some
future time in cases involving organized crime, in short, Katzenbach endorsed
its use only in “the national security field.”
On November 3, 1966, Attorney
General Ramsey Clark circulated a memorandum to all United States Attorneys in
which he reiterated the “national security” limitation on wiretapping
contained in President Johnson’s June 30, 1965, directive and in Katzenbach’s
September 27, 1965, letter to Hoover. He quoted as follows from the 1966
Supplemental Memorandum to the Supreme Court that had been filed in Black v.
United States, 55 a criminal case which involved a microphone installation:
Present practice, adopted in
July 1965 in conformity with the policies declared by President Johnson on June
30, 1965, for the entire Federal establishment, prohibits the installation of
listening devices in private areas (as well as the interception of telephone
and other wire communications) in all instances other than those involving the
collection of intelligence affecting the national security. The specific
authorization of the Attorney General must be obtained in each instance when
this exception is invoked. Intelligence data so collected will not be available
for investigative or litigative purposes. 56
Clark’s subsequent guidelines
for the use of wiretapping and electronic eavesdropping, issued in June 1967 to
the heads of executive agencies and departments, reaffirmed the prohibition of
wiretapping in all but “national security” cases. 57
C. The Omnibus Crime Control
Act of 1968
Although Justice Department
policy regarding wiretapping remained essentially constant from 1965 to 1968,
two Supreme Court decisions during this period significantly altered the
constitutional framework for electronic surveillance generally. In Berger v. New
York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), the
Supreme Court overruled Olmstead and held that the Fourth Amendment did apply
to searches and seizures of conversations and protected all conversations of an
individual as to which he had a reasonable expectation of privacy. Katz
explicitly left open the question, however, whether or not a judicial warrant
was required in cases “involving the national security.” 58
In part as a response to the
Berger and Katz decisions, Congress enacted Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. 2510-20. This Act established
procedures for obtaining judicial warrants permitting wiretapping by government
officials, 59 but the issue of “national security” wiretaps, which
was left open in Katz, was similarly avoided. Section 2511 (3) of the Act
stated that nothing in the Omnibus Crime Control Act or the Federal
Communications Act of 1934 shall limit the constitutional power of the
President in certain vaguely defined areas. The text of this subsection reads
(3) Nothing contained in this
chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143, 47
U.S.C. 605) shall limit the constitutional powers of the President to take such
measures as he deems necessary to protect the Nation against actual or
potential attack or other hostile acts of a foreign power, to obtain foreign
intelligence information deemed essential to the security of the United States,
or to protect national security information against foreign intelligence
activities. Nor shall anything contained in this chapter be deemed to limit the
constitutional power of the President to take such measures as he deems
necessary to protect the United States against the overthrow of the Government
by force or other unlawful means, or against any other clear and present danger
to the structure or existence of the Government. The contents of any wire or
oral communication intercepted by authority of the President in the exercise of
the foregoing powers may be received in evidence in any trial hearing or other
proceeding only where such interception was reasonable, and shall not be
otherwise used or disclosed except as is necessary to implement that power. 60
Significantly, this subsection
dose not define the scope of the President’s constitutional power in the
national security area. As the Supreme Court noted in the Keith case, it is
merely a statement that to the extent such powers exist, if they exist at all
they override the procedural requirements for electronic surveillance that are
outlined in this statute and in the 1934 Act. 61
D. Justice Department Criteria
for Warrantless Wiretaps: 1968-1975
In fields other than national
security, the Justice Department was obligated to conform with the warrant
procedures of the 1968 statute. But in national security cases, Justice
Department policy permitted — and the Act did not forbid — warrantless
wiretapping if the proposed surveillance satisfied one or more of the following
criteria (which paralleled the standards enunciated in Section 2511 (3) ) :
(1) That it is necessary to
protect the nation against actual or potential attack or any other hostile
action of a foreign power;
(2) That it is necessary to
obtain foreign intelligence information deemed essential to the security of the
(3) That it is necessary to
protect national security information against foreign intelligence activities;
(4) That it is necessary to
protect the United States against the overthrow of the Government by force or
other unlawful means; or
(5) That it is necessary to
protect the United States against a clear or present danger to the structure or
the existence of its Government. 62
Existing procedures for
warrantless wiretaps requiring the prior written authorization of the Attorney
General and subsequent reauthorization after 90 days remained in effect after
the passage of the 1968 Act.
2. The Keith Case: 1972
On June 19, 1972, the Supreme
Court decided the so-called Keith case, United States v. United States District
Court, 407 U.S. 297 (1972), which held that the Fourth Amendment required prior
judicial approval for “domestic security” electronic surveillance.
The Court acknowledged the constitutional power of the President to “protect
our Government against those who would subvert or overthrow it by unlawful
means,” 63 but it held that this power did not extend to the authorization
of warrantless electronic surveillance directed at a domestic organization
which was neither directly nor indirectly connected with a foreign power. 64
To conform with the Keith
decision, the Justice Department thereafter limited warrantless wiretapping to
cases involving a “significant connection with a foreign power, its agents
or agencies.” 65 A spokesman for the Department stated that such a
connection might be shown by “the presence of such factors as substantial
financing, control by or active collaboration with a foreign government and
agencies thereof in unlawful activities directed against the Government of the
United States.” 65a
The Justice Department’s
criteria for warrantless electronic surveillance were next modified in 1975. On
June 24, 1975, Attorney General Edward H. Levi wrote Senators Frank Church and
Edward Kennedy a letter in which he set forth his standards for warrantless
wiretaps. He wrote, in part:
Under the standards and
procedures established by the President, the personal approval of the Attorney
General is required before any non-consensual electronic surveillance may be
instituted within the United States without a judicial warrant. All requests
for surveillance must be made in writing by the Director of the Federal Bureau
of Investigation and must set forth the relevant factual circumstances that
justify the proposed surveillance. Both the agency and the Presidential
appointee initiating the request must be identified. Requests from the Director
are examined by a special review group which I have established within the
Office of the Attorney General. Authorization will not be granted unless the
Attorney General has satisfied himself that the requested electronic
surveillance is necessary for national security or foreign intelligence
purposes important to national security.
In addition, the Attorney
General must be satisfied that the subject of the surveillance is either
assisting a foreign power or foreign-based political group, or plans unlawful
activity directed against a foreign power or foreign-based political group.
Finally, he must be satisfied that the minimum physical intrusion necessary to
obtain the information will be used.
All authorizations are for a
period of ninety days or less, and the specific approval of the Attorney
General is again required for continuation of the surveillance beyond that period.
The Attorney General has also been directed to review all electronic
surveillance on a regular basis to ensure that the aforementioned criteria are
satisfied. Pursuant to the mandate of United States v. United States District
Court, electronic surveillance without a judicial warrant is not conducted
where there is no foreign involvement. 66
In his public testimony before
the Senate Select Committee on Intelligence Activities on November 6, 1975,
Attorney General Levi again articulated current Department of Justice criteria
for the approval of warrantless electronic surveillance. His formulation on
that date returned to the three foreign-related categories which were based on
Section 2511(3) of the 1968 Act, between 1972 and 1975, and a fourth category
was also added. He stated:
Requests are only authorized
when the requested electronic surveillance is necessary to protect the nation
against actual or potential attack or other hostile acts of a foreign power; to
obtain foreign intelligence deemed essential to the security of the nation; to
protect national security information against foreign intelligence activities;
or to obtain information certified as necessary for the conduct of foreign
affairs matters important to the national security of the United States. 67
In his November 1975
testimony, the Attorney General also omitted the phrase in his June 24 letter
which would have permitted warrantless electronic surveillance to be directed
against American citizens or domestic groups which “plan[ned] unlawful
activity directed against a foreign power or a foreign-based political
group.” Warrantless electronic surveillance, he said, would only be
authorized when the subject of the proposed surveillance is “consciously
assisting a foreign power or a foreign-based political group.” The
elimination of this category was apparently due to the decision of the Court of
Appeals for the District of Columbia in Zweibon v. Mitchell, 516 F.2d 594 (D.C.
Cir., 1975) (en banc), which held unconstitutional warrantless electronic
surveillance of a domestic organization that was neither the agent of nor
collaborator with a foreign power. 69
To date, neither Congress nor
the Supreme Court has ever squarely faced the issue of whether the President
may legitimately authorize warrantless electronic surveillance in
“national security” cases involving the activities of foreign powers
or their agents. As noted above, Section 2511(3) of the 1968 Omnibus Crime
Control Act does not represent an affirmative grant of power to the President;
it is simply an acknowledgement that Congress does not intend to limit or
restrict whatever constitutional power the President may have in connection
with “national security” cases. And the Supreme Court in Keith
explicitly wrote that it only reached the question of the constitutionality of
“national security” electronic surveillance in cases that involved
“domestic security.” While two federal circuit courts have determined
that the President may constitutionally authorize warrantless electronic
surveillance directed against foreign agents or collaborators, 70 the Supreme
Court denied certiorari in both cases and has yet to decide the issue. In the
absence of a mandate from Congress or the Supreme Court, the Justice Department
has relied on these circuit court cases to support its current standards for
warrantless electronic surveillance. 71
Legislation has recently been
introduced, with the support of Attorney General Levi, to require a prior
judicial warrant for electronic surveillance of an “agent of a foreign
power.” One of seven specially designated federal judges would be
authorized to issue a warrant upon a finding that there is “probable cause
to believe that the target of the electronic surveillance is a foreign power or
an agent of a foreign power.” The term “agent of a foreign
power” is defined as
(i) a person who is not a
permanent resident alien or citizen of the United States and who is an officer
or employee of a foreign power; or
(ii) a person who, pursuant to
the direction of a foreign power, is engaged in clandestine intelligence
activities, sabotage, or terrorist activities, or who conspires with, assists
or aids and abets such a person in engaging in such activities. 72
Thus, the legislation would
not define the activities which could subject an American to electronic
surveillance in terms of the federal criminal laws.
The new legislation also would
not reach electronic surveillance of Americans abroad or other “facts and
circumstances … beyond the scope” of its provisions. Authority for such
surveillance would continue to be based on whatever may be “the
constitutional power of the President.” In other respects, however, the
proposed statute is a significant step towards effective regulation of FBI
PRESIDENTIAL AND ATTORNEY GENERAL AUTHORIZATION FOR WARRANTLESS MICROPHONE
surveillance, while perhaps the most intrusive type of electronic surveillance,
has received significantly less attention from Presidents and Attorneys General
than has warrantless wiretapping. The first documentary indication that
microphone surveillance was separately considered by any Attorney General is
not found until 1952, when Attorney General McGrath prohibited its use in cases
involving trespass. Two years later, Attorney General Brownell issued a
sweeping authorization for microphone surveillance, even when it involved
physical trespass, in cases where the Bureau determined such surveillance was
in the national interest; no prior approval by the Attorney General was
required. This policy continued until 1965, when microphone surveillance was
placed on an equal footing with telephone surveillance, and since that time the
policies for both these forms of electronic surveillance have remained
1. 1931 to 1942
The legal status of
microphone, as opposed to telephone, surveillance was not addressed by the
Supreme Court until 1942, and it was not addressed by Congress until 1968. It
is perhaps for this reason that the Justice Department developed no distinct
policy on microphone surveillance during the first half of the century.
The Olmstead case in 1928
involved a wiretap rather than a microphone surveillance. Similarly, the
Federal Communications Act of 1934 was addressed only to the interception of
wire and radio communications; microphone surveillance was not within its
ambit. Neither Attorney General Mitchell’s nor Attorney General Jackson’s
instructions on wiretapping in 1931 and 1940, respectively, encompassed
microphone surveillance, and President Roosevelt’s 1940 authorization and
President Truman’s 1946 authorization were also limited to wiretapping.
An internal Justice Department
memorandum from William Olson, former Assistant Attorney General for Internal
Security, to Attorney General Elliot Richardson notes that “[d]uring the
period 1931-1940, it appears safe to assume that microphone surveillances were
utilized under the same standards as telephone surveillances — ‘in those cases
involving the safety of the victims of kidnapping, the location and
apprehension of desperate criminals, and in espionage, sabotage, and other
cases considered to be of major law enforcement importance.”‘ 73
In 1942, the Supreme Court
decided Goldman v. United States, 316 U.S. 129, which held in the context of a
criminal case that a microphone surveillance was constitutional when it did not
involve physical trespass. Thereafter, the test for the validity of a
microphone surveillance appeared to be whether or not it involved a trespass.
74 There is no evidence, however, that an Attorney General gave any firm
guidance to the FBI in this area until 1952. Although there did not appear to
be any distinct articulated Justice Department policy on microphone surveillance
for a decade after Goldman, J. Edgar Hoover summarized FBI practice since
Goldman in a 1951 memorandum to Attorney General McGrath:
As you are aware, this
Bureau has also employed the use of microphone installations on a highly
restrictive basis, chiefly to obtain intelligence information. The
information obtained from microphones, as in the case of wiretaps, is not
admissible in evidence. In certain instances, it has been possible to install
microphones without trespass, as reflected by opinions rendered in the past by
the Department on this subject matter. In these instances, the information
obtained, of course, is treated as evidence and therefore is not regarded as
purely intelligence information.
As you know, in a number of
instances it has not been possible to install microphones without trespass. In
such instances the information received therefrom is of an intelligence nature
only. Here again, as in the use of wiretaps, experience has shown us that
intelligence information highly pertinent to the defense and welfare of this
nation is derived through the use of microphones. 76
B. 1952 to 1965
The first clear instruction to
the FBI from an Attorney General regarding microphone surveillance was issued
in 1952. On February 26, 1952, Attorney General McGrath wrote to Mr. Hoover as
The use of microphone
surveillance which does not involve a trespass would seem to be permissible
under the present state of the law, United States v. Goldman, 316 U.S. 129.
Such surveillances as involve trespass are in the area of the Fourth Amendment,
and evidence so obtained and from leads so obtained is inadmissible.
The records do not indicate
that this question dealing with microphones has ever been presented before;
therefore, please be advised that I cannot authorize the installation of a
microphone involving a trespass under existing law. 77
As a result of this
instruction, Hoover declared in a March 4, 1952, internal FBI memorandum that
he would similarly not approve any request for a microphone surveillance in a
case involving trespass. 78
The FBI evidently considered
this policy on microphone surveillance to be too restrictive, however,
especially in the area of internal security. 79 Under pressure from the FBI –
and despite the 1954 Supreme Court decision in Irvine v. California 80 –
Attorney General Brownell reversed his predecessor’s position. On May 22, 1954,
he wrote Director Hoover:
The recent decision of the
Supreme Court entitled Irvine v. California, 347 U.S. 128, denouncing the use
of microphone surveillances by city police in a gambling case, makes
appropriate a reappraisal of the use which may be made in the future by the
Federal Bureau of Investigation of microphone surveillance in connection with
matters relating to the internal security of the country.
It is clear that in some
instances the use of microphone surveillance is the only possible way of
uncovering the activities of espionage agents, possible saboteurs, and
subversive persons. In such instances I am of the opinion that the national
interest requires that microphone surveillance be utilized by the Federal
Bureau of Investigation. This use need not be limited to the development of
evidence for prosecution. The FBI has an intelligence function in connection
with internal security matters equally as important as the duty of developing
evidence for presentation to the courts and the national security requires that
the FBI be able to use microphone surveillance for the proper discharge of both
such functions. The Department of Justice approves the use of microphone
surveillance by the FBI under these circumstances and for these purposes.
I do not consider that the
decision of the Supreme Court in Irvine v. California, supra, requires a
different course. That case is readily distinguishable on its facts. The
language of the Court, however, indicates certain uses of microphones which it
would be well to avoid, if possible, even in internal security investigations. It
is quite clear that in the Irvine case the Justices of the Supreme Court were
outraged by what they regarded as the indecency of installing a microphone in a
bedroom. They denounced the utilization of such methods of investigation in
a gambling case as shocking. The Court’s action is a clear indication of the
need for discretion and intelligent restraint in the use of microphones by the
FBI in all cases, including internal security matters. Obviously, the
installation of a microphone in a bedroom or in some comparably intimate
location should be avoided wherever possible. It may appear, however, that
important intelligence or evidence relating to matters connected with the
national security can only be obtained by the installation of a microphone in
such a location. It is my opinion that under such circumstances the
installation is proper and not prohibited by the Supreme Court’s decision in
the Irvine case.
… It is realized that not
infrequently the question of trespass arises in connection with the
installation of a microphone.
The question of whether a
trespass is actually involved and the second question of the effect of such a
trespass upon the admissibility in court of the evidence thus obtained, must
necessarily be resolved according to the circumstances of each case. The
Department in resolving the problems which may arise in connection with the use
of microphone surveillance will review the circumstances in each case in light
of the practical necessities of investigation and of the national interest
which must be protected. It is my opinion that the Department should adopt that
interpretation which will permit microphone coverage by the FBI in a manner
most conducive to our national interest. I recognize that for the FBI to
fulfill its important intelligence function, consideration of internal
security and the national safety are paramount and, therefore, may compel the
unrestricted use of this technique in the national interest. 81
Brownell cited no legal
support for this sweeping authorization. By not requiring prior approval by the
Attorney General for specific microphone installations, moreover, he largely
undercut the policy which had developed for wiretapping. The FBI in many cases
could obtain equivalent coverage by utilizing bugs rather than taps and would
not be burdened with the necessity of a formal request to the Attorney General.
On May 4, 1961, Director
Hoover wrote a memorandum to Deputy Attorney General Byron R. White, in which
he informed the Department that the FBI’s policy with regard to microphone
surveillance was based on the 1954 Brownell memorandum quoted above. Hoover
stated that Brownell had “approved the use of microphone surveillances
with or without trespass,” and noted that “in the internal security
field we are utilizing microphone surveillances on a restricted basis even
though trespass is necessary to assist in uncovering the activities of
[foreign] intelligence agents and Communist Party leaders.” He continued:
“In the interests of national safety, microphone surveillances are also
utilized on a restricted basis, even though trespass is necessary, in
uncovering major criminal activities. We are using such coverage in connection
with our investigations of clandestine activities of top hoodlums and organized
crime.” 82 This memorandum apparently did not lead to further
reconsideration of microphone surveillance policy by Justice Department
officials, and the practice articulated by Hoover continued without change
until 1965. 82a
The Department later
summarized the policy during these years in the Supplemental Memorandum to the
Supreme Court in the case of Black v. United States, 83 referred to above.
The memorandum read, in part:
“Under Department practice in effect for a period of years prior to 1963,
and continuing until 1965, the Director of the Federal Bureau of Investigation
was given authority to approve the installation of devices such as that in
question [a microphone] for intelligence (and not evidentiary) purposes when
required in the interest of internal security or national safety, including
organized crime, kidnappings, and matters wherein human life may be at stake.
Acting on the basis of the aforementioned Departmental authorization, the
Director approved installation of the device involved in the instant
C. 1965 to the Present
On March 30, 1965, when
Attorney General Katzenbach instituted the six month limitation on telephone
taps, he also expressed the view that proposals for microphone surveillances
should be submitted for the Attorney General’s prior approval and that this
type of surveillance should also be limited to six month periods. 85 While
Attorneys General since the 1950s had sporadically given their prior approval
to microphone surveillances, the requirement of such approval had never been a
consistent policy of the Justice Department, as it had been with respect to
wiretapping for more than two decades. 85a With the immediate implementation of
Katzenbach’s suggestions, therefore, the Justice Department procedures with
regard to both wiretapping and microphone surveillance became identical.
President Johnson’s June 30,
1965, directive to all federal agencies, which formally prohibited all
wiretapping except in connection with “national security”
investigations and then only with the prior approval of the Attorney General,
referred to the issue of microphone surveillances only tangentially. It read:
Utilization of mechanical or
electronic devices to overhear nontelephone conversations is an even more
difficult problem, which raises substantial and unresolved questions of
constitutional interpretation. I desire that each agency conducting such
investigations consult with the Attorney General to ascertain whether the
agency’s practices are fully in accord with the law and with a decent regard
for the rights of others. 86
Apparently, J. Edgar Hoover
did not find his “consultations” with the Attorney General to be
encouraging. It is noted above that on September 14, 1965, the Director
informed Katzenbach that, “[i]n accordance with the wishes you have
expressed during various recent conversations with me” and because of
public alarm at alleged invasions of privacy by Federal agencies, he was
severely restricting or eliminating the use of a number of investigative
techniques. Specifically with regard to microphone surveillance, he wrote that
“we have discontinued completely the use of” this technique –
despite Katzenbach’s approval of the limited use of microphone surveillance in
March of that year and despite the absence of a prohibition oil the use of the
technique in the President’s June directive.
It is also noted above in
Section II that Katzenbach responded about two weeks later with a memorandum
setting forth what he believed to be appropriate guidelines for the use of the
techniques Hoover had restricted or eliminated. He gave virtually unrestricted
authorization to the FBI to conduct microphone surveillances not involving
trespass, writing, “[w]here such questions [i.e., of trespass] are not
raised, I believe the Bureau should continue to use these techniques in cases
where you believe it appropriate without further authorization from me.”
88 With regard to microphone surveillances that did involve trespass, he again
treated the use of this technique in a fashion identical to warrantless
wiretapping: for both he required his prior approval (except in “emergency
circumstances”) and for both the legitimate purposes were limited to the
gathering of intelligence in “national security matters.” While he
expressed the belief that both wiretaps and microphone surveillances involving
trespass might at some future time be appropriate to use in the area of
organized crime, he gave no authority for such use at that time.
The policy set out in
Katzenbach’s September 27 letter to Hoover was reaffirmed by the Justice
Department at least three times prior to the 1967 Katz decision and the passage
of the Omnibus Crime Control Act of 1968.
In the July 1966 Supplemental
Memorandum filed in the Black case, the Justice Department stated that
“[p]resent Departmental practice, adopted in July 1965, prohibits the use
of such listening devices in all instances other than those involving the
collection of intelligence affecting the national security. The specific
authorization of the Attorney General must be obtained in each instance when
this exception is involved.” This language was quoted by Attorney General
Ramsey Clark in his November 3, 1966 memorandum to all United States Attorneys
81 and reaffirmed in Clark’s 1967 memorandum to heads of executive departments.
The Katz decision, in December
1967, held that a warrantless microphone installation on the side of a public
telephone booth was unconstitutional in the context of a criminal case. Thus,
Justice Department policy prohibiting microphone surveillances in
non-“national security” cases became a constitutional requirement as
well — regardless of whether or not the installation involved trespass. 90a As
noted above, however, the issue of electronic surveillance in “national
security” cases was not addressed by the Supreme Court in Katz.
The 1968 Omnibus Crime Control
Act, unlike the Federal Communications Act of 1934, applies to both telephone
wiretaps and microphone surveillances. Because of this, and because the Justice
Department policy regarding both techniques became virtually identical in 1965,
the description of the evolution of wiretapping policy over the past decade
applies equally to the technique of microphone surveillance. In recent years,
for all practical purposes, there has been but a single policy for both forms
of electronic surveillance.
IV. AN OVERVIEW OF FBI
ELECTRONIC SURVEILLANCE PRACTICES
The preceding two sections
have dealt with the legal framework and Justice Department policy regarding
warrantless wiretapping and bugging. This section attempts to provide an
overview of FBI electronic surveillance practices. Without purporting to
explore the full range of FBI electronic surveillance practices, a limited number
of key areas are highlighted in order to suggest the manner in which electronic
surveillances are conducted. More specifically, this section discusses the
frequency of FBI use of this technique since 1940; internal FBI restrictions on
the maximum number of simultaneous electronic surveillances; the method by
which requests have been initiated and approved; the manner in which wiretaps
and bugs have been installed; the means by which the FBI has responded to the
legal obligation to produce electronic surveillance records in criminal trials;
and the traditional reluctance of the FBI to permit outside scrutiny of its
electronic surveillance practices. A discussion of the application of the
Justice Department’s standards for wiretapping and bugging to particular cases
is reserved for Section VII below.
A. Extent of FBI Electronic
While FBI use of warrantless
electronic surveillance has not been as pervasive as many other investigative
techniques such as informants, both wiretaps and bugs have been strategically
utilized in a large number of intelligence investigations. The Bureau’s
reliance on these techniques was greatest during World War II and the immediate
postwar period. During the 1960s and early 1970s, internal FBI policy placed a
ceiling on the number of simultaneous electronic surveillances conducted by the
Bureau. This self -restriction did not act to curtail all use of this
technique, but it apparently frustrated intelligence officials in the FBI and
other agencies who sought — unsuccessfully — a change in this policy through
the Huston Plan in 1970. In recent years, Judicial decisions have severely
restricted the use of warrantless electronic surveillance against domestic
targets, although wiretaps and bugs still continue to be commonly used in the
area of foreign intelligence and counterintelligence.
1. Annual Totals for Wiretaps
and Microphone Installations
According to Justice
Department records, the annual totals of warrantless FBI wiretaps and
microphones in operation between 1940 and 1974 were as follows:
Edward H. Levi testimony, Nov. 6, 1975, hearings, vol. 5, pp. 68-70. The
statistics before 1968 encompass electronic surveillances for both intelligence
and lawenforcement purposes. Those after 1968, when the Omnibus rime Control
Act was enacted, include surveillances for intelligence purposes only;
electronic surveillances for law enforcement purposes were thereafter subject
to the warrant procedures required by the Act.
Comparable figures for the
year 1975, through October 29, are: 121 telephone wiretaps and 24 microphone
It should be noted that these
figures are cumulative for each year; that is, a wiretap on an individual in
one year which continued into a second year is recorded in both years. The
figures are also duplicative to some extent, since a telephone wiretap or
microphone which was installed, then discontinued, and later reinstated is
counted as a new surveillance upon reinstatement.
2. FBI Policy on the Maximum
Number of Simultaneous Electronic Surveillances
From at least the early 1960s,
J. Edgar Hoover placed a ceiling on the number of warrantless electronic
surveillances that could be in operation at any one time. As expressed by
Charles D. Brennan, who became Assistant Director in charge of the FBI’s Domestic
Intelligence Division in 1970, “. . . there was always a maximum figure
which you were not allowed to exceed, and if you recommended an additional
wiretap, it had to be done with the recognition that in another area you would
take one off.” 92
Until the mid-1960s, the
maximum figure was approximately eighty. 93 In response to the 1965 and 1966
investigation by the Senate Subcommittee on Administrative Practice, and
Procedure into the use of electronic surveillance and other techniques by
federal agencies, however, Hoover instructed Bureau officials to reduce by one
half the number of warrantless electronic surveillances then in effect.
According to Brennan, the ceiling was lowered out of a concern that this
subcomittee’s “inquiry might get into the use of that technique by the FBI
. . . .” 94 The number of warrantless wiretaps in the “security
field” was subsequently reduced from 76 to 38, and remained close to the
latter figure for several years thereafter. 95
Intelligence officials both
within the FBI itself and in other intelligence agencies clearly felt
constrained by Hoover’s policy, and through the Huston Plan in 1970 they
attempted to raise or eliminate the internal limitations on the number of
simultaneous electronic surveillances. The Report that was presented to
President Nixon in June of 1970 noted: “The limited number of electronic
surveillances and penetrations substantially restricts the collection of
valuable intelligence information of material important to the entire
intelligence community,” 96 and it presented the President with the option
of modifying “present procedures” to “permit intensification of
coverage of individuals and groups in the United States who pose a major threat
to the internal security.” 97 This option was specifically recommended to
the President by Tom Charles Huston. 98
Director Hoover nonetheless
remained strongly opposed to lifting restraints on the FBI’s use of warrantless
electronic surveillance. He added a footnote to the electronic surveillance
section of the Huston Report which read:
The FBI does not wish to
change its present procedure of selective coverage of major internal security
threats as it believes this coverage is adequate at this time. The FBI would
not oppose other agencies seeking authority of the Attorney General for coverage
required by them and thereafter instituting such coverage themselves. 99
In part because of Hoover’s
opposition to the Huston Plan, President Nixon, who had originally endorsed the
recommendations, withdrew his approval 100 and the maximum number of electronic
surveillance stayed essentially constant until 1972.
The policy of placing an
arbitrary ceiling on simultaneous warrantless electronic surveillances was
apparently terminated after J. Edgar Hoover’s death in 1972. With the apparent
lifting of this self-restriction, the number of foreign related surveillances
increased 101 — a fact which is reflected in the annual totals listed above.
B. Requests, Approvals, and
1. The Request and Approval
Recommendations for the use of
electronic surveillance in particular cases are typically initiated at the
field level of the Bureau, although at times they have originated with the
Attorney General, the White House, and the head of another agency. 102 If
Headquarters approves a field request, the appropriate field office then
conducts a feasibility study to determine whether or not the surveillance can
be conducted with complete security. Upon a favorable security finding, the
Director personally sends the Attorney General a formal request for coverage,
setting forth the name and address of the person or persons to be monitored as
well as pertinent facts about the case. 103
According to former Attorney
General William Saxbe, the “request must contain very detailed
information.” 104 In numerous cases in the past, however, the information
supplied in the request has been minimal at best. For example, several of the
so-called “17 wiretaps” during the Nixon administration were approved
by Attorney General John Mitchell despite the lack of any data in the formal
requests to support the need for the technique’s use. 105 It is possible that
these and similarly defective requests submitted to other Attorneys General
were supplemented by information imparted orally, but, as the District of Columbia
Court of Appeals stated in Zweibon v. Mitchell:
. . . we nevertheless note the
possibility of abuse when there are no written records of the justifications
for instituting a surveillance. Such lack of records allows a search to be
justified on information subsequently obtained from the surveillance and
permits the assertion that more information was relied on than was in fact the
case. Prior judicial approval for wiretapping, among other benefits, of course
freezes the record as to the data upon which the surveillance was based. 106
2. Implementation of Wiretaps
If the Director receives the
written approval of the Attorney General for a particular surveillance, the
field office is instructed to implement it. In the case of wiretapping, an
agent from the field office generally contacts a representative of the local
telephone company who acts as Government liaison. One such telephone company
representative in Washington, D.C., testified that he was simply orally advised
by an agent of the FBI’s Washington Field Office that authority had been
granted to tap a particular telephone number. 107
According to the Washington
Field Office supervisor in charge of the employees who implemented and
monitored “national security” wiretaps, the telephone company
representative would then assign “pair numbers” in the cable
connecting the FBI’s Washington, D.C. Field Office with the company’s central
office in the city, and the recording and monitoring devices would be attached
to the assigned cable pair at the field office, where the Bureau monitoring
agents were located. After the supervisor verified the wiretap by determining
that the intercepted line was the correct one, he would give the tap a symbol
number to be used in lieu of the words “telephone surveillance” in
any later communication. 108
Generally, two agents would
conduct the monitoring operation in eight-hour shifts. These monitors typically
tape recorded all calls on the line and added supplementary notes concerning
such items as the identity of the caller and the subject of the conversation if
unclear from the tape. 109 Each day, they typed up log summaries, which
included anything they believed was consequential. Because the monitors were
not told specifically what to look for, however, the summaries tended to be
over-inclusive rather than under-inclusive: the supervising agent noted, for
instance, that any information obtained about the subject’s sex life or drug
use would usually be included in the log summaries. 110 He also stated that he
disliked having empty summaries for any day, and so issued a general
instruction to his monitors that an attempt should be made to include at least
one item in the log each day. 111 Even if there was no activity, a monitor
would still have to file a log summary stating “no activity” or
“no pertinent activity.” 112
A special squad within the
Washington Field Office was responsible for implementing microphone
installations. According to one Bureau agent who served on this squad for a
number of years, the authorizing document (which, he said, invariably bore J.
Edgar Hoover’s initials) would be transmitted to the field office and shown to
him and the other members of the squad prior to the installation. This agent
stated that in the majority of cases he was able to obtain a key to the
target’s premises, either from a landlord, hotel manager, or neighbor. In other
cases, he simply entered through unlocked doors. He stated that only in a small
proportion of the cases to which he was assigned was it necessary to pick a lock.
113 Once the bug was planted, it was generally necessary for Bureau agents to
monitor the conversations from a location close to the targeted premises.
C. The ELSUR Index
In the mid-1960s, the Justice
Department established a policy of filing disclosures in the courts in cases
where criminal defendants had been monitored by electronic surveillance. 114 As
a result, it became necessary to establish a general index of the names of all
persons overheard on such surveillances. In September 1966, the Assistant
Attorney General of the Criminal Division informed Director Hoover that:
In recent months the
Department has been confronted with serious problems concerning the prospective
or continued prosecution of individuals who have been the subject of prior electronic
surveillance. These problems have sometimes arisen comparatively late in the
investigative or prosecutive process. For example, we recently were forced to
close an important investigation involving major gambling figures in Miami
because we were advised that the evidence necessary to obtain a conviction was
In view of these experiences,
it appears necessary and desirable that the Department have full knowledge of
the extent of any device problem at as early a stage of preparation for prosecution
as possible in order to determine whether a particular case may or may not be
tainted or what responses will be necessary with respect to a motion under Rule
16 to produce statements.
Accordingly, I feel it is
imperative for us to establish between the Bureau and the Department . . . some
sort of “early warning” system. This may require the Bureau to set
up and maintain appropriate indices with respect to electronic surveillance and
the materials derived therefrom.
I have discussed this suggestion
with the Attorney General and the Deputy Attorney General. Both feel that the
establishment of such indices is necessary. . . 115
In fact, for a number of years
prior to this suggestion the Bureau had maintained rudimentary indices within
each field office, although there was no central index and those which existed
on the field level were believed to be inadequate by Justice Department
officials. Because Hoover believed the existing system was adequate, he reacted
defensively when Assistant Attorney General Fred Vinson requested a conference
between the Department and the Bureau to discuss the details of the Justice
Department’s proposal. The Director penned the following notation on the Vinson
memorandum: “Since [an indexing system] is already operating, I see no
need for such a conference…. Tell him it is already done and see that it is
meticulously operated.” 116
About one week later, however,
Hoover directed officials at Headquarters to send a teletype to all field
offices which had conducted electronic surveillances since January 1960. 117
These offices were instructed to transmit to Headquarters the names of all
individuals whose voices were were monitored through electronic surveillance
any time within the previous six years, as well as the initial date of the
monitoring and the identity of the subject against whom the installation was
directed. Each office was also informed that it had a continuing obligation to
submit to Headquarters on a weekly basis the names of any additional
individuals monitored in the future. 118
The Bureau has since
maintained a central index at Headquarters, referred to as the ELSUR Index,
which contains the names of all individuals overheard, even incidentally, on
both court-ordered and warrantless electronic surveillances. Additional
information such as the initial date of the monitoring and the identity of the
target of the surveillance is also included in the index. The method by which
this index has been compiled, however, raises some questions as to its accuracy
Although the ELSUR Index
covers the period January 1, 1960, to the present, for example, the FBI’s
response to a request by the Senate Select Committee for the date and location
of all electronic overhears of Martin Luther King, Jr., conceded that retrieval
of some of the overhears of King may be impossible. Three factors contributing
to this difficulty were set forth by the Bureau:
1. Prior to issuing
instructions to field offices in October, 1966, directing them to submit the
names of all individuals whose voices have been monitored through a microphone
installed or a telephone surveillance operated by the offices anytime since
1/1/60, additional surveillances on which King was monitored are unaccountable
for as these surveillance logs may have been destroyed.
2. Prior to the instructions,
personnel handling logs may have felt that overhears were of no substance or
significance and consequently were not recorded.
3. The setting up of the ELSUR
indices was a fieldwide project of large proportions and the instructions going
to the field 10/5/66, were subject to broad interpretation, thus leading to
possible misinterpretation of these instructions. Also, the factor of human
error might be involved, thereby causing incomplete indices until the mechanics
of the procedure were ironed out. 119
In fact, several surveillances
of King himself which were known to personnel at FBI headquarters were
apparently not reflected in the ELSUR Index.
One Special Agent’s
description of the preparation of ELSUR Index cards by FBI monitors suggests
that the Index may be incomplete even for the post-1966 period. According to
this agent, the FBI monitors are under instructions to prepare ELSUR Index
cards for each identifiable person who speaks over the intercepted line. 120
Since the cards must contain the proper names of these individuals rather than
phonetic spellings, and since this information is often difficult to obtain
from an overhear alone, the monitors maintain a separate index of phonetic
spellings prior to their determination of the proper spelling and its entry
into the ELSUR Index. 121 The monitors then attempt to confirm the identity of
the persons overheard from various research aids kept at their disposal, such
as telephone books and Congressional and federal agency directories, and from
discussions with the Bureau agents assigned to the substantive cases. In most
cases, it is possible to make an accurate identification, but when this proves
to be impossible, the names of unidentified individuals never get entered into
the ELSUR Index. 122 Sometimes no entry has been made in the ELSUR Index even
though positive identification was subsequently obtained. 122a Thus, a person
could be overheard and this fact would not be revealed by a check of the ELSUR
D. Congressional Investigation
of FBI Electronic Surveillance Practices: The Long Subcommittee
The Bureau has traditionally
been reluctant to permit Congressional investigation into its electronic
surveillance practices. During the 1965 and 1966 inquiry by the Senate
Subcommittee on Administrative Practice and Procedure into the use of
electronic surveillance and other techniques by federal agencies, the FBI took
affirmative steps to avoid substantial exposure of such practices to the
subcommittee. The Bureau’s attempt to thwart this subcommittee’s investigation
into the use of mail covers in February and March of 1965 is described in the
Senate Select Committee’s Report on CIA and FBI Mail Opening; 124 a similar
attempt, apparently acquiesced in by the Subcommittee, was made in the area of
The Bureau’s wary attitude
toward this investigation is reflected in an internal memorandum dated August
Senator [Edward V.] Long [of
Missouri] is Chairman of the Senate Subcommittee on Administrative, Practice
and Procedure. He has been taking testimony in connection with mail covers,
wiretapping, and various snooping devices on the part of Federal agencies. He
cannot be trusted and although the FBI has not become involved in these
bearings, our name has been mentioned quite prominently on several occasions .
. . . 125
When the Subcommittee’s
investigation began to touch on the Bureau’s electronic surveillance practices
in connection with organized crime several months later, Assistant Director
Cartha DeLoach and another ranking Bureau official personally visited the
Subcommittee’s chairman, Senator Edward Long of Missouri, to explain to him the
FBI’s practices in the area of electronic surveillance. 126 This meeting lasted
approximately one and one-half hours, 127 and there is no indication in the
documentary record that any other briefing occurred prior to this visit.
Nonetheless, an FBI memorandum notes that after the Senator “stated that
unfortunately a number of people were bringing pressure on him to look into the
FBI’s activities in connection with usage of electronic devices,” 128
DeLoach suggested to him:
that perhaps he might desire
to issue a statement reflecting that he had held lengthy conferences with top
FBI officials and was now completely satisfied, after looking into FBI
operations, that the FBI had never participated in uncontrolled usage of
wiretaps or microphones and that FBI usage of such devices had been completely
justified in all instances. 129
According to this memorandum,
Senator Long agreed, and when he “stated that he frankly did not know how
to word such a release,” 130 DeLoach “told him that we would be glad
to prepare the release for him on a strictly confidential basis.” 131
The next day, Bureau agents
prepared such a statement for Senator Long, noting that “it is written
from the viewpoint of the Senator and his Committee in that it indicates they
have taken a long, hard look at the FBI and have found nothing out of order –
but that they will continue looking over our procedures and techniques from
time to time in the future. Such an approach,” it was stated, “is
felt to be essential if the statement is to have the desired effect. A
statement reflecting a stronger pro-FBI position might not only prove
ineffective in thwarting those persons who are exerting pressure on the
Subcommittee for a probe of our operations, but it could also bring criticism
and additional pressure on Senator Long.” 132 The statement written by the
Bureau for Senator Long reads in full:
As Chairman of the
Subcommittee on Administrative Practice and Procedure of the Senate Judiciary
Committee, I instructed my staff at the outset of our activities to include the
FBI, together with all other Federal agencies, among the organizations to be
dealt with to ascertain if there had been invasion of privacy or other improper
tactics in their operations. Toward this end, my staff and I have not only
conferred at length with top officials of the FBI, but we have conducted
exhaustive research into the activities, procedures, and techniques of this
While my Staff and I fully
intend to carefully review FBI operations from time to time in the future, I am
at the present time prepared to state, based upon careful study, that we are
fully satisfied that the FBI has not participated in highhanded or uncontrolled
usage of wiretaps, microphones, or other electronic equipment.
The FBI’s operations have been
under strict Justice Department control at all times. In keeping with a rigid
system of checks and balances, FBI installation of wiretaps and microphones has
been strictly limited, and such electronic devices have been used only in the
most important and serious of crimes either affecting the internal security of
our Nation or involving heinous threats to human life. Included among these are
major cases of murder, kidnapping, and sadism perpetrated at the specific
instruction of leaders of La Cosa Nostra or other top echelons of the
extralegal empire of organized crime.
Investigation made by my staff
has reflected no independent or unauthorized installation of electronic devices
by individual FBI Agents or FBI offices in the field. We have carefully
examined Mr. J. Edgar Hoover’s rules in this regard and have found no instances
of violation. 133
As noted above, there is no
indication in the record that any briefing about electronic surveillance by the
FBI occurred prior to the preparation of this statement by Bureau agents other
than the ninety-minute briefing given by DeLoach. No Bureau agents had been
called to testify before the Subcommittee. It does not appear that any Senator
or staff members reviewed FBI files on electronic surveillances. Nor is there
any indication in the record that the Subcommittee ever learned of the bugging
of a Congressman’s hotel room, the bugging and wiretapping of Martin Luther
King, Jr., or the wiretapping of a Congressional staff member, two newsmen, an
editor of a political newsletter, and a former Bureau agent — all of which had
occurred within the previous five years. 134
Ten days after the statement
was prepared for Senator Long, DeLoach again visited him and “asked him
point blank whether or not he intended to hold hearings concerning the FBI at
any time in the future.” According to DeLoach’s memorandum:
He stated he did not. I asked
him if he would be willing to give us a commitment that he would in no way
embarrass the FBI. He said he would agree to do this. 135
When the Subcommittee’s Chief
Counsel asked DeLoach at this meeting “if it would be possible for
[DeLoach] or Mr. Gale [another FBI Assistant Director] to appear before the
Long Subcommittee … and make a simple statement to the effect that the FBI
used wiretaps only in cases involving national security and kidnapping and
extortion, where human life is involved, and used microphones only in those
cases involving heinous crimes and Cosa Nostra matters,” DeLoach refused.
He wrote that he informed the Chief Counsel:
that to put an FBI witness on
the stand would be an attempt to open a Pandora’s box, in so far as our enemies
in the press were concerned [and] that such an appearance as only a token witness
would cause more criticism than the release of the statement in question would
ever cause. 136
DeLoach noted that Senator
Long then stated “he had no plans whatsoever for calling FBI
witnesses,” but that the Chief Counsel indicated that he would like to
call one former FBI agent who was known to DeLoach. According to DeLoach’s
memorandum regarding this meeting, he told the Chief Counsel that this agent
“was a first class s.o.b., a liar, and a man who had volunteered as a
witness only to get a public forum,” and that the Chief Counsel then
reconsidered. The memorandum concludes with the observation:
While we have neutralized the
threat of being embarrassed by the Long Subcommittee, we have not yet
eliminated certain dangers which might be created as a result of newspaper
pressure on Long. We therefore must keep on top of this situation at all times.
Partly as a result of the
Subcommittee’s apparently willing “neutralization” by the Bureau, the
FBI’s electronic surveillance practices were protected from intensive
Congressional and public scrutiny until the 1970s.
V. WARRANTLESS FBI ELECTRONIC
SURVEILLANCE OF FOREIGN INTELLIGENCE AND COUNTERINTELLIGENCE TARGETS WITHIN THE
Foreign agents and foreign
establishments within the United States have often been, and continue to be,
the targets of warrantless FBI electronic surveillance. In general, the Fourth
Amendment questions raised by electronic surveillance of foreigners are not as
serious as those raised by the targeting of American citizens; and surveillance
of foreign targets may be less susceptible to the types of abuses that have
often been associated with wiretapping and bugging of American citizens.
Because Americans are often overheard on “foreign” taps and bugs,
however, and because American citizens may also be the indirect targets of
“foreign” surveillances, the rights of Americans may nonetheless be
affected even by surveillance of foreign targets.
Apparently, most warrantless
electronic surveillances conducted by the FBI in the past fifteen years have
fallen into this broad category. Foreign establishments and foreigners living
within the United States have been the subject of wiretaps and bugs far more
frequently than have American citizens connected with domestic organizations,
for purposes ranging from the collection of foreign intelligence and
counterintelligence information to the detection of terrorist activity. 138
Since the 1972 Keith decision, which invalidated “domestic security”
warrantless electronic surveillances, the proportion of foreign targets has
been even greater. As of November 1975, for example, all existing warrantless
electronic surveillances were directed against foreigners. 139
The purpose and value of
electronic surveillance against foreign targets, as well as
“domestic” abuse questions which have arisen in this context, are
A. Purpose and Value as an
Electronic surveillance of
foreign targets has been used extensively by the FBI for the purpose of
collecting foreign counterintelligence information. Within the past fifteen
years, both wiretaps and bugs designed to collect such information have been
directed against targets in the following categories: “Foreign
Establishments,” “Foreign Commercial Establishments,”
“Foreign Officials,” “Foreign Intelligence Agents,”
“Foreign Intelligence Contacts,” “Foreign Intelligence Agents
Suspect,” “Foreign Officials’ Contact,” and “Foreign
Intelligence Agents Business Office.” Wiretaps alone have been used
against “Foreign Intelligence Contact Suspect” and “a [foreign]
Exile Group;” bugs alone have been used against the “wife of a
foreign intelligence contact,” a “relative of a foreign intelligence
agent suspect,” a “foreign intelligence agent contact,” another
“[foreign] exile group,” and for “coverage of foreign
Electronic surveillance of
targets such as these is clearly considered by FBI officials to be one of the
most valuable techniques for the collection of counterintelligence information.
According to W. Raymond Wannall, the former Assistant Director in charge of the
Bureau’s Domestic Intelligence Division, wiretaps and bugs directed against
give us a base line from which
to operate…. Having the benefit of electronic surveillance, we are in a
position to make evaluations, to make assessments, to make decisions as to [the
conduct of counterintelligence operations]…. It gives us leads as to persons
. . . hostile intelligence services are trying to subvert or utilize in the
United States, so certainly it is a valuable technique. 141
Some of the surveillances in
the categories listed above have also been conducted for the primary purpose of
collecting “positive” foreign intelligence (which may include
economic intelligence) rather than counterintelligence information. 141a While
the collection of “Positive” foreign intelligence is outside the
FBI’s intelligence mandate, such surveillances have been responsive to specific
requests of the Attorney General by the State Department and the CIA, both of
which have a responsibility for “positive” intelligence. 142
In addition, the Bureau has
electronically monitored foreign targets for the purpose of detecting and
preventing violent and terrorist activities by foreigners within the United
States. Wiretaps have been used for such purposes against a “Foreign
Militant Group,” a “Foreign Revolutionary Group,” a
“Foreign Militant Group Official,” and a “Propaganda Outlet of
the League of Arab States.” Microphone surveillances in the last two of
these categories and of an “Arab Terrorist Activist,” and an
“Arab Terrorist Activist Meeting” have been used for similar
B. Foreign Surveillance Abuse
Even properly authorized
electronic surveillances directed against foreign targets for the purposes
noted above may result in possible abuses involving American citizens. Because
wiretaps and bugs are capable of intercepting all conversations on a particular
telephone or in a particular area, American citizens with whom the foreign
targets communicate are also overheard, and information irrelevant to the
purpose of the surveillance may be collected and disseminated to senior
It is also possible to
institute electronic surveillance of a foreigner for the primary purpose of
intercepting the communications of a particular American citizen with that
target; since the “foreign” surveillance in this situation can
accomplish indirectly what a surveillance of the American could accomplish
directly, the former may be used to circumvent the generally more stringent
requirements for surveillances of Americans.
Both of these practices, which
clearly affect the rights of the Americans involved, have occurred in the past
and are discussed below.
1. Dissemination of Domestic
Intelligence from Incidental Overhears
information — unrelated to the authorized purpose of the surveillance — has
occasionally been obtained as a by-product of electronic surveillance of
foreign targets and disseminated to the highest levels of government. In the
early 1960s, for example, Attorney General Robert Kennedy authorized the FBI to
institute electronic surveillances of certain foreign targets in Washington,
D.C., in connection with the possibly unlawful attempts of a foreign government
to influence Congressional deliberations over sugar quota legislation. 144 From
these surveillances, the Attorney General was provided with significant
information not merely about possible foreign influence but about the reaction
of key members of the House Agriculture Committee to the administration’s sugar
quota proposal as well. 145
Through the Bureau’s coverage
of certain foreign establishments in Washington, it was also able to supply two
President’s with reports of the contacts between members of Congress and
foreign officials. According to a 1975 F BI memorandum:
On March 14, 1966, then
President Lyndon B. Johnson informed Mr. DeLoach [Cartha DeLoach, former
Assistant Director of the FBI] … that the FBI should constantly keep abreast
of the actions of representatives of these [foreign countries] in making
contacts with Senators and Congressmen and any citizens of a prominent nature.
The President stated he strongly felt that much of the protest concerning his
Vietnam policy, particularly the hearings in the Senate, had been generated by
[certain foreign officials]. 146
As a result of the President’s
request, the FBI prepared a chronological summary — based in part on existing
electronic surveillances — of the contacts of each Senator, Representative, or
staff member who communicated with selected foreign establishments during the
period July 1, 1964, to March 17, 1966. This summary — which comprised 67
pages — was transmitted to the White House on March 21, 1966. The cover letter
noted that: “based upon our coverage, it appears that” certain
foreign officials “are making more contacts with” four named United
States Senators “than with other United States legislators.” 147
A second summary was prepared
on further contacts between Congressmen and foreign officials and was
transmitted to the White House on May 13, 1966. From that date until January
1969, when the Johnson administration left office biweekly additions to the
second summary were regularly prepared and disseminated to the White House.148
This practice was reinstituted
during the Nixon administration. On July 27, 1970, Larry Higby, Assistant to H.
R. Haldeman, informed the Bureau that Mr. Haldeman “wanted any information
possessed by the FBI relating to contacts between [certain foreign officials]
and Members of Congress and its staff.” 149 Two days later, the Bureau
provided the White House with a statistical compilation of such contacts from
January 1, 1967 to July 29, 1970. 149a As in the case of the information
provided to the Johnson White House, no members of Congress were targeted
directly but many had been overheard on existing electronic surveillances of
foreign officials in Washington, D.C.
2. Indirect Targeting of
American Citizens Through Electronic Surveillance of Foreign Targets
There is also evidence that in
at least one instance the FBI, at the request of the President, instituted an
electronic surveillance of a foreign target for the purpose of intercepting
telephone conversations of a particular American citizen. An FBI memorandum
states that about one week before the 1968 Presidential election, President
Johnson became suspicious that South Vietnamese Government might sabotage his
peace negotiations in the hope that Presidential candidate Richard Nixon would
win the election and take a “harder line” towards North Vietnam. 150
More specifically, the President believed that Mrs. Anna Chennault, widow of General
Clair Chennault and a prominent Republican leader, was attempting to [dis]suade
South Vietnamese officials “from attending the Paris peace negotiations
until after the election since it would devolve to the credit of the Republican
In order to determine the
validity of this suspicion, the White House instructed the FBI to institute a
physical coverage of Mrs. Chennault, as well as physical and electronic
surveillance of the South Vietnamese Embassy. 151a The electronic surveillance
of the Embassy was authorized by Attorney General Ramsey Clark on October 29,
1968, installed the same day, and continued until January 6, 1969. 152
Significantly, a Bureau
memorandum indicates that FBI officials were ill-disposed toward direct
surveillance of Anna Chennault because “it was widely known that she was
involved in Republican political circles and, if it became known that the FBI
was surveilling her this would put us in a most untenable and embarrassing
position.” 153 Thus, a “foreign” electronic surveillance was
instituted to indirectly target an American citizen, who, it was apparently
believed, should not be surveilled directly.
VI. WARRANTLESS FBI ELECTRONIC
SURVEILLANCE OF AMERICAN CITIZENS
American citizens and domestic
organizations have also been the direct targets of FBI wiretaps and bugs for
intelligence purposes. Indeed, the use of these techniques against Americans
for such purposes has a long history. In 1941, for example, Attorney General
Francis Biddle approved a wiretap on the Los Angeles Chamber of Commerce under
the standard of “persons suspected of subversive activities.” 154
Four years later, a high official in the Truman administration 155 and a former
aide to President Roosevelt 156 were both the subject of warrantless electronic
Between 1960 and 1972 numerous
American citizens and domestic organizations were targeted for electronic
surveillance. Most of these warrantless wiretaps and bugs were predicated on
the need to protect the country against “subversive” and/or violent activities;
many were based on the perceived need to discover the source of leaks of
classified information; and an undetermined number 157 of American citizens
were wiretapped for other reasons such as the desire to obtain foreign
intelligence or counterintelligence information.158
The Keith decision in 1972
sharply restricted the grounds for wiretapping and bugging which had been
asserted previously, although it did not prohibit warrantless electronic
surveillance of American citizens for foreign intelligence or
counterintelligence purposes when a substantial connection is shown to exist
between the American individual or group and a foreign power. 159 No Americans
were the subjects of this technique as of November 1975, 160 but a small number
of Americans have been electronically monitored since the Keith case on the
basis of such a foreign connection. 161
This section focuses on
warrantless electronic surveillance of American citizens during the 1960 to
1972 period. It contains a general description of surveillances which were
instituted because of the perceived “subversive” or violent nature of
the targets, because of leaks of classified information, and on various other
grounds. In Section VII, this Report elaborates on three types of abuse
questions which have arisen in connection with warrantless electronic
surveillance of American citizens.
A. Electronic Surveillance
Predicated on Subversive Activity
Numerous American citizens and
domestic organizations have been wiretapped and bugged because their
activities, while not necessarily violent, were regarded as sufficiently
“subversive” to constitute a threat to the security of the United
States. In many of these cases, it was believed that the individuals or groups
were controlled or financed by, or otherwise connected with, a hostile foreign
power. In other cases, the surveillances were based only on the possibility
that the targets, whether consciously or not, were being influenced by persons
believed to be acting under the direction of a foreign power; such surveillance
typically occurred in the context of COMINFIL (Communist infiltration)
The Communist Party, USA,
provides the clearest example of a group that was selected for electronic
surveillance on the ground of foreign-connected “subversive”
activities. In addition to a wiretap on the Headquarters of the Communist
Party, the FBI conducted wiretaps in the following target categories:
Communist Party Functionaries
Communist Party Propaganda Outlet
Communist Party Front Group
Communist Party Member
Communist Party Affiliate
Communist Party Publication
Microphone surveillances are
recorded in these categories:
Communist Party Functionaries
Communist Party Front Groups
Communist Party Propaganda Outlets
Communist Party Front Groups Organizer
Communist Party Function
Communist Party Members
Communist Party Publications
Coverage of Communist Party Meeting
Communist Party Youth Activist
Communist Party Labor Group
Communist Party Youth Group
Communist Party Affiliate
Coverage of Communist Party Conference
Communist Party Apologist 163
Other groups adhering to a
communist ideology have also been electronically monitored for similar reasons.
According to FBI records, wiretaps were used in cases involving a
“Marxist-Leninist Group Affiliate,” a “Marxist Leninist Group
Leader,” and a “Marxist-Leninist Group Functionary.” Microphone
surveillances were also conducted against a “Basic Revolutionary Group
Founder,” a “Marxist-Oriented Youth Group,” a “Trotskyite
Organization,” a “Basic Revolutionary Group,” an “Organizer
of a Basic Revolutionary Group,” “Marxist-Leninist Groups,” a
“Basic Revolutionary Front Group,” a “Basic Revolutionary Front
Functionary,” a “Marxist-Leninist Front Group,” and a
“Marxist-Oriented Racial Organization.” One “Trotskyite
Organization Meeting” was also bugged. 164
Several groups which were
believed to have a connection with the Communist Party in Cuba and China have
been targeted as well. Into this category fell wiretaps which were directed
against a “Pro-Castro Organization,” a “Pro Castro Movement
Leader,” a “Pro-Castro Group Functionary,” and a
“Pro-Chicom [Chinese Communist] Propaganda Outlet;” and microphones
directed against “Pro-Castro Organizations,” a “Pro-Chicom
Group,” and a “Pro Cuban American Group which travelled to
activities” predicate was stretched furthest when used to support
electronic surveillance of American citizens and domestic organizations not
primarily because their own activities were considered to be subversive but
because they were believed to be adversely influenced, whether consciously or
not, by persons acting under the direction of a foreign power. One example of
reliance on such a rationale is seen in the wiretapping and bug of Dr. Martin
Luther King, Jr., and several of his associates. In October 1963, Attorney
General Robert Kennedy authorized wiretaps on the residence and two office
telephones of Dr. King on the ground of possible Communist infiltration into
the Southern Christian Leadership Conference, of which Dr. King was President.
166 The possibility that two of Dr. King’s advisors may have been associated
with the Communist Party, USA, led to four additional wiretaps on King and a
total of fifteen microphone installations in his hotel rooms during 1964 and
1965. 167 Apparently as part of this COMINFIL (Communist infiltration)
investigation, several of King’s associates were also wiretapped and bugged.
At least three other
organizations have been targeted for electronic surveillance primarily on the
ground of possible Communist infiltration. One such organization, believed to
have been influenced by the Communist Party, USA, was wiretapped in 1962. 169
In 1965, Attorney General Nicholas Katzenbach approved wiretaps on both the
Student Non-Violent Coordinating Committee (SNCC) 171 and the Students for a
Democratic Society (SDS) for similar reasons; 171 the former group had also
been the subject of a microphone surveillance in 1964. 172
B. Electronic Surveillance
Predicated on Violent Activity
Allegations of violent
activity, or the threat of violent activity, have also served as the predicate
for numerous warrantless electronic surveillance of Americans.
Most of the wiretaps and bugs
which were instituted for this reason have been directed against “black
extremists” and “black extremist organizations.” In 1957, for
example, Attorney General Herbert Brownell authorized a wiretap on Elijah
Muhammad, a leader of the Nation of Islam, because of the organization’s alleged
“violent nature.” 173 This tap, which was never re-authorized until
1964, was finally terminated in 1966. A wiretap was also placed on Malcolm X,
another Nation of Islam leader, in 1964 for essentially the same reason. 174
Similarly, Attorney General Katzenbach approved a wiretap on a “black
extremist leader” of the Revolutionary Action Movement in 1965. 175 During
the first half of the 1960’s, microphone surveillances were also directed
against a “black separatist group” (one surveillance in 1960 and
1961; two separate surveillances each year from 1962 until 1965) and a
“black separatist group functionary”( from 1961 until 1965). 176
The possibility of violent
activity also led to wiretaps on the Black Panther Party and one of its leaders
in 1969. 177 Both of these taps continued into 1970, when wiretaps on a
“black extremist group affiliate” and two (non-white) “racial
extremist groups” were added to the list. 178 1971 apparently represented
the high point of wiretapping “black extremists:” in that year, there
were wiretaps on the Black Panther Party (six separate taps as of March 29,
1971), 179 two (nonwhite) “racial extremist groups,” two individuals
described as “militant black extremist group members” (one of whom
was a member of SNCC), two individuals described as “militant black
extremist group functionaries,” and a “racial group member.” A
wiretap was also authorized to cover a “meeting of a militant [black]
group.” 180 In 1972, wiretaps continued to be used against the Black
Panther Party and one of its leaders, a (non-white) “racial extremist
group,” a “militant black extremist group member,” and a
“militant black extremist group functionary.” 181 Microphone
surveillances during the Nixon Administration years were directed against the
Black Panther Party in 1970 and a “Black Extremist Group Functionary”
(Huey Newton, a leader of the Black Panther Party) from 1970 to 1972. 182
Electronic surveillance based
on a “violent activity” predicate was certainly not confined to
“black extremists,” however. In the early and mid-1960’s, wiretaps
were placed on Ku Klux Klan members for similar reasons. Two “leaders of a
racist organization,” one of whom was a Klan member suspected of
involvement in the bombing of a black church in Birmingham, Alabama, were wiretapped
in 1963 and 1964. 183 Another Ku Klux Klan member was wiretapped in 1964 and
1965. 184 FBI records also disclose the bugging of The National States Rights
Party in 1962. 185
White radical organizations
were also the subjects of electronic surveillance in the late 1960’s and early
1970’s on the grounds of violent or potentially violent activity. A “New
Left Campus Group” was both wiretapped and bugged in 1969, and the wiretap
continued into 1970. 186 Three anti-war organizations which were involved in
planning the November 1969 “March on Washington” were also wiretapped
in 1969. 187 In 1970, the Headquarters of the Worker Student Alliance (an
affiliate of SDS) 188 and an individual who was a contact for the Weatherman
organization were wiretapped. 189 The tap on the Worker Student Alliance
continued into 1971 and was supplemented in that year by wiretaps on a
“New Left Activist”, a “domestic protest group,” and a
“violence prone faction of a domestic protest group” (two separate
wiretaps). 190 Additional wiretaps and microphone surveillances during the
years 1969 to 1972 fall into the categories: “Investigation of Clandestine
Underground Group Dedicated to Strategic Sabotage;” “Weatherman
Organization Publication;” “Publication of Clandestine Underground
Group Dedicated to Strategic Sabotage;” “Leader of Revolutionary
Group;” and “Weather Underground Support Apparatus.” 191
For several years during the
1960’s, Puerto Rican nationalist groups and their members were also
electronically monitored because of their alleged proclivity towards violence.
FBI records reveal wiretaps on a “Puerto Rican Independence Group” in
1960 and 1962; and on a “Puerto Rican Independence Group Member” in
1965. Microphone surveillances were placed on a “Contact of Puerto Rican
Nationalist Party” in 1960; a “Puerto Rican Independence Group
Office” in 1963, 1964, and 1965; a “Puerto Rican Revolutionary”
in 1968; and “Pro-Puerto Rican Independence Group Activists” in 1964
and 1965. 192
Other organizations were the
subject of electronic surveillance because they were seen as violent advocates
of the interests of a foreign power or group. (To the extent an actual
connection with a hostile foreign power was perceived, they would also be
considered “subversive.”) These organizations, which were, or may
have been, composed at least in part of American citizens, are described by the
following categories: “Pro-Arab Group,” “Arab Terrorist
Affiliate,” “Pro-Palestine Group,” “Militant Pro-Chicom
[Chinese Communist] Group,” “West Coast Fundraising Front for Arab
Terrorist Groups,” “Arab Terrorist Activist Affiliates,” and
“Co-Conspirators in Plot to Kidnap a Prominent Anti-Castro Cuban
C. Electronic Surveillance
Predicated on Leaks of Classified Information
Another purpose of warrantless
electronic surveillance of American citizens during the period 1960 to 1972 was
to determine the source of perceived leaks of classified information. At least
eight separate investigations into perceived leaks resulted in the wiretapping
or bugging of nearly thirty American citizens, yet Bureau memoranda reveal no
case in which the source of any leak was discovered by means of electronic
surveillance. These investigations are described below.
Lloyd Norman: 1961. 194 — On June 27, 1961,
Attorney General Robert Kennedy informed FBI Director Hoover that the most
recent issue of Newsweek magazine contained an article about American military
plans in Germany, which, the administration believed, was based on classified
information. According to an FBI memorandum, Kennedy stated that the President
had called him to see if it would be possible to determine who was responsible
for the apparent leak. 195 On the same day, and without specific authorization
from the Attorney General, the FBI placed a wiretap on the residence of Lloyd
Norman, the Newsweek reporter who wrote the article. 196 Kennedy was informed
about the tap on June 28, and formally approved it on June 30. It was
discontinued on July 3, 1961, when “Norman left Washington, D.C., for the
west coast on a month’s vacation [and) the only person left at Norman’s
residence [was] his son.” 197
Hanson Baldwin: 1962. — A July 1962 New York
Times article about Soviet missile systems by Hanson Baldwin, which the
administration also believed was based on classified information, led to the
installation of wiretaps on the residences of both Baldwin and a New York Times
secretary. According to contemporaneous Bureau memoranda, these wiretaps were
instituted without the prior written approval of the Attorney General, and one
of them — the tap on the secretary — was instituted without the Attorney
General’s prior knowledge. 198 Formal written approval for these wiretaps was
obtained on July 31, 1962, however, three days after the tap on Baldwin was
installed and four days after the tap on his secretary was installed. 199 The
wiretap on the secretary continued until August 15, 1962; that on Baldwin until
August 29,1962. 200
Former FBI Special Agent: 1962. — Warrantless electronic
surveillance predicated on classified information leaks continued with the
wiretapping of a former Bureau agent who “disclosed information of a confidential
nature concerning investigations conducted by [the] Bureau” in a public
forum on October 18, 1962. 201 According to an internal memorandum, the
coverage lasted from October 18, 1962, until October 26, 1962, and was repeated
in January 1963. 202 On October 19, 1962, Attorney General Kennedy was advised
that the Bureau desired to place coverage on this agent; he was apparently not
informed that coverage had already been effected the day before. 203 Kennedy’s
written approval was granted on October 26, the day the surveillance was
terminated. 204 The surveillance was reinstituted in January: a Bureau
memorandum dated January 9, 1963, simply states:
Mr. Belmont called to say [FBI
Assistant Director Courtney] Evans spoke to the Attorney General re placing the
tech on [ ] again, and the Attorney
General said by all means do this. Mr. Belmont has instructed New York to do
The authorization for the
second surveillance therefore appears to have been oral. Coverage of this agent
was permanently suspended on September 9, 1963. 205a
High Executive Official: 1963. — Because of the
possibility that a high-ranking executive official may have provided classified
information not to the press but to a foreign intelligence officer, the FBI
requested the Attorney General in February 1963 to authorize a wiretap on the
residence telephone of this official. 205b According to the request which was
sent to Attorney General Kennedy, “The President expressed personal
interest in receiving information concerning the current relationship between
[the official] and representatives of [a foreign country].” 205c
The Attorney General approved
the request, and it was instituted three days later. 205d It was discontinued
on June 14, 1963, when the target travelled abroad, 205e reinstituted on July
14, 1963; and permanently discontinued on November 6, 1963, “because of
lack of productivity.” 205f
Editor of an Anti-Communist
Newsletter. 1965. — The publication in an anti-Communist newsletter of information
believed to be classified led to the wiretapping of both the editor of the
newsletter and an attorney in the Washington, D.C. area with whom the editor
was in frequent contact. These surveillances were approved in writing by
Attorney General Nicholas Katzenbach in April and June of 1965, respectively,
and each began about three weeks after approval. 206
In November 1965, the FBI
recommended discontinuance of the taps because “[w]e have not developed
any data since outset of investigation which would show that [the targets] are
currently receiving information from individuals in the Executive Branch of the
Government. In fact, we now believe that it is highly unlikely that our
technical coverage will develop such information in the future.” 206a
According to a memorandum sent
to the Attorney General, the tap on the lawyer was discontinued on November 2,
1965, and that on the editor on November 10, 1965. 206b
Joseph Kraft: 1969. 207 — The basic facts
surrounding the wiretapping and microphone surveillance of columnist Joseph
Kraft are a matter of public record. In June 1969, possibly in response to a
leak from the National Security Council, John Ehrlichman instructed John
Caulfield and John Ragan, two individuals associated with the White House
“Plumbers” and unconnected with the FBI, to place a wiretap on the
Washington, D.C. residence of Mr. Kraft. This tap was removed one week later,
when the columnist left Washington on an extended trip to Europe. W. C.
Sullivan, then Assistant Director of the FBI, subsequently followed Mr. Kraft
abroad, apparently on instructions from Mr. Hoover and Mr. Ehrlichman.
Overseas, Sullivan arranged with a foreign security agency to conduct
electronic surveillance of Kraft in his hotel room: when the installation of a
telephone tap proved to be impossible because of the “elaborate
switchboard” of the hotel,” a microphone was placed in his room
instead. 209 The results of this coverage, which lasted from July 3 to July 7,
1969, were transmitted back to Mr. Hoover personally through the FBI’s Legal
Attache at the American Embassy. 210
In November and December of
that year, Mr. Kraft was again the target of FBI surveillance: the Washington
Field Office conducted physical surveillance of the columnist from November 5
until December 12. 211 In addition, Director Hoover requested approval from
Attorney General Mitchell for a wiretap on Mr. Kraft on November 5, 212 but
approval was never granted and the wiretap never installed. 213
Wiretaps:” 1969-1971. 214 — The wiretaps which were directed against seventeen government
employees and newsmen between May 1969 and February 1971 have been the subject
of civil litigation and extensive Congressional inquiries. In view of the
pending civil litigation, the Committee has not attempted to duplicate the
depositions which bear on the authorization of these wiretaps. The basic facts
as recorded in FBI documents and public record testimony, however, may be
summarized as follows:
On May 9, 1969, a story by
William Beecher concerning American bombing raids in Cambodia appeared in the
New York Times. According to a contemporaneous internal memorandum from J.
Edgar Hoover to senior FBI officials, Henry Kissinger telephoned him that
morning requesting the Bureau to “make a major effort to find out where
[the story] came from.” 215 Kissinger called Mr. Hoover twice more that
day, once to request that additional articles by Beecher be included in the
inquiry and once to request that the investigation be handled discreetly “so
no stories will get out.” 216 Before 5:00 p.m. on May 9, Hoover telephoned
Kissinger to inform him that initial FBI inquiries suggested that Morton
Halperin, a staff member of the National Security Council, could have been in a
position to leak the information upon which Beecher was believed to have based
his article: Hoover noted that Halperin “knew Beecher and that he [Hoover]
considered [Halperin] a part of the Harvard clique, and, of course, of the
Kennedy era.” 217
According to Hoover, “Dr.
Kissinger said he appreciated this very much and he hoped I would follow it up
as far as we can take it and they will destroy whoever did this if we can find
him, no matter where he is. 218
Dr. Kissinger has testified
that he had been asked at a White House meeting, which, he believed, may have
occurred in late April 1969 and which was attended by the President, the
Attorney General, and J. Edgar Hoover, “to supply the names of key
individuals having access to sensitive information which had leaked [even before
the Cambodia story].” 218a He noted that at this meeting “Director
Hoover identified four persons as security risks and suggested that these four
be put under surveillance initially.” 218b Among the persons so identified
was Morton Halperin. Kissinger said that when the Cambodia story was published
on May 9, “I called Mr. Hoover at President Nixon’s request to express the
President’s and my concern about the seriousness of the leak appearing that
date and to request an immediate investigation. He also stated that in these
telephone conversations, “I do not recall any discussion of wiretapping.
At that time, my understanding was that the wiretapping program had been
authorized and that, therefore, Mr. Hoover or his staff had the right to use
wiretapping in their investigations. I do not recall any discussions as to when
the program would actually be put into effect.” 218d He further testified
that “[i]n view of the President’s authorization, Mr. Hoover evidently
chose to institute the wiretaps after my calls to him on May 9, regarding the
national security significance of the Beecher story in the New York Times of
the same date.” 218e
The wiretap on Halperin was
installed without the written approval of the Attorney General, in late
afternoon on May 9, 1969. 219 The next morning, Alexander Haig personally
visited William Sullivan at FBI Headquarters. According to a memorandum from
Sullivan to Cartha DeLoach, Haig requested that wiretaps be placed on four
individuals, including Halperin, who were members of the National Security
Council staff and Defense Department employees. 220 Haig stated that this
request “was being made on the highest authority” and “stressed
that it is so sensitive it demands handling on a need-to-know basis, with no
record maintained.” 221 According to Sullivan, Haig said that “if
possible, it would be even more desirable to have the matter handled without
going to the [Justice] Department.” 222
Alexander Haig testified that
Dr. Kissinger had instructed him to see Mr. Sullivan and to act as the
“so-called liaison as this program was instituted, I believe, authorized
by the President, the Director, and the Attorney General.” 222a He further
stated that Dr. Kissinger provided him with the names to take to Sullivan 222b
and that he had the “impression” that the names were “cleared
and concurred in by” the President or his representative, the Director,
and the Attorney General. 222c Haig denied that he requested the Bureau not to
maintain a record of the surveillances, noting that “the point I would
recall making very clearly was the extreme sensitivity of this thing, and the
avoidance of unnecessary paperwork, which would make this program subject to
compromise.” 222d He also testified that he does not recall urging
Sullivan to avoid going to the Justice Department. 222e
On May 12, a formal request
was sent by the Director to Attorney General Mitchell for wiretaps on all four
individuals (one of which had been in operation for three days); Mitchell
approved; and the additional taps were subsequently instituted. 223
Over the course of the next
one and one-half years, thirteen more individuals became the subjects of
wiretaps in this same program. Bureau documents reflects the following
authorizations from Attorney General Mitchell:
— May 20, 1969: Two members
of the staff of the National Security Council
— May 29, 1969: A reporter for the London Sunday Times
— June 4, 1969: A reporter for the New York Times
— July 23, 1969: A White House domestic affairs adviser
— August 4, 1969: A White House speech writer
— September 10, 1969: A correspondent for CBS News
— May 4, 1970: A Deputy Assistant Secretary of State; a State Department
official of “Ambassador” rank; and a Brigadier General with the
— May 13 1970: Two additional staff members of the National Security Council
— December 14,1970: A second White House domestic affairs adviser. 224
The longest of these wiretaps
was the one on Halperin: it continued for twenty-one months, until February 10,
1971, and was apparently terminated at the insistence of Director Hoover, who
was about to testify before the House Appropriations Committee. 225 Other
wiretaps lasted for periods of time varying from six weeks to twenty months.
Charles Radford: 1971-1979. — The December 1971 publication
of an article by Jack Anderson which described private conversations between
President Nixon and Henry Kissinger led to a total of four wiretaps on American
citizens to determine the source of this apparent leak. According to an
internal Bureau memorandum, Attorney General Mitchell personally contacted
Deputy Associate FBI Director W. Mark Felt on December 22, 1971, and orally
instructed him to institute a wiretap on Charles E. Radford II. 226 Radford, a
Navy Yeoman who was assigned to the Joint Chiefs of Staff, was apparently a
primary suspect because he had frequent contact with the White House and the
National Security Council and belonged to the same church as Jack Anderson. 227
Mitchell informed Felt that this request originated with the President and
noted that no prosecution was contemplated. 228 The FBI was not requested to
conduct a full investigation of the leak, only to wiretap Radford. 229 After
obtaining approval from J. Edgar Hoover, Felt secured the institution of the
wiretap on Radford’s residence on December 23.
On the basis of certain
telephone contacts Radford subsequently made, additional wiretaps were placed
on the residences of two of Radford’s friends, one a former Defense Attache,
the other a State Department employee. These wiretaps were instituted on
January 5 and January 14, respectively, and both continued until February 17.
230 When Radford was transferred to the Naval Reserve Training Center near
Portland, Oregon, the Attorney General requested a wiretap on the home of
Radford’s step-father, 230a with whom he was to stay until he could locate a
home of his own. This coverage was instituted immediately, 231 and although
Radford moved into his own residence by February 15, when another wiretap was
installed on his new home, 232 the tap on his step-father was not terminated
until April 11, 1972. 233 Coverage was also instituted on the training center
where Radford worked on February 7, 1972, and like the tap on his step-father
it continued until April 11. 234
The tap on Radford’s Oregon
residence was not terminated until June 20, 1972 — one day after the Supreme
Court’s decision in the Keith case. One Bureau official wrote that “it was
not discontinued on 6/19/72, as others falling under the Keith rule had been,
since we were awaiting a decision from the White House.” 235
In violation of Justice
Department procedures, none of these Radford wiretaps was ever authorized by
the Attorney General in writing. 236 Two of the wiretaps apparently did not
even receive the explicit oral approval of the Attorney General. An internal
Bureau memorandum states that the surveillance of the State Department employee
and the wiretap on the Naval Reserve Training Center were both requested by
David Young, an assistant to John Ehrlichman, who merely informed the Bureau
that the requests originated with Ehrlichman and had the Attorney General’s
Thus, between 1960 and 1972,
nearly thirty American citizens ostensibly suspected of leaking classified
information were wiretapped by the FBI without a warrant in the United States;
another was the subject of an FBI microphone surveillance abroad. No fewer than
seven of these targets were journalists or newsmen. At least ten of the
wiretaps were instituted without the prior written approval of the Attorney
General, which was required in every case. Although the taps generated a
significant amount of both personal and political information — much of which
was disseminated to the highest levels in the White House — Bureau memoranda
do not reveal that the wiretaps succeeded in identifying a single person who
had leaked national security information.
D. Electronic Surveillance
Predicated on Other Grounds
In the course of at least
three separate investigations between 1960 and 1972, Americans were the targets
of FBI electronic surveillance for purposes which cannot easily be categorized
as collecting information about subversive or violent activities or about leaks
of classified material. Two of these cases — the “Sugar Lobby” and
the Jewish Defense League surveillances, described below — related to foreign
concerns. The Sugar Lobby investigation was apparently instituted to gather
foreign intelligence information seen as necessary for the conduct of foreign
affairs and to detect alleged attempts of foreign representatives to influence
American officials. A wiretap on the Jewish Defense League (JDL) and one of its
members, while requested primarily on the ground of “violent
activities,” was defended in a subsequent civil action as similarly necessary
to gather information important to United States foreign relations.
The third case occurred in
connection with the Warren Commission’s review of events surrounding President
John F. Kennedy’s assassination. In 1964, the FBI installed one wiretap (with
the approval of the Attorney General) and two microphone surveillances at the
specific request of this Commission in order to obtain information about the
The “Sugar Lobby”
Wiretaps: 1961-1962. 239 — On February 9,1961, Attorney General Robert Kennedy requested the
FBI to initiate an investigation for the purpose of:
develop[ing] intelligence data
which would provide President Kennedy a picture of what was behind pressures
exerted on behalf of [a foreign country] regarding sugar quota deliberations in
Congress … in connection with pending sugar legislation. 240
This investigation lasted for
approximately nine weeks, and was reinstituted for a three-month period in
mid-1962. At its height, the investigation involved a total of twelve telephone
wiretaps, three microphone surveillances, and physical surveillances of eleven
separate individuals. 241 Six of the wiretaps were directed against American
citizens, who included three executive branch employees, a Congressional staff
member, and two registered lobbying agents for foreign interests, one of whom
was an attorney whose office telephone was wiretapped. One of the microphone
surveillances was directed at a United States Congressman.
The expiration of existing
import quotas for sugar in 1961 provided the backdrop against which these
events were set. In early 1961, the intelligence community had learned that
officials of a foreign government “intensely desired passage of a sugar
bill by the U.S. Congress which would contain quotas favorable to [that
government].” 242 This fact had significant ramifications on American
foreign policy. According to a CIA memorandum addressed to the President’s
national security advisor:
It is thought by some informed
observers that the outcome of the sugar legislation which comes up for renewal
in the U.S. Congress in March 1961 will be all-important to the future of U.S.
— [foreign country] relations. 243
There was also a possibility
that unlawful influence was involved. In early February, the FBI discovered
that representatives of the foreign government might have made monetary
payments or given gifts to influence certain Congressmen, Senators, and
executive branch of ficials. 244
Because of the foreign
intelligence interest involved, and on the ground that “the administration
has to act if money or gifts are being passed by the [foreign
representatives],” 245 Robert Kennedy authorized a number of wiretaps on
foreign targets and domestic citizens who were believed to be involved in the
situation. Specifically, he approved wiretaps on the following American
citizens: three officials of the Agriculture Department (residence telephones
only) ; 246 the clerk of the House Agriculture Committee (residence telephone
only) ; 241 and a registered agent of the foreign country (both residence and
business telephones). 248
In the course of this
investigation, the Bureau determined that Congressman Harold D. Cooley, the
Chairman of the House Agriculture Committee, planned to meet with
representatives of the foreign country in a hotel room in New York City, in
mid-February 1961. 249 At the instruction of Director Hoover, the New York
Field Office installed a microphone in Cooley’s hotel room to record this
meeting, 250 and the results were disseminated to the Attorney General. 251
Under the Justice Department
policy that was in effect at this time, the Bureau was not required to obtain
the prior written approval of the Attorney General for microphone surveillance,
and none was obtained in this case. It is not certain, moreover, that Attorney
General Kennedy was ever specifically informed that Congressman Cooley was the
target of a microphone surveillance: a review of this case by Bureau agents in
1966 concluded that “our files contain no clear indication that the Attorney
General was specifically advised that a microphone surveillance was being
utilized . . . . 11 252 It was noted, however, that on the morning of February
17, 1961 — after the microphone was in place but an hour or two before the
meeting actually occurred-the Director spoke with the Attorney General and,
according to Hoover’s contemporaneous memorandum, advised him that the Cooley
meeting was to take place that day and that “we are trying to cover
it.” 253 Hoover also wrote that he “stated [to the Attorney General]
this New York situation is interesting and if we can get it covered we will
have a full record of it,” and that “the Attorney General asked that
he be kept advised . . . .” 254 As noted above, Kennedy did receive a
summary of the results of the meeting, although no specific reference was made
to the technique employed. 255
The 1961 “Sugar
Lobby” investigation did discover that possibly unlawful influence was
being exerted by representatives of the foreign country involved, but it did
not reveal that money was actually being passed to any executive or legislative
branch official. All of the electronic surveillances but two (both of which
were on foreign targets) were discontinued in April 1961, about two weeks after
the administration’s own sugar bill passed the Senate.
The investigation was
reinstituted in June 1962, however, when the Bureau learned that
representatives of the same foreign country might be influencing Congressional
deliberations concerning an amendment to the sugar quota legislation. 256 On
June 26, 1962, the Bureau requested authority for wiretaps on five foreign
establishments plus the office telephones of an attorney who was believed to be
an agent for the foreign country and, again, the residence telephone of the
Clerk of the House Agriculture Committee. Robert Kennedy approved all of these
taps on July 9, 257 and they were instituted about one week later. 258
After one month of operation,
the wiretaps on one foreign establishment and the Clerk of the House
Agriculture Committee had “produced no information of value” and were
consequently discontinued. 259 While there is no indication that the other
wiretaps produced evidence of actual payoffs, they did reveal that possibly
unlawful influence was again being exerted by the foreign government and internal
Bureau permission was obtained to continue them for another sixty days, 260
after which time they were presumably terminated. 261
Jewish Defense League: 1970
and 1971. –
On September 14, 1970, the FBI requested a wiretap on six telephone lines of
the New York Headquarters of the Jewish Defense League, an organization
composed of American citizens who opposed, through both peaceful and violent
means, the Soviet Union’s treatment of Jewish citizens. 262 Attorney General
John Mitchell approved the wiretap on September 15; 262a it was instituted on
October 1 and continued for one month. 262b It was re-authorized for two
three-month periods on January 4, 1971, and March 31, 1971. 263 Coverage was
terminated July 3, 1971. 263a
According to Attorney General
Mitchell, the JDL wiretap was “deemed essential to protect this nation and
its citizens against hostile acts of a foreign power and to obtain foreign
intelligence information deemed essential to the security of the United
States.” 264 More specifically, he contended that the activities of the
Jewish Defense League toward official representatives of the Soviet Union,
which had allegedly included acts of violence such as bombing the offices of a
Soviet trade organization and the Soviet airlines, risked “the possibility
of international embarrassment or Soviet retaliation against American citizens
in Moscow,” especially in light of vigorous protests by the Soviet Union.
265 The wiretap was approved in order to obtain “advance knowledge of any
activities of the JDL” which might have such repercussions; 265a its
re-authorization was sought and obtained on the ground that it had
“furnished otherwise unobtainable information, well in advance of public
statements by the JDL, thereby allowing for adequate countermeasures to be
taken by appropriate police and security forces.” 266
Criminal indictments were
returned against several JDL members in May 1971, and shortly thereafter the
prosecution revealed the existence of the wiretap to the defendants. In the
context of the criminal case, the Government characterized the JDL wiretap as a
“domestic security wiretap” and conceded that it was unlawful. 267
The “foreign intelligence” predicate, however, was raised by Attorney
General Mitchell and other civil defendants in the civil action — Zweiban v.
Mitchell — subsequently filed by sixteen members of JDL who were oveheard on
The District Court in the
Zweibon case agreed with Attorney General Mitchell that the JDL wiretap was in
fact related to United States foreign affairs and held that its authorization
by the Attorney General was a proper exercise of the constitutional power of
the President and his designees. On appeal, the Court of Appeals did not
reexamine the District Court’s finding that the wiretap was originally
predicated on foreign affairs needs 268 because it held that even if one
accepts the foreign relationship predicate, the wiretapping of American
citizens who are neither the agents of nor collaborators with a foreign power
is unconstitutional under the Fourth Amendment. 269
VII. DOMESTIC SURVEILLANCE
The possibilities for abuse of
warrantless electronic surveillance have clearly been greatest when this
technique is directed against American citizens and domestic organizations. The
application of vague and elastic standards for wiretapping and bugging has
resulted in electronic surveillances which, by any objective measure, were
improper and seriously infringed the Fourth Amendment rights of both the
targets and those with whom the targets communicated. Americans who violated no
criminal law and represented no genuine threat to the “national
security” have been targeted, regardless of the stated predicate. In many
cases, the implementation of wiretaps and bugs has also been fraught with
procedural violations, even when the required procedures were meager, thus
compounding the abuse. The inherently intrusive nature of electronic
surveillance, moreover, has enabled the Government to generate vast amounts of
information — unrelated to any legitimate governmental interest — about the
personal and political lives of American citizens. The collection of this type
of information has, in turn, raised the danger of its use for partisan
political and other improper ends by senior administration officials.
A. Questionable and Improper
Selection of Targets
Judged against the principles
established in the 1972 Keith case, nearly all of the Americans, unconnected
with a foreign power, who were targets of warrantless electronic surveillance
were improperly selected. Even without retrospective Fourth Amendment analysis
of pre-Keith electronic surveillances, however, a close review of some of the
particular cases 269a outlined above suggests that (regardless of whether the
ostensible predicate was violence, “subversion,” or any other basis)
the standards for approval of electronic surveillances were far too broad to
restrict the use of this technique to cases which involved a substantial threat
to the nation. Moreover, the use of warrantless electronic surveillance against
certain categories of individuals, such as attorneys, Congressmen and
Congressional staff members, and journalists, has revealed an insensitivity to
the values inherent in the Sixth Amendment and in the doctrines of
“separation of powers” and “freedom of the press.”
1. Wiretaps Under the
“Domestic Security” Standard
In 1940, President Roosevelt
approved the use of wiretapping against “persons suspected of subversive
activities against the Government of the United States.” 270 As discussed
in Section II, this formulation was supplemented by President Truman in 1946 to
include “cases vitally affecting the domestic security, or where human
life is in jeopardy.” 271 Several cases from the period 1960 to 1965 (when
the “domestic security” standard was replaced by President Johnson’s
“national security” standard) suggest the ease with which the term
“domestic security” was stretched to cover the targeting of Americans
who posed no substantial threat to the internal security of the country.
Prior to the institution of
the 1961 and 1962 “Sugar Lobby” wiretaps, 272 for example, the
Government did possess some evidence of possibly unlawful influence by foreign
officials and some evidence of the importance of the sugar quota legislation to
the foreign nation involved. But there was clearly no evidence that “human
life” was in jeopardy, and neither the possibility of unlawful influence
nor the desire to gain information relevant to our relations with the foreign
country had a significant impact on the domestic security. The
documentary record of the investigation, moreover, contains no suggestion that
the three Agriculture Department employees, one Congressional staff aide, and
two lobbyists who were tapped represented any internal security threat.
In the case of the 1961
wiretap on Lloyd Norman, 273 the FBI apparently had no information beyond the
fact of his authorship of the “suspect” article that Norman had
obtained any classified material or that a leak had actually occurred. Norman himself
told Bureau agents when interviewed that “he based his article on
speculation and conjecture . . .” 274 and a Pentagon source indicated that
he “had no factual information as to who leaked the information or that
Norman was actually the person who obtained the information.” 275 The
wiretap subsequently produced no information which suggested that Norman had
received any classified information. 276 According to an internal summary of
the final FBI report on the “leak”: “The majority of those
interviewed thought a competent, well informed reporter could have written the
article without having reviewed or received classified data.” 277 This
wiretap, in short, was approved by Robert Kennedy without any apparent evidence
that the target had actually obtained classified information: the wiretap
results, Norman’s personal interview with the FBI, and the entire investigation
all suggested, in fact, that he had not.
In April 1964, Kennedy
approved “technical coverage” (electronic surveillance) on Malcolm X
after the FBI advised him that the Nation of Islam leader was “forming a
new group” which would be “more aggressive” and would
“participate in racial demonstrations and civil rights activities.”
278 The only indication of possible danger reflected in the wiretap request,
however, was that Malcolm X had “recommended the possession of firearms by
members for their self-protection.” 279
The wiretaps, discussed above,
which were placed between 1962 and 1965 as part of COMINFIL investigations,
also show the lengths to which the “domestic security” standard could
be stretched. Most of these wiretaps were based not on specific actions of the
targets that threatened the domestic security but on the possibility that the
targets, consciously or even unwittingly encouraged by communists, would engage
in such activities in the future. While the Attorney General and the FBI may
properly have been concerned about certain advisors to Dr. Martin Luther King,
Jr., for example, no serious argument can be made that Dr. King himself jeopardized
the nation’s security. Yet King was the target of no fewer than five wiretaps
between 1963 and 1965, and an associate of his (who was not one of his
suspected advisors) was also wiretapped in 1964.
In the case of the Student
Non-Violent Coordinating Committee, even potential communist
infiltration was apparently seen as sufficient to justify a wiretap under the
“domestic security” standard. The request for a wiretap on SNCC which
was sent to Attorney General Katzenbach in 1965 noted that “confidential
informants” described SNCC as “the principal target for Communist
Party infiltration among the various civil rights organizations” and
stated that some of its leaders had “made public appearances with leaders
of Communist-front organizations” and had “subversive
backgrounds.” 280 The FBI presented no substantial evidence, however, that
SNCC was in fact infiltrated by Communists — only that the organization was
allegedly a target for such infiltration in the future.
2. Microphone Surveillances
Under the “National Interest” Standard
Between 1954 and 1965, the
prevailing standard for the approval of microphone surveillances was that
established by Attorney General Brownell in 1954. “Considerations of
internal security and the national safety are paramount,” he then wrote,
“and, therefore, may compel the unrestricted use of this technique in the
national interest.” 281
Under this standard, J. Edgar
Hoover approved the bugging of Congressman Cooley’s hotel room in February
1961, in connection with the “Sugar Lobby” investigation. Law
enforcement purposes or the need to gather foreign intelligence information may
arguably have supported this surveillance, 281a but the documentary record of
the Sugar Lobby investigation reveals no genuine “internal security”
or “national safety” justification for the Cooley bug. 282
This standard was also used to
justify the fifteen microphone surveillances of Dr. Martin Luther King, Jr.,
between January 1964 and October 1965. Significantly, FBI internal memoranda
with respect to some of these installations, make clear that they were planted
in Dr. King’s hotel rooms for the express purpose of obtaining personal
information about him rather than for internal security purposes. 283 The
validity of the “national interest” rationale for the other bugs –
and for the microphone surveillances of certain associates of Dr. King — is
also open to serious question. 284
At the 1964 Democratic
National Convention in Atlantic City, New Jersey, the FBI also planted a
microphone in the joint headquarters of the Student Non-Violent Coordinating
Committee and the Congress on Racial Equality. 285 The only reason for the SNCC
bug expressed in contemporaneous FBI documents was the following:
Sixty members of the SNCC from
Jackson, Mississippi, plan to attend the Convention to assist in seating the
Mississippi Freedom Democratic Party delegation. This group also reportedly
will utilize walkie-talkies in connection with their planned demonstrations.
A 1975 Inspection Report on
the FBIs activities at the 1964 Convention speculated that the bug may have
been installed because the Bureau had information at that time that “an
apparent member of the Communist Party, USA, was engaging in considerable
activity, much in a leadership capacity in the Student Non-Violent Coordinating
Committee.” 287 CORE appears to have been an incidental target of the SNCC
bug, since the two groups shared offices in Atlantic City.
3. Wiretaps and Microphone
Surveillances Under the Five Criteria Based on Section 2511 (3)
Improper and questionable
selection of targets continued after the Justice Department altered the
criteria under which wiretaps and bugs could be authorized to conform with the
five categories set forth by Congress in Section 2511(3) of the 1968 Omnibus Crime
Control Act. (These categories are discussed at p. 288-290.)
There does not appear to have
been any genuine national security justification, for example, supporting the
“Plumbers” wiretap on Joseph Kraft’s Washington residence or the
FBI’s bug in his hotel room abroad. John Ehrlichman testified before the Senate
Watergate Committee that the “national security” was involved, but
did not elaborate further. 288 According to the transcript of the White House
tapes, President Nixon stated to John Dean, on April 16, 1973 that
… What I mean is I think in
the case of the Kraft’s stuff what the FBI did, they were both fine. I have
checked the facts. There were some done through private sources. Most of it was
done through the Bureau after we got — Hoover didn’t want to do Kraft. What it
involved apparently, John, was this: the leaks from the NSC [National Security
Council]. They were in Kraft and others’ columns and we were trying to plug the
leaks and we had to get it done and finally we turned it over to Hoover. And
then when the hullabaloo developed we just knocked it off altogether . . . 289
Beyond these claims, there is
little evidence that any national security issue was involved in the case.
Former Deputy Attorney General and Acting FBI Director William Ruckelshaus
testified: “I did review the information on which the effort was made from
one of the operations out of the White House to put a tap on Mr. Kraft and,
frankly, I could never see any national security justification for doing
so.” 290 Of the hotel room bug, Mr. Ruckelshaus stated: “The
justification would have been that he was discussing with some — asking
questions of some members of the North Vietnamese Government, representatives
of that government. My own feeling is that this just is not an adequate national
security justification for placing any kind of surveillance on an American
citizen or newsman. It just is not an adequate justification . . .” 291
Mr. Kraft stated in a 1974 Congressional hearing that he was in contact with
North Vietnamese officials while he was overseas in 1969, but he noted that
this was a common practice among journalists and that he never knowingly
published any classified information on the basis of these or any other
contacts he made there. 292 He further stated that Henry Kissinger, then the
President’s Special Adviser for National Security, informed him that he had no
contemporaneous knowledge of either the wiretap or the hotel room bug, and that
former Attorney General Elliot Richardson indicated to him that “there was
no justification for these activities.” 293 Attorney General Edward Levi
recently wrote Mr. Kraft that the FBI’s 115-document file on the columnist
“did not indicate that Mr. Kraft’s activities posed any risk to the
national interest.” 294
There is also no evidence of a
“national security” justification for the physical surveillance or
the proposed electronic surveillance of Kraft in the fall of 1969. A Bureau
memorandum suggests that the Attorney General did desire some type of coverage
of Kraft, 295 but the record reveals no purpose for this coverage.
Perhaps significantly, the
physical surveillance was discontinued after five weeks because it had
“not been productive.” 296 Apparently, the Attorney General himself
was unconvinced that a genuine “national security” justification
supported the Kraft surveillance: he refused to authorize the requested wiretap
and it was consequently never implemented.
Wiretaps” in 1969, 1970, and 1971 clearly reveal the relative ease with
which improper targets can be selected for wiretapping. Shortly after these
wiretaps were revealed publicly, President Nixon stated that they had been
justified by the need to prevent leaks of classified information harmful to the
“national security.” 297 In the cases of several of these taps,
however, no “national security” claim was advanced in the supporting
documents that went to the Attorney General requesting authorization. Two of
the targets were domestic affairs advisers at the White House, who had no
foreign affairs responsibilities and apparently had no access to classified
foreign policy materials. According to Bureau memoranda, their coverage was not
requested through the President’s National Security Advisor or his assistant,
as Bureau memoranda indicate others in this series were, 298 but by the White
House directly: John Mitchell approved the first of these two taps at the
request of “higher authority;” 299 the second of these two was
requested by H. R. Haldeman. 300
A third target was a White
House speech writer who had been overheard on an existing tap agreeing to
provide a reporter with background information on a Presidential speech
concerning not foreign policy but revenue sharing and welfare reform. 301 This
tap was also requested by the White House directly. The reinstatement of the
tap on one National Security Council staff member was apparently requested by
H. R. Haldeman simply because “they have some concern [about him]; they
may have a bad apple and have to get him out of the basket.” 302 The last
four requests which were sent to the Attorney General, including that for
reinstatement of the tap on the NSC staff member, do not mention any national
security justification to support the requests. 303 While national security
issues were at least arguably involved in some of the taps, in short,
additional targets were selected with no national security basis at all. As
William Ruckelshaus has testified:
I think some of the
individuals who were tapped, at least to the extent I have reviewed the record,
had very little, if any, relationship to any claim of a national security tie
… I think that as the program proceeded and it became clear to those who
could sign off on taps how easy it was to institute a wiretap under the present
procedure that those kinds of considerations [i.e., genuine national security
justifications] were considerably relaxed as the program went on. 304
As noted in Section VI above,
wiretaps were -also placed on three antiwar organizations which were involved
in planning the “March on Washington” in November 1969. The first of
these three wiretaps, approved by Attorney General Mitchell on November 6, was
directed against the New Mobilization Committee to End the War in Vietnam
(NMC). 305 The FBI’s request for coverage of this group noted that the anticipated
size of the demonstration was cause for “concern” should violence
break out, but it made no claim that NMC members in particular engaged in or
were likely to engage in violent activity. The entire “justification”
portion of the memorandum sent to John Mitchell reads as follows:
The New Mobilization Committee
to End the War in Vietnam (NMC) is coordinating efforts for a massive antiwar
manifestation to take place in Washington, D.C., November 12-16, 1969. This
group maintains a Washington, D.C., office at 1029 Vermont Avenue, Northwest,
where the planning takes place.
This demonstration could
possibly attract the largest number of demonstrators ever to assemble in
Washington, D.C. The large number is cause for major concern should violence of
any type break out. It is necessary for this Bureau to keep abreast of events
as they occur, and we feel that in this instance advance knowledge of plans and
possible areas of confrontation would be most advantageous to our coverage and
to the safety of individuals and property. Accordingly, we are requesting
authorization to install a telephone surveillance on the Washington office of
the NMC. 306
Five days after he approved
the first tap, the Attorney General authorized wiretaps on the Vietnam
Moratorium Committee and a third antiwar organization, both of which were
“closely coordinating their efforts with NMC in organizing the
demonstration.” 307 The only additional justification given for the
wiretap on the Vietnam Moratorium Committee was that the group “has recently
endorsed fully the activities of the NMC concerning the upcoming antiwar
In 1970, approval for a
wiretap on a “New Left-oriented campus group” was granted by Attorney
General Mitchell on the basis of an FBI request which included, among other
factors deemed relevant to the necessity for the wiretap, evidence that the
group was attempting “to develop strong ties with the cafeteria,
maintenance and other workers on campus” and wanted to “go into
industry and factories and … take the radical politics they learned on the
campus and spread them among factory workers.” 309
This approval was renewed
three months later despite the fact that the request for renewal made no
mention of violent or illegal activity by the group. The value of the wiretap
was shown, according to the FBI, by such results as obtaining “the
identities of over 600 persons either in touch with the national headquarters
or associated with” it during the prior three months. 310 Six months after
the original authorization the number of persons so identified had increased to
1,428; and approval was granted for a third three-month period. 311
4. Electronic Surveillance of
Journalists, Attorneys and Persons Involved in the Domestic Political Process
As the preceding three
subsections indicate, the elasticity of the standards for instituting
electronic surveillance has permitted this technique to be directed against
American citizens with little or no adequate justification in the particular
case. In addition, the targeting of individuals in certain categories, such as
journalists, attorneys, and persons involved in the domestic political process,
is an inherently questionable practice because of the special concerns which
affect these groups.
Between 1961 and 1972, at
least six American journalists and newsmen were electronically surveilled by
the FBI: Lloyd Norman in 1961; 312 Hanson Baldwin in 1962 ; 313 the editor of
an anti-Communist newsletter in 1965; 314 Joseph Kraft in 1969; 115 and two
American newsmen in connection with the “Seventeen Wiretaps” during
the period 1969 to 1971. 316 All of these surveillances were ostensibly
conducted to determine the source of leaks of classified information.
The wiretapping of journalists
in the investigation of “leaks,” however has proven to be a fruitless
enterprise. As former Secretary of State Dean Rusk stated:
Tapping newsmen will not stop
leaks and for the most part is not even going to uncover leaks. There are so
many different ways in which leaks can be made and from so many different
quarters that there is no way to get at the business of leaks and on sheer
practical grounds this is rather foolish policy to pursue. 317
Aside from matters of
practicality, the Constitution gives special protection to “freedom of the
press.” The precedent set by wiretapping newsmen inevitably tends to
undermine the Constitutional guarantee of a free and independent press.
During the 1960s there were
also numerous wiretaps on the office telephones of attorneys. In the course of
the Sugar Lobby investigation in 1962, ten telephone lines of a Washington,
D.C., law firm were wiretapped in order to intercept the conversations of a
single lawyer who was believed to be acting as a lobbyist for foreign
interests. 318 In that same year, the office telephone of an advisor to Dr.
Martin Luther King, Jr. — also a lawyer — was wiretapped and his office was
bugged ; 319 his telephone was wiretapped again in 1965. 320 A second attorney
who advised Dr. King was wiretapped in 1963 ; 321 and the office telephone of
an attorney who was in frequent contact with the editor of an anti-Communist
newsletter was wiretapped in 1965. 322 Attorneys have also been frequently
overheard on wiretaps not specifically directed at them. The wiretap on the
headquarters of the Jewish Defense League in 1970 and 1971, for instance,
intercepted the conversations between Bertram Zweibon, an attorney for several
JDL members, and his clients. 323
Both direct and indirect
electronic surveillances of attorneys, such as those listed above, inevitably
jeopardize the Sixth Amendment-based attorney-client privilege, because this
technique, by its intrusive nature, is capable of providing the means by which
the FBI and the Justice Department can learn the legal strategy to be used by
actual and potential defendants as well as other information given in
confidence by clients to their attorneys. In order to minimize the possibility
of violating the attorney-client privilege, FBI monitoring agents in
court-ordered electronic surveillance cases are currently under instructions to
shut off interception equipment upon the commencement of conversations between
a client and his attorney concerning a “pending criminal case.” 324
This policy is also applied to warrantless electronic surveillances. 325 As a
practical matter, however, it is difficult, if not impossible, to comply fully
with this requirement since the monitoring agent must listen to the beginning
of such a conversation even to recognize it.
In the Jewish Defense League
case, the wiretap continued for more than a month after federal criminal
indictments were returned against several JDL members. In violation of a
specific instruction from the Attorney General to suspend the overhearing and
recording of conversations between “individuals who are or may be
defendants or attorneys in pending Federal cases,” 326 Bureau agents
overheard and recorded conversations between some of the indicted JDL members
and their attorney, Mr. Zweibon. The District of Columbia Court of Appeals
wrote in regard to this matter:
When criminal indictments have
already been returned against some subjects of a surveillance, as was true in
this case…. surreptitious surveillance may … deny those subjects effective
assistance of counsel in derogation of their Sixth Amendment rights … We do
not mean to suggest that appellees [Attorney General Mitchell and other
government officials] were even partially motivated by a desire to overhear
privileged attorney-client communications concerning pending criminal trials
… However, we note that such motivations may prompt surveillance in other
situations and thus constitute another abuse which prior judicial authorization
may help to curb. 327
Electronic surveillance of
persons involved in the domestic political process, such as Congressmen,
lobbyists, and Congressional aides, also raises special problems. Information
is often the key to power; and the ability of high executive officials to use
electronic surveillance to obtain information about their political opponents
can give the President and his aides enormous influence. Apart from violating
the rights of the surveillance targets, wiretapping and bugging on behalf of
the President’s political interests destroys the Constitutional system of
checks and balances designed to limit the exercise of arbitrary power.
Electronic surveillance has
been used to serve the interests of Presidents in almost every political arena;
it has been a resource for executive power that has tempted administrations of
both political parties. Officials succumbed to the temptation with a
consistency which demonstrates the immense danger of vesting authority over the
use of such techniques solely within the Executive Branch.
B. Procedural Violations
Frequent violations of the
internal procedural requirements for warrantless electronic surveillance have
compounded the abuses to which this technique is prone. Wiretaps and bugs have
often been installed without the prior authorization of the Attorney General
and at times without prior authority from Bureau Headquarters, thus defeating
one of the few checks on the unrestricted use of electronic surveillance.
Certain very sensitive surveillances have also been intentionally excluded from
the ELSUR Index, rendering impossible the retrieval of overhears and other
information about the surveillances through a regular file search. In two
cases, surveillance records were physically removed from FBI Headquarters and
stored at the White House. The occurrence of procedural violations such as
these have doubtlessly facilitated the improper use of electronic surveillance
of American citizens.
The failure of the FBI to
secure the necessary prior approval of the Attorney General in a number of
wiretapping cases has been described above. Wiretaps directed against Lloyd
Norman, Hanson Baldwin’s secretary, a former FBI agent, and Morton Halperin
were all instituted and continued for a period of days without any approval or
in some cases, apparently even knowledge, on the part of Attorneys General. 329
No explicit approval was ever secured from the Attorney General for two of the
four wiretaps in the Charles Radford series and, also in violation of existing
regulations, no written approval was granted for the other two. After the
requirement of prior Attorney General approval for microphone surveillance was
imposed in 1965, the FBI installed at least three bugs in hotel rooms occupied
by Dr. Martin Luther King, Jr., without advising the Attorney General before
the fact. 330 Nor was the Attorney General’s approval ever sought for the FBI’s
bugging of columnist Joseph Kraft in 1969. Both the SNCC bug in 1964 and an
attempted microphone surveillance of Dr. King in 1966, moreover, occurred
without even the approval of FBI Director Hoover: a 1975 Inspection Report on
the Bureau’s activities at the 1964 Democratic National Convention states that
“a thorough review of Bureau records fails to locate any memorandum
containing authorization for [the bug planted at SNCC headquarters] ;” 331
and on a January 1966 memorandum reflecting the New York Office installation of
a microphone in Dr. King’s room, Associate Director Clyde Tolson wrote,
“No one here approved this. I have told [FBI Assistant Director William
C.] Sullivan [who bad authorized the New York office to install the bug] again not
to institute mike surveillance without the Director’s approval.” 332
Violations of the requirement
of periodic re-authorization of electronic surveillances, imposed in 1965, have
also magnified this technique’s abuses in the domestic area. Despite the lack
of any evidence of a “national security” leak obtained from any of the
“Seventeen Wiretaps,” for example, — the President himself privately
admitted that the taps were unproductive and useless in determining the source
of leaks 333 — ten of them remained in operation for periods longer than
ninety days and none was ever re-authorized. After the tap on Halperin had been
in place for two months, William C. Sullivan wrote the Director that
“Nothing has come to light [on this tap] that is of significance from the
standpoint of the leak in question ;” 334 yet that tap continued for
another nineteen months without re-authorization. The Halperin tap, and that on
another National Security Council staff member, moreover, remained in operation
long after both of these targets left the employ of the National Security
Council and became advisors to Senator Edmund Muskie, then the leading
Democratic prospect for the Presidency. These targets no longer had access to
classified information but they were clearly in a position to provide political
intelligence to the White House unwittingly. 335 The wiretap on Charles Radford
was similarly never re-authorized, although it continued for nearly six months
after it was instituted in December 1971.
Because of their perceived
sensitivity, the records of some wiretaps and bugs were purposefully not
contemporaneously integrated into the regular FBI files for warrantless
electronic surveillance. When the Bureau was first advised of the
“Seventeen Wiretaps,” for example, it was told that their sensitivity
precluded the maintenance of multiple records; 336 consequently, only one copy
of the records was retained and no entries were made in the ELSUR Index.
According to a 1973 FBI memorandum regarding the Radford wiretaps, “Our
records have been kept completely isolated from other FBI records, and there are
no indices whatsoever relating to this project.” 337 And in the case of
Joseph Kraft, most of the summaries which W. C. Sullivan sent to J. Edgar
Hoover from abroad were marked “DO NOT FILE” to make their retrieval
through a normal file search impossible. 338 In both the “Seventeen
Wiretaps” case and the Kraft case, moreover, the limited surveillance
records that were maintained were physically removed from the FBI headquarters
and taken by Assistant Attorney General Robert Mardian to John Ehrlichman at
the White House, apparently at the instruction of President Nixon. 331 On May
12, 1973, these files were discovered by Acting FBI Director William
Ruckelshaus in a safe in Ehrlichinan’s outer office and returned to Bureau
The circumvention of normal
approval and filing requirements, in short, accompanied and facilitated the
improper wiretapping and bugging of American citizens. The knowledge that these
requirements could, in secrecy, be ignored inevitably increased the likelihood
that wiretaps and bugs would be employed without substantial justification.
C. Collection and
Dissemination of Information Irrelevant to Legitimate Governmental Objectives
Wiretaps and microphones, by
their nature, inevitably intercept conversations which are totally unrelated to
the authorized purpose of the surveillance. Virtually all conversations are
overheard, no matter how trivial, personal, or political they might be. In
addition, the techniques are incapable of a surgical precision which would
permit the FBI to overhear only the target’s conversations. Anyone using a
tapped telephone or conversing in a bugged room can be overheard. These
characteristics of electronic surveillance have directly resulted in another
type of abuse: the collection of information, including purely personal and
political information, for dissemination to the highest levels in the
1. Personal Information
One extreme example of the
collection and dissemination of personal information is found in the
surveillance of an American citizen at the direct request of the White House.
341 Among the items of interest that the FBI obtained from a wiretap on this
individual — and delivered in utmost secrecy to a Presidential aide — were
the following: that “meat was ordered [by the target’s family] from a
grocer”; that the target’s daughter had a toothache; that the target
needed grass clippings for a compost heap he was building; and that during a
telephone conversation between the target’s wife and a friend the “matters
discussed were milk bills, hair, soap operas, and church.” 342 Even the
FBI evidently realized that this type of information was unrelated to national
security: for the last four months of the surveillance, most of the summaries
that were disseminated to the White House began, “The following is a
summary of non-pertinent information concerning captioned individual as of . .
From the bug planted in Joseph
Kraft’s hotel room, John Ehrlichman learned about this columnist’s social
contacts there and his views about the activities of an American politician.
Wiretaps” supplied the White House with a wealth of information about the
personal lives of the targets and the people with whom they communicated. In
the private words of President Nixon, these wiretaps produced “just gobs
and gobs of material: gossip and bull.” 344 The White House did not learn
that any of them were responsible for any national security leaks, but it did
learn about their social contacts, their vacation plans, their employment
satisfactions and dissatisfactions, their marital problems, their drinking
habits, and even their sex lives. 345 The fact that an Associate Justice of the
United States Supreme Court was overheard on one of these wiretaps and intended
to review a manuscript written by one of the subjects was also disseminated to
the White House. 346
The most blatant example of
the collection of entirely personal information and its dissemination to
high-ranking government officials occurred in connection with the FBI’s investigation
of Dr. Martin Luther King Jr. As noted above, the Bureau installed at least
fifteen bugs in hotel rooms occupied by Dr. King, some of which were installed
for the express purpose of collecting personal information. In December 1964,
the FBI, with the approval of the White House, disseminated a monograph on
alleged communist influence in the civil rights movement to the heads of
intelligence agencies as well as the State Department, the Defense Department,
and USIA. 347 This monograph contained a section on the personal life of Dr.
King that was apparently based in part on the information obtained from these
bugs. 348 Between 1965 and 1968, at least two updated versions of the
monograph, including the section on King’s personal life, were similarIy
distributed. 349 Other FBI summaries about Dr. King which were based in part on
microphone surveillance were also disseminated to executive branch officials
outside the FBI. 349a
2. Political Information
Political information useful
to the administration in power has also been obtained from electronic
surveillance of American citizens and disseminated to Attorneys General and
Presidents. While the generation of this type of information was incidental, in
most cases, to the purpose of the wiretap, its dissemination has armed key
officials with knowledge of the strategies of their political opponents.
The “Sugar Lobby”
Investigation. — The “Sugar Lobby” wiretaps and microphone bugging during the
Kennedy administration serve as one example of the collection and dissemination
of essentially political information. Beyond the Attorney General’s concern
about American foreign policy and the possibility of bribery, it is clear that
at the time the initial wiretaps were placed, the Kennedy administration opposed
any sugar bill that provided for the favorable quotas sought by the foreign
government in question. The administration wanted a bill that would give the
“Executive Branch necessary flexibility in establishing country quotas,
ostensibly for the purpose of denying quotas to countries (such as [this
particular foreign country]) whose foreign policy was at odds with ours. 350
Even if the 1961 and the 1962 series of wiretaps were arguably legitimate under
electronic surveillance law of the early 1960s, they generated some information
that was potentially useful to the Kennedy administration in terms of this
legislative objective. Given the nature of the techniques used and the targets
they were directed against, the collection of such information is not surprising.
One summary of an overhear
that was disseminated to the Attorney General noted that a particular lobbyist
“mentioned he is working on the Senate and has the Republicans all lined
up …” 351 This same lobbyist was also reported to have said that
“he had seen two additional representatives on the House Agriculture
Committee, one of whom was ‘dead set against us’ and who may reconsider, and
the other was neutral and ‘may vote for us.'” 352 Robert Kennedy further
learned that the “friend” of one of the foreign officials “was
under strong pressure from the present administration, and since the ‘friend’
is a Democrat, it would be very difficult for him to present a strong front to
a Democratic administration.” 353 From the bug in Congressman Cooley’s
hotel room, the Attorney General was informed that among other matters Mr.
Cooley believed he “had not accomplished anything” and that “he
had been fighting over the Rules Committee and this had interferred with his
attempt to organize.’ ” 354
In general, coverage of the
entire situation was “intensified during the time preceding the passage of
the sugar quota law,” ‘355 and was apparently terminated in 1961 when the
bill desired by the administration passed the Senate. According to a memorandum
of a meeting between Attorney General Kennedy and Courtney Evans, an Assistant
Director of the FBI, Kennedy stated that “now [that] the law has passed he
did not feel there was justification for continuing this extensive
investigation.” 356 The Bureau’s own evaluation of these wiretaps in 1966
reads in part: “Undoubtedly, data from our coverage contributed heavily to
the administration’s success in [passage of the bill it desired].” 357
The 1964 Democratic National
— The dissemination of political information from electronic surveillance was
repeated during the Johnson administration. At the request of the White House,
the FBI sent a special squad to the Democratic National Convention site, in
Atlantic City, New Jersey, on August 22, 1964, ostensibly to assist the Secret
Set-vice in protecting President Lyndon Johnson and to ensure that the
convention itself would not be marred by civil disruption. Approximately thirty
Special Agents, headed by Assistant Director Cartha DeLoach, “were able to
keep the White House fully apprised of all major developments during the
Convention’s course” by means of “Informant coverage, by use of
various confidential techniques, by infiltration of key groups through use of
undercover agents, and through utilization of agents using appropriate cover as
reporters …” 358 Among the “confidential techniques” were two
electronic surveillances: a wiretap on the hotel room occupied by Martin Luther
King, Jr., and a microphone surveillance of SNCC and CORE. 359
The White House apparently did
not know of the existence of either of these electronic surveillances. Walter
Jenkins, an Administrative Assistant to President Johnson who was present at
the Convention and the recipient of information developed by the Bureau, stated
that he was unaware that any of the intelligence was obtained by wiretapping or
bugging. 360 DeLoach has testified that he is uncertain whether he ever
informed Jenkins of these sources. 361 It is clear, however, that Jenkins, and
presumably President Johnson, nonetheless, received a significant volume of
information from the King tap and the SNCC bug — much of it purely political
and only tangentially related to possible civil unrest.
One of the most important
issues that might have disturbed President Johnson at the Atlantic City
Convention was the seating challenge of the regular, all-white Mississippi
delegation by the predominantly black Mississippi Freedom Democratic Party
(MFDP). From the electronic surveillances of King and SNCC, the White House was
able to obtain the most sensitive details of the plans and tactics of
individuals supporting the MFDP’s challenge. On August 24, 1964, for example,
Cartha DeLoach, the FBI official who was in charge of the Bureau’s special
squad in Atlantic City, reported to Jenkins that:
King and [an associate] were
drafting a telegram to President Johnson . . . to register a mild protest.
According to King, the President pledged complete neutrality regarding the
selecting of the proper Mississippi delegation to be seated at the convention.
King feels that the Credentials Committee will turn down the Mississippi
Freedom Party and that they are doing this because the President exerted
pressure on the committee along this line. The MFDP wanted to get the issue
before the full convention but because of the President’s actions, this will be
The next day another associate
of King’s contacted (on the telephone in King’s room) a member of the MFDP who:
said she thought King should
see Governor Endicott Peabody of Massachusetts, Mayor Robert Wagner of New York
City, Governor Edmund G. (Pat) Brown of California, Mayor Richard Daley of
Chicago, and Governor John W. King of New Hampshire. 363
DeLoach noted that “the
purpose of King’s seeing these individuals is to urge them to call the White
House directly and put pressure on the White House in behalf of the MFDP.”
364 Jenkins was also informed that:
MFDP leaders have asked
Reverend King to call Governor Egan of Alaska and Governor Burns of Hawaii in
an attempt to enlist their support. According to the MFDP spokesman, the Negro
Mississippi Party needs these two states plus California and New York for the
roll call tonight. 365
Significantly, a 1975 FBI
Inspection Report stated that “several Congressmen, Senators, and
Governors of states …” were overheard on this King tap. 366
DeLoach reported, too, that an
SCLC staff member told a representative of the MFDP: “Off the record, of
course, you know we will accept the Green compromise proposed;” and for
Jenkins’ benefit, added that “[t]his refers to the proposal of
Congresswoman Edith Green of Oregon.” 367
On August 26, 1964, King was
overheard conferring with another civil rights leader on a number of matters
relating to the convention. The report that was sent to Jenkins on this conversation
included the following paragraph:
Discussion of a
Vice-Presidential nominee came up and King asked what [the other leader]
thought of Hugh [sic] Humphrey, and [the other individual] said Hugh Humphrey
is not going to get it, that Johnson needs a Catholic … to go into the
ghettos [sic] where Johnson will not journey and, therefore, the Vice-President
will be Muskie of Maine … 368
According to both Cartha
DeLoach and Walter Jenkins, the Bureau’s coverage in Atlantic City did not
serve political ends. 369 From the examples cited above, however, it is clear
that the FBI’s electronic surveillance did generate a great deal of potentially
useful political intelligence, as well as political commentary that was totally
unrelated to the possibility of civil unrest. A document located at the Lyndon
B. Johnson Presidential Library, moreover, suggests that at least one actual
political use was made of the FBI reports. This unsigned memorandum, which
Walter Jenkins said was clearly intended for the President (although he
disclaimed authorship), 370 disclosed Martin Luther King’s strategy in
connection with a meeting to be attended by President Johnson. Among other
items, this memorandum reports that:
Deac DeLoach called me this
morning to say that his information was that King had been advised by Joe Rauh
[an attorney for the MFDP] that in this morning’s meeting you were not going to
let the group discuss seating of the “freedom party” delegation, but would
take the initiative. King was, last night, pondering on whether to refuse to
come to the meeting on the grounds of short notice …
Deac’s information was that if
King did show … he was instructed to “speak up to the President.”
Although FBI and White House
officials claimed it was implemented to prevent violence at the Convention
site, in short, the Bureau’s coverage in Atlantic City — including two
electronic surveillances — undeniably provided useful political intelligence
to the President as well. 372
Wiretaps.” — In more recent years, FBI wiretaps have supplied political information
to the Nixon administration as well. Since many of the “Seventeen
Wiretaps” targets were personally involved in the domestic political process
— as White House aides, reporters, and Congressional consultants — this
program inevitably collected large amounts of essentially political
information, much of which was disseminated to the White House. Among the
examples of such items are the following:
— That one of the targets
told a friend it “is clear the administration will win on the ABM by a
two-vote margin.” Two Senators who apparently supported the
administration’s position were named. 371
— That one of the targets
“recently stated that he was to spend an hour with [one Senator’s] Vietnam
man, as [that Senator] is giving a speech on the 15th.” 374
— That one of the targets
said Congressional hearings on Vietnam were being postponed because a key
Senator did not believe they would be popular at that time. 375
— That a well-known
television news correspondent “was very depressed over having been
‘singled out’ by the Vice President.”
— That a friend of one of the
targets wanted to see if a particular Senator would “buy a new [antiwar] amendment”
and stated that “‘They are going to meet with [another influential
— That a friend of one of the
targets said the Washington Star planned to publish an article critical of
Henry Kissinger. 378
— That a friend of one of the
targets described one Senator as marginal” on the Church-Cooper Amendment
but noted that another Senator might be persuaded to support it. 379
— That one of the targets
helped a former Ambassador write a press release criticizing a recent speech by
President Nixon in which the President “attacked” certain
— That one of the targets
said Senator Mondale was in a “dilemma” over the “trade
— That the friend of one of
the targets said he had spoken to former President Johnson and “Johnson
would not back Senator Muskie for the Presidency as he intended to stay out of
At least one example of a
political use which was made of information such as this has also been
documented. After J. Edgar Hoover informed the President that former Secretary
of Defense Clark Clifford planned to write a magazine article criticizing
President Nixon’s Vietnam policy, 383 Jeb Stuart Magruder wrote John Ehrlichman
and H. R. Haldeman that “We are in a position to counteract this article in
any number of ways. . .” 384 Ehrlichman then noted to Haldeman that
“This is the kind of early warning we need more of — your game planners
are now in an excellent position to map anticipatory action–” 385 and
Haldeman responded, “I agree with John’s point. Let’s get going.” 386
Perhaps significantly, after
May 1970, copies of the letters summarizing the results of these wiretaps were
no longer sent to Henry Kissinger, the President’s national security advisor,
but to H.R. Haldeman, the President’s political advisor.
In summary electronic
surveillance has proven to be a valuable technique for the collection of
foreign intelligence and counterintelligence information within the legitimate
mandate of the FBI. But the history of the use of this technique by the Bureau
also proves that its dangers are equally great: without precise standards and
effective checks to restrain its use, innocent American citizens may be its
victims; without rigid means of restricting the dissemination of information
generated through electronic surveillance, Government officials may learn the
most personal — and the most political — expressions and beliefs of its
1 Attorney General Edward H.
Levi testimony, 11/6/75, Hearings, Vol. 5, p. 68.
2 Office of Security, Domestic
Surveillance summary, undated.
3 Office of Security, Domestic
Surveillance summary, undated.
4 See generally the Select
Committee’s Report on NSA.
5 47 U.S.C. 605.
6 Nardone v. United States,
302 U. S. 397 (1937) ; 308 U. S. 338 (1939).
7 See pp. 278-279.
8 389 U.S. at 358 n. 23.
9 18 U.S.C. 2510-20.
10 18 U.S.C. 2511 (3).
11 407 U.S. at 309 n. 8.
United States v. United States District Court remains the only Supreme Court
case dealing with the issue of warrantless electronic surveillance for
intelligence purposes. Three federal Courts of Appeal have considered this
issue since 1972, however. The Third Circuit and the Fifth Circuit both held
that the President may constitutionally authorize warrantless electronic
surveillance for foreign counterespionage and foreign intelligence purposes.
(United States v. Butenko, 494 F.2d 593 (3d Cir. 1974), cert. denied sub nom.
Ivanov v. United States, 419 U.S. 881 (1974) ; and United States v. Brown, 484
F.2d 418 (5th Cir., 1973), cert. denied 415 U.S. 960 (1974).) The Court of
Appeals for the District of Columbia held unconstitutional the warrantless
electronic surveillance of the Jewish Defense League, a domestic organization
whose activities allegedly affected U.S. – Soviet relations but which was
neither the agent of nor in collaboration with a foreign power. (Zweibon v.
Mitchell, 516 F.2d 594 (D.C. Cir. 1975) (en bane).) See p. 292.
12 See p. 283.
13 See p. 298.
14 See pp. 342-343.
15 See generally, NSA Report:
16 NSA Report: Sec. II.
17 Consensual electronic
surveillance, where one party to the conversation consents to the monitoring,
has been held by the Supreme Court not to be coveted by the Fourth Amendment.
(United States v. White, 401 U.S. 745 (1971.) However, the Committee has
discovered that the FBI used such techniques in unjustified circumstances and
with inadequate controls.
In 1970, all FBI field offices
were instructed that “Special Agents in Charge (SACs) may, on their own
initiative, authorize the use of concealed recording devices by a Special Agent
or proven source in covering public appearances by black and New Left
extremists except when such appearances are at educational institutions.”
(Memorandum from FBI Headquarters to all field offices, 11/5/70.)
In view of the broad meaning
given the term “black and New Left extremists” by the Bureau at that
time, this policy vested wide discretion in the field to use consensual
electronic surveillance to record lawful political expression. Bureau
Informants could be “wired” to record everything they heard at a
public meeting, and there was no requirement that the technique be limited to
the investigation of possible crime.
In 1972, however, Attorney
General Richard Kleindienst issued a directive to all federal agencies,
including the FBI, stating:
“All federal departments
and agencies shall, except in exigent circumstances …. obtain the advance
authorization of the Attorney General or any designated Assistant Attorney
General before using any mechanical or electronic device to overhear, transmit,
or record private conversations other than telephone conversations without the
consent of all the participants. Such authorization is required before
employing any such device, whether it is carried by the cooperating participant
or whether it is installed on premises under the control of the
participant.” (Memorandum from Attorney General Kleindienst to the Heads
of Executive Departments and Agencies, 10/16/72.)
18 Memorandum from William
Olson, Assistant Attorney General for Internal Security, to Attorney General
Elliot Richardson, undated.
19 FBI Manual of Rules and
Regulations, Rule change issued 3/1/28.
20 Memorandum from William
Olson to Elliot Richardson, undated.
22 FBI Manual of Rules and
Regulations, Rule change issued 2/19/31.
23 Nardone v. United States,
302 U.S. 397 (1937).
24 Nardone v. United States,
308 U.S. 338 (1939).
25 For example, letter from
Attorney General Robert Jackson to Rep. Hatton Summers, 3/19/41. This
interpretation was undercut by the Third Circuit in 1974. United States v.
Butenko, 494 F.2d 593 (3d Cir., 1974), cert. denied sub nom Ivanov v. United
States, 419 U.S. 881 (1974).
26 Franklin D. Roosevelt,
Confidential Memorandum for the Attorney General, 5/21/40. (Emphasis added.]
Francis Biddle, who became Attorney General in 1941, stated later:
“The memorandum was
evidently prepared in a hurry by the President personally, without
consultation, probably after he had talked to Bob [Attorney General Jackson).
It opened the door pretty wide to wiretapping of anyone suspected of subversive
activities. Bob didn’t like it, and, not liking it, turned it over to Edgar
Hoover without himself passing on each case. When it came to my turn I studied
the applications carefully, sometimes requesting more information, occasionally
turning them down when I thought they were not warranted.” (Francis
Biddle, In Brief Authority, Doubleday & Company, Inc., Garden City, N.Y.
1967, p. 167.)
27 House Joint Resolution 553,
28 Letter from President
Roosevelt to Rep. Thomas Eliot, 2/21/41.
29 Letter from Attorney
General Jackson to Rep. Hatton Summers, 3/19/41. [Emphasis added.]
30 FBI Director Hoover
strongly opposed any legislation requiring a judicial warrant for wiretapping.
He told Attorney General Jackson in 1941:
“Wire-tapping, in my
estimation, should only be used in cases of kidnapping, extortion, espionage
and sabotage. It is, therefore, imperative that the use of it not be known
outside of a very limited circle if the best results are to be obtained. We are
dealing with realities in this matter, and we must recognize that many times
United States Attorneys’ offices are not as close-mouthed as they should be and
that matters handled therein do become known to certain favored representatives
of the press, with the result that items appear in columns that are many times
alarmingly correct. Likewise, we know that there are certain Federal Judges who
are not as close-mouthed as they should be about matters brought before them
and certainly, in those cases in which wiretapping would be used, if limited to
the few violations that I have referred to, they are so interesting and so
mysterious that I fear it would encourage the Sherlock Holmes complex that many
persons have, to whisper about what is being done, and then the value of the
wiretapping would be completely lost. That is why I feel that the Attorney
General of the United States should be the Executive Official designated to
authorize the use of this procedure in certain specific types of
investigations, and that these types of investigations should be very
definitely limited and restricted.” Memorandum from Director Hoover to the
Attorney General, 1/27/41.
31 New York Times, 10/9/41.
Former Attorney General Francis Biddle recalled a meeting with President
Roosevelt regarding the FBI wiretap on Harry Bridges:
“When all this came out in
the newspapers I could not resist suggesting to Hoover that he tell the story
of the unfortunate tap directly to the President. We went over to the White
House together. F.D.R. was delighted; and, with one of his great grins, intent
on every word, slapped Hoover on the back when he had finished, ‘By . . .,
Edgar, that’s the first time you’ve been caught with your pants down!’ The two
men liked and understood each other,” (Biddle, In Brief Authority, p.
32 Francis Biddle, Attorney
General, Confidential Memorandum for Mr. Hoover, 10/9/41. [Emphasis added.]
In a memorandum to Attorney
General Biddle shortly before this press conference, Director Hoover stated,
“It was my understanding in our conversation with the President that the
matter of establishing technical surveillance was to be continued . . .”
(Memorandum from Hoover to Biddle, 10/2/41.)
Assistant Solicitor General
Charles Fahy also wrote a memorandum to Attorney General Biddle prior to the
press conference which attempted to justify warrantless wiretaps not only on
the interpretation of the 1934 Act, but also on the President’s power as
Commander in Chief. Fahy stated:
“What has been said …
seems to me also to leave open the question whether the general purpose and
content of this statute, notwithstanding the rigidness with which the Court has
thus far construed its prohibitions, is intended by Congress to apply to the
President as Commander in Chief of the Army and Navy. It is my opinion that the
Commander in Chief as such may lawfully have divulged to him or to someone on
his behalf intercepted information relative to the security of the nation. If
our armies were in the field within the United States, it seems to me very
clear that the statute would not be construed to prohibit such divulgence. The
fact is our Navy is in a sense in the field now, engaged in perilous duty. Our
general policy against interception and divulgence, the nature of the
wiretapping, and the abuse to which its use lends itself, unite to require that
the use to which I think it may be legally put, be most carefully
circumscribed. But I conclude that divulgence to or on behalf of the Commander
in Chief with respect to matters relating to the military security of the nation
is not illegal.” (Memorandum from Charles Fahy, Assistant Solicitor
General, to the Attorney General, 10/16/41.)
33 Letter from Tom C. Clark,
Attorney General, to the President, 7/17/46. [Emphasis added.]
34 Memorandum from George M.
Elsey to the President, 2/2/50. Harry S. Truman Library.
35 Memorandum from “H. S.
T.” to the Attorney General, draft dated 2/7/50. Harry S. Truman Library.
36 Memorandum from J. Howard
McGrath to Mr. Hoover, 2/26/52.
McGrath added: “It is
requested when any case is referred to the Department in which telephone,
microphone or other technical surveillances have been employed by the Bureau or
other Federal Agencies (when known) that the Department be advised of the facts
at the time the matter is first submitted.”
This passage may have referred
to the problems that had arisen between the FBI and the Justice Department in
the prosecution of Judith Caplon for attempting to deliver government documents
to a Soviet agent. The FBI apparently failed to inform Federal prosecutors of
electronic surveillance of Miss Coplon and the Soviet agent, and subsequent
disclosure of the surveillance led to reversal of her conviction on the grounds
that the trial judge improperly withheld the surveillance records from scrutiny
by defense counsel. United States v. Coplon, 185 F.2d 629 (2d Cir. 1950) On a
second appeal her conviction was reversed because telephone conversations
between the defendant and her attorney were intercepted during the trial.
Coplon v. United States, 191 F.2d 749 (D.C. Cir. 1951).
37 Brownell, The Public
Security and Wiretapping, 39 Cornell L.Q. 195 (1954).
40 H. Rep. 1461, 4/1/54.
41 House Resolution 8649, 100
Cong. Rec. 4653, 4/8/54.
42 Memorandum from Director,
FBI to the Attorney General, 3/8/55.
44 Memorandum from the
Attorney General to the Director, FBI, 3/16/55.
45 Memorandum from William
Olson to Elliot Richardson, undated.
46 Attorney General Order No.
47 A wiretap on Elijah
Muhammed leader of the Nation of Islam, which was originally approved by
Attorney General Brownell in 1957, for example, continued until 1964 without
subsequent re-authorization. (Memorandum from J. Edgar Hoover to the Attorney
General, 12/31/56, initialed “Approved: HB 1/2/57.”)
As former Attorney General
Katzenbach recently testified: “The custom was not to put a time limit on
a tap, or any wiretap authorization. Indeed, I think the Bureau would have felt
free in 1965 to put a tap on a phone authorized by Attorney General Jackson
before World War II.” Nicholas Katzenbach testimony, 11/12/75, p. 87.
48 Memorandum from J. Edgar
Hoover to the Attorney General, 3/30/65.
49 Memorandum from Nicholas
Katzenbach to the President, 4/8/65.
50 Directive from President
Lyndon Johnson to Heads of Agencies, 6/30/65. The restriction on wiretapping in
Katzenbach’s draft order applied to “all federal agenc[ies].” In the
final version, issued by President Johnson, the restriction applied to
51 Directive from President
Johnson to Heads of Agencies, 6/30/65. [Emphasis added.] Mr. Katzenbach
testified that this order “required the specific approval of the Attorney
General and referred to all agencies in the Government, and it was drafted [as]
explicitly . . . as one could draft it, although it has proven rather difficult
because of terms like national security to know precisely what you are dealing
with.” (Nicholas Katzenbach testimony, 5/7/75, p. 15.)
52 Memorandum from J. Edgar
Hoover to the Attorney General, 9/14/65.
53 Memorandum from Nicholas
Katzenbach to J. Edgar Hoover, 9/27/65.
55 385 U.S. 26 (1966).
56 Memorandum from the
Attorney General to all United States Attorneys, 11/3/66, quoting the
Supplemental Memorandum to the Supreme Court in Black v. United States, filed
57 memorandum from the
Attorney General to the Heads of Executive Departments and Agencies, 6/16/67.
As a matter of practice,
Attorney General Clark was more restrictive in approving wiretaps than the
stated policy suggested was necessary. He stated that his practice was “to
confine the area of approval to international activities directly related to
the military security of the United States.” (Testimony of Ramsey Clark,
Hearings before the Subcommittee on Administrative Practice and Procedure,
Committee on the Judiciary, United States Senate (1974).) See p. 349 for an example
of a request involving purely domestic “national security”
considerations which was turned down by Mr. Clark.
58 389 U.S, at 358 n. 23.
59 Wiretapping by private
citizens and unauthorized wiretapping by government employees was also made a
60 A bill drafted by the
Justice Department in 1967 would have specifically authorized the President to
use warrantless electronic surveillance, but it was limited to the three
foreign-related purposes and would have barred the use of information obtained
thereby in judicial or other administrative proceedings. (Hearings on H.R. 5386
before Subcommittee No. 5 of the House Judiciary Committee, 90th Cong., 1st
Sess. 292 (1967).)
During the Senate debate on
the 1968 Act, an amendment was proposed to eliminate the references to the
domestic security purposes for warrantless electronic surveillance. Attorney
General Ramsey Clark endorsed the amendment; and the Justice Department stated,
“The concept of a domestic threat to the national security is vague and undefined.
Use of electronic surveillance in such cases may be easily abused.” (114
Cong. Rec. 14717, 90th Cong., 2d Sess. (1968).) The amendment was defeated.
61 United States v. United
States District Court, 407 U.S. 297, 303–04 (1972). In so interpreting Section
2511(3), the Court relied in part on its legislative history, which made it
clear that the section was not intended to confer any power upon the President.
The Court quoted the remarks of Senator Philip Hart that “. . . [N]othing
in Section 2511(3) even attempts to define the limits of the President’s
national security power under present law, which I have always found extremely
vague. . . . Section 2511(3) merely says that if the President has such a
power, then its exercise is in no way affected by Title Ill.” (407 U.S. at
62 Letter from William Olson
to Attorney General Elliot Richardson, undated.
63 407 U.S. at 310.
64 At the same time the Court
recognized that “domestic security surveillance may involve different
policy and practical considerations apart from the surveillance of ‘ordinary
crime,'” (407 U.S. at 322), and thus did not hold that “the same type
of standards and procedures prescribed by Title III [of the 1968 Act] are
necessarily applicable to this case.” (407 U.S. at 322). The court noted:
“Given [the] potential
distinctions between Title III criminal surveillances and those involving
domestic security, Congress may wish to consider protective standards for the
latter which differ from those already prescribed for specified crimes in Title
III. Different standards may be complete with the Fourth Amendment if they are
reasonable both in relation to the legitimate need of Government for
intelligence information and the protected rights of our citizens.” (407
U.S. at 322-23). 407 U.S. at 309, 321.
65 Testimony of Deputy
Assistant Attorney General Kevin Maroney, Hearings Before the Senate
Subcommittee on Administrative Practice and Procedure 6/29/72, p. 10. This
language paralleled that of the Supreme Court in Keith, 407 U.S. at 309, n. 8.
65a Maroney Testimony,
Hearings before the Senate Subcommittee on Administration Practice and
Procedure, 6/29/72, p. 10.
66 Letter from Attorney
General Edward Levi to Senators Frank Church and Edward Kennedy, 6/24/75.
67 Edward H. Levi testimony,
11/6/75, Hearings, Vol. 5, pp. 70, 71.
Unlike the first three
phrases, the last criterion — “to obtain information certified as
necessary for the conduct of foreign affairs matters important to the national
security of the United States” — does not parallel the language of
69 In Zweibon, the Court of
Appeals rejected the defendant former Attorney General’s theory that a wiretap
on a domestic organization was justified as a proper exercise of the President’s
foreign affairs powers when the activities of that group adversely affected
this country’s relations with a foreign power.
70 United States v. Butenko,
494 F.2d 593 (3d Cir., 1974), cert. denied sub nom. Ivanov v. United States,
419 U.S. 881 (1974) ; and United States v. Brown, 484 F.2d 418 (5th Cir.,
1973), cert. denied 415 U.S. 960 (1974).
“A Justice Department
memorandum states that the current policy of the Attorney General is to
authorize warrantless electronic surveillance “only when it is shown that
its subjects are the active, conscious agents of foreign powers.” This
standard “is applied with particular stringency where the subjects are
American citizens or permanent resident aliens.”
In one instance during 1975,
it was decided that there was not sufficient information to “meet these
strict standards;” and the Department went to a court for “orders
approving, for periods of twelve days each, wiretaps of the telephone of two
individuals.” The court issued the orders, according to this Justice
Department memorandum, even though “there was not probable cause to
believe that any of the particular offenses listed in” the provisions of
the 1968 Act for court-ordered electronic surveillance “was being or was
about to be committed.” The facts supporting the application showed,
according to the Department, “an urgent need to obtain information about
possible terrorist activities”; that the information was “essential
to the security of the United States;” that the information was likely to
be obtained by means of the surveillance; and that it “could not
practicably be obtained by any other means.” The Department has described
this “ad hoc adjustment” of the 1968 statute as “extremely
difficult and less than satisfactory.” (Justice Department memorandum from
Ron Carr, Special Assistant to the Attorney General, to Mike Shaheen, Counsel
on Professional Responsibility, 2/26/76.)
72 S. 3197, introduced
73 Memorandum from William
Olson to Elliot Richardson, undated.
74 In 1944, Alexander Holtzoff,
a Special Assistant to the Attorney General, prepared a memorandum on
“admissibility of evidence obtained by trash covers or microphone
surveillance” in response to a series of hypothetical questions submitted
by the FBI. Holtzoff stated that “evidence obtained by an unlawful search
and seizure in violation of the Fourth Amendment is not admissible as against .
. . the person in control of the premises that have been illegally
searched.” He added that “the secret taking or abstraction of papers
or other property from the premises without force is equivalent to an illegal
search and seizure.” However, Holtzoff expressed the view “that
microphone surveillance is not equivalent to illegal search and seizure”
and “that evidence so obtained should be admissible” even where
“an actual trespass is committed.” (Memorandum from Holtzoff to J.
Edgar Hoover 7/4/44.)
Holtzoff disregarded the
implication of Goldman v. United States, 316 U.S. 129 (1942), that microphone
surveillance involving trespass would violate the Fourth Amendment.
Nevertheless, the Goldman case did not deal directly with this issue, since it
upheld the constitutionality of a microphone surveillance not installed by
75 Omitted in original.
76 Memorandum from Director
FBI to the Attorney General, Subject: “Technical Coverage,” 10/6/51.
77 Memorandum from the
Attorney General to J. Edgar Hoover, 2/26/52. [Emphasis added.]
78 Memorandum from William
Olson to Elliott Richardson, undated.
“A Justice Department
memorandum from Thomas K. Hall, Smith Act Unit to William E. Foley, Chief,
Internal Security Section, Subject: “Microphone Surveillances,”
12/22/53, reflects a meeting between Justice Department officials and Alan Belmont
and Carl Hennrich of the Bureau to determine how the use of this technique
could be broadened.
80 347 U.S. 128 (1954). In
Irvine, the Supreme Court held that evidence obtained in a criminal case from a
warrantless microphone installation involving trespass was inadmissible in
court. The fact that the microphone had been planted in a bedroom particularly
offended the court
81 Memorandum from the
Attorney General to the Director, FBI, 5/20/54. [Emphasis added.]
82 Memorandum from the
Director, FBI to Mr. Byron R. White, Deputy Attorney General, 5/4/61. Less than
three months earlier, however, the FBI had planted a bug in a hotel room
occupied by a United States Congressman in connection with an investigation
that was unrelated to either Communist activities or organized crime. See pages
82a For an account of a
subsequent meeting between Attorney General Kennedy and the FBI’s liaison to
the Attorney General regarding certain FBI microphone surveillance practices in
1961, see the Committee’s Report on Warrantless Surreptitious Entries, Sec. II.
83 385 U.S. 26 (1966).
84 Supplemental Memorandum for
the United States, Black v. United States, 385 U.S. 26 (1966), submitted by
Solicitor General Thurgood Marshall, 7/13/66.
85 Memorandum from J. Edgar Hoover
to the Attorney General, 3/30/65.
85a Mr. Katzenbach testified
as follows concerning the requirement he imposed on microphone surveillance:
“Curiously, ‘bugs,’ which
in my judgment are far more serious invasions of privacy than are taps, were
not subject to the same authorization procedure in the Department of Justice
until I so directed on March 30, 1965. Theretofore, the Bureau had claimed an
authority to install bugs at its sole discretion under a memorandum from then
Attorney General Brownell dated May 20, 1954. I thought the claim that Attorney
General Brownell’s memorandum authorized the widespread use of bugs was
extremely tenuous.” (Katzenbach testimony, Hearings, Vol. 6, p. 200.)
86 Directive from President
Johnson to Heads of Agencies, 6/30/65.
87 Memorandum from the
Director, FBI to the Attorney General, 9/14/65.
88 Memorandum from Nicholas
deB. Katzenbach to J. Edgar Hoover, 9/27/65.
89 Memorandum from the
Attorney General to all United States Attorneys, 11/3/66.
90 Memorandum from the
Attorney General to Heads of Executive Departments and Agencies, 6/16/67.
90a The Court in Katz rejected
the distinction made in Goldman, between trespassory and nontrespassory
microphone surveillances, and the resulting doctrine of “constitutionally
protected areas.” “. . . [T]he Fourth Amendment,” the Court
wrote in Katz, “protects people, not places.” 389 U.S. 347, 351
91 Levi, 11/6/76, Hearings,
Vol. 5, p. 70.
92 Charles Brennan deposition,
9/23/75, p. 44. An example of this relatively frequent occurrence is reflected
in an FBI memorandum dated June 25, 1962, which recommended that seven wiretaps
should be instituted in connection with the Bureau’s “Sugar Lobby”
investigation (see pp. 328-330.)
“As mentioned in
memorandum of 6/21/62, for each technical surveillance installed in instant
matter, we will temporarily suspend coverage which we have for intelligence
purposes on some other establishments so as not to increase total number of
technical installations in operation.” (Memorandum from W. R. Wannall to
W. C. Sullivan, 6/25/62.)
93 Because this restriction
applied only to simultaneous electronic surveillances, the ceiling figures are
invariably lower than the annual statistics reflected in the chart on p. 301.
The annual statistics include all electronic surveillances conducted for any
length of time, however brief, during the year indicated.
94 Brennan deposition,
9/23/75, p. 43.
95 Brennan deposition,
9/23/75, p. 42. It has been alleged that the number of wiretaps was temporarily
reduced for a brief period each year during J. Edgar Hoover’s annual
appearances before the House Appropriations Committee so that he could report,
if asked, a relatively small number of wiretaps in operation. (See, e.g.,
Report of the Committee on the Judiciary, House of Representatives, 8/20/74, p.
149.) In one instance involving the so-called “17 wiretaps” in
February 1971, Hoover did insist that ongoing surveillances should be
discontinued prior to such an appearance. (Memorandum from W. S. Sullivan to
Mr. Tolson, 2/10/71.)
But no general pattern of
temporary suspensions or terminations during the Director’s appearances before
the House Appropriations Committee is revealed by Bureau records. The following
figures represent the number of warrantless electronic surveillances in
operation approximately thirty days prior to, during, and approximately thirty
days after Hoover’s testimony before that committee from 1967 to 1972:
Date of Director’s Testimony
“Retrieval not practicable”
Feb. 16, 1967 (38)
Mar. 13, 1967 (42).
Jan. 15, 1968 (33)
Feb. 23, 1968 (33)
Mar. 22, 1968 (33).
Mar. 14, 1969 (46)
Apr. 17, 1969 (49)
May 15, 1969 (50).
Feb. 5, 1970 (38)
Mar. 5, 1970 (36)
Apr. 6, 1970 (37).
Feb. 16, 1971 (33)
Mar. 17, 1971 (33)
Apr. 17, 1971 (40).
Jan. 31, 1972 (32)
Mar. 2, 1972 (34)
Mar. 31, 1972 (35).
(Letter from FBI to Senate Select Committee, 6/9/75.)
96 Special Report: Interagency
Committee on Intelligence (Ad Hoc) June 1970, p. 26.
97 Ibid., p. 28.
98 Memorandum from Tom Charles
Huston to H. R. Haldeman, 7/70.
99 Special Report: Interagency
Committee on Intelligence (Ad Hoc), June 1970, p. 28.
100 Report on the Huston Plan
: Sec. VI, Recision of the Huston Plan : A Time for Reconsideration.
101 The Keith case, decided in
1972, inhibited a similar increase in warrantless electronic surveillances
directed against American citizens connected with domestic organizations.
102 For examples of wiretap
requests which have originated outside the Bureau, see pp. 312, 337.
103 As noted above, the
approval of the Attorney General has been required prior to the implementation
of telephone wiretaps since the early 1940s and prior to the implementation of
microphone surveillances since 1965.
104 Attorney General William
Saxbe testimony before the Subcommittee on Criminal Laws and Procedures of the
Senate Committee on the Judiciary, excerpted in Department of Justice press
release, 10/2/74, pp. 5, 6.
105 See pp. 337-338.
106 Zweibon v. Mitchell, 516
F.2d 594, 609 n. 24 (D.C. Cir. 1975).
107 Horace R Hampton, Former
Director of Government Communications Service, Chesapeake and Potomac Telephone
Co., 1/27/75, Halperin v. Kissinger, Civ. No. 1187-73 (D.D.C.), pp. 12,13.
108 FBI Special Agent
deposition, 4/7/75, Halperin v. Kissinger, Civ. No. 1187-73 (D.D.C.), pp. 10,
109 FBI Special Agent
deposition, 4/7/75, pp. 38, 39.
110 FBI Special Agent
deposition, 4/7/75, pp. 40-42.
111 FBI Special Agent
deposition, 4/7/75, pp. 45, 58-59.
112 FBI Special Agent
deposition, 4/7/75, pp. 58, 59.
113 Staff summary of former
FBI Special Agent interview, 9/5/75.
114 In Alderman v. United
States, 394 U.S. 165 (1969), the Supreme Court held that this policy was
constitutionally required. The court held in this case that the Government is
legally obligated to produce all materials generated by electronic surveillance
for inspection by the court in criminal cases.
115 Memorandum from Fred M.
Vinson, Jr. to the Director, FBI, 9/27/66. [Emphasis added.]
116 Memorandum from Fred
Vinson to the Director, FBI, 9/27/66.
117 Memorandum from W.C.
Sullivan to C. D. DeLoach, 10/4/66.
119 Letter from the FBI to the
Senate Select Committee, 10/3/75.
120 FBI Special Agent
deposition, Halperin v. Kissinger, 4/7/75, pp. 15, 16.
121 FBI Special Agent
deposition, Halperin v. Kissinger, 4/7/75, p. 19.
122 FBI Special Agent
deposition, Halperin v. Kissinger, 4/7/75, pp. 17-19.
122a FBI Special Agent
deposition, Halperin v. Kissinger, 4/7/75, pp. 53, 54.
123 In at least two cases,
certain very sensitive surveillances were consciously excluded from the ELSUR
Index system. See p. 343. While such exclusion has been rare, the fact that it
occurred twice shows that it is possible to circumvent the entire ELSUR Index
124 CIA and FBI Mail Opening
Report: See, IV, FBI Mail Opening.
125 Memorandum from M. A.
Jones to Mr. DeLoach, 8/2/65.
126 Memorandum from C. D.
DeLoach to Mr. Tolson, 1/10/66.
132 Memorandum from M. A.
Jones to Mr. Wick, 1/11/66.
133 Memorandum from M. A.
Jones to Mr. Wick (attachment), 1/11/66.
134 The details of these cases
are discussed in Section VI below.
135 Memorandum from 0. D.
DeLoach to Mr. Tolson, 1/21/06.
138 Letter from FBI to Senate
Select committee (attachment), 10/23/75. Some of the surveillances for these purposes
targeted Americans, but the FBI has not until recently identified surveillance
targets according to their citizenship or resident alien status.
139 Attorney General Edward H.
Levi testimony, 11/6/75, Hearings, Vol. 5, p. 71.
140 Letter from FBI to Senate
Select Committee (attachment), 10/23/75. These category descriptions are the
FBI’s, and some may include Americans.
141 W. Raymond Wannall
testimony, 10/21/75, pp. 20,21. The legitimate counterintelligence benefit that
accrues to the Bureau through the use of this technique would not be reduced if
a form of judicial warrant were required prior to the implementation of
electronic surveillances directed against foreign agents or collaborators. See
Senate Select Committee Final Report, Book II, Recommendations 51 and 52.
141a President Ford’s
Executive Order on foreign intelligence specifically authorizes FBI electronic
surveillance for this purpose. (Executive Order 11509, 2/18/76.)
142 See, e.g., Memorandum from
R. D. Cotter to W. C. Sullivan, 3/11/68; Draft, of National Security Council
Intelligence Directive No. 9, 5/5/75 version. In the early 1970’s, for example,
the FBI conducted surveillance of a foreign establishment within the United
States at the specific request of the CIA and with clearance from the State
Department. This installation received the prior approval of the Attorney
General. (Staff summary of FBI memoranda.)
As noted above, Ramsey Clark
testified that while he was Attorney General, his practice was “to confine
the area of approval to international activities directly related to the
military security of the United States.” (Ramsey Clark testimony, Hearings
before the Senate Subcommittee on Administrative Practice and Procedure
(1974).) He stated that he denied requests “to tap Abba Eban when he was
on a visit to this country, an employee of the United Nations Secretariat, the
Organization of Arab Students in the U.S., the Tanzanian Mission to the U.N.,
the office of the Agricultural Counselor at the Soviet Embassy and a
correspondent of TASS.” (Ibid.).
143 Letter from FBI to the
Senate Select Committee (attachment), 10/23/75.
144 Memorandum from the
Director, FBI for the Attorney General, 2/14/61. Six American citizens were
also wiretapped in the course of this investigation. These surveillances are
discussed at pp. 328-330.
145 FBI summary memoranda,
146 FBI summary memorandum,
147 FBI summary memorandum,
148 FBI summary memorandum,
149 FBI summary memorandum, 2/3/75.
149a No individual Senators,
Congressmen, or staff members were named in the statistical summary, however.
Nor is there any indication that President Nixon or his aides were specifically
concerned about the President’s critics. Rather, the request grew out of
concern about “an increase in [foreign] interest on Capitol Hill”
which was expressed to President Nixon by at least one Senator. (FBI summary
150 FBI Summary memorandum,
151 FBI summary memorandum,
151a Summaries of the
information obtained from the physical surveillance of Mrs. Chennault were
subsequently disseminated to the White House “in strictest
confidence.” (Memorandum from C. D. DeLoach to Mr. Tolson 11/4/68;
Teletypes from Director, FBI to the White House situation room, 10/30/68,
10/31/68, 11/1/68, 11/2/68, 11/3/68, 11/4/68.)
According to an FBI
memorandum, a White House official told Assistant Director Cartha DeLoach that
“this situation may very well ‘blow the roof off the the political race yet.”‘
(Memorandum from C. D. DeLoach to Mr. Tolson, 11/4/68.)
In addition, the White, House
requested the FBI to obtain, and the Bureau did subsequently obtain, the
outgoing telephone toll records of Vice Presidential candidate Spiro Agnew
while he was campaigning in New Mexico. (Memorandum from C. D. DeLoach to Mr.
Tolson, The apparent purpose of this request was to determine whether or not
Agnew had communicated with Mrs. Chennault or the South Vietnamese Embassy.
(FBI summary memorandum, 2/1/75.)
152 Memorandum from Director,
FBI to the Attorney General, 10/29/68; Memorandum from Director, FBI to, the
Attorney General, 10/30/68; Memorandum from Director, FBI to the Attorney
General, 3/27/69. Ramsey Clark testified that he was unaware of the physical coverage
of Mrs. Chennault and did not receive reports on her activities. (Ramsey Clark
testimony, 12/3/75, Hearings, Vol. 6, p. 252.) There is no indication in the
request for this wiretap, which was sent to Attorney General Clark, that the
White House or the FBI was specifically interested in intercepting telephone
conversations between Mrs. Chennault and South Vietnamese officials. Mrs.
Chennault’s name does not appear on this request. (Memorandum from Director FBI
to the Attorney General, 10/29/68).
153 Memorandum from C. D.
DeLoach to Mr. Tolson, 10/30/68. In the context of the memorandum, this
quotation may relate more directly to close physical surveillance of Mrs.
Chennault. Direct electronic surveillance of Mrs. Chennault was also considered
(ibid.), however, and the reason stated in the quotation presumably applied to
the rejection of the use of that technique against her.
154 Memorandum from Francis
Biddle to Mr. Hoover, 11/19/41. This was approved in spite of his comment to J.
Edgar Hoover that the target organization has “no record of espionage at
this time.” Memorandum from Biddle to Hoover, 11/19/41.)
In 1941, J. Edgar Hoover also
requested wiretaps on two Americans who were members of the Communist Party and
on a bookstore which was “engaged in the sale of Communist literature and
[was] opened by persons connected with the Communist Party.” (Memorandum
from J. Edgar Hoover to the Attorney General, 10/2/41). It appears that these
requests were not approved by Attorney General Biddle. (Biddle to Hoover,
155 Memorandum from D. M. Ladd
to J. Edgar Hoover, 5/23/45. Reports summarizing information from this wiretap
were delivered to two of President Truman’s White House aides. One of the
reports included “transcripts of telephone conversations between [the
official] and Justice Frankfurter, and between [the official] and Drew
Pearson.” Memorandum from Ladd to Hoover, 5/23/45. (There Is apparently no
record as to who authorized this wiretap.)
156 A memorandum by J. Edgar
Hoover indicates that Attorney General Tom Clark “authorized the placing
of a technical surveillance” on this individual and that, according to
Clark, President Truman “was particularly concerned” about the
activities of this individual “and his associates” and wanted “a
very thorough investigation” so that “steps might be taken, if
possible, to see that such activities did not interfere with the proper
administration of government.” (Hoover memorandum, 11/15/45.) More than
175 reports summarizing information overheard on this wiretap, which continued
until 1948, were delivered to the Truman White House. (Memorandum from FBI to
Senate Select Committee (attachment), 3/26/76.)
157 Because the FBI has not
always determined the citizenship of electronic surveillance targets, it is
possible that American citizens are included among the “foreign”
categories listed in Section V.
158 These categories are meant
to be descriptive only; they do not constitute the Justice Department standards
for warrantless electronic surveillance during this period. As noted in Section
II, the standard for wiretapping until 1965 was the “domestic
security” standard first articulated by Attorney General Tom Clark in
1946; the microphone surveillance standard until 1965 was that established by Attorney
General Herbert Brownell: the “national interest.” From 1965 until
1968, both wiretapping and microphone surveillances were governed by the
“national security” standard established by President Johnson and
Attorney General Nicholas Katzenbach. From 1968 until 1972, the Justice
Department relied on criteria based on the five categories set forth in Section
2511 (3) of the Omnibus Crime Control Act. These criteria applied to both
wiretaps and bugs. The application of these standards to particular cases is
discussed in Section VII.
159 See the discussion of the
Keith case, United States v. United States District Court, 407 U.S. 297 (1972)
160 Attorney General Edward H.
Levi testimony, 11/6/75, Hearings, Vol. 5, p. 71.
161 For example, memorandum
from Acting FBI Director L. Patrick Gray to the Attorney General, 10/19/72.
162 See Report on the
Development of FBI Domestic Intelligence Investigations for an analysis of
163 Letter from FBI to Senate
select Committee (attachment). 10/23/75. The target category descriptions are
165 Letter from FBI to Senate
Select Committee (attachment), 10/23/75.
166 Memoranda from J. Edgar
Hoover to the Attorney General, 10/7/63 and 10/18/63. See King Report: See. IV,
Electronic Surveillance of Dr. Martin Luther King, Jr.
167 See King Report: Sec. IV,
Electronic Surveillance of Dr. Martin Luther King, Jr. FBI memoranda make
clear, however, that at least some of the microphones were planted in Dr.
King’s hotel rooms for the express purpose of obtaining personal information
about him. (For example, memorandum from Frederick Baumgardner to W. C.
Sullivan, 2/4/64.) On the question of authorization for these wiretaps and
bugs, see the King Report: Sec. IV, Electronic Surveillance of Dr. Martin
Luther King, Jr.
168 Letter from FBI to Senate
Select Committee (attachment), 10/23/75. A 1964 wiretap and at least one of the
1965 bugs were on individuals other than the advisors to Dr. King who were
believed to have been associated with the Communist Party, USA. Wiretaps on
three advisors who had alleged Communist links were instituted in 1962 and
169 Letter from FBI to Senate
Select Committee (attachment), 10/23/75.
170 Memorandum from J. Edgar
Hoover to the Attorney General, 6/15/65.
171 Memorandum from J. Edgar
Hoover to the Attorney General, 5/25/65.
172 See P. 335.
173 Memorandum from J. Edgar
Hoover to the Attorney General, 12/31/56, initialled “Approved: HB,
1/2/57.” In retrospect, however, one FBI supervisor noted that while the
Nation of Islam had a “potential” for violence, it was not itself
involved in violence. He stated that “Elijah Muhammad kept them under
control, and he did not have them on the streets at all during any of the riots
[in the 1960’s].” George C. Moore deposition 11/3/75, pp. 36,39.
174 Memorandum from J. Edgar
Hoover to the Attorney General, 4/1/64.
175 Memorandum from J. Edgar
Hoover to the Attorney General, 3/3/65.
176 Letter from FBI to Senate
Select Committee, 10/22/75.
177 For example, Memorandum
from J. Edgar Hoover to the Attorney General, 3/20/69; Memorandum from J. Edgar
Hoover to the Attorney General, 10/7/69.
178 Letter from FBI to Senate
Committee (attachment), 10/23/75.
179 Memorandum from W. R.
Wannall to C. D. Brennan, 3/29/71.
180 Letter from FBI to Senate
Select Committee (attachment), 10/23/75.
182 Ibid.; Memorandum from W.
R. Wannall to C.D. Brennan, 3/29/71.
183 Ibid.; Memorandum from J.
Edgar Hoover to the Attorney General, 10/9/63.
184 Memorandum from J. Edgar
Hoover to the Attorney General, 9/28/64; Letter from FBI to Senate Select
Committee (attachment), 10/23/75.
185 Letter from FBI to Senate
Select Committee (attachment), 10/23/75.
187 See p. 338.
188 Memorandum from J. Edgar
Hoover to the Attorney General, 3/16/70.
189 Letter from FBI to Senate
Select Committee (attachment), 10/22/75.
191 Ibid. The category
descriptions are the FBI’s.
192 Letter from FBI to Senate
Select Committee (attachment), 10/23/75.
194 This case is also
discussed at p. 333.
195 Memorandum from R. D.
Cotter to Mr. W. C. Sullivan, 12/15/66.
196 Memorandum from J. Edgar
Hoover to the Attorney General, 6/29/61. Since the early 1940’s, the approval
of the Attorney General had been required prior to the implementation of
wiretaps. See p. 283. In a 1965 memorandum from Attorney General Katzenbach to
J. Edgar Hoover, Mr. Katzenbach noted that: “It is my understanding that
such devices [both wiretaps and bugs] will not be used without my
authorization, although in emergency circumstances they may be used subject to
my later ratification.” (Memorandum from Nicholas Katzenbach to J. Edgar
197 Memorandum from Mr. S. B.
Donahoe to Mr. W. C. Sullivan, 7/3/61.
198 A July 27, 1962,
memorandum from the “Director, FBI” to the Attorney General reads in
“In accordance with our
discussion today, technical coverage will be effective on Baldwin on the
morning of July 28, 1962, at his residence in New York. In addition, we have
learned that Baldwin normally utilized
[ ] of the ‘New York
Times’ Washington office as his secretary to arrange appointments when he comes
to Washington. Consequently, we have placed technical coverage on her
residence…” (Memorandum from Director, FBI to the Attorney General,
199 Memorandum from J. Edgar
Hoover to the Attorney General, 7/31/62; memorandum from W. R. Wannall to W. C.
200 Wannall memorandum,
8/13/62; memorandum from W. R. Wannall to W. C. Sullivan, 8/28/62.
201 Memorandum from J. Edgar
Hoover to the Attorney General, 10/19/62.
202 Unaddressed memorandum
from A. H. Belmont, 1/9/63.
203 Memorandum from J. Edgar
Hoover to the Attorney General, 10/19/62.
205 Unaddressed memorandum
from “hwg,” 1/9/63.
205a Memorandum from New York
Field Office to FBI Headquarters, 9/9/63.
205b Memorandum from J. Edgar
Hoover to the Attorney General, 2/11/63; memorandum from W. R. Wannall to W. C.
205c Memorandum from J. Edgar
Hoover to the Attorney General, 2/11/63.
205d Memorandum from J. Edgar
Hoover to the Attorney General, 2/11/63; letter from FBI to the Senate Select
205e Letter from FBI to the
Senate Select Committee, 4/20/76.
206 Memorandum from J. Edgar
Hoover to the Attorney General, 4/19/65; Memorandum from J. Edgar Hoover to the
Attorney General, 6/7/65.
206a Memorandum from R. D.
Cotter to W. 0. Sullivan, 11/3/65.
206b Memorandum from J. Edgar
Hoover to the Attorney General, 11/16/65.
207 This case is also
discussed at pp. 335-337.
208 Letter from W. C. Sullivan
to Mr. Hoover, 6/30/69.
209 Letter from W. C. Sullivan
to Mr. Hoover, 7/2/69.
210 See generally, Hearings
before the Subcommittee on Administrative Practice and Procedure, 5/10/74, pp.
211 Memorandum from Mr. W. C.
Sullivan to Mr. DeLoach, 11/5/69; Memorandum from J. Edgar Hoover to the
Attorney General, 12/11/69.
212 Memorandum from Mr. W. C.
Sullivan to Mr. DeIoach, 11/7/69.
213 Hoover memorandum,
214 Thee wiretaps are also
discussed at pp. 337-338 and 349-351.
215 Memorandum from J. Edgar
Hoover to Messrs. Tolson, DeLoach, Sullivan, and Bishop, 5/9/69, 10:35 a.m.
216 Memorandum from J. Edgar
Hoover to Messrs. Tolson, DeLoach, Sullivan, and Bishop, 5/9/69, 11:05 a.m. and
1:05 p.m., respectively.
217 Memorandum from J. Edgar
Hoover to Messrs. Tolson, DeLoach, Sullivan, and Bishop, 5/9/69, 5:05 p.m.
218 Hoover memorandum, 5/9/69,
218a Dr. Kissinger’s Responses
to Plaintiff’s First Set of Interrogatories, Halperin v. Kissinger, Civ. No.
1187-73 (D.D.C.), 1/12/76, p. 18.
218c Ibid., p. 28.
218e Ibid., p. 25. Former
President Nixon stated that “I told Dr. Kissinger that he should inform
Mr. Hoover of any names that he considered prime suspects [in the Cambodia
leak]. . . . It was Dr. Kissinger’s responsibility not to control the program
but solely to furnish the information to Mr. Hoover. Mr. Hoover was then to
take it from there and then to get appropriate authority from the Attorney
General before, of course, installing any electronic surveillance which Mr.
Hoover needed.” (Deposition of Richard M. Nixon, Halperin v. Kissinger,
Civ. No. 1187-73 (D.D.C.), 1/15/76, pp. 34, 35.)
The former President also
stated: “I do not know the contents of the telephone calls that Dr.
Kissinger had with Mr. Hoover at that time except that I later learned he did
furnish Mr. Hoover the names of certain individuals that he thought might be
potential leakers of this information.” (Nixon deposition, 1/15/76, p.
219 FBI Special Agent
deposition, Halpern v. Kissinger, Civ. No. 1187-73 (D.D.C.), pp. 64, 65; House
Judiciary Committee, Report, 8/20/74, p. 147.
220 Memorandum from W. C.
Sullivan to Mr. C. D. DeLoach, 5/11/69.
222a Alexander M. Haig
deposition, Halperin v. Kissinger, Civ. No. 1187-73 (D.D.C.), 10/25/74, pp. 9,
222b Ibid., p. 10.
222c Ibid., p. 11.
222d Ibid., p. 18.
222e Ibid., p. 19.
223 Memorandum from J. Edgar
Hoover to the Attorney General, 5/12/69.
224 Memoranda from J. Edgar
Hoover to the Attorney General on the date indicated.
225 Memorandum from W. C.
Sullivan to Mr. Tolson, 2/10/71. See p. 302 n. 95.
226 Memorandum from T. J.
Smith to E. S. Miller, 2/26/73.
230 Memorandum from T. J.
Smith to E. S. Miller, 6/14/73.
230a The Committee’s Final Report
inaccurately states that this tap was on Radford’s father-in-law. (Final
Report, Book 11, p. 187, note 19.)
231 Blind memorandum captioned
“Charles E. Radford, II,” 1/13/72.
232 Memorandum from T. J.
Smith to E. S. Miller, 6/14/73.
238 FBI letter to Senate
select committee (attachment) 10/23/75.
239 This case is also
discussed at pp. 345-346.
240 Memorandum from W. R.
Wannall to W. C. Sullivan, 12/22/66.
243 Memorandum from Richard
Bissell to Mr. Bundy, 2/16/61.
244 FBI summary memorandum,
245 Memorandum from A. H.
Belmont to Mr. Parsons, 2/14/61.
246 Memorandum from J. Edgar
Hoover to the Attorney General, 2/14/61.
247 Memorandum from J. Edgar
Hoover to the Attorney General, 2/16/61.
249 FBI summary memorandum,
250 FBI summary memorandum,
2/15/61; Memorandum from D. E. Moore to A. H. Belmont, 2/16/61.
251 Memorandum from Director,
FBI to the Attorney General, 2/18/61.
252 Memorandum from W. R.
Wannall to W. C. Sullivan, 12/21/66.
253 Memorandum from J. Edgar
Hoover to Messrs. Tolson, Parsons, Mohr. Belmont, and DeLoach, 2/17/61.
255 Memorandum from Director,
FBI to the Attorney General, 2/18/61.
256 FBI summary memoranda,
6/15/62; 6/18/62; 6/19/62.
257 Memorandum from J. Edgar
Hoover to the Attorney General, 6/26/62.
258 Memorandum from W. R.
Wannall to W. C. Sullivan, 8/16/62.
260 Memorandum from W. R.
Wannall to W. C. Sullivan, 8/16/62.
261 Available documents do not
reflect the termination date of these wiretaps.
262 Memorandum from J. Edgar
Hoover to the Attorney General, 9/14/70. According to FBI records, a
“militant pro- Israeli group member” was also wiretapped in 1971 and
1972. (Letter from FBI to Senate Select Committee (attachment), 10/23/75.)
262b Letter from FBI to Senate
select committee, 4/20/76.
263 Memoranda from J. Edgar
Hoover to Attorney General, 1/4/71 and 3/31/71.
263a Letter from FBI to Senate
select Committee, 4/20/76.
264 Affadavit of Attorney
General Mitchell, filed with the Eastern District Court of New York in United
States v. Bieber, 71-CR-479 (E.D.N.Y. 1971), 6/12/71.
265 The quoted language is
that of District of Columbia Court of Appeals Judge J. Skelly Wright,
summarizing the rationale of the former Attorney General in approving the
wiretap against the JDL. (Zweibon v. Mitchell, 516 F.2d 594 [D.C. Cir. 1975].)
266 Memorandum from J. Edgar
Hoover to the Attorney General, 9/14/70. Memorandum from J. Edgar Hoover to the
Attorney General, 3/31/71.
267 See United States v. Huss,
482 F.2d 38, 42 (2d Cir. 1973).
268 The court, nonetheless,
found it “curious that surveillances which were merely a ‘domestic
security wiretap’ which the ‘government concede[d] . . . were unlawful’ when a
contempt citation was involved . . . have become ‘foreign’ security wiretaps
now that personal liability in damages is alleged.” (Zweibon v. Mitchell,
516 F.2d 594, 606-07 n. 16 [D.C. Cir. 1975].)
269 See p. 292.
269a The omission of other
cases from the discussion which follows is not intended to suggest the
conclusion that the use of electronic surveillance was justified or appropriate
in such cases under the standards which existed at the time of the
270 Memorandum from President
Roosevelt to the Attorney General, 5/21/40.
271 Memorandum from Attorney
General Tom C. Clark to President Truman, 7/17/46.
272 See pp. 328-330.
273 See p. 321.
274 Memorandum from R. D.
Cotter to W. C. Sullivan, 12/15/66.
275 Memorandum from D. E.
Moore to W. C. Sullivan, 6/28/61.
276 An internal FBI memorandum
states: “We did not obtain information from this wiretap which assisted us
in determining the identity of the person responsible for leaking classified
information.” (Memorandum from R. D. Cotter to W. C. Sullivan, 12/15/66).
277 Memorandum from R. D.
Cotter to W. C. Sullivan, 12/15/66.
278 Memorandum from J. Edgar
Hoover to the Attorney General, 4/1/64.
280 Memorandum from J. Edgar
Hoover to the Attorney General, 6/15/65.
281 Memorandum from the
Attorney General to the Director, FBI, 5/20/54.
281a As noted above, however,
the Sugar Lobby investigation did not show that any money was passed between
foreign representatives and American executive or legislative branch officials.
282 Less than three months
after the bug was installed in Congressman Cooley’s hotel room, J. Edgar Hoover
wrote Deputy Attorney General Byron White that the FBI was “utilizing
microphone surveillances on a restricted basis even though trespass is
necessary to assist in uncovering the activities of [foreign] intelligence
agents and Communist Party leaders. In the interests of national safety,
microphone surveillances are also utilized on a restricted basis, even though
trespass is necessary, in uncovering major criminal activities. We are using
such coverage in connection with our investigations of clandestine activities
of top hoodlums and organized crime.” (Memorandum from J. Edgar Hoover to
Byron R. White, 5/4/61.) No mention was made of the microphone surveillance of
the United States Congressman.
283 For example, memorandum
from Frederick Baumgardner to W. C. Sullivan, 2/4/64 ; King Report, Sec. IV,
Electronic Surveillance on Dr. Martin Luther King, Jr.
284 King Report: Sec. IV,
Electronic Surveillance on Dr. Martin Luther King, Jr.
285 One of the wiretaps on Dr.
King also occurred while he was attending this convention. Beyond the fact of
the ongoing investigation of Dr. King, the only recorded reason for instituting
this particular tap in Atlantic City was set forth in an internal memorandum
prepared shortly before the Convention:
“Martin Luther King, Jr.,
head of the Southern Christian Leadership Conference (SCLC), an organization
set up to promote integration which we are investigating to determine the
extent of Communist Party (CP) influence on King and the SCLC, plans to attend
and possibly may indulge in a hunger fast as a means of protest.”
(Memorandum from Mr. W. C. Sullivan to Mr. A. H. Belmont, 8/21/64.)
286 Memorandum from W. C.
Sullivan to A. H. Belmont, 8/21/64.
287 FBI summary memorandum,
288 Testimony of John
Ehrlichman before the Senate Watergate Committee, 7/24/73, p. 205.
289 Submission of Recorded
Presidential Conversations to the Committee on the Judiciary of the House of
Representatives by President Richard Nixon, 4/30/74, p. 802.
290 William Ruckelshaus
testimony, Hearings before the Subcommittee on Administrative Practice and
Procedure, 5/9/74, p. 320.
292 Joseph Kraft testimony, Hearings
before the Subcommittee on Administrative Practice and Procedure, 5/10/74, p.
293 Joseph Kraft testimony,
Hearings before the Subcommittee on Administrative Practice and Procedure,
5/10/74, p. 381.
294 The Washington Post,
3/31/76, p. 1.
295 Memorandum from Mr. W. C.
Sullivan to Mr. DeLoach, 11/4/69.
296 Memorandum from Mr.
Sullivan to Mr. DeLoach, 12/11/69.
297 Public statement of
President Nixon, 5/22/73.
298 Memoranda from J. Edgar
Hoover to the Attorney General, 5/12/69, 5/20/60, 5/29/69, 6/4/69, 8/4/69,
5/4/70, and 5/13/70.
299 Memorandum from J. Edgar
Hoover to the Attorney General, 7/23/69.
300 Memorandum from J. Edgar
Hoover to the Attorney General, 12/14/70.
301 Memorandum from W. C.
Sullivan to C. D. DeLoach, 8/1/69.
302 Memorandum from J. Edgar
Hoover to Messrs. Tolson, Sullivan, and C. D. Brennan, 10/15/70.
303 Memoranda from J. Edgar
Hoover to the Attorney General, 5/13/70 (two separate memoranda), 10/16/70, and
304 Ruckelshaus testimony.
Hearings before the Subcommittee on Administrative Practice and Procedure,
5/9/74, pp. 311-312.
305 Memorandum from J. Edgar
Hoover to the Attorney General, 11/5/69.
307 Memorandum from J. Edgar
Hoover to the Attorney General, 11/7/69.
309 Memorandum from J. Edgar
Hoover to the Attorney General, 3/16/70. The strongest evidence that this
group’s conduct was inimical to the national security was reported as follows:
“The [group) is dominated
and controlled by the pro-Chinese Marxist Leninist [excised] …
“In carrying out the
Marxist-Leninist ideology of the [excised] members have repeatedly sought to
become involved in labor disputes on the side of labor, join picket lines and
engage in disruptive and sometimes violent tactics against industry recruiters
on college campuses…
“This faction is
currently very active in many of the major demonstrations and student violence
on college campuses …” (Memorandum from J. Edgar Hoover to the Attorney
General, 3/16/70. The excised words have been deleted by the FBI.)
310 Memorandum from J. Edgar
Hoover to the Attorney General, 6/16/70. The only other results noted by Hoover
related to the fact that the wiretap had “obtained information concerning
the activities of the national headquarters of [the group and] plans for [the
group’s] support and participation in demonstrations supporting antiwar groups
and the [excised].” It was also noted that the wiretap “revealed …
contacts with Canadian student elements.” (The excised words have been deleted
by the FBI.)
311 Memorandum from J. Edgar
Hoover to the Attorney General, 9/16/70. The only other results noted by Hoover
again related to obtaining information about the “plans and
activities” of the group. Specifically mentioned were the “plans for
the National Interim Committee (ruling body of [excised]) meeting which took
place in New York and Chicago,” and the plans “for demonstrations at
San Francisco, Detroit, Salt Lake City, Minneapolis and Chicago.” There
was no indication that these demonstrations were expected to be violent. (The
excised words have been deleted by the FBI.)
312 See p. 321.
313 See pp. 321-322.
314 See p. 323.
315 See p. 323.
316 See p. 326.
317 Testimony of Dean Rusk,
Hearings Before the Senate Foreign Relations Committee, 7/23/74, p. 232.
318 Memorandum from J. Edgar
Hoover to the Attorney General, 6/26/62.
319 Memorandum from J. Edgar
Hoover to the Attorney General, 3/6/62; Memorandum from J. F. Blem to W. C.
Sullivan, 3/2/62. See also King Report, Sec. II.
320 Memorandum from J. Edgar
Hoover to the Attorney General, 5/24/65.
321 Memorandum from J. Edgar
Hoover to the Attorney General, 5/24/65. See also King Report, See. II.
322 Memorandum from J. Edgar
Hoover to the Attorney General, 6/7/65.
323 Zweibon v. Mitchell, 516
F.2d 594, 611 (D.D.C. 1975).
324 Agent’s Manual for Conduct
of Electronic Surveillance Under Title III of Public Law 90-351, Section VII.
If the attorney-client conversation concerns a matter other than a pending
criminal case, it is the responsibility of the supervising attorney to
determine whether or not the conversation is privileged. If he determines it is
not, the interception is treated no differently from any other overheard
conversation. If evidence of crimes other than those specified in the court’s order
is obtained, the FBI may disseminate this information both within the Bureau
and to other Federal or state agencies to the same extent that it could
disclose the contents of conversations relating to the crime specified in the
order authorizing interception.
325 For example, SAC Letter,
The “pending criminal
case” requirement has been interpreted less strictly with respect to some
warrantless electronic surveillances, however. On the May 25, 1965, order
authorizing a wiretap on an attorney who was an advisor to Dr. King, for
example, Attorney General Katzenbach wrote: “You should discontinue if at
any time he is acting as attorney for clients litigating with the U.S.”
(Memorandum from J. Edgar Hoover to the Attorney General, 5/25/65). Katzenbach
therefore left open the possibility that information obtained from
conservations which related to a state rather than a federal case could be
overheard, recorded, and presumably disseminated to a state prosecutor. See
also the similar instruction in the Jewish Defense League case, quoted in the
326 Memoranda from J. Edgar
Hoover to the Attorney General, 9/14/70, 1/4/71; Zweibon V. Mitchell, 516 F.2d
594 610-11 (D.C. Cir. 1975).
327 Zweibon v. Mitchell, 516
F.2d 59-4, 634 n. 100 (D.C. Cir. 1975).
328 Omitted in original.
329 The “Plumbers”
wiretap against Joseph Kraft was similarly installed without the prior — or
subsequent — approval of the Attorney General.
330 Attorney General
Katzenbach was apparently given after the fact notification, however. See King
Report: Sec. IV, Electronic Surveillance of Dr. Martin Luther King, Jr.
331 FBI summary memorandum,
332 Memorandum from W. C.
Sullivan to Mr. DeLoach, 1/21/66.
333 Report of the House
Judiciary Committee, 8/20/74, p. 150; p. 345.
334 Memorandum from W. C.
Sullivan to Mr. Hoover, 7/8/69.
335 In fact a great deal of
political information was obtained from these and other wiretaps in this
series. See pp. 349-350.
336 See p. 325.
337 Memorandum from T. J.
Smith to E. S. Miller, 2/26/73.
338 Staff review of letters
sent from W. C. Sullivan to J. Edgar Hoover regarding the Kraft surveillance.
339 Report of the House
Judiciary Committee, 8/20/74, p. 153.
340 Memorandum from T.J. Smith
to E. S. Miller, 6/8/73.
341 The name of this
individual and identifying details are withheld for privacy reasons.
342 Staff summary of FBI file
343 Letter from J. Edgar
Hoover to John Ehrlichman, 7/15/69.
344 Transcript of Presidential
tapes, 2/28/73 (House Judiciary Committee. Statement of Information, Book VII,
Part 4, p. 1754).
345 For example, Letters from
Hoover to the Attorney General and John Mitchell, 7/21/69, and 7/25/69; Letters
from Hoover to H.R. Haldeman, 9/22/70 and 12/17/70.
346 Letter from Hoover to
347 King Report: Sec. IV,
Electronic Surveillance on Dr. Martin Luther King, Jr.
350 Memorandum from W. R.
Wannall to W. C. Sullivan, 12/22/66.
351 FBI summary memorandum,
353 FBI summary memorandum,
354 Memorandum from Director,
FBI to the Attorney General, 2/18/61.
355 Memorandum from C. A.
Evans, to Mr. Parsons, 4/15/61.
357 Memorandum from W. R.
Wannall to W. C. Sullivan, 12/22/66.
358 Memorandum from C. D.
DeLoach to Mr. Mohr, 8/29/64.
359 Memorandum from C. D.
DeLoach to Mr. Mohr, 8/29/64; Cartha DeLoach testimony, 12/3/75, Hearings, Vol.
6, p. 177.
360 Staff summary of Water
Jenkins interview, 12/1/75.
361 DeLoach testimony,
11/26/75, p. 114.
362 Memorandum from DeLoach to
Walter Jenkins, 8/24/64.
363 Memorandum from DeLoach to
366 Memorandum from H. N.
Bassett to Mr. Callahan, 1/29/75.
367 Memorandum from DeLoach to
368 Memorandum from C. D.
DeLoach to Mr. Walter Jenkins, 8/26/64.
369 DeLoach testified that:
“I was sent there to
provide information . . . which would reflect on the orderly progress of the
convention and the danger to distinguished individuals, and particularly the
danger to the President of the United States, as exemplified by the many, many
references [to possible civil disturbances] in the memoranda furnished Mr.
Jenkins . . .” (DeLoach testimony, 11/26/75, p. 199.)
Jenkins agreed that the
mandate of the FBI’s special unit did not encompass the gathering of political
intelligence and stated that if any such intelligence was disseminated it was
probably due to the inability of Bureau agents to distinguish between dissident
activities which might or might not result in violence. (Staff summary of
Jenkins interview, 12/1/75.) He added that he did not believe the White House
ever made any use of the incidental political intelligence that might have been
370 Staff summary of Walter
Jenkins interview, 12/1/75.
371 Blind memorandum bearing
the handwritten date 8/26/69 and the typewritten date 8/19/64.
372 In contrast to the use of
electronic surveillance at the 1964 Democratic Convention, Attorney General
Ramsey Clark refused to permit any use of this technique during the Democratic
National Convention in Chicago in 1968. A request for a wiretap on the
“National Mobilization Office for Demonstrations” was sent to
Attorney General Clark as early as March 1968 on the grounds that:
“A telephone surveillance
on this office would provide extremely valuable information regarding the plans
of [numerous] groups to disrupt the National Democratic Convention. It would
also furnish advance notice of any possible activity by these groups which
would endanger the safety of the President or other Government officials while
in Chicago.” (Memorandum from J. Edgar Hoover to the Attorney General,
Clark refused to approve the
tap. He informed Director Hoover the day after the request was made that:
“. . . There has not been
an adequate demonstration of a direct threat to the national security. Should
further evidence be secured of such a threat, or reevaluation desired, please
activities should be undertaken to provide intelligence necessary to the
protection of the national interest.” (Memorandum from Ramsey Clark to J.
Edgar Hoover, Director, 3/12/68.)
A total of three more requests
for a wiretap on the same proposed target were submitted during the next three
months: on March 22 (Memorandum from J. Edgar Hoover to the Attorney General,
3/22/68) ; on April 24 (Memorandum from J. Edgar Hoover to the Attorney
General, 4/24/68) ; and for a final time on June 7 (Memorandum from J. Edgar
Hoover to the Attorney General, 6/7/68). None of them were signed by the
Attorney General and Bureau records indicate that no electronic surveillance
was conducted in connection with the 1968 Convention.
373 Letter from J. Edgar
Hoover to President Nixon and Henry Kissinger, 7/18/69.
374 Letter from J. Edgar
Hoover to President Nixon, Henry Kissinger, and the Attorney General, 10/9/69.
375 Letter from J. Edgar
Hoover to President Nixon and Henry Kissinger, 12/3/69.
376 Letter from J. Edgar
Hoover to President Nixon and Henry Kissinger, 2/26/70.
377 Letter from J. Edgar
Hoover to H. R. Haldeman, 5/19/70.
378 Letter from J. Edgar
Hoover to H. R. Haldeman, 6/2/70.
379 Letter from J. Edgar
Hoover, to H. R. Haldeman, 6/23/70.
380 Letter from J. Edgar
Hoover to H. R. Haldeman, 9/4/70.
381 Letter from J. Edgar
Hoover to H. R. Haldeman, 11/24/70.
382 Letter from J. Edgar
Hoover to H. R. Haldeman, 12/22/70.
383 Letter from J. Edgar
Hoover to President Nixon, Henry Kissinger, and the Attorney General, 12/29/69.
384 Memorandum from Jeb S.
Magruder to H. R. Haldeman and John D. Ehrlichman, 1/15/70.
385 Memorandum from
“E” (John Ehrlichman) to “H” (H. R. Haldeman), undated.
386 Memorandum from
“H” (H. R. Haldeman) to “M” (apparently Jeb S. Magruder),