CHURCH COMMITTEE REPORTS

B. 1940 to 1968 _
I. The Roosevelt administration _
2. The Truman administration _
3. The Eisenhower administration _
4. The Kennedy administration _
5. The Johnson administration _
C. The Omnibus Crime Control Act of 1968 _
D. Jutsotic19e7D5 epartment Criteria for Warrantless Wiretaps: 1968_
1. 1968-72 _
2. The Keith case: 1972 _
3. 1972-75 _
III. Presidential and Attorney General Authorization for Warrantless
~icrophone Surveillance _
A. Pre-1952 _
1. 1931-1942 _
2. 1942-1952 _
B. 1952 to 1965 _
C. 1965 to the Present- _
IV. An Overview of FBI Electronic Surveillance Practice _
A. Extent of FBI Electronic Surveillance: 1940 to 1975 _
1. Anljnounasl totals for wiretaps and microphone installa_-
2. FBI policy on the maximum number of simultaneous
electronic surveillances _
B. Requests] Approvals, and Implementation _
1. Tne request and approval process _
2. Implementation of wiretaps and bugs _
C. The ELSUR Index _
D. Congressional Investigation of FBI Electronic Surveillance
Practices: The Long Subcommittee _
V. Warrantless FBI Electronic Surveillance of Foreign Intelligence and
Counterintelligence Targets within the United States _
A. Purpose and Value as an Investigative Technique _
B. Foreign Surveillance Abuse Questions _
1. Diosvseemrhienaartsion of domestic intelligence from incidental_
2. Indirect targeting of American citizens through
electronic surveillance of foreign targets _
VI. Warrantless FBI Electronic Surveillance of American Citizens _
A. Electronic Surveillance Predicated on Subversive Activity _
B. Electronic Surveillance Predicated on Violent Activity _
C. ElIencftroornmicatiSounrveillance Predicated on Leaks of Classified_
D. Electronic Surveillance Predicated on Other Grounds _
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VII. Domestic Surveillance Abuse Questions_ _________________________ 332
A. Questionable and Improper Selection of Targets ______ ______ 332
1. Wiretaps under the "domestic security" standard_ __ 332
2. Microphone surveillance under the "national interest"
standard ______________________________ 334
3. Wiretaps and microphone surveillances under the
five criteria based on Section 2511 (3) ____________ 335
4. Electronic surveillance of journalists, attor'neys, and
persons Involved mthe domestic political process__ 339
B. Procedural Violations ___________________________________ 342
C. Collection and Dissemination of Information Irrelevant to
Legitimate Governmental Objectives_ __________________ 344
1. Personal information_____________________________ 344
2. Political informatioD__ ________________ ___ ________ 345
WARRANTLESS FBI ELECTRONIC SURVEILLANCE
I. INTRODUCTION
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"---eapable 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
an~ does not require the cooperation of private communications
compames.
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).! Until 1912, the Bureau used
wiretaps and bugs against both American citizens and foreigners
within the United States- without judicial warran1r-to collect foreign
intelligence, intelligence and counterintelligence information, to
monitor "subversive" and violent activity, and to determine the sources
of lea.ks of classified information. The FBI still uses these techniques
without a wa.rrant in foreign intelligence and counterintelligence
investigations.
The CIA and NSA have similarly used electronic surveillance techniques
for intelli~nce 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 1941 and 1968.2 Of these, thirty were employees or
former employees of the CIA or of anm,her federala.gency who were
presumably targeted for security reasons; four were United States
1 Attorney General Edward H. Levi testimony, 11/6/75, Hearings, Vol. 5,
p.68.
• Office eyf Security, Domestic SurveHI'll.llJCe S'UIDmary, undated.
(273)
274
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
Electronic surveillance 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 verv 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 ahout criminal,
treasonaJble, or espionage-related activitIes, but all conversations a'bout
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 lJo those of the intended subject
of the surveillance : anyone who spelliks 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
unreasonaJble 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 rang~ of inrormation 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 ~nformation
obtained through electronic surveillance has been provided to senior
administration officials.
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 Rot unconstitutional because the
Fourth Amendment's warrant requirement did not extend to the seizure
of conversations. This decision, the 1928 case of Olmstead v. Urlited
States, 277 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
investigations.
• Office of Security, Domestic SurveiUanee summ8JrY, undlLted.
• See generally the Select Committee's Report on NSA.
275
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 ~s ordinary citizens, and
held that evidence obtained directly or indirectly from the interception
of wire and radio communications was inadmissible court.6 But Congress
acquiesced in the Justice Department's interpretation that these
cases did not prohibit wiret1l;pping per 8e, only the divulgence of the
contents of wire communications outside the federal establishment/
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," 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 Gaurt, 407 U.S. 297 ('1972), that the constitutional power of
the President did not extend to authorizing warrantless electronic surveillance
in cases invdlving threats to the "domestic security." The
Court distinguished--'but remained silent on-the question of warrantless
electromc surveillance where there was a "significant connection
with a foreign power, its agents or agencies." 11
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 ob-
• 47 U.S.C. 605.
• Nardone v. United States, 302 U.S. 397 (1937) ; 308 U.S. 338 (1939).
7 See pp. 278...~'79.
B 389 U.S. at 358 n. 23.
• 18 U.S.C. 2510---20.
10 18 U.S.C. 2511(3).
u 4<n D.'S. at 309 n. 8. United Statell v. United StateIJ Dist>rict Oourt remains
the only Supreme Oourt ease dealing with the issue of warrantless electronic sur·
veillance for intelligence purposes. Three federal Courts of A'ppeal have considered
this iSBue since 1972, however. The Third Oircuit and the ~fth Circuit
both held that the President may constitution~l1y authorize WRn-antless electronic
survffiUance for foreignrounterespionll.ge and foreign inteUigence purposes.
(UnJited States v. Butenko, 494 F.24 593 (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 (1()urt of Appeals
for the District of Columbia held unconstitutional the WliJrra'nt,less electronic surveillance
0If the Jewish Defense League, a domestic organization whose activities
allegedly affected U.'s.~Sov.iet relations but which wa's neither the agent of nor in
coHaibora1Jion with a foreign power. (Zweibon v. Mitohell, 516 F.2d 594 (D.C.
Cir. 1975) (en bane).) See p. 292.
276
jective 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 Ilipproval has been required prior to the
institution of microphone surveillances since 1965.13 This requirement
has often been ignored for wiretaps and bugs,I' and it was not even
applied to N'SA's electronic monitoring system and its Rrogram for
"Watch Listing" American citizens. From vhe early 1960 s until 1978,
NISA 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 F'BI, 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.a For many years
in fact, no Attorney General even knew of this project's existence.16
Electronic monitoring by the Natiunal 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 descrilbed 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,
11 the Report is also confined to the latter forms of electronic
surveillance.
'" Seep. 283.
"'8eep.298.
1". SSeeee gppe.n3e4ra2l-l-3y4, 3N. SA Report: Sec. II.
1. N:8iA Report: Sec. IiI.
" 'Oonsensual electronic surveiHance, where one party to the conversation consents
to the monitoring, has been held by the Supreme Court not to be covered
by the Fourth Amendment. (United States v. White, 401 U.S. 745 (1971.) However,
-the Oommiit1tee has discovered th'llJt the FBI used such techniques in unjustified
circumstances and with inadequate controls.
In 1000, aU :Em! field offices were instructed that 'ISpecial Agents in Charge
(SACs) may, on their own initiative, authorize 'the use qf concealed recording
devices by a Special Agent or proven llOUrce in covering public appearances by
black and New Lefot extremists except when such appearances are at edueatiofi'al
institutions." (!Memorandum fu'om FBI Headquarters to all field oftices,
11/5/70.)
In view <Jf 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 S'Urveillance to record lawful poUtical ex:presrsion.
Bureau informants could be "wired" to record everything they heard at a public
277
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 its~lf, 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.
A. Pre-19.f/J
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 Regula,tions:
Vnethical tactics: 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 A<'t. In Olrn.<Jtead v.
United States, 277 V.S. 438 (1928), criminal defendants charged with
viol!ating 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
meeting, and there was no requirement that the technique be limited to the investigation
of possi'ble crime.
In 1972, however, Attorney General Richard Kleindienst issued a dinlCtive
to all federal agencies, including the FBI, stating:
"Ail 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 convenmtions without the consent of all 'the participants. Such authorization
is required before employing any sueh 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 Generl\'l Kleindienst
to the Heads of Executive Departments and Agencies, 10/16/72.)
" Memorandum from William Olson, Assistant Attorney General for Internal
Security, to Attorney General Elliot Richardson, undated.
10 FBI Mam,1t(J.~ of Rule8 and Regu~atif»Ut,Rule change issued 3/1/28.
278
physical intrusion or trespass was admissible and that wiretapping
was not unconstitutional because the FouI'th 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 nex,t three years.
In 1930, the Bureau of Prohibition was transferred from the Treasury
Department to the Justice DepaI'tment, 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 he 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 k:idnappin~, 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 interceptand
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 8e, however;
only the interception and divulgence of their contents outside the
federal establishment was considered by the Department to be un"
lawfu1.25 Even after the Nardone decisions, the Department continued
to authorize warrantless wiretapping, albeit with the recognition
.. Memorandum from Willi.am Olson to Elliot Riclmrdson, undated.
.. Ibid•
..FBI Manual of Rules and Regulations, Rule change issued 2/19/31.
II Nardone v. United States, 302 U.S. 397 (1937) .
.. Nardone v. United States, 308 U.S. 338 (1939) .
.. 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).
279
that evidence obtained through the use of this technique would be inadmissible
in court.
B. 1940 to 1968
1. The Roosevelt Administration
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 convineed that the Supreme Oourt never
intended any dictum in the particular case 'Which it decided
to apply to grave matters involving the defen.se of the
nation.
It is, of course, well known that certain other nations have
been engaged in the organization of J?ropaganda of so-ealled
"fifth column" in other countries and III 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 are completed.
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 a(Jainst the Government
01 the United States, ineluding 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
.. Franklin D. Roosevelt, Confidential Memorandum for the Attorney General,
5/~1j40. [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
(Continued)
280
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
H.lly 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 . . ." 28
The Justice Department also informed Con~ss about the theory
that had been developed to rationalize ongomg 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.30
(Continued)
General Jackson]. It opened the door pretty wide to wiretapping of anyone suspected
of sU!bversive 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.)
WI House Joint Resolution 553, 5/27/40.
.. 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.]
• FBI Director Hoover strongly opposed any legislation requiring 8. jUdicial
warrant for wiretapping. He told Attorney General Jackson in 1941:
"Wire-tapping, in my estimation, should only be used in cases of kidnaping,
extortion, espionage Illnd sabotage. It is, therefore, imperative th8Jt the use
of it not be knoW'll outside of a: very limited circle if the best results Me 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
colum'IlS that are many times alarmingly correct. Likewise, we know that there
are certain Federal Judges who are not illS close-mouthed as they should be
281
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 Genera!."
1 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 !i.ndic3Jted th3Jt the stand of the Department would be,
as indeed it had boon for some time, to authorize wiretapping
in espionage, sabotage, ami kidnaping cases, where
tlw circwmstances warranted. I described Section 605 of the
Communications Act, pointing out that under the St3Jtu:te
interception alone was not illegal; that there must be both
intercep.tion and divulgence or publication; th3Jt 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 Aot, until the Courts decided otherwise, not to
prohibit interception of communic3Jtions by an agent, and
his reporting the result to his superior officer, as infraction
of the 1l1w; that 'although this could be said of all crimes,
as a m3Jt:Jter of policy wiretapping would be used sparingly,
and under express authorization of the Attorney General.32
about ma.tters 'brought ibefore them and certainly, in those cases in which wireta.
pping would be used, if limited to the few violations that I have referrOO
to, they are so interesting and so mysterious that I fear it would encoumge
the 'Sherlock Holmes complex that 'many persons have, to whisper a'bout what
is 'being done, and then the value of the wiretapping would be rompletely 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 invest1gatiO'llll
should ;00 very definitely limited and restricted." Memorandum from Director
Hoover to the Attorney General, 1/27/41.
n New York Times, 10/9/41. Former Attorney General Francis Biddle recalled
a meeting with President Roosevelt regarding the FBI wiretap 0'Il Harry
Bridges:
"When all this came out in the newspapers I could not resist suggesting to
Hoover that he tell the Irtory 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, sl'apped 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. 166.)
112 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 estaiblishing 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
(Continued)
282
2. The Truman AdminiJstration
, The permissible scope of wiretapping was exp~nded after.World
War II by Pr~sident Truman to in.clu~e. "c~ vIml,~y affectmg the
domestic securIty, or where human hfe I~ m ]eopa!,dy. Th.e documentary
evidence suggests, however, that thIS expansIOn was madvertent
on Truman's part and that he actually intended simp~y to continue
in force the policies articulated by President Roosevelt III 1940.
By memorandum of July 17, 1946, Attorney Gen~rnl.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 ?f .Roosevelt's
letter which read : "You are requested furthermore to hmIt these
investigations so conducted to a minimum a~d 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 inc.rease in su~versive
activity here at home, it is as necessary as it was m
1940 to take the investigative measures referred to in President
Roosevelt's memorandum. At the same time, the country
is threllitened 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 imperllltive
to use them in CMes vitally affecting the domestic
security, or where human life is in jeoparody.
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 10-
(Continued)
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 Olmmander 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
mill.tary secu~~y of the nation is not illegal." (Memorandum from Charles Fahy,
AS~lstant 'SolICItor General, to the Attorney General, 10/~/41.)
Letter from Tom C. Clark, Attorney General to the President 7/17/46 [Emphasis
added.] " .
283
cated in the Truman Presidential Libra.ry 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.RI. to hold its wirebpping to a
minimum, and to limit it insofar as possible to aliens, he requested
the President to approve very broad language which
would pe.rmit 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
l'cscinding his 1946 directive." An order was drafted which closely
paralleled the Roosevelt's 1940 directive, but for reasons that are unclear
it was never issued.3s
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 reconunended 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 highly restrictive
basis and when specifically authorized by me.36
3. The Eisenhmoe1' Administration
The Government's perceived inability to prosecute in espionage
and sabotage cases where electronic surveillance had been used, which
stemmed from the Na1'done decisions in the late 1930's, led 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 con-
"'Memorandum from George M. Elsey to the President, 2/2/50. Harry S. Truman
Library.
"" :Uemorandum from "H. S. T." to the Attorney General, draft dated 2/7/50.
Harry S. Truman Library.
36 Memorandum from J. Howard McGrath to )lr. Hoover, 2/26/52.
:\IcGrath addl'd: "It is requested when ~ny case is referred to the Depart·
ment in which telephone, microphone or other technical surveillances have been
l'mployed hy the Bureau or other Federal Agencies (when known) that the Department
he ad"ised 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 Dl'partment in the prosecution of Judith Coplon for attempting
to deliver governml'nt documents to a Soviet agent. The FBI apparently failed
to inform Federal prosecutors of electronic surveillance of Miss Coplon and the
So,-iet agl'nt, and subsequent disclosure of the surveillance led to reversal of her
conviction on the grounds that the trial jUdge improperly withheld the surveiIlauee
N'Cords from serutiny hy dl'fense counsel. United 8tate.~ 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
durin!? the trial. Coplon v. United States, 191 F. 2d 749 (D.C. Cir. 1951).
69-984 0 - 76 - 19
284
tended that ,responsibility should be centralized in the hands of the
~tto~ney Genera1.37 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 carryon 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 o'perations 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"° The
full House, however, rejected the arguments in support of warrantless
wiretapping and amended the bill on the floor to require a prior
judicial warrantY 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 1960s.
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 sign~d by P~sident.Trum~n.42
Specifically, he noted that the current polley permItted wIretappmg,
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
17 Brownell, The Public Security and Wiretapping, 39 Cornell L.Q. 195 (1954).
as Ibid.
.. Ibid.
.. H. Rep. 1461, 4/1/54.
"House Resolution 8649, 100 Congo Ree. 4653, 4/8/54.
.. Memorandum from Director, FBI to the Attorney General, 3/8/55.
285
present time, and suggested that if Brownell did not believe they
did, he "may want to present tIlls matter to President Eisenhower to
deternline 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 wlllch has been in effect since May 21,
1940." 45 This order also changed the Mamual 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 wiretappmg...." 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 reviewY
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
" Ibid .
.. ~Ielllorandulll from the Attorney General to the Director, FBI, 3/16/55.
.. Memorandum from 'Villiam Olson to Elliot Richardson, undated.
.. Attorney General Order No. 263-62, 3/13/62.
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, ]2/31/56, initialed "Approved: HB
1/2/5'";." )
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 'Var II." Nicholas Katzenbach testimony,
11/12/75, p. 87.
286
be submitted for the Attorney General's reauthorization.48 This suggestion
was immediately implemented by the FBI.
One week later, on April 8, 1965, Katrenbach 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 vita.Ily affectmg 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
rrivaey of commJUnications UJ a higkly offensive practice
which slwuld be engaged in only where the national security
UJ 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 General.
(3) All federal agencies shall immediately conform their
practices and procedures to the provisions of this order.51
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 tech-
,48 Memorandum from J. Edgar Hoover to the Attorney General, 3/30/65.
,.. Memorandum from Nicholas Katzenbach to the President, 4/8/65.
lIO 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 "federal personnel."
., 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 knaw precisely what
you are dealing with." (Nicholas Katzenbach testimony, 5/rl'/75, p. 15.)
287
niques 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 21, 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 he 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, Katzerrbach 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,
1005, letter to Hoover. He quoted as follows from the 1900 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
5. Memorandum from J. Edgar Hoover to the Attorney General. 9/14/65.
53 Memorandum from Nicholas Katzenbach to J. Edgar Hoover, 9/27165.
.. Ibid.
'" 385 U.S. 26 (1966).
288
the entire Federal establishment, prohibits the installation
of listening deviCBs in private areas (as well as the interception
of telephone and other wire communications) in 'all
instances other than those involving the collection of intelligenCBaffecting
the national security. The specific authorization
of the Attorney General must be obtained in each instance
when this exception is inyoked. IntelligenCB 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
G. The OmnibWJ Grime GontrolAct of 1968
Although Justice Department policy regarding wiretapping remained
essentially constant from 1965 to 1968, two Supreme Court
decisions during this period si~nificantly altered the constitutional
framework for electronic surveIllance generally. In Berger v. New
York, 388 U.S. 41 (1967), and Katz v. United State8, 389 U.S. 347
(1967), the Supreme Court overruled Ol'J1Ujtead 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 Sa'fe Streets Act of
1968, 18 U.S.C. 2510-20. This Act establiished procedures for obtaining
judicial warrants permitting wiretapping by government officials,59 but
the issue of "national security" wiretaps, which was left open in K a.tz,
was similarly avoided. Section 251'1(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 as follows:
(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
50 MemQrandum from the Attorney General to all United States Attorneys,
11/3/66, quoting the Supplemental Memorandum to the Supreme Oourt in Black
v. United States, filed 7/13/66.
• 7 Memorandum from the Attorney General to the Heads of Executive Departments
and Agencies, 6/16/67.
As a matter of pract'ice, Attorney General Olark was more restriotive in approving
wiretaps tha nthe 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" consider·
ations which was turned dawn by M'r. Clark.
50 389 U.S. at 358 n. 23.
50 Wiretapping by private oit'izens and unauthorized wiretapping by government
employees wa's also made a criminal offense.
289
to take such measures as he deems necessary to protect the
Nation against actual or potential attack or other hostile
acts of a foreign po\ver, 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 doone 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 an they override the
procedural requirements for electronic surveillance th'at are outlined
in ,this statute and in the 1934 Act.61
D. J~tice Department Criteria for Warrantless Wiretaps: 1968-1975
1. 1968-1972
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;
60 A bill drafted by the Justice Department in 1967 would ha\Oe 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 ot
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 he easily abused." (114 Congo Rec.14717, 90th Cong., 2d Sess. (1968).)
The amendment was defeated.
61 United States V. United States District Caurt, 407 U.S. 297, 803-M (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 denne 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 III." (407 U. S.
at 807.)
290
(2) That it is necessary to obtain foreign intelligence information
deemed essential to the security of the United
States;
(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 efl'ectafter the passage af
the 1968 Act.
2. The Keith Oa8e: 1[//2
On June 19, 1972, the Supreme Court decided the so-called Keith
case, United States v. United States District Oourt, 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
". Letter fr{)m William Olson to Attorney General Elliot Richardson, undated.
"" 407 U.S. at 310.
M At the same time the Oourt recognized that "domestic security surveillance
may involve different policy an'd practical considerations apart foom the surveillance
of 'ordinary crime,''' (407 U.iS. at 322), and thus dlid not hold that "the
same type of standards and procedures prescribed by Title HI [of the 1968 Act]
are necessarily applicable to this case." (407 D.lS. 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 In. 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 32'2-23). 407 U.S. at 309,321.
.. 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.
... Maroney Testimony, Hearings before the Senate SUbcommittee on Administration
Practice and Procedure, 6/29/72, p. 10.
291
3. 19712-1975
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 Attor!ley Gen~ral is
required before any non-consensual electroIllc surveIllance
may be instituted within the United States without a judicial
warrant. All requests for surveillance must be made in writin<
T 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 nationll;l security,
In addition, the Attorney General must be sUitlsfied that
the subject of the surveillance is either a8sisting a foreign
power or foreign-ba8ed political group, or plans unlawful
activity directed against a foreign power 01' 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 fora 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 It 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 Seleot Committee on
Int~llige~ce Activities on November 6, 1975, Attorney General Levi
agam artIculated current Department of .Justice criteria for the approval
of warrantless electronic surveillance. His formulation on that
date re~urned to the three foreign-related categories which were based
on SectlOn 2511 (3) of the 1968 Act, between Hl72 and 1975, and a fourth
category was also added. He stated:
Requ~ts ar~ only authorized when the requested electronic
surveII.lance IS necessary to pro~ectthe nation against actual or
pote~tlal a~tac~ or ~ther hosble acts of a foreign power; to
obtam ~orC1gn mtelhgence. deemed essential to the security of
the !1atl<.>n; t? protect ~a~l?nal security information against
foreIgn mtelhgence actIvItIes; or to obtain information cer-
.. Ll'ttl'r from Attorney General I<Jdward Ll'vi to Sl'nators Frank Church and
Edward Kennedy, 6/24/75. [Emphasis added.]
292
tified 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 warrant··
less electronic surveillance to be directed against American citizens or
domestic groups which "plan[ned] unla\"ful 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." 68 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 bane), which held unconstitutional warrantless
electronic surveIllance of a domestic organization that was neither
the agent of nor collaborator with a foreign power.59
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." 1Vhile 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 survei1lance.71
61 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 langnage of Section
2511(3).
68 Ibid.
... In Zweib07lo, the Court of Appeals rejected the defendant former Attorney
General's theory that a wiretap ona domestic organization was justified as a
proper exercise of the President's foreign affairs powers when the activities of
that group adversely affected this counJtry's relations with a foreign power.
,. 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 Uwited States v. Brown, 484
F.2d 418 (5th Cir., 1973), cert. denied 415 U.S. 960 (1974).
71 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 Depart293
Legislation has recently been introduced, with the support of Attorney
General Levi, to require a p~ior judicial warrant for elect~onic
surveillance of an "agent of a foreIgn power." One of seven specIally
designated federal jud~es would be authorized to issue a warrant upon
a finding that there is 'probable cause to believe that the target of ~he
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 tenus 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 electronic surveillance.
III. PRESIDENTIAL AND ATTORNEY GENERAL AUTHORIZATION FOR
WARRANTLESS ~nCRoPHoNESURVEILLANCE
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 slll'veillance was placed on an equal footment
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 courtordered
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
tha~ satisfactory." (Justice Department memorandum from Ron Carr, Special
ASSIstant to the Attorney General, to Mike Shaheen Counsel on Professional
Responsibility, 2/26/76.) ,
12 S. 3197, introduced 3/23/76.
294
ing with telephone surveillance, and since that time the policies for
both these forms of electronic surveillance have remained identical.
A. Pre-19512
1. 1931 to 19J,2
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 mircophone 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 kidnappin~,the location and apprehension
of desperate criminals, and in espIOnage, sabotage,and
other cases considered to be of major law enforcement importance.' " ,3
2. 1942-1952
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.14
There is no eVIdence, however, that an Attorney General ga,ve any
firm guidance to the FBI in this area until 1952. Although there did
not appear to be any distinct articulated Justice Department policy
.3 Memorandum from William Olson to Elliot Richardson, undated.
•• 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 hypothOCical questions submitted
by the FBI. Holtzoff stated that "evidence obtained by an unlawful search
and seizure in violation of the Fourth Amendmemt is not admissible as against
... the person in C'Ontrol 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 Go14man case did not deal directly with this
issue, since it upheld the constitutionality of a microphone surveillance not
installed by trespass.
295
on microphone surveillance for a decade after Goldrrwn, J. Edgar
Hoover summarized FBI practice since Goldm{Ln in a 1951 memorandum
to Attorney General McGrath:
As you are aware, this Bureau has also employed the use of
mim'ophone 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. 195~ 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
follows:
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. Goldrrwn, 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.7S
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
7<1 Memorandum from Director FBI to the Attorney General, Subject: "Technical
Coverage," 10/6/51. [Emphasis added.]
Tr Memorandum from the Attorney General to J. Edgar Hoover, 2/26/52.
[Emphasis added.]
'8 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.
296
Supreme Court decision in Irvine v. California 8°-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 micro.{>
hone surveillance in connection with matters relating to the
mternal 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 UJ quite clear that in the Irvine case
the JU.'Stices of the Sup'l'eme Court were out'l'aged by what they
regarded as the indecency of installing a m.ierophone 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 miC'l'ophone in a bed'l'oom {)If' in some
comparably intimate locatwn should be avoided whereve'l'
possible. It may appear, however, that impO'l'tant 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.
80 347 U.S. 128 (1954). In IrviJne. 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.
297
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, considerations
of inte1'11.al 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 utilizmg 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
81 Memorandum from the Attorney General to the Director, FBI, 5/20/54.
[Emphasis added.]
.. Memorandum from the Director, FBI to Mr. Byron R. White, Deputy At·
torney 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 329-330.
... For an account of a subsequent meeting bclJween 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 Surrepitious
Entries, Sec. H.
298
The Department later summarized the policy during these years in
the Supplemental Memorandum to the Supreme Court in the case of
Black v. United State8,83 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 case." 84
C. 1965 to the Pre8ent
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
83 385 U.S. 26 (1966) .
.. Supplemental Memorandum tor the United, States, Black v. United, States,
385 U.S. 26 (1966), submitted by Solicitor General Thurgood Marshall, 7/13/66.
.. Memorandum from J. Edgar Hoover to the Attorney General, 3/30/65.
... 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. )
.. Directive from President Johnson to Heads of Agencies, 6/30/65.
299
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 infOImed 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 complet€ly the US€ of" this technique 87-clespite Katzenbach's
approval of the limited use of microphone surveillance in March
of that year and despite the absence of a prohibition on 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 elimmated. He gave virtually unrestncted 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 Blaok 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 obtamed 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
89 and reaffirmed in Clark's 1967 memorandum to heads of
executive departments.9o
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"
ffI Memorandum from the Director, FBI to the Attorney General, 9/14/65.
.. Memorandum from Nicholas deB. Katzenbach to J. Edgar Hoover, 9/27/65.
.. Memorandum from the Attorney General to all United States Attorneys,
11/3/66.
.. Memorandum from the Attorney General to Heads of Executive Departments
and Agencies, 6/16/67.
69-984 0 - 76 - 20
300
cases became a constitutional requirement as well-regardless of
whether or not the installation involved trespass.9Qa 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
11)65, 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 dea~t with -the leg-al framework
and Justice Department policy r~garding warrantless wIretapping and
bugging. This section attempts to provide an overview of FBI electrolllC
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 leg'8:1 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 particul'ar cases is reserved for Section VII below.
A. Extent of FBI Electronic Surveillance: 194-0-1975
While FBI use of warrantless electronic surveiUance 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 1960sand early 19708, 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.
lOla The Court in Katz rejected the distinction made in Goldman, between trespassory
and nontrespasSQry 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 (1967).
301
1. Annual Tota7s for Wiretaps and Microphone Installations
According to Justice Department records, the annual totals of warrantless
FBI wiret.aps and microphones in opel'ation between 1940
and 1974 were as follows:
Year
Telephone
wiretaps Microphones Year
Telephone
wiretaps Microphones
1940 _
194'- _
1942 _
1943 _
1944 _
1945 _
1946 _
1947 _
1948 _
1949 _
1950 _
1951. _
1952 _
1953 _
1954 _
1955 _
1956 _
1957 _
6
67
304
475
517
519
364
374
416
471
270
285
285
300
322
214
164
173
6 1958 _
25 1959.. _
88 1960 _
193 196L _
198 1962 _
186 1963.. _
84 1964. _
81 1965 _
67 1966 _
75 1967. _
61 1968 _
75 1969 _
63 1970 _
52 1971.. _
99 1972 _
102 1973 _
71 1974. _
73
166
120
115
140
198
244
260
233
174
113
82
123
102
101
lOS
123
190
70
75
74
85
100
83
106
67
10o9
14
19
16
32
40
142
I Attorney General Edward H. Levi testimony, Nov. 6, 1975, hearings, vol. 5, pp. 68--70. The statistics before 1968 en~ompass
electronic surveillances for both intelligence and law enforcement purposes. Those alter 1968, when the OmnIbus
Crime 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 installations.91
It should be noted that these figures are cumulative for each year;
t.hat 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 Jfa~imum 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 inoperation
at anyone 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." .2
21 Levi, 11/6/76, Hearings, Vol. 5, p. 70.
.. Charles Brennan deposition, 9/23/75, p. 44. An example of this relatively
frequent occurence 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 (seepp. 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 fo increase
total number of technical installations in operation." (Memorandum from W. R.
Wannall to W. C. SUllivan, 6/20/62.)
302
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 "secu..
rlty 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 nUlllber 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 intensifieation 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
.3 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 iJnclude all electronic surveillances conducted
for any length of time, however brief, during the year indicated.
.. Brennan deposition, 9 / 23/75, p. 43.
.. 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 I;lefore the House Appropriations Committee so
that he could report, if asked, a reloatively small number of wiretaps in operatIon.
(ISee, 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 :
Before Date of Director's testimony After
"Retrieval notracticable". •__ • Feb, 16, 1967 (38).----------.----------- Mar. 13, 1967 (42).
Jan.15,1968( 3)----- Feb. 23, 1968~33).---------------------- Mar. 22, 1968(33).
Mar. 14 1969 (46).... -- Apr. 17, 1969 49) May IS, 1969 50).
Feb. 5
l
\970 (38)•• .. Mar. 5
1
1970 ( 6) • • __ .,, __ •. Apr. 6
1
1970 (~7).
Feb.1b, 1971 (33)----- Mar. II, 1971 (33) .. . __ Apr. II, 1971 (40).
Jan. 31, 1972 (32)_. Mar. Z, 1972 (34)----- ..... .. Mar. 31, 1972 (35).
(letter from FBI to Senate Select Committee, 6/9/75.)
.. Special Report: Interagency Committee On Intelligence (Ad Hoc) June
1970, p. 26.
f1T Ibid., Po 28.
M Memorandum fram Tom Charles Huston to H. R. Haldeman, 7/70.
303
Director Hoover nonetheless remained strongly opposed to lifting
restraints on the FBI's nse 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 therealter
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 selfrestriction,
the number of foreign-related surveillances increased lOl_
a fact which is reflected in the annual totals listed above.
B. Reque8t8, Approval.'J, arid Irnplenwntati())~
1. The Reque8t and A pprovril Process
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 re~uest 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.l05 It is possible
"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
pIEetronic surveillances directed against American citizens connected with
domestic organizations.
100 For examples of wiretap requests 'wilich have originated outside the Bureau,
see pp. 312, 337.
100 As noted above, the approval of the Attorney General has been required
prior to the implementation of telephone wiretaps since the early 19408 and prior
to the implementation of microphone surveillances since 1965.
10< 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. 337-008.
304
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.lOB
~. Implementation of Wiretaps and Bugs
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.lOT
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 tvpically 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
summariesYo 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
106 Zweibon v. MitcheU, 516 F. 2d 594, 609 n. 24 (D.C. Cir. 1975).
101 Horace R. Hampton, Former Director of Government Communications Service,
Chesapeake and Potomac Telephone 00., 1/27/75, HaZperin v. Kissinger,
Civ. No. 1187-73 (D.D.C.), pp. 12, 13.
106 FBI Special Agent deposition, 4/7/75, Halperin v. Kis8inger, Civ. No. 118773
(D.D.C.), pp. 10, 11.
101 FBI Special Agent deposition, 4/7/75, PP. 38, 39.
110 FBI Special Agent deposition, 4/7/75, pp. 40-42.
305
day.ll1 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 transmitt~d 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 ent~red 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.l13 Once the bug was planted, it was generally
necessary for Bureau agents to monitor the conversations from a location
close to the targeted premises.
a.The ELSlJR 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 dose an important
inwstigation involving major gambling figures in Miami because
we were advised that the evidence necessary to obtain
a conviction was tainted....
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 mayor 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 andmaintain appropriate indices with respect to electronic
surveillance and the materials derived therefrom.
I have discussed this suggestion with the Attorney General
11\ FBI Spe<·ial Agent deposition, 4/7/75, pp. 45, 58-59.
m l<'BI Special Agent deposition, 4/7/75, pp. 58, 59.
m Staff summary of former FBI Special Agent interview, 9/5/75.
m 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 ease that
the Government is legally obligated to produce all materials generated by electronic
surveillance for inspection by the court in criminal cases.
306
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 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. 11B
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
and completeness.
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 contriibu:ting 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.
Uo 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.
m Memorandum from w.e. Sullivan to e. D. DeLoach, 10/4/66.
118 Ibid.
307
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 "'ere 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 mon~
itors are under instructions to prepare ELSUR Index cards for each
identifiable person who speaks over the intercepted line.12O Since the
cards must contain the proper names of these individuals ra.ther 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.l2l 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 mto the
E'LSUR Index.122 Sometimes no entry has been made in the ELSUR
Index even though positive identification was subsequently obtained.122
&
Thus, a person could be overheard and this :fact would not he revealed
by a check of the ELSUR Index.123
D. OongressWnalInvestigation of FBI Electronic Surveillance Practices:
The Long Subcommittee
The Bureau has traditionally been reluctant to permit CongresRional
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
111 Letter from the FBI to the Senate Select Committee, 10/3/75.
,.. J!'BI Specia'l Agent deposition, Halperin v. Ki88inger, 4/7/75, pp. 15, 16.
121 F'BI Special Agent depo;;;itioll, Halperin v. Ki88inger, 4/7/75, p. 19.
m F'BI Special Agent deposilJion, Halperin v. Kissinger, 4/1/75, pp. 11-19.
m. FBI Special Agent depo9i.1JioD, Halperin v. Kissinger, 4/7/75, pp.53, 54.
123 In at least two ca,ses, 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 ELSURIndex system.
308
Opening; 124 a similar attempt, apparently acquiesced in by the subcommittee,
was made in the area of electronic surveillance.
The Bureau's wary attitude toward this investigation is reflected in
an internal memorandum dated August 2,1965:
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 hearings,
our name has been mentioned quite prominently on several
occaSI•Ons....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 conneotion 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 bhe 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
~flecting ~ stronger pro-FBI position might not only prove ineffective
m thwartmg those persons who are exerting pressure on the Sub-
,.. CIA and FBI Mail Opening Report: Sec, IV, FBI Mail Opening
,.. Memorandum from M. A. Jones to Mr. DeLoach, 8/~/66. .
,.. Memorandum from C. D. DeLoach to Mr. Tolson, 1/10/66.
U'1 Ibid.
,,. Ibid.
1J!O Ibid.
,.. Ibid.
181 Ibid.
309
committee 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 agency.
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 keepin~ 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 bhe FBI occurred prior to the preparation
of this statement by Bureau agents other than the ninetyminute
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
L12 Memorandum from M. A. Jones to Mr. Wick,l/l1j66.
'33 Memomndum from M. A. Jones to Mr. Wick (attachment),l/ll/66.
'34 The details of these cases are discussed in Section VI below.
310
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.l35
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.131
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 scrutmy until
the 1970s.
V. WARRANTLESS FBI ELECTRONIC SURVEILLANCE OF FOREIGN INTELUGENCE
AND COUNTF.RINTELLlm;NCl<; TARGE1'S WrrJJIN THE UNITED STATFA'l
Foreign agents and foreign esta:blishments 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
t;h.ose raised by the targeting of Americam. 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
'"" Memorandum from C. D. DeLoach to Mr. Tolson. 1/21/66.
1IlIIbid.
JI1 Ibid.
311
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 affeoted even by surveiIIllince 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
cOllnterintelligence information to the detection of terrorist activit~.138
Since the 1972 Keith decision, which invalidated "domestic securIty"
warrantless electronic surveillances, the proportion of forei~ 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 elootronic surveillance against foreign
targets, as well as "domestic" abuse questions which have arisen in this
context, are discussed below.
A. Purpo8e and Value a8 an I nve8tigative Technique
Eleotronic 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 officials." 140
Electronic surveillance of targets suoh 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 formPI' Assistant Director in charge of the Bureau's
Domestic Intelligence Division, wiretaps and bugs directed against
foreign targets:
give us a base line from which to operate.... Having the
benefit of electronic surveillance, we are ina position to make
evaluUitions, to make assessments, to make decisions as to [the
conduct of counterintelligence operations].... It gives us
lea{ls as to persons ... hostile intelligence services a:re try-
111l Letter from FBI to Senate Select Committee (attachment), 10/23/m. Some
of the surveillances for these purpdses targeted Americans, but the FBI has not
until recently identIfied surveillance targets according to their citizenship 01'
resident alien status.
,'" Attorney Geneml Edward H. Levi testimony, 11/6/75. Hearings, Vol. 5, p. 71.
14. Letter from FBI to Senate Select CommiJ1:tee (atUichment). 10/23/75. These
category descriptions are the FBI"s, and some may incolude Americans.
312
ing to subvert or utilize in the United States, so certainly it
is a valuable technique.14l
Some of the surveillances in the oategories 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 manda.te,
such surveillances have been responsive to specific requests of the
Attorney General by the State DepartJrnent and the OIA, both of which
have a responsibility for "positive" intelligence.142
In addi,tion, the Bureau has electron'ie-ally 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 "Arllib Terrorist Activist Meeting" have been used
for similar purposes.143
B. Foreign Surveillance Abuse Questions
Even properly authorized electronic surveillances directed against
foreign targets for the purposes noted aoove 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
administraJtion officials.
It is also possible to institute electronic surveillance of a forei'gner
for the primary purpose of intercepting the communications of a
particular American citizen with that target; since the "foreign" sur-
141 W. Raymond Wrannall testimony, 10/2l/75,pp. 20, 21. The legitimate counterintelligence
benefit that aCCl'l\les to the Bureau through the use of this technique
would not be reduced if a form of judicial warrant were required prior 1:0 the
implementation of eJ.eetronic surveillances direeted aguinst foreign agents or
collaborators. See Senate Seleet Committee Final Report, Book II, Recommendations
51 and 52.
l4la Pres'ident Ford's Executive Order on foreign intelligence specifically authorizes
FBI eleetronic surveillance for this purpose. (Executive Order 11509,
2j!l8/76.)
142 See, e.g., Memorandum from R. D. Cotter to W. C. Sullivan, 3/'1l/68; Draft
of National Seeurity 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 orA 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 approva~ to international activitieS
directly rela'!:ed to the m'ilitfiry security of the Unite'd States." (Ramsey Clark
test'imony, Hearings before the Senate 'Subcommittee on Administrative Practice
and Procedure (1974).) He sotated that he denied requests "to tap Abba Eban
when he was on a visiit to -this countTY, an employee of the United Nations Seeretariat,
the Organization of Arab Students in the U..s., the Tanz.an'iall Mission
to the U.N., the offi'ce of the Agricultural Counselor at the Soviet Embassy an"a
correspondent of TASS." (Ibid.).
14' Letter from 'FBI to the Senate 'Select Committee (atta<!hment), 10/23/75.
313
v~i1lance 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 pradtices, which clearly affect the rights of the Americans
involved, have occurred in the past and are discussed below.
1. Dis8emination of Dorne8tic Intelligence from Incidental
Overhear8
Essentially political information-unrelated to the 'authorized purpose
of the surveillance-has occasionally been obtained as a byproduct
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
electrolllc 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 esta:blishments
in Washington, it was also able to supply two Presidents with reports
of bhe contacts between members of Congress and foreign officials.
According to a 1975 FBI memorandum:
On March 14, 1900, then President Lyndon B. Johnson informed
Mr. DeLoach [Cartha DeLoach, fOl"Iller Assistant
Director of the FBI] ... that the FBI should constantly keep
abreast of the actions of representatives of these [foreign
countries] in ma-king contacts with Senators and Congressmen
and any citizens of a prominent nature. The President stated
he strongly felt bha,t 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 esta:blishments 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
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.
u5 FBI summary memoran(la, 2/16/61, 6/1'5/62.
'48 FBI summary memorandum, 2/3/75.
1<1 FBI summary memorandum, 2/3/75.
314
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 contaots 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.H9a 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.
~. l'n(1irect Targeting of American Oitizens 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.15O More specifically, the President believed
that Mrs. Anna Chennault, widow of General Clair Chennault and a
prominent Republican leader, was attempting to persuade South Vietnamese
officials "from attending the Paris peace negotiations until
after the election since it would devolve to the credit of the Republican
Party." 151
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.l51a The electronic surveillance of the Embassy was author-
,.. FBI summary memorandum, 2/3/75.
,. FBI summary memorandum, 2/3/75.
1<Ila 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 memorandum, 2/3/75.)
1GO FBI summary memorandum, 2/1/75.
1ti1 FBI summary memorandum, 2/1/75.
1610 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,
11/1/6R. 11/2/68. 11/~/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 outg-oing telephone toll records of Vice Presidential
candidate Spiro Ag-new while he was campaigning- in New Mexico. (Memorandum
from C. D. Th>T...nach to Mr. Tolson, 11/19/68). 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,M/75.)
315
ized 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 Repu~li?an
political circles and, if it became known that the FBI was s~rvelllm~
her this would put us in a most untenable and embarrassmg pOSItion."
153 Thus, a "foreign" electronic surveillance was institu~ed 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." 151
Four years later, a high official in the Truman administration 1.55 and
a former aide to President Roosevelt 156 were both the subject of warrantless
electronic surveillance.
Between 1960 and 1972 numerous American citizens and domestic
organizations were targeted for electronic surveillance. Most of these
11;2 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, Rearings,
Vol. 6, p..252.) There is no indication in the request for this wireltap, which was
sent to Attorney General Clark, that the White House or the FBI was specificalIy
interested in intercepting telephone conversations between Mrs. Chennault and
South Vietnamese 01llcials. 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.
1l>O 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 <»mmunist 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 npproved by Attorney
General Biddle. (Biddle to Hoover, 11/19/41).
""" 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 recoro as to who authorized this wiretap.)
"" 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 untl11948, were delivered to the
Truman White Houge. (Memorandum from FBI to Senate Select Committee
(attachment).3/26/76.)
69-984 0 - 76 - 21
316
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 151 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 1975/60 but a small number of
Americans have been electronically monitored since the Keith case on
the basis of such a foreign connection.l6l
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 SurveillaMe 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;
""'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.
>II 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 19M 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.
lilt See the discussion of the Keith case, United, States v. United States DistriCt
Court, 407 U.S. 297 (1972) p.290.
110 Attorney General Edward H. Levi testimony, 11/6/75, Hearings, Vol. 5,
p.71.
101 For example, memorandum from Acting FBI Director L. Patrick Gray to the
Attorney General, 10/19/72.
317
such surveillance typically occurred in the context of COMINFIL
(Communist infiltration) investigations.162
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 Parly, 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,
wiretags 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," "MarxistLeninist
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] Prop-
1lIlI See Report on the Development I()fFBI Domestic iIntelllgence Investigations
for an analysis of COMINFIL investigations.
lilt Letter from FBI to Senate Select Commtttee (attacbment). lO/2,'V75. Tbi'\
target category descriptions are the FBI'fI.
lIllbi.lJ
318
aganda Outlet;" and microphones directed against "Pro-Castro Organizations,"
a "Pro-Chicom Group," and a "Pro-Cuban American
Group which travelled to Cuba." 165
The "subversive 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 bugging 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 1965.161 Apparently
as part of this COMINFIL (Communist infiltration) investigation,
several of King's associates were also wiretapped and bugged.168
At least three other organizations have been tar~eted 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) 170 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 Actilvity
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
,85 Letter from FBI to Senate Select Committee (attachment), 10/23/75.
1.. Memoranda from J. Edgar Hoover to the Attorney General, 10/7/63 and
10/18/63. See King Report: Sec. IV, Electronic Surveillance of Dr. Martin Luther
King, Jr.
18'l' 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.
'88 Letter fro~ 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 1963.
,.. 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.
11> See p. 335.
319
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).<76
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 "milit,
ant 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
173 Memorandum from .T. Edgar Hoover to the Attorney General, 12/31/56. ini·
tialled "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 aU during any of the riots [in the
1960's]." George C. Moore deposition 11/3/75, pp. 36, 39.
174 Memorandum from .T. Edgar Hoover to the Attorney General, 4/1/64.
1711 Memorandum from .T. Edgar Hoover to the Attorney General, 3/3/65.
1111 Letter from FBI to Senate Select Committee, 10/22/75.
177 For example, memorandum from .T. Edgar Hoover to the Attorney General,
3/20/69; Memorandum from .T. Edgar Hoover to the Attorney General, 10/7/69.
"8 Letter from FBI to Senate Committee (attachment), 10/23/75.
1'19 Memorandum from W. R. WannaU to C. D. Brennan, 3/29/71.
180 Letter from FBI to Senate Select Committee (attachment), 10/23/75.
181 Ibid.
18% Ibid.; Memorandum from W. R. WannaU to C. D. Brennan, 3/29/71.
183 Ibid.,. Memorandum from .T. Edgar Hoover to the Attorney General, 10/9/63.
320
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).19o 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;"
"IA'ader 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 1963; and "ProPuerto
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 forei~
power or group. (To the extent an actual connection with a hostIle
forei(ff power was perceived, they would also be considered "subversive.')
These orgamzations, 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" "ProPalestine
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 Exile." 193
1M Memorandum from J. Edgar Hoover to the Attorney General, 9/28/64;
Letter from FBI to Senate Select Committee (attachment), 10/23/75.
'''Letter from FBI to Senate Select Committee (attachment), 10/23/75.
'86 Ibid.
'87 See p. 338.
188 Memorandum from J. Edgar Hoover to the Attorney General, 3/16/70.
1lIO Letter from FBI to Senate Select Committee (attachment), 10/22/75.
- Ibid.
1J1 Ibid. The category descriptions are the FBI's.
'.2 Letter from FBI to Senate Select Committee (attachment), 10/23/75.
,.. Ibid.
321
O. Ele<Jtronic SU1'Veillance Predicated on Leaks of Olassified
I nfo'rJn(J,tion
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 surveillan('~. These investigations are described below.
Lloyd N()'rJn(J,n: 1961.l94-On June 27, 1961, Attorney General
Robert Kennedy informed FBI Director Hoover that the most recent
issue of NeW8week 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.19lJ
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." 191
Hanson Baldwin: 196~.-A July 1962 New York Ti1M8 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
194 This case is also discussed at p. 333.
1lIG Memorandum from R. D. Cotter to Mr. W. C. Sullivan, 12/15/66.
111 MemQrandum from J. Edgar Hoover to the Attorney General, 6/29/61. Since
the early 194()'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 Hoover, 9/27/65).
111'1 Memorandum from Mr. S. B. Donahoe to Mr. W. C. Sullivan, 7/3/61.
1tllI A July 27, 1962, memorandum from the "Director, FBI" to the Attorney
General roods in part:
"In accordance with our discussion today, technical covernge will be effective
on Baldwin on the morning of July 28, 1962, at bis residence in New York. In
Iddition, we have learned that Baldwin normally utilized [ ] of
:he 'New York Times' Washington office as his secretary to arrange appointments
vhen he comes to Washington. Consequently, we have placed teChnical coverage
n her residence ..." (Memorandum from Director, FBI to the Attorney General,
/27/62.)
322
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 SO.205
The authorization for 'the second surveillance therefore appears to
have been oral. Coverage of this agent was permanently suspended on
September 9, 1963.205
&
High Eweautive Oflieiul: 1963.-Because of the possibility that a
high-ranking executive official may have provided classified information
not to the press but toa foreign intelligence officer, the FBI T'equested
the Attorney General in February 1963 to authorize a wiretap
on the residence telephone of this official.205b According to the request
which \VIas 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; 205. 'reinstituted on July 14, 1963; and permanently
discontinued on November 6, 1963, "because of lack of productivity."
205f
,.. Memorandum from J. Edgar Hoover to the Attorney General, 7/31/62;
memorandum from W. R. Wannall to W. C. Sullivan, 8/13/62. .
200 Wannall memorandum, 8/13/62; memorandum from ,V. R. 'Vannall to W. C.
Sullivan, 8/28/62.
201 Memorandum from J. Edgar Hoover to the Attorney General, 10/19/62.
,.,. Unaddressed memorandum from A. H. Belmont, 1/9/63.
203 Memorandum from J. Edgar Hoover to the Attorney General, 10/19/62.
'"" Ibid.
IlIG Unaddressed IDelJnoo'andum from "hwg," 1/9/63.
",",. Memorandum from New York Field Office to FBI Headquarters, 9/9/63.
.... Memorandum from J. Edgar Hoover to the Attorney General, 2/11/63;
memorandum from W. R. WannaIl to W. C. Sullivan, 2/8/63.
... Memorandum from J. Edgar Hoover to the Attorney General, 2/11/63.
0ll0d Memorandum from J. Edgar Hoover to the Attorney General, 2/11/63;
letter from FBI to the Senate Select Committl"l", 4/20/76.
lUe Letter from FBI to the Senate Select Committee, 4/20/76.
",",f Ibid.
323
Editor of an Anti-Oowmwnist 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 Washmgton, 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 approva1.206
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, possihly in response to a leak
from the National Security Council, John Ehrlichman instrucled
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,208 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.218
The "Seventeen Wiretaps:" 1969-1971.21~-The wiretaps which were
directed against seventeen government employees and newsmen be-
... Memorandum from J. Edgar Hoover to the Attorney General, 4/19/65;
Mem01"andum froon J. Edgar Hoover to the A'titorney General, 6/7/65.
.... Memorandum from R. D. Cotter to W. O. 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.
.... Letter froon W. C. Sullivan !to Mr. Hoover, 6/30/69.
... Letter from W. C. Sullivan to Mr. Hoover, 7/2/69.
no See generally, Hearings Ibefore the Subcommittee on AdministrativePraetire
and Procedure, 5/10/74, pp. 380-400.
.,1 Memorandum froon Mr. W. e. Sullivan to Mi". DeLoach, 11/5/69; Memorandum
from J. Edgar Hoover to the Atltorney General, 12/11/69.
... Memorandum from Mr. W. C. Sullivan 'to Mr. DeLoach, 11/7/69.
213 Hoover memorandum, 12/11/69.
21. Thee wiretaps are also discussed at pp. 337-338 and 349-351.
324
tween 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 imtial
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. Kissin~erhas 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. Kissmger 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 animmediate
investigation." 218e 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
21S Memorandum from J. Edgar Hoover to Messrs. Tolson, DeLoach, Sullivan,
annd.BMisehmoopr,a5n/d9u/6m9,fr1o0m:35J.a.Emd.gar 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.
... Hoover memorandum, 5/9/00, 5 :{)5 p.m.
.... Dr. Kissinger's Responses to PlaintUf's First Set of Interrogatories, Halperin
v. Kissinger, Clv. No. 1187-73 (D.D.C.), 1/12/76, p. 18.
.,Sb Ibid.
218< Ibid., p. 28.
325
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 memomndum 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.22o
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 Accordmg 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." 222,. He further stated that Dr. Kissinger provided
him with the names to take to Sullivan 222b and that he had. bhe "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 unnecessaIJ 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.me
21"" Ibid.
m. Ibid., p. 25. Former President Xixon 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. Kissf!n,ger,
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. 23) .
... FBI Special Agent deposition, Halpern v. Kis8inger, Civ. No. 1187-73
(D.D.C.), pp. 64, 65; House Judiciary Committee Report, 8/20/74, p. 147.
2llO Memorandum from W. C. Sullivan to Mr. C. D. DeLoach, 5/11/69. =Ibid,.
us Ibid,.
.... Alexander M. Haig deposition, Halperin. v. Ki8ainger, Civ. No. 1187-73
(D.D.C.), 10/25/74, pp. 9, 10.
222b Ibid., p. 10.
222e Ibid., p. 11.
222d Ibid., p. 18.
222. Ibid., p. 19.
326
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, 197o: A Deputy Assistant Secretary of State; a
State Department official of "Ambassador" rank; and a
Brigadier General with the Defense Department
-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.
Oharles Radford: 1971-197f2.-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 n.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
... Memorandum from J. Edgar Hoover to the Attorney General, 5/12/69.
22< 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.
... Memorandum from T. J. Smith to E. S. Miller, 2/26/73.
22' Ibid.
228 Ibid.
... Ibid.
327
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,23oa with ,,,hom 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--0ne 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." 23.5
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 concurrence.237
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.
... Memorandum from T. J. Smith to E. S. Miller, 6/14/73.
.... The Committee's Final Report inaccurately states that this tap was on
Radford's father-in-law. (Final Report, Book II, p. 187, note 19.)
231 Blind memorandum captioned "Charles E. Radford, II," 1/13/72.
... Memorandum from T. J. Smith to E. S. Miller, 6/14/73.
"""Ibid.
""'Ibid.
"'Ibid.
... Ibid.
237 Ibid.
328
D. Electronw Surveillance Predwated 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 assassination.238
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 ra 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
investig-ation 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
intel1i!!'ence community had learned that officials of a foreign government
"intensely desired passage of a sug-ar bill by the U.S. Cong-ress
which would contain quotas favorable to rthat government]." 242 This
fact had significant ramifications on American foreign policy. Accord-
'38 FBI letter to Senate Select Committee (attachment) 10/23/75.
'31 This case is also discussed at pp. 34i'HW6.
'<0 Memorandum from W. R. Wannall to W. C. Sullivan, 12/22/66.
m Ibid.
... Ibid.
329
ing 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 officials.
244
Because of the foreign intelligence interest involved, and on the
ground that "the administration has to act if money or ~fts 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) ; 247 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 A¢culture
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,260
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 certam, 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...." 262 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
... Memorandum from Richard Bissell to Mr. Bundy, 2/16/61.
... FBI summary memorandum, 2/2/61.
... Memorandum from A. H. Belmont to Mr. Parsons, 2/14/61.
... Memorandum from J. Edgar Hoover to the Attorney General, 2/14/61.
.., Memorandum from J. Edgar Hoover to the Attorney General, 2/16/61.
... I1Jiil•
... FBI summary memorandum, 2/15/61.
... FBI summary memorandum, 2/15/61; Memorandum from D. E.. 'Moore to
A. H. Belmont, 2/16/61.
.. Memorandum from Director, FBI to the Attorney General, 2/18/61.
... Memorandum from W. R. Wannall to W. C. Sullivan, 12/21/66.
330
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.25s
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.-0n 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.2jl2 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
... Memorandum from J. Edgar Hoover to Messrs. Tolson, Parsons, Mohr.
Belmont, and DeLoach, 2/17/61.
... Ibid.
25/; Memorandum from Director, FBI to the Attorney General. 2/18/61.
2M FBI summary memoranda, 6/15/62; 6/18/62; 6/19/62.
267 Memorandum from J. Edgar Hoover to the Attorney General, 6/26/6'2.
258 Memorandum from W. R. Wannall to W. C. Sullivan, 8/16/62.
25. Ibid.
'00 Memorandum from W. R. Wannall to W. C. Sullivan, 8/16/62.
'" Available documents do not reflect the termination date of these wiretaps.
'", 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.)
262. Ibid.
262b Letter from FBI to Senate Select Committee, 4/20/76.
331
January 4, 1971, and March 31, 1971,263 Coverage was terminated
.July 3, 1971}633
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; 2653 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 actionZweibrm
v. Mitchell-subsequently filed by sixteen members of JDL
who were oveheard on the wiretap.
The District Court in the Zwewrm case agreed with Attorney General
Mitchell that the JDL wiretap was in fact rellltted 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
263 Memoranda from J. Edgar Hoover to Attorney General, 1/4/71 and 3/31/71.
283. Letter from FBI to Senate Select Committee, 4/20/76.
... 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. MitcheU, 516 F. 2d 594 [D.C.
Cir. 1975].)
£65. Memorandum from J. Edgar Hoover to the Attorney General, 9/14/70.
266 Memorandum from J. Edgar Hoover to the Attorney General, 3/31/71.
207 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, 6O(H)7 n. 16 [D.C. Cir. 1975].)
61-984 a - 76 - 22
332
with a foreign power IS unconstitutional under the Fourth
Amendment.269
VII. DOMESTIC SURVEILLANCE ABUSE QUESTIONS
The possibilities for abuse of warrantless electronic surveilla.nce
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 informationunrelated
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. Questi01Ulble and Improper Seleotion of Targets
Judged against the principles established in the 1912 Keith case,
nearly all of the Americans, unconnected with a foreign )?Ower, 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 "DO'J7lI3stic Security" Standa'l'd
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
... See p. 292.
.- The omission of other cases from the discuseion which follows is not intended
to suggest the conclusion that the·use of electronic surveillance was justified
or appropriate in such cases under the standarde which existed at the time
of the surveillance.
:no Memorandum from President Roosevelt to the Attorney General, 5/21/40.
333
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 offiClals 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
jeo:pardy, 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,213 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 ..." 214 and a Pentagon source indicated that he "had no
factual infol'lllation '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 th~t 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 31pproved "technical coverage" (electronic
surveiHance) on Malcolm X after the FBI advised him that the Nation
of Islam leader was "forming a new ~oup" which would be
"more aggressive" and would "pal"ticipalte III racial demonstrations
and civil rights activities." 278 The only indication of possible danger
reflected in the wire1:ap request, however, was that Malcolm X had
"recommended the possession of firearms by members for their selfprotection."
279
=Memorandum from Attorney General Tom C. Clark to President Truman,
7/17/46.
m See pp, 328--330.
... See p. 321.
214 Memorandum from R. D. Cotter to W. C. SulliV'an, 12/15/66.
2'f'Memorandum from D. E. Moore to W. C. Sullivan, 6/28/61.
.,. An internal FBI memorandum states: "We did not obtain information from
this wiretap which assisted us in determining the ideIlltity of the person responsible
for leaking classified information." (Memorandum from R. D. Cotter to W. C.
Sullivan, 12/15/66).
Il'l7 Memomndum from R. D. Cotter to W. C. Sullivan, 12/15/66.
"'" Memorandum from J. Edgar Hoover to the Attorney General, 4/1/64.
ml1JitJ.
334
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.
13. Microphone Surveillance8 U1Uler the "National Interest"
Bta1Ulard
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
... Memorandum from J. Edgar Hoover to the Attorney General, 6/15/65.
0!l1 Memorandum from the Attorney General to the Director, FBI, 5/20/54.
281. 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.
... 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.
335
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 mstallations, make clear that they were planted in
Dr. King's hotel rooms for the exprP..8S purpose of obtaining personal
information about him rather than for internal security purposes.283
The validity of the "national interest" rationale for the other bugsand
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.286
A 1975 Inspection Report on the FBI's 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. Wiretap8 and Microphone Surveillanee8 Under the Five
Oriteria BaBed on Section ~511 (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
... 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.
... King Report: Sec. IV, Electronic Surveillance on Dr. Martin Luther King, Jr.
... 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 !lire 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.)
2811 Memorandum from W. C. Sullivan to A. H. Belmont, 8/21/64.
lIBr FBI summary memorandum, 1/30/75.
336
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: "1 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 placin~ 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
-Testimony of John Ehrlichman before the Senate Watergate Committee,
7/24/73, p. 2535•
.. 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.
so William Rnckelshaus t£>stimony, Hearings before the Subcommittee on
Administrative Practice and Procedure, 5/9/74. p. 320.
m IbM.
lI82 Joseph Kraft testimony, Hearings before the Subcommittee on Administrative
Practice and Procedure, 5/10/74, p. 381.
... Joseph Kraft testimony, Hearings before the Subcommittee on Administrative
Practice and Procedure, 5/10/74. p.381.
- The Wa8hington Post, 3/31/76, p. 1.
337
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.
The "Seventeen 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."
291 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.30o
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.30l 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,
... Memorandum from Mr. W. C. Sullivan to Mr. DeLoach, 11/4/69.
... Memorandum from Mr. Sul11van to Mr. DeLoach, 12/11/69.
.... Public statement of President Nixon. 5/22/73.
... Memoranda from J. EdgaT Hoover to the Attorney General, 5/12/69, 5/20/69,
5/29/69, 6/4/69, 8/4/69, 5/4/70, and 5/13/70.
... Memorandum from J. Edgar Hoover to the Attorney General, 7/23/69.
... Memorandum from J. Edgar Hoover to the Attorney General, 12/14/70.
lIl1 Memorandum from W. C. Sullivan to C. D. DeLoach, 8/1/69.
30S Memorandum from J. Edgar Hoover to Messrs. Tolson, Sullivan, and C. D.
Brennan, 10/15/70.
... Memoranda from J. Edgar Hoover to the Attorney General, 5/13/70 (two
separate memoranda), 10/16/70, and 12/14/70.
338
relationship to any claim ofa national security tie ... I
think that as the program pr~dedand 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
conside:r:ations [i.e., genuine national security justifications]
were considembly relaxed as the program went on.804
As noted in Section VI above, wiretaps were also placed on three
antiwar organizations which were involved in planning the "March on
Washington" in Novemoor 1969. The first of these three wiretaps,
approved by Attorney General Mitchell on Novemoor 6, was directed
against the New Mobilization Committee to End the War in Vietnam
(NMC).305 The FBI's request for covemge of this group noted that
the anticipated me 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 demonstrations." 308
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 work-
... Ruckelshaus testimony. Hearings before the ~ubcommittee on Administrative
Practice and Procedure, 5/9/74, pp. 311-312.
305 Memorandum :from J. Edgar Hoover to the Attorney General, 11/5/69.
301 Ibid.
"'" Memorandum from J. Edgar Hoover to the Attorney General, 11/7/69.
80S Ibid.
339
ers 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.3lD 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 PoliM£cil 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
adequaite justification in the particular case. In addition, the targeting
of individuals in certain eategories, such as journalists, attorneys, and
persons involved in the domestic political process, is an inherently
questionable praetice beeause of the special coneerns whicJh affect these
groups.
Between 1961 and 1972, at least six Ameriean journalists and newsmen
were electronieally surveilled by the FBI: Lloyd Norman in
1961; 312 Hanson Baldwin in 1962; 313 the editor of an anti-Communist
newsletter in 1965 i 314 Joseph Kraft in 1969 i 315 and two American
... 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
b;r 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 demoostrations
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 mentio.ned were the "plans
for the Xational Interim Committee (ruling body of [excised]) meeting which
took place in New York 'and Chicago," and the plans "for dem{)nstrations 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.
3" See p. 323.
315 See p. 323.
340
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
Stato 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 196'5.320 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 Amendmentbased
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 strategry 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
318 See p. 326.
31. Testimony of Dean Rusk, Hearings Before the Senate Foreign Relations
CQmmittee, 7/23/74, p. 232.
318 MemQl"Rndum from J. Edgar Hoover to the Attorney General, 6/26/62.
318 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.
... 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, Sec. II.
... Memorandum from J. Edgar Hoover to the Attorney General, 6/7/65.
... Zweibon v. JfitonelZ, 516 F.2d 594, 611 (D.D.C.1975).
341
nnder instructions to shut off interception equipment upon the commencement
of conversations between a client and his attorney concernin~
a "pending criminal case." 324 This policy is also applied to warrantless
electronic surveillances.325 As a practical matter, however, it
i.;; difficult, if not impossible, to comply fully with this requirement
since the monitoring agent must listen to the beginning of such It
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 violati.on 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 pendmg
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
... Agent's Manual for Oonduct of Electronic SurveiZZance Under Title III of
PubUc Law 90-.'151, 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 relnting to the crime specified
in the order authorizing interception.
,.. For example, SAC Letter, 8/18/69.
The "pending criminal ease" 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, 5/25/60).
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 text.
32ll Memoranda from J. Edgar Hoover to the Attorney General, 9/14/70, 1/4/71;
Zweiboo v. MitcheZZ. 516 F.2d 594, 610-11 (D.C. Cir.1975).
"'" ZweilHJn v. MitcheZZ, 516 F.2d 594, 634 n. 100 (D.C. Cir. 1975).
342
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.3211 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 gI"anted 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.33o 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 rec-
... The "Plumbers" wiretap against Joseph Kraft wa,s similarly installed
without the prior-or subsequent-approval of the Attorney General.
330 Attorney General Katzenbaeb was apparently given after the fact notification,
however. See King Report: Sec. IV, Electronic Surveillance of Dr. Martin
Luther King, Jr.
343
ords fails to locate any memorandum containing authorization for
[the bug planted at SNCC headquarters] i" 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.] Sullvian [who had 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 an~ 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
~taff member, moreover, remained in operation long after both of
these targets left the employ of the National Security Council and be·
('ame advisors to Senator Edmund Muskie, then the leading Demo.
cratic 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.ss5 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." 331 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.33B In both the
ll3l FBI summary memorandum, 1/30/75.
SIll Memorandum from W. C. Sullivan to Mr. DeLoach, 1/21/66.
... Report of the House Judiciary Committee, 8/20/74, p. 150; p. 345.
... Memorandum from W. C. Sullivan to Mr. Hoover, 7/8/69.
... In fact a great deal of political information was obtained from these and
other wiretaps in this series. See pp. 349--350.
338 See p. 325.
m Memorandum from T. J. Smith to E. S. Miller, 2/26/73.
... Staff review of letters sent from W. C. Sullivan to J. Edgar Hoover regarding
the Kraft surveillance.
344
"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.339 On May 12, 1973, these files
were discovered by Acting FBI Director ·William Ruckelshaus in a
safe in Ehrlichman's outer office and returned to Bureau Headquarters.
340
The circumvention of nonnal approval and filing requirements, in
short, accompanied and facilitated the improper wiretapping and
bugging of American citizens. The knowledge that these re:q.uirements
could, in secrecy, be ignored inevitably increased the likehhood that
wiretaps and bugs would be employed without substantial justification.
O. Oollection and Dissemination of Information Irrelevoot to Legit-i,mate
GovernnwnUil 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 Government.
1. PersonoJ InjO'1"fTl,(JJion
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 Amon~ the items of interest that
the FBI obtained from a wiretap on this mdividual-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 ~ass clippings
for a compost heap he was building; and that dunng a telephone
conversation between the target's wife and a friend the "matters
discussed were milk bills, hair, soap operas, and church." 842 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.348
... Report of the House Judiciary Committee, 8/20/74, p. 153.
MO Memorandum from T.•T. Smith to E. S. Miller, 6/8/73.
an The name of this individual and identifying details are withheld for privacy
reasons.
... Staff summary of FBI file review, 8/22/75.
"'Letter from J. Edgar Hoover to John Ehrlicbman, 7/15/69.
345
The "Seventeen 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 hote 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.an 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 similarly
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. PolitwallnfQ1Wl,ation
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" lnvestigation.-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
... Transcript of Presidential tapes, 2/28/73 (House Judiciary Committee. Statement
of Information, Book VII, Part 4, p. 1754) .
... 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.
... Letter from Hoover to Haldeman, 6/25/70.
... King RePOrt: Sec. IV, Electronic Surveillance on Dr. Martin Luther King, Jr.
"'"IbU.
... Ibid.
.... Ibid.
346
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 electroni~
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." m 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 fromoul' coverage
contributed heavily to the administration's success in [passage of the
bill it desired]." 357
The 1964 Democratw National Convention.-The dissemination of
political information from electronic surveillance was repeated during
the Johnson administration. At the request of the White llouse, the
FBI sent a special squad to the Democratic National Convention site
in Atlantic City, Xew Jersey, on August 22,1964, ostensibly to assist
the Secret Service 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 'Vhite House fully ap-
""" Memorandum from W. R. Wannall to W. C. Sullivan, 12/22/66.
351 FBI summary memorandum, 6/15/62.
35. Ibid.
351 FBI summary memorandum, 2/15/62.
3M ~Iemorandumfrom Director, FBI to the Attorney General, 2/18/61.
""" Memorandum from C. A. Evans to Mr. Parsons, 4/15/61.
356 Hid.
35' ~Iemorandumfrom W. R. Wannall to W. C. Sullivan, 12/22/66.
prised of all major developments dming 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
suncillances: a \viretap 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.'60 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
ci viI 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 impossible.362
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 Hampshne.363
3M Memorandum from C. D. DeLoach to Mr. Mohr, 8/29/64.
....Memorandum from C. D. DeLoach to Mr. Mohr, 8/29/64; Cartha DeLoach
testImony, 12/3/75, Hearings, Vol. 6, p. 177.
... Staft summary of Water Jenkins interview, 12/1/75.
301 DeLoach testimony, 11/26/75, p. 114.
... Memorandum from DeLoach to Walter Jenkins, 8/24/64.
3M Memorandum from DeLoach to Jenkins, 8/25/64.
69-984 0 - 76 - 23
348
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." 36. 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
3M Ibid.
,eo Ibid.
... Memorandum from H. N. Bassett to Mr. Callahan, 1/29/75.
38' Memorandum from DeLoach to Jenkins, 8/25/64.
368 Memorandum from C. D. DeLoach to Mr. Walter Jenkins, 8/26/64.
... DeLoach testified that:
"I was sent there to provide information ... which would refiect 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. 139.)
Jenkins agreed that the mandate of the FBI's specIal unit did not encompas.~
the gathering of political intelligence and stated that if any such intelligence
was dis!:leminated it was probJlbly 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 received. '
349
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 MFDPJ 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." 371
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-undemably
provided useful political intelligence to the President as
well.372
The "Seventeen Wiretap8."-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
37G Staff summary of Walter Jenkins interview, 12/1/75.
371 Blind memorandum bearing the handwritten date S/26/69 and the type.
written date 8/19/64.
3'1, 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, 3/11/68.)
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 resubmit.
"Other investigative 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),
~one of them were signed by the Attorney General and Bureau records indicate
that no electronic surveillance was conducted in connection with the 1968
Convention.
350
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.373
-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." 314
-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." 876
-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 Senator]." 877
-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 Congressmen.S80
-That one of the targets said Senator Mondale was in a "dilemma"
over the "trade bill." 381
-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 politics." 882
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 Presidertt that former Secretary of Defense Clark Clifford
planned to write a magazine article criticizing President Nixon's
Vietnam policy,38S 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
... Letter from J. Edgar Hoover to President Nixon and Henry Kissinger,
7/18/69.
.., Letter from J. Edgar Hoover to Preident Nixon, Henry Kissinger, and
the Attorney General, 10/9/69.
87Il Letter from J. Edgar Hoover to President Nixon and Henry Kissinger,
12/3/69.
S'l8 Letter from J. Edgar Hoover to President Nixon and Henry Kissinger,
2/26/70.
1m Letter from J. Edgar Hoover 'to H. R. Haldeman, 5/18/70.
378 Letter from J. Edgar Hoover to H. R. Haldeman, 6/2/70.
371 Letter from J. Edgar Hoover, to H. R. Haldeman, 6/28/70.
:m Letter from J. Edgar Hoover to H. R. Haldeman, 9/4/70.
381 Letter from J. Edgar Hoover to H. R. Haldeman, I1j24/70.
381 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.
... Memorandum from Jeb S. Magruder to H. R. Haldeman and John D. Ehrlichman,
1/15/70.
351
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
targets.
"'Memorandum from "E" (John Ehrlichman) to "H" (H. R. Haldeman),
undated.
... Memorandum from "H" (H. R. Haldeman) to "M" (apparently Jeb S. Magruder).
undated.
 

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