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2. A History of FBI Wiretapping Authority
- Temple University Press
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2 A History of FBI Wiretapping Authority P resident Franklin Roosevelt’s unprecedented authorization of Federal Bureau of Intelligence (FBI) “intelligence” investigations, combined with the similarly secret authorization (whether by presidents, attorneys general, or the FBI director) of other preventive detention and informer programs, had shifted the focus of FBI investigations from law enforcement to monitoring the political and personal activities of suspected “subversives.” And yet, despite commanding this increased authority , appropriations, and their successful recruitment of paid and volunteer informers (as, for example, under the American Legion Contact Program), FBI officials could not achieve their objective of learning in advance about the plans and capabilities of suspect individuals and organizations through legal means. Physical surveillance (whether by FBI agents or recruited informers) produced only limited and not always reliable information. FBI officials accordingly sought alternative means to acquire such information. And, because their objective was not to obtain evidence to prosecute but to advance intelligence, they were willing to employ intrusive, if illegal, investigative techniques—break-ins, mail opening, bugs, and wiretaps. The most controversial of them, because it was the subject of public debate, involved wiretapping. Coincidentally, at the very time when FBI officials obtained presidential authorization to conduct intelligence investigations, Congress had recently banned wiretapping. In 1934, when enacting the Communications Act to regulate the communications industry (radio, telephone, A History of FBI Wiretapping Authority / 25 telegraph), Congress adopted Section 605, which barred any “person not authorized by the sender [to] intercept any [wire or radio] communication or divulge or publish the existence, contents, substance, purport, effect or meaning of such intercepted communication to any person.”1 Claiming privately that this legislative ban applied only to private individuals and corporations and not to federal agents, Justice Department officials continued to authorize the FBI to employ wiretaps during criminal investigations.2 The Supreme Court, however, struck down this interpretation of the statute in 1937 in Nardone v. U.S. In his majority opinion, Justice Owen Roberts held that, “taken at face value,” the 1934 act’s ban applied to federal agents. Roberts rejected the government’s argument that the “construction” of the statute did not apply to federal agents and thus that Congress had not intended to “hamper and impede” investigations to detect and prosecute federal crimes. As a matter of “policy,” Roberts countered, Congress “may have thought it less important that some offender should go unwhipped than that officers should resort to methods deemed inconsistent with ethical standards and destructive of personal liberty.”3 In light of this ruling, FBI Director J. Edgar Hoover solicited Assistant Attorney General Alexander Holtzoff’s guidance over “the significance to the Bureau of the Supreme Court decision,” fearing that bureau agents could be “prosecuted for violating the [1934 act’s] penal provisions.” Holtzoff, however , opined that the Court’s decision had been “misinterpreted” by the press, as wiretaps per se had not been prohibited but rather the “intercepting and divulging” of communications. The Justice Department, Holtzoff assured Hoover, would “not authorize any prosecution against its own employees in those cases where the employees were proceeding in a course of official conduct authorized” by the FBI director. The prohibition, he further pointed out, applied to interstate and not “local calls” and that although any information obtained through the interception of an interstate call could not be introduced in evidence, FBI officials could act “in an investigative capacity” upon information developed through the tap. Based on Holtzoff’s assurance, Hoover instructed FBI personnel to continue installing wiretaps. He nonetheless conditioned his approval, emphasizing “as previously we will not authorize any except in extraordinary cases & then not to obtain evidence but only for collateral leads.” Concurrently, Holtzoff urged Attorney General Homer Cummings not to make a public statement about the department’s intention to continue authorizing wiretaps, as this could “evoke hostile comments from the papers and periodicals” and could “lead some Members of Congress who believe in sedulously conserving individual rights to introduce a bill that would expand the scope of the Nardone decision, which would be an undesirable consummation .” Instead, Cummings instructed his key aides to consider “the question [3.85.211.2] Project MUSE (2024-03-28 15:32 GMT) 26 / Chapter 2 [of] whether an amendment to the [1934] law should be suggested.” No consensus on a preferred bill was reached, however, with Hoover objecting to one proposal that would have required that the FBI secure the advance approval of an assistant attorney general. Justice Department officials ultimately recommended that the...