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The New Line on Wiretapping

Although wiretapping goes back to the early days of the telegraph, Congress did not get around to giving law-enforcement officials statutory authority to engage in such snooping until last year. The Omnibus Crime Control Act of 1968 expressly legalized electronic eavesdropping for the first time in investigations of such serious crimes as treason, robbery and murder-provided the authorities first obtain a court warrant. During his presidential campaign, Richard Nixon said that he would take full advantage of the new law-a promise that raised fears of a massive invasion of privacy.

To calm those fears, the Administration last week issued what amounted to an official statement on the subject. In his first news conference since becoming the President's chief legal officer, Attorney General John N. Mitchell pointedly announced that the incidence of wiretapping by federal law enforcement agencies had gone down, not up, during the first six months of Republican rule. Mitchell refused to disclose any figures, but he indicated that the number was far lower than most people might think. "Any citizen of this United States who is not involved in some illegal activity," he added, "has nothing to fear whatsoever."

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Congressional Bugs. Mitchell's assurances were not entirely convincing. It has long been common knowledge that the Government listened in regularly on the telephone conversations of Teamsters Boss Jimmy Hoffa and a wide assortment of Mafia chieftains. But recently the public has also learned that the FBI indulged in eavesdropping on Negro Leaders Martin Luther King Jr. and Elijah Muhammad, as well as such white radicals as David Dellinger and Jerry Rubin. Not even Capitol Hill is immune, according to Democratic Senator Ralph W. Yarborough of Texas and Republican Senator Carl T. Curtis of Nebraska, who contend that congressional telephones have also been subjected to bugging.

If anything, the Nixon Administration has been less than apologetic about the practice. Last month, in a memorandum filed during the Chicago trial of eight men charged with conspiring to incite acts of violence during the Democratic National Convention, the Justice Department claimed the inherent right to bug or wiretap-without court orders-any time it felt that the "national security" was in jeopardy. As authority for this broad power, the Government cited the President's oath to "preserve, protect and defend the Constitution" from domestic subversion as well as foreign enemies. Contending that every President since Franklin Roosevelt had permitted such wiretaps, the Government went on to imply that they were even more important now because of the growing violence and rioting in the nation's cities and on its campuses.

Some legal historians have found that argument more sinister than anything since the Alien and Sedition Acts of 1798, when constitutional rights were openly violated on the ironic grounds that this was the only way to defend the Constitution. "It is an outrage," declared Columbia University Government Professor Alan Westin, author of the 1967 book Privacy and Freedom and one of 13 professors who fired off an impassioned protest to Mitchell. "It is one of the most dangerous claims for power by an Attorney General in our history."

Law Professor Herman Schwartz of the State University of New York at Buffalo, one of the staunchest opponents of unregulated Government wiretapping, agreed. "Once you have such a tool," he said, "the temptation to use it is enormous." It could, others argued, be employed almost at will against any political dissident who happened to arouse the anger of an incumbent Attorney General. Describing the Justice Department's approach as a serious threat to the First Amendment (freedom of speech and assembly) and the Fourth (protection against unreasonable search and seizure), the American Civil Liberties Union has asked for a federal court injunction to halt all bugging of a domestic political character that is not explicitly authorized by order of the courts.

The new Government policy, the A.C.L.U. insisted, has already created "a chill and a pall" among those legitimate political protesters who might fall within the Government's new eavesdropping "dragnet." University of Michigan Law Professor Yale Kamisar speculated recently that the Nixon Administration was openly inviting a showdown with the Supreme Court on the wiretapping issue. "The court is hurt," explained Kamisar, "and the Justice Department thinks it can win, given the current public climate about crime and coddling criminals."

Embassy Snooping. It was the high court that brought the shadowy issue of electronic surveillance into the open in the first place. Last March, in the case of Alderman v. U.S., the court held that a defendant may demand to see the transcripts of any illegal bugs or wiretaps of his conversations, or those of people on his premises. The 5-to-3 decision forced the Government to yield not only its Hoffa records, but also those of ex-Heavyweight Champion Cassius Clay's conversations with King and Elijah Muhammad.* Yet the Government had a far more important reason for dissatisfaction with the Alderman decision.

Justice Department officials pointed out that the opinion did not exempt the bugs that the FBI has long planted, without judicial sanction, along Washington's Embassy Row. Anyone who phoned an embassy and was later accused of a crime, they argued, would now be entitled to force the Government to reveal such eavesdrops-even though they might involve delicate international affairs. In turning down the Government's motion for a new hearing, Justice Potter Stewart noted that the Court had ordered the release of records only when the eavesdropping violated the Fourth Amendment-and that it had not ruled on the legality of bugging for national-security reasons. To the Justice Department, at least, Stewart's statement seemed to mean a green light for any national-security tapping that it felt necessary.

No Guarantee. Many law-enforcement officials argue that the benefits of restrained wiretapping far outweigh the hazards. On the basis of his own experience as a prosecutor in the New York courts, Columbia Law Professor Richard Uviller contends that bugging is one of the most effective weapons against organized crime. A preliminary report on the effects of the wiretap provisions of the new crime-control law tends to bear him out: the 174 taps authorized by four state courts after the Omnibus Crime Bill was passed last year led to no fewer than 263 arrests. "We can't guarantee that there won't be abuses in this area any more than you can be assured that a cop will use his gun properly," says Alfred Scotti, chief assistant in the busy Manhattan D.A.'s office, which asks the courts for about 75 wiretap orders a year. "But you want him to have the gun, don't you?"

Perhaps. Yet that question overlooks another important argument: misuse of a gun is usually a public act; eavesdropping, on the other hand, tends to be a highly secret tactic. By disavowing court supervision of the practice, particularly in cases of eavesdropping on domestic political groups, the Justice Department has created a dangerous precedent. There is a vast difference between legally approved snooping on a Mafia overlord and unauthorized surveillance of a political maverick whose views do not happen to please an administration in power.

* Hoffa, who is already serving time in the Lewisburg, Pa., federal penitentiary for jury tampering, was turned down by a Chicago federal court last week in his effort to win a new trial on his 1964 conviction for conspiracy and fraud in handling union funds. At the same time, a Houston federal judge rejected Clay's bid for a reversal of his 1967 draft-dodging conviction. Both appeals were based on the argument that the Government had used illegal wiretaps, but the judges ruled that the eavesdropping had not contributed to the convictions.

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