Justice Department officials are not the only critics of President Johnson's bill to curb wiretapping and bugging except in security cases. Although it was not known at the time of his State of the Union Message, the President's own National Crime Commission, which did not submit the report of its 18-month study of crime until almost two weeks after the privacy bill was introduced, had on December 30 backed down--under pressure from Johnson aides--from a recommendation for legislation permitting electronic surveillance by police.
A compromise decision, worked out by Nicholas deB. Katzenbach, Under-secretary of State, saved Johnson the embarrassment of being contradicted by his own crime commission. A majority of the group, led by Houston attorney Leon Jawarski, agreed not to oppose the President in the commission's formal recommendations, but it insisted on a statement that electronic bugging by police is necessary to fight organized crime. Jawarski, a personal friend of Johnson, had up to that time been frequently advanced by the press as a possible successor to former Attorney General Katzenbach.
The commission's 308-page crime report, submitted to Congress on February 19, said that "a majority of the members of the commission believe that legislation should be enacted granting carefully circumscribed authority for electronic surveillance to law enforcement officers."
Ammunition
This recommendation, in effect, placed the commission at odds with the President's privacy bill. Jawarski and his group had held firm. The commission technically avoided directly opposing the President's bill by recommending only that "Congress should enact legislation dealing specifically with wiretapping and bugging." The report nevertheless provides ammunition for opponents of the administration bill.
The Justice Department's fight against organized crime, according to the commission's report, reached its peak under Attorney General Robert F. Kennedy '48, but lost its effectiveness in 1965. The commission attributed this decline to press charges of illegal wiretapping made against several federal agencies.
Just what effect, if any, the President's Right of Privacy Bill would have on the Justice Department's fight against crime is not at all clear. The Federal Communications Act, in effect since 1934, already makes it a crime for "any person" to intercept and divulge a telephone conversation. Congress has repeatedly refused to make exceptions--even for national security cases.
The Justice Department gets around this divulgence restriction with a legal "fiction" devised by Attorney General Robert Jackson in 1941. The key words are "any person." Jackson interpreted this phrase to exclude persons inside the government, and all succeeding Attorneys General have concurred. This rational has led directly to the idea that the Attorney General can authorize wiretapping.
The Supreme Court ruled in 1939 that evidence or even leads gained by wiretapping cannot be admitted in federal courts. However, the Federal Communications Act of 1934 does not apply to many bugging devices have never been curbed by Congressional action, even though the Supreme Court has sharply restricted their use.
In 1942, the Court implied that electronic eavesdropping is legal only when the device can be planted without committing a physical trespass. This rule was upheld by the Court in Silverman V. United States, 1961.
By its own admission, however, the Justice Department continued to use the same trespassing bugs outlawed by the Supreme Court. In July 1966, Solicitor General Thurgood Marshall filed a memorandum in an income tax evasion case stating that the FBI had installed a microphone through the wall of a hotel room--in clear disregard for the Silverman decision. Before 1963, the memorandum stated, FBI director J. Edgar Hoover had the authority to order the installation of trespassing eavesdropping equipment "in the interest of internal or national safety."
This revelation led to the dispute between Hoover and Sen. Robert Kennedy over who was to blame for the bugging. No matter which of these men--the head of the FBI or the former Attorney General -- actually ordered the eavesdropping, the important facts remains that he did it in violation of the laws he had sworn to preserve, protect and defend. This is the widespread assumption within the Justice Department -- that the Machiavellian concept of the end jusfying the means holds in the pursuit of criminals and subversives--and it is doubtful that the President's Right of Privacy Bill would do much to change it.
"There is an implication in [Justice] Department policy," said the Justice official, "to use eavesdropping instruments. It is versus the public order not to use them. To the public this implies that we are doing something unsporty.
"If an agent is himself unaware of what is the policy or if there is a lack of clarity--on purpose or deliberately--he must decide his own policy. Whether wiretapping is right or wrong, a given case is decided on the line.
"All this involves another politically philosophical question: should the aim of an agency, like the FBI, be subservient to an official like the President or the Attorney General? Or should it be like a separate branch of government?
"There are two schools of thought on this. One says the FBI is really the fourth branch of government. It's job is to investigate the others--the President, Congress and the Supreme Court. The other school says that if you're going to start doubting the President, you might as well get out of government."
President Johnson has already issued a confidential directive to all departments and agencies halting bugging not "fully in accord with the law and with a decent regard for the rights of others." How this will be interpreted by the FBI or the IRS--or such reputed eavesdroppers as the Pure Food and Drug Administration and the Bureau of Narcotic--is still left to the administrators of those agencies.
"When things get so bad that people are dissatisfied," said the Justice official, "it's time to rack up and start over again. The only real danger is that the government might not let the policy be talked about. The press and other news media are a real check and balance to keep the government form running roughshod. It's only when a political state forgets why it does something that it becomes a real threat.