Evening star., 1937-12-26
BY JOHN H. CLINE.


the detection Of crime by law en-
forcement agencies raises funda-
mental questions that merit the
serious consideration Of all citizens in
terested in the preservation OF personal
liberties. That these questions are difficult
of solution is best exemplifed by the fact
that, although the legality Of wire tapping
has twice been before the Supreme Court
the issues remain as unsettled and are per-
haps more confused than ever before.
There are two sharply divided schools
Of thought as to the legality and morality
of the tapping of telephone wires by law
enforcement officers.
Neither group condones the practice, but
one defends it as q matter Of expediency.
On their side of the case are the undeniable
facts that information obtained by "listen-
ing i'm on telephone wires has led to the
apprehension Of many dangerous criminals
and the solution Of revolving crimes that
might otherwise have gone unsolved. Their
view IL that criminals are going to pervert
the instruments Of science to their unlaw-
full ends and that the agents of the Gov
ernment, II they are going to deal ef1ec-
lively with organized crime, must not be
held too rigidly to q code of ethics that
vantage over the oficer of the law.
Brandeis Sums up Opposition.
The other group believes that neither
Government ofiicer nor private citizen
should be permitted to tap q telephone
wire or to divulge the conversations so
overheard. This group believes such prac-
tices violate the fourth and fifth amend
ments to the Constitution as well as any
prohibitory laws that may be on the
statute books. Their position was we'll
summarized by Associate Justice Brandeis
Of the Supreme Court, when he said:
''Decency, security and liberty alike de-
mand that Government officials shall be
subjected to the same rules of conduct
government Of laws, the existence Of the
Government will be imperilled If it fails
to observe the law scrupulously. Our
Government is the potent, the omnipresent
teacher. For good or for i'll, it teaches
the whole people by its example. Crime
is contagious. If the Government becomes
law breaker, it breeds contempt for law:
1t invites every man be become . law
unto himself; it invites anarchy. To
declare that in the administration Of the
criminal Law the end justifies the means
TO declare that the Government may COM
NIT crimes In order to secure the convic-
ton Of . private criminal-would bring
terrible retrtbution. Against that pernici-
GUS doctrine this court should resolutely set
its face"
Justice Brandeis had the support of an
other great liberal jurist. Oliver Wendell
Holmes, who, in discussing these points of
view, commented: I'VE have to choose,
and for my part think it . less evil that
some criminals should escape than that the
Government should play an ignoble part /"
These opinions Of Justice Brandeis and
Justice Holmes were expressed in dissent
ing from the courts 5-to-4 decision sane
tioning wire tapping during prohibition
days. Joining in that dissent were Justices
Butler and Stone.
7-to-2 Opposition Decision.
Last Monday the legality of wire tapping
was again before the court in the so-called
Nardone case, and the court, in a rather
narrow decision, held the use Of wire tap
ping evidence against Nardone to have
been unlawful. The court was divided
7-to-2, Chief Justice Hughes and Justic,
nd vx,{fb
Brandeis, Butler and Stone.
Unfortunately, the constitutional ques-
ton was not considered in the opinion in
the Nardone case, although it was discussed
in the other wire tapping decision-the So
called Olmstead case.
NardOne and three co-defendants had
been convicted in New York of violating
the laws against smuggling liquor into the
United States Their conviction resulted
from the introduction Of evidence obtained
by tapping their telephone wires. The de-
PENDANTS objected to the introduction OF
this evidence on the ground that section
sos Of the Federal Communications Act OF
1884 made it crime for ANY person" to
intercept any interstate communication
and divulge or publish the message.
When the case reached the Supreme
Court the Department Of Justice contended
the section of the act was not intended to
apply to Federal law enforcement officers
and should be 50 interpreted by the court.
This. the majority Of the justices refused
to do. Speaking for the court, Associate
Justice Roberts said:
I'VE nevertheless face the fact that the
plain words of section COS forbid any one,
unless authorized by the sender, to inter-
cept telephone message, and direct in
equally clear language that no person shall
divulge or publish the message or its sub
stance to any person. To recite the con-
tents Of q message in testimony before .
clusion that the act forbids such testimony
seems to US unshaken. by the Governments 3
arguments"
Here arises the first Of two important
confusing situations In connection with the
Nardone decision.
It is important to note that the court
dealing specifically with the legality Of the
introduction Of the evidence against Nsr-
done, the legality Of the tapping Of the
wires not being the immediate question
before the justices. But nevertheless,
Justice Roberts noted that "the plain words
Of section sos forbid any one, unless
authorized by the sender, to intercept q
telephone message
It is difficult to see how the court could