Evening star., 1937-12-26
Latest Wire Tapping Decision
Confuses Law Enforcement
Government Morals VS.. Expediency in Trapping
Criminals Remains Crux of Argument.
Districts Status Unsettled.

Investigation IN employing wire tapping TO
obtain clues in kidnapping and other major
crimes
If this correctly represents the position
Of the Attorney General, he has, in effect,
recognized the ban on the use Of wire
tapping evidence in court but refuses to
recognize any ban on the act OF tapping
the wire.
Under the Supreme Court Interpretation
Of section sos. there can be little doubt
that any Federal agent who taps an inter-
state telephone conversation in the future
will be committing a felony, even though
the information so obtained is never offered
in court. 1t may be that the solution Of
a particular crime will be Of such importance
that law enforcement officers will be justi-
fed in violating the law to accomplish
that end. But the wisdom Of such a
course, if adopted as deliberate policy,
Is certainly open to question.
1t is interesting to note in this connection
that the Attorney General, while doubling
that the court intended to lay down a gen.
eral policy against wire tapping, recognized
that the Nardone decision reflected a
prejudice" against the practice.
The criticism, however, is not Of its
(wire-tapping) USE" he said, but Of the
possibility of its misuse at some time in the
future. In fact. we frequently refrain
from doing useful things in this country
for fear that by so doing we might set
= precedent for some future wrong doing :"
that was precisely what Justice Brandeis
had in mind when in the Olmstead case.
he said:
Experience should teach us to be most
on our guard to protect liberty when the
Governments proposes are benencent. Men
born to freedom are naturally alert to
repel invasion of their liberty by evil
minded rulers. The greatest dangers to
liberty lurk in insidious encroachments
by mean Of zeal, well-meaning but with
out understanding"
The ruling in the Nardone case also has
resulted in some confusion as to whether
the pertinent section of the Communica-
tlons Act applies to telephone calls within
the District. The determination of this
question Is of peculiar importance since
there are several important cases, based
on overlapping evidence. now awaiting
trial In the local courts.
Intent for District Hazy,
In Interpreting the language of a statute
where there is an uncertainty, a court
must be guided by the apparent intent Of
the legislature.
Section sos specifies interstate COM
munications, because, Of course, Congress
could not lesislate as to . purely intrastate
matter since that is the exclusive function
OF the various State Legislatures. But.
although Congress acts 4 State legislature
Tor the District, it did not in this particu-
lar legislation make any specific reference
to the District. as it might have done.
There have been several theories ad-
vanced to explain this aspect of the legis-
Iation, the most logical being that Congress
did not anticipate or have in mind that
section sos would be invoked in criminal
cases. If that is true, of course, the act
could and should be amended to exclude
Federal law enforcement officers from
its scope.
But the Supreme Court has said ex-
plicitly that the act, as now drawn, does
apply to Federal officers. Therefore,
decision Of necessity must some day be
made as to its application in the local
cases.
Ohcials charged with the duty Of en-
forcing the laws in the Capital have been
OF two minds on the question. United
States Attorney Leslie c. Garnett believes
that while Congress might have made the
prohibition applicable to the District in
specific language, it did not do so. There
fore, he says, he regards it as his duty
to present the wire-tapping evidence OBJ
tanned by Federal agents in Washington
until the courts have ruled that it Is i'm
proper.
Another School Of Thought,
Another group is of the opinion that
since the court has said Congress intended
to ban wire tapping as such, it must be
presumed that Congress intended to apply
the ban to all cases within its Jurisdiction.
That would apply to wire tapping solely
within the District, although it would not
apply to wire tapping within the borders Of
a State. To hold otherwise, they contend,
would be to take the inconsistent position
that Congress, while banning the tapping
of interstate wires as an undesirable prac-
sice, deliberately set aside the District as q
sort Of oasis in which such undesirable
practices could be freely INDUCED. Such
view, they contend, would make the leg
islation absurd on its face.
While 1t is to be regretted that legitimate
doubt exists as to the validity Of wire tap
ping in Washington, it is an uncertainty
that can be speedily dispelled. One of the
pending cases is scheduled for trial In the
near future and when the Government Of
fers the disputed evidence, final adjudi-
cation as to its validity can be had through,
the medium Of prompt appeal to the
higher courts.
These situations. however, do not affect
the more fundamental questions of whether
wire tapping violates the nth amend
ment, guaranteeing that man shall not
be compelled to testify against himself, and
the fourth amendment, which protects
the citizen against unlawful searches and
seisures.
The oln1stead case held wire tapping. In
violation Of State law, does not violate
these amendments and the Nardone case
has not reversed that decision, unless by
Implication.
Whether in view Of changed conditions
and the altered personnel Of the Supreme
Court, that tribunal would now reafirm
its Olmstead decision Is highly doubtful.