Evening star., 1949-06-13

Very timely vas your editorial Of June
6 entitled "Mr Fly Should Go 10 Albany"
concerning what MIR. Justice Holmes called
the dirty business" Of wire tapping This
is a problem OF vital concern 10 the citizens
Of q democracy. And you make real con-
tribution In stimulating public discussion.
albeit Some may well express ciSappoini-
men. In your views
Your particular point that should have
gone to Albany is well taken The problem
is both broad and acute in New York. Had
you kept abreast OF the public news reports.
you would have been aware that this mis-
sion had already been accomplished. A few
weeks ago. We OF the American Civil L4oer-
ties Union called upon Gov. Dewey 10
take action. This was given extensive pub
licity at the time Of my appearance before
the Criminal Courts Bar Association OF
New York County II can hardly be ex-
pected. however. that the father" Of New
York wire tapping would prosecute anyone
for activities undertaken pursuant TO the
New York statute. And despite the wide
spread private use Of wire tapping devices
only two recent occasions have resulted Sin
indictments. It should be noted that the
Bar Association. whose members are also
lawyers. filed q petition with the Federal
Communications Commission. as well as
with the Attorney General. calling for the
enforcement of Section sos of the FCc Act,
II has at the same time fled a bill in
equity IN the Federal Court seeking enforce
ment Of the statute. The Bar Association
Is moving ahead with every possible means
o. achieving an enforcement policy.
In no event are the duties Of the Depart
ment Of Justice leSsened by the State laws
In the case OF Weiss v. United States, 3os
United States 32l. the Supreme Court held
directly that the wire tapping prohibition
Of the Federal law is applicable even though
the conversations intercepted are local or
intrastate. Every telephone is q part OF a
long distance or interstate system. Since
the Federal law Is comprehensive. II would
seem to pre-empt the field. Under familiar
principles Of law a conflicting State con-
stitutional provision or statute is rendered
inapplicable. In any case. the Department
Of Justice and the Federal courts have both
the jurisdiction and the duty to prosecute
local wire tappers. The Weiss case must
make that point clear.
The Government Taps Wires.
The lack Of Federal enforcement OF the
Federal law is traceable to one pathetic
fact. The Department Of Justice itself. is
the most extensive wire Taper. This despite
the fact that the Government admittedly
land by explicit pronouncement of the
Supreme Court in the first Nardone case,
302 United States 379) has no greater right
to intercept private communications than
does a private citizen. How then can the
department carry out its duties to prosecute
others? This. I submit is an intolerable
situation. And 1t Is one Of grave concern
| to all who respect the personal liberties OF
| free men. The one remedy Is not by abdica-
ton. but by an orderly approach to the Con-
gress seeking to vest in the department such
authority as the Congress may deem wise.
Underlying both the departments wire
| tapping activities and its failure OF enforce
ment is the opinion Of earlier Attorneys
General that Section sos Of the FEC Act per-
mits any and all to tap and only forbids
divulgence of the information Born Of
illogic. this was sired by the feeling that the
FBI as q practical matter needed to tap.
Better had this point been made to the
Congress. than that 1t be used to cover an
intolerable situation. The law says mo per-
son shall intercept and divulge :.
the existence. contents. substance or mean
ing to any person" The manifest pur-
pose Is to protect the privacy Of personal
communication against the intrusion OF
other persons. No Taper acts for sheer
amusement. In all cases, e. g., by the FBI.
one person taps. He can't eat the informa-
ton. He dictates 1t or its substance to an.
other person. 1t passes to still another per-
son. and still another, and so on to the
teeth Of the statute. There is divulgence to
several persons. After the Nardone cases
held that Government agents had no right
to offer in evidence information obtained
from the poison well Of wire tapping, 302
U. g. 379. and no right even to use leads
from the tainted source 308 U. 8. $685. the
former Attorney General was driven to an
other less-than- admirable conclusion, /. e..
FBI agents.can tap wires because all citizens
IN a the Wirak ~ all others Res
ipsa loquitur.
Supreme Court Quoted
Needless to say, the Supreme Court has
said nothing to warrant such q statement.
in the second Nardone case. 30s U. 8. 33s.
the Court said. In referring to its first de-
cision In the case (p. 339): This Court re-
versed the convictions on the first trial be-
cause they were procured by evidence
secured In uiolation Of section sos Of the
Communications Act Of 1884 Emphasis
added)
A bit further, the Court posed the basic
issue whether or not section COS merely
interdicts the introduction into evidence in
Federal trial Of intercepted telephone con-
versatiops leaving the prosecution free to
make every other use OF the prescribed evi-
dence" Mote the use OF the word pro
scribed'D Again, building on its first Mar
done case. the Court reasoned tp. 34o):
-. That decision was not the pfoouct OF
q merely meticulous reading OF technical
language. It was the translation into
practically OF broad considerations OF
morality and public well-being. This
Court found that the logically relevant
proof which Congress had outlawed. 1t
oulawed because inconsistent with ethi-
cal standards and destructive to personal
liberty" 500 q. 8. $40. 383 To forbid the
direct use Of methods thus characterized
but to put no curb on their full indirect
use would only invite the very methods
deemed Inconsistent with ethical stand
ards and destructive Of personal liberty
Destructive of Personal Liberty
How could the evil sought to be stamped