Wire Trap

Seeking a revision in the section of the Federal Communications Act of 1934 which the Supreme Court has interpreted as prohibiting the use of wiretap evidence in Federal courts, Justice Department and FBI officials are hoping to gain the tool which will permit them to prosecute cases in which they lack other types of evidence. If Congress legalizes wiretap evidence, the Justice Department will undoubtedly try to avenge its failure to prove a case against Judith Coplon or to get the grand jury to indict Harry Dexter White.

Attempts of this sort, cloaked in an aura of 125 percent patriotism, have had a remarkable effect in producing legislation which has progressively invaded civil liberties, but which has only modified rather than exterminated the "Communist conspiracy." Curtailments of civil liberties are necessary in wartime, but safe because of their acknowledged temporary nature. But even though peacetime infringements of civil liberties often prove more effective in bothering loyal Americans than in crimping the work of Communists skilled in evasion, they are seldom repealed and remain as a permanent monument to hysteria.

Supporters of wiretapping claim that it is no more an invasion of civil liberties than picture-taking through keyholes. But while photographic sleuthing may be annoying, it is quite hard to abuse. Dates may be ambiguous, but at least the negative cannot be mutilated without detection. A tape recording, however, may be erased, edited, and spliced according to the unscrupulousness of the prosecutor. Keyhole pecking has been limited by the number of FBI agents who could be posted at suspected keyholes. But machines could be rigged to record every innocent conversation passing through every telephone exchange in the country. Such mass caves-dropping would have proportions great enough to render the freedom from search without a warrant, guaranteed by the Fourth Amendment, almost meaningless. And reproduction of these conversations in court can be regarded as a violation of the Fifth Amendment's prohibition against forcing a defendant to testify against himself.

Nothing at present prohibits the FBI from listening to rewarding conversations. If the FBI hears that two men are planning to pass secret papers on a certain corner in downtown Boston, it can certainly go there to apprehend the culprits. But if it fails to make the apprehension, current law prohibits the Justice Department from pressing charges on what may have been a misinterpretation of the meaning of the conversation.

Congress should not rely upon the Supreme Court to decide whether legalization of wiretap evidence is a good measure, as Congress has done so often in the past. Under any Supreme Court, discretion is the function of Congress, and discretion should show that once wire-tapping becomes legal evidence, the days of George Orwell's telescreen machines cannot lay far in the future.