National Affairs: THE DEBATE ON WIRETAPPING

Congress Must Make New Rules for the FBI

Congress may have thought it less important that some offenders should go unwhipped of justice than that officers should resort to methods deemed inconsistent with ethical standards and destructive of personal liberty.

IN those ringing words, pronounced by Justice Owen Roberts in 1937, the U.S. Supreme Court (Justices Sutherland and McReynolds dissenting) upset a smuggling conviction on the ground that essential evidence in the case against the smugglers had been obtained by wiretapping. Since then, the ban on wiretap evidence in federal courts has stuck, shielding not only smugglers but members of Communist espionage rings.

To Attorney General Herbert Brownell, it seems absurd and dangerous to let spies "go unwhipped of justice" behind that shield. Brownell's campaign for a law that "would allow the Government to use wiretap evidence to prove its espionage cases" has touched off a wiretapping controversy, and one result of it is likely to be the passage of a wiretapping bill at the next session of Congress.

The Taming of the Wolf. Congress has never really made up its mind about wiretapping, and the public attitude toward the practice is shifting and ambivalent. Obviously, wiretapping is, as Justice Holmes said, a "dirty business." Law enforcement got along without it for many centuries, and legalized wiretapping seems to many to be another gratuitous encroachment on the private lives of individuals.

On the other hand, law enforcement in other centuries was not up against contemporary problems. Technology, which works for everyone, does not discriminate against the criminal. The telephone greatly reduces the effectiveness of such old police methods as shadowing a suspect and checking on his contacts. It is hard to trail a criminal who uses the telephone for communication unless the police can follow him technologically, i.e., tap the wires over which his messages pass.

Further, the modern tendency toward elaborate organization, which works for everyone, does not discriminate against criminals. In earlier times, society usually had the criminal at a heavy disadvantage; he was likely to be a lone wolf or a member of a loosely knit mob with small resources, untrusting and untrustworthy, incapable of stable alliances with other criminals. The 20th century has seen an extraordinary shift to conspiratorial crime, which reached its first great flowering during Prohibition, e.g., the Capone gang. Some American gangs have maintained their continuity for a generation, enforcing discipline on their members and finding allies in respectable elements of the population.