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SWECT = QcnopnonnsI , POLICY BRIEF
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4 entit1ed;icr0phones; Policy Brief" and its accompanying
three volumes of numbered exhibits, prepared by the Research
as required.Unit of the Research-Satellite Section in close coordination
with the Special Investigative Division, be forwarded to the
Director for his information and that this brief be updated
-f*l >>;/// The Director's views on eavesdropping by means of
.e1ectrgn;chdey1gg5 have been long-standing and openly expressed.
Withpregard to wiretapping, for example, the Director has
sis, steadfastly held his ground. In public statements, in dis-gggg. cussions with and recommendations to various Attorneys General
ltontrols over their operation.
It is apparent from the widespread press coveragescpnd in opinions solicited by other Government officials and
Y members of Congress, the Director has continued to caution
~ against the evil that could result through the indiscriminate
nseof these devices and from the lack oi tight administrative
4
-" nd public discussion of the topic of electronic eavesdropping
hat the imprecise use o£-terminology has led to misunderstand-
* ng, it not confusion./hicrophone surveillances are separate
nd distinct, although at'times related to, tghnical or
4 elephone surveillances. The use of microphones by"the FBI
as been brought Int5 issue most recently in the civil suits
n Las Vegas involving FBI personnel and in the Fred Black A
5 .
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Memorandum Smith to Sullivan
RE: MICROPHONES
POLICY BRIEF
significant court decisions in this area of the law, sets forth~s#: 'the Department's legal advice to the Bureau, and illustrates
i u the Bureau's practical implementation of that guidance.
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i Mr, Kennedy's staff that this technique was being used by
¢r_Throughout this document, the Department's knowledge
and/or approval of microphone surveillances are documented.
Of particular significance are the Bureau's efforts to obtain
Departmental backing for the use of microphones involving -
trespass after Attorney General HcGrath in February, 1952,
ruled that he could not authorize them. Confronted with the
absolute necessity of using this investigative technique to
lfulfill its pressing responsibilities, the Bureau began negetiae
tions with the Department culminating in a memorandum from
. Attorney General Brownell on 5-20-54 which formed the basis
for the Bureau's subsequent use of microphones involving
trespass in both the security and criminal fields.4
j Of more recent interest the brief traces Bureau
5 policy through the tenure of Attorney General Kennedy and his
; drive against organized crime. It documents in detail
ix, £ennedy's knowledge of and approval for microphone
surveillances in investigations of organized crime. More-
over the brief sets forth factually the knowledge of~' '92
the FBI. Finally, the brief brings Bureau policy up to date
through the tenure of Attorney General Katzenbach.
' In this brief an objective study in depth was
undertaken to provide the Director with a clear picture of
the development of Bureau policy involving microphone
3 surveillances. This brief sets forth documented facts which
% willnot only defend the Bureau against criticism but also
present a positive and convincing case for the Bureau's
tightly controlled and strictly limited use of microphone
surveillances to achieve investigative coverage essential to the
national safety and welfare. -
RECOMMENDATIONS:
u_ - i. . .- nu - -1.. n - - q - I I 1 nT 1. That the enclosed policy nriet he rurnisneo to
the Director for his information. A detailed table of contents
has been prepared for the Director's ready referral and use.
Exhibits-mentioned in the brief are keyed by numbers to the
2 documents tabbed in the accompanying three volumes of exhibits!.
-2t tut this brief continue to be updated as required.
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ALL INFORMATION conmrm.-':n
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POLICY BRIEF
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TABLE OF CONTENTS
I I I I I I I I I I I I I I I I I
DEI"IHIT1QHOFTT§P92§l3..........¢....
4
EARLlire Tap also known as lire Tap Surveillanc
Telephone Surveillance, Technical
0 o o I 0 0 e I 0 e 0
Microphone also known as Microphone
Surveillance, Hisur!. . . . ... . . . . .
Combination Hire Tap and Microphone . - . .
I I I I Y I I I I I I I I I I I I I I
Early Use oi Microphones by FBI . . . . - .
Bureau Authorization First Required in l938
Instructions to Field, 1941, 1944 . . . . .
LEGAL IHTERPRETATIOHS. ¢ - ¢ . . - - . . - . . .
Supreme Court Decision in Goldman Case,
FBI Distinction Between Technical and
Microphone Surveillances, 1943. . . . . .
Legal Guidance Sought from Department, 1944
Instructions to Field, 1944, 1945 . . .
Legal Guidance Obtained from Department,
I I I I I I I I I I I I I I I1942
§§§BLE§ 6? iCG?C§WiVLViG TEESPRES. . . .
Review of Bureau Policy by Executive
Conference, June 9, 1950. . . . . . . . .
Department's Continuing Awareness oi
Microphone Surveillances. . . . . . . . .
Issue oi Hicrophones Involving Trespass
Presented to Department . . . . . . . . .
Attorney General ucrath Will Not Authorize
Hierephenes Involving Trespass,
26 I I I I I Q Q Q Q Q s I
Department Broaden: Its Interpretation
oi Trespass, 1952 . . . . . . . . . . . .
eketention oi Three Microphones Involving
Trespass in Security Cases. . . . . . . .O ,
Page
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. xiv
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. 1
. 1
. 1
. 2
. 3
. 3
. 3
. 4
. 8
. 9
. 12
. 12
. 16
. 18
. 19
. 20
. 21
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Breau Implementation or Attorney General
lI¢GIiI.tb.'B Ruling, 0 O 0 I 0 a Q Q I
Refinement oi Bureau Policy . . . . . . . .
Attorney General Hcranery Authorizes
Microphones Involving Trespass in
Sécllrity C3808, June 4, 1 0 0 0 0 0
Discussions to Obtain Modification oi
Department's Interpretation of Trespass .Suprge Court Decision in the Irvine Case,
' 1-geoeooseooeeeoeooooo
_m-znomumun or A_UI'I!0RIZA'I[ION mom7 7 n 0 0 0 0 0 0 0 0
Bureau Continues to Seek Departnntal
BaOk1I1g,1954¢----re...--Q.
Bureau Presents Drait Memorandum to
tIlODGp8.ItBll1£.¢ta.-¢-¢¢¢»..
Binal Draft of Proposed Memorandum
from Attorney General Brownell. . . . . .
Attorney General Brownell Authorizes
Eicrophones Involving Trespass,
H3.Y2O,1954...-.....--.-¢-
Bureau Inplenentation or Departmental
0 0 0 O I 0 I 0 0 0 I
§§E_OF MICROPHONES IN CRIMINAL INTELLIGENCE
O 707 rlyy WI I7 WI 707 VI fl VI I ff 707' WI ylfwl O I
O I O O O I O I O O O I O O I I
Review of Microphone Utilization in Crinina
Intelligence Program. . . . . . . . . . .
Executive Conference Affirms Interpretation
oi "National Safety". . . . . . . . . . .
Reminder to Field Where Trespass Involved .
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L.7 Imiliiil *0 i IWO ilwil fl "O O7 70 I77I7I7 O I
EQHURE OR_ATTORNB!MGEREnAL ROBERT KENHEDYL
IJo1r'iH-320000000000000000
Crusade Against Organized Grins . . . . . .
llr. Kennedy Informed Internal Revenue
Service Planned Use or Electronic Aids. .
Hr. Kennedy Advised of Bureau's Plans
Against Organized Crime . . . . . . . . .
Es
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Deputy Attorney General Ihite Informed of
Bureau Policy Concerning Microphones,
I I O C O O I O I O I O I I O I I
Ir. Kennedy Pleased About FBI Microphone
Coverage.
. ennedy Requests " pprop te éu£vé1i1£né=5
of_Attorney nggerty. . . . . . . . . . . .
Hr. Kennedy Inquires About Possible FBI
H1OI.'Oph0n6 Sl.II'V61118IlG68. I 0 0 Q 0 0 0
Mr. Kennedy Listens to Tap Recordings oi
Microphone Surveillances. . . . . . . .
Evidence Mr. Kennedy's Stat! was Aware of
Use or Microphone Surveillances . . . .
Civil Suits in Las Vegas Involving FBI
Microphones . . . . . . . . . . . . . .
Th6FI9Ci31CkC'lBQ 0 0 0 I n 0 0 Q 0 O n
PRESIDENT! 4_KI TLEDGE QF FB1_MICPOPHONEi i if i _ 7 i?c92 7 _ W _ - 3 ii
0 0 0 I u 0 e 0 Q 0 0 0 0
QBRABTJFNTAL PCLICY CH MICROPHONES UNDER
Af1"1¢?§uI1+*Y ¢1'31Fi11~?-1- - 7- -A - - - -
Review oi Bureau Policy, October, 1964. .
Er. Katzenbeoh to Approve All Microphone
Surveillances . . . . . . . . . ; . . .
Attorney General Discontinues All
Microphone Survcillances. . . . . . . .
Attorney General Again Authorizes Microphone
Surveillances in Security Cases . . . .
Current Bureau Policy on Microphone
Surveillances, 1966 . . . . . . . . . .
Presidential Memorandum oi June 30, 1965.
Attorney General Katzenbaeh Frepared to
Stand Behind FBI. . . . . . . . . . . .
APPENDIX ' O
5 Attorneys General Since 1924. . . . . . .
FBI Microphone Surveillance Statistics. .
j The Long Committee. . . . , , , , , , ,
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Extensive tile reviews disclosed only that
the early use oi microphones by the FBI is not recorded
in any detail. It appears that microphones were used
by the FBI in the late l920's and early 1930's to obtain
intelligence in criminal cases. Prior Bureau authoriza-
tion ior microphone installations was first
required in
and since that time Bureau headquarters has main-
I
tained tight control over the iield in the use of these
devices. _
Over the years, the_FBl continually sought
legal advice from the Department concerning microphone
installations and the admissibility or evidence obtained
from them. In the early 1940's the Department relied
on a significant Supreme Court decision, Epldman v,
United States, which held that a microphone
was not equivalent to an illegal search and
prohibited by the Fourth Amendment. On thesurveillance
seizure
basis of this
decision, Alexander Holtzoii, Special Assistant to the
Attorney General,even advised that evidence obtained from
a microphone installed by trespass would be admissible,
because a microphone surveillance was not equivalent to
an illegal search and seizure.
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Recognizing the unsettled state of the law
in this area, the Department in 1946 observed signifi-
oantly, "...the operation of the BB1 in detecting crime
should not be disturbed merely upon a possibility..."
Despite this comment by the Department, Bureau officials
continued to be concerned about the admissibility of
evidence obtained from microphones involving trespass.
.In a reviei of existing policy on microphone
installations by the Executive Conference on June 9, 1950,
it was noted that the Department had knowledge of the
FBI's use of microphones involving trespass in some cases.
Nevertheless, the Bureau was installing and using
microphones on its ova authority--without authorization
from the Department. The comment was made that the
Bureau, in oountenancing illegal activities by authorizing
some microphones which involved trespass, was influenced
by its overriding obligations to gather intelligence
information in the security field and to safeguard the
welfare of the country. u
In this situation, the Bureau faced a dilemma.
Although the Attorney General had authority by Presidential
Directive to approve wire taps, he had no such
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authority in regard to microphone installations. The
Executive Conference observed that it the FBI asked
the Attorney General for authority to install micro-
phones it would, in most instances, amount to a request
for authority to engage in an illegal activity trespass!.
Obviously, it was extremely doubtful that the Attorney
General would grant such authority. Thus, to raise this
issue with the Attorney General might result, when
trespass was involved, in the loss of this investigative
technique so vital to the fulfillment of the Bureau's
responsibilities.
The over-all issue of the use of microphones
involving trespass was presented directly to the Department
in October, 1951. Attorney General HcGrath replied as
follows on February 26, 1952, "The records do not indicate
that this question dealing with microphones has ever been
presented before; therefore, please be advised that I
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cannot authorize the installation of a microphone
involving trespass under existing law." The Director
ordered that FBI microphone installations involving
trespass be terminated st once. This sss dens except
for three microphones in security cases.
Following Hr. HcGrath's ruling, the Bureau
began discussions with the Department because it was
confronted with the problem of what actually constituted
trespass in the then existing law. At this time, 1952,
the Department believed that any microphone installation,
except a contact device, constituted trespass unless
approval were given by someone who controls the premises,
such as a Bureau informant.
Faced with this situation, the Executive
Conference of Hay 5, 1952, unanimously recommended
approval of the following which became Bureau policy:
! ihat, basically, microphones be installed
Iithout trespass; ii that, if this is not possible, and
the intelligence to be gained is a necessary adjunct
to the investigation in select cases, consideration be
given to authorizing a microphone. After the Director
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929292929292 eon!erred with Attorney General Hcranery on June 6,
l952, the Attorney General authorized microphone
installations in security cases even though trespass
might be committed.
_ Bureau officials had regular discussions i
with Departmental Attorneys in an attempt to obtain
a modification of the Department's strict interpreta-
tion of what constituted trespass in the installation
of microphones. These discussions were influenced by
a 1954 Supreme Court decision, lryine v. Qaliiornia.
Although the Court held that evidence obtained illegally
by police from a microphone installed in a bedroom was
admissible in a state court on a gambling charge, it
described the conduct of the police as "incredible."
This led the Department to conclude that the Court
might decide the admissibility of evidence obtained by
Federal officers trom a microphone by balancing their
reprehensibled conduct against the nature oi the crime
and the weight 0! the evidence. 7
The negotiations with Departmental Attorneys
for a modification oi their interpretation of trespass
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culninated in a memorandum from Attorney General Broanell
n_- Q 1- 4.4 -492- in -aatea may 20, 1954. The Bureau had previously reviewed
and approved his final draft of this memorandum. In
that review, it was pointed out that the memorandum
gave the Bu-ean a "green light" for the use of microphones
in internal security cases. Relative to criminal cases,
it was noted that the Attorney General was "not as.
strong but he takes cognizance of the need for micro-
phone surveillances in cases affecting the national.
safety and indicates they should be used in only the
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Following the receipt of this memorandum from
Attorney General Brownell, the Director instructed that
Hr, Tolson should pass on all microphone installations
whether or not trespass was involved.
When the Bureau's Criminal Intelligence Program,
as it exists today, was instituted in November, 1957, _
the field was instructed that no requests for technical
coverage wire taps! would he considered, Relying on
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The constant Bureau re-evaluation of policy
concerning microphone surveillances caused the Executive
Conference to again consider, on July 20, 1959, whether
the Bureau should seek approval from the Attorney General
beiore instituting microphone surveillances in specific
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agreed, qnd the Director approved, that the Bureau should
continue, as in the past, to rely upon the authority
contained in Attorney General Browne1l's Hay 20, 1954,
memorandum. This policy was still being followed on
January 21, 1961, when Robert Kennedy, who had already
built a public image as a crusader against crime, became
Attorney General and launched an intensified Federal
drive against organized crime.
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Early in Hr. Kennedy's tenure as Attorney
-I-Ki General, his Deputy, Byron White, was furnished a memo-
randum dated may 4, 1961, for the Attorney Gene:-a1's
information. This memorandum stated that the FBI policy
f on the use of microphone surveillances, with or without
f trespass, was based upon the May 20, 1954, memorandum
from former Attorney Gcnerai owneii. it was aiso pointed
out that the FBI was using microphone coverage on a restricted
basis to obtnin intelligence against organized crime.
When Hr. Evans to1d.I.1r. Kennedy in July, 1961,
that the FBI was not using wire taps but was using micro-
phones in its investigation of organized crime, the Attorney.. £5
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using microphone surveillances in organized crime matters.
92 Mr. Kennedy's Knowledge of FBI's use of micro-nvphenes in its investigation oi organized erine is clearly
Ki-I evident in his written approval, on August 17, 1961-
A j I I Hr. Kennedy, in August, 1961, requested an "appropriate1 L, mrvem °°" °f=-ho repre-
sented James Hoffa. Hr. Kennedy was furnished daily
I resn of i nic:-epnene surveillance n
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another occasion, Hr. Kennedy revealed that he was
aware that the FEI used microphones when he asked
Hr. Evans to determine ii the FBI had conducted a
microphone surveillance on a former Chic! Counsel for
the Atomic Energy Commission.
nr. Kennedy also listened, in March, 1963,
to a tape recording in the FBI's Chicago Ottice. This
recording was made from an FBI microphone surveillance.
Again, when he was in the FBI: New York Office in
November, 1963, Mr. Kennedy listened to a tape recording
oi n eenversntien between two Le Gees Neetra lenders.
In both instances, the circumstances indicated that the
recordings came iron FBI microphone surveillances.
Horeover, members oi Hr. Kennedy's stat!
were aware, on a continuing basis, of the FBI's use or
microphones. ' For
present in Chicago
te recereinge tree
significance, is a
oi North Carolina,example, members of his staff were
and in New York City when he listened
FBI microphone snrveillances. 0!
letter sent to Senator San J. Ervin, Jr.,
by Assistant Attorney General Herbert J.
Miller oi the Criminal Division on Hay 25, 1961. In this
letter, Hr. Miller said he had learned from the FBI that
it was then using electronic listening devices to obtain
intelligence re ardin or anized crime * i B E 3 O 5 - _
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On April 9, 1964, the Director, in a nono-
randun to Assistant attorney General Hiller, stated,
...as the Department knows, this Bureau does utilize,
on a very restricted basis, electronic investigative
aids in the investigation oi important matters affecting
the security of the country and in the collection oi
important criminal intelligence information relating
to organized crime..."
Mr. William Hundley, Chief oi the Department's
Organized Crime and Racketeering Section when Hr. Kennedy
was Attorney General, stated in an interview by FBI
representatives on December 30, 1965, that he had been
cwnre, at the time, that the FBI had been using micro-
phones in its investigation or the underworld "skimming
operations" from gambling receipts at casinos in
Las Vegas, and had discussed microphone coverage in
Las Vegas with Assistant Attorney General Miller,
In regard to security matters, the FBI has
broad authority through the President's Foreign Intelli-
gence visory Board to collect foreign intelligence in
= 5
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.a~IWBureau policy on the use of microphone
surreillances has undergone several major changes
during the time Hr. Katzenbacb has been Attorney General.
On Harch_3O, 1965, Hr. Katzenbach requested that, in
line with similar procedures oi long standing regarding
technical surveillances wire taps!, requestsfor each -
microphone surveillance be submitted to him for approval.
In view of hearings being conducted by the
Long Committee and the pressure it was bringing to bear
on the Internal Revenue Service, the Attorney General
;n .
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Attorney General Katzenbach again authorized3
microphone surveillnncee in eecurity cases On September 27,
1965. Although he said he recognized the need tor micro-
phone surveillancee tor intelligence relating to organized
crime, the Attorney General stated that such coverage should
4. be limited to security cases "in the light of the present
atmosphere."
Newspaper and other sources have reported that
' former Attorney General Kennedy allegedly stated that he
xii S
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never authorized microphone eurveiliances in FBI investiga-
tions of organized crime. in addition, r. Katzebacb
has stated that Hr. Kennedy told him that he was unaware
of the !Bl'e use oi nicrophone eurveiliuneee egninet
organized crime. Hr. Ratzenbaeh hue, however, said
"that the actions of the FBI in this area were in any
event justified on the basis oi understandings between the
Bureau and prior pree1961! Attorneys General. He added,
"I an prepared to stand behind those actions."
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Any clear comprehension of the problems involved
in eavesdropping by means of electronic devices requires s
precise definition of the terms involved. It is apparent
from the widespread press coverage and public discussion of
this topic that the imprecise use of terminology has led to
misunderstanding, if not outright confusion. _Therefore, for
-urpcscs cf icccrdancc can
usage since Hay, 1943, the following definition of terms will
be used: .
!_ire_ lisp *i a.l.eio1£nown__:;_s_ p_Wi_re_p fIap Survei l lance , Ielepholze
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> gonninntion fire Tapannd Microphone
In sone instances, n microphone is concealed in s
= telephone instrunent for the purpose of monitoring conversa
¬ in the ere: of the instrument no well as both ends oi the
1 telephone conversations. This is considered e combination
wire tap and licrophone. _// '
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EARLY POLICY
I-
Earll Use othicroghonesrhy EBQ
Extensive tile reviews disclose only that the
early use oi microphones by the FBI is not recorded in
.nny detail. It appears that microphones were used by the
FBI during the 1920's
the late 1920's and in the 1930's,
their use was confined to the obtaining or intelligence
information in criminal cases. {Exhibit}. !
_u_Author£§§tion Ei Peguired4inJl§§§ Bureap p pm p f Trst . W p ;
In a memorandum from Hr. E. P. Coffey to Hr. Nathan,
dated June 3, 1938, the Technical Laboratory expressed the
opinion that the question or prior Bureau authorization for
the installation oi a microphone had not previously arisen.
Hr. B. A. Tans noted on this memorandum that Bureau author-
ization should be obtained on all occasions. Exhibit 2!
This requirement tor prior Bureau authorization
to install a microphone was incorporated in the Hanual of
Rules and Regulations on November 1, 1938, and read as 7
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Tbday, a substantially similar provision of the
Manual of Rules and Regulations reads, '
4
lnstruetionsito_§igld,*lQ§l1*l9§4
All Special Agents in Charge were advised by
letter dated September 5, 1941, that all requests for the
installation of microphone surveillances must be made by
the Special Agent in Charge or the Acting Special Agent
in Charge and must be made telephonieally tb Mr. Tamm
or, in his absence, to Mr. Tolson. This letter also
stated that Hessrsi Tans and Tblsen seals net autherize
the installation of a microphone surveillance except upon
the personal instructions of the Director. Exhibit 5 !
These instructions were later modified on April 22, 1944,
to permit the iield to make the requests by coded teletype
or by confidential letter as well as by teletype. Exhibit 6!
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-e a _§upre§e}Qourt_Decision injoldgan Case, 194% '
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4 Court on April 27, 1942. 'In this case, Goldman v.
United States, the Court held that conversations overheardby Federal agents through theLQ] insta11ed on a wall adjoining the
defendant's room were admissible and that the use of such
an instrument was not a violation of the Fourth Amendment's
nprovision against illegal Searches and seizures; It is
significant to note, however, that the installation of
.1. - I - -_- _ --- -- --
tne instrument which produced the evidence did not involve
a trespass. 16 U.S. 129!
33; Distinction betyeen Technical_§_MicroPhoneET?6iliunc0s' iU13 ' 7*
, r*'%" ea,
-All Special Agents in Charge were advised by
letter dated Hay 15, 1943, that the tern technical
surveillance would be construed to mean n telephone
surveillance as distinguished from a microphone surveillance.
Exhibit 7 ! The letter stated that it was essential that
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this distinction be borne in mind when requesting
authorization because microphone surveillances were
authorised by the Bureau but technical surveillnnces
had to be approved by the Attorney General.
BBQ
we-nu;
written, the Attorney General had authority by virtue
of a Presidential Directive of 1940 to approve wire
tapping.y Exhibit 8 ! This Presidential Directive is
still in effect today. On the other hand, the Attorney
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Pertinent portions oi Ho1tzoii's reply were
incorporated in a letter to all Special Agents in Charge-
dated August 15, 1944. Exhibit 1o ! The following
pertinent quotations are taken from this letter:
"'1. Where a contact microphone is used
upon the outer extremities of the premises and
where no trespass has been made upon the
premises iron which the information is being
obtained. -
"The evidence so obtained is clearly admissible.
"'2. Where a microphone, not n contact
microphone, is placed against the innermost
property line of the premises of the
individual in question. The type of
installation had in mind is where the wall,,
baseboard, or other property is gone through
from an adjoining room and the microphone
placed against the wall, baseboard, telephone
box, etc., oi the premises in question.
"The evidence so obtained is clearly admissible.
It should be borne in mind in this connection...
that evidence obtained by a trespass not
amounting to an unlawful search and seizure
is not rendered inadmissible merely because
of the means by which it was secured.i
- ' "'3. Where entrance is had into the
premises in question with permission of the
- Janitor, manager, or anyone else in authority
and a microphone installation made within
f. the confines or the room itself. It will be
, appreciated ii an opinion is ventured in
this regard: first, where the installation
is made prior to the time that the person
f actually takes possession or the property;
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second, where the installation is made after
the person is actually in possession and
occupying the premises. _ ~
"The evidence is clearly admissible if the
installation is made prior to the time when
the subject actually takes possession of the
property. On the basis of the principles
heretofore stated, it would seem also that
the evidence should be.adnissible even if
the installation is made while the subject
is actually in possession and occupying the
premises.
I
"*4. Where the existing facilities within
the premises are used merely through a means of
rewiring the same. It is nennt by this that no
actual microphone is installed and that the
facilities presently on_the premises are used for
this purpose. It will be appreciated in this
regard if you will venture an opinion: first,
where the sane is installed with permission oi
the janitor, manager, or other person of possible
authority; second, where an actual trespass is
committed.
"The answer applicable to case No. 3, Just
discussed, also governs the situation in case
No. 4. It is understood that rewiring does not
involve any interception of a conversation
passing over a telephone wire.
"'5. Where an actual trespass is committed
and a microphone installation is made within the
confines of the premises in question. _
"On the basis of the principles heretofore
discussed,it would seem that evidence so
obtained should be admissible, although no
precise case decided by the courts involving
such a situation has been round. The basic
principle governing the situation is the one
heretofore discussed, namely, that trespass
not amounting to unlawful search and seizure
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does not vitiato the evidence obtained thereby
and that nicgnnhggp sgrveillance_is_not
§qgiY;1Q§Z1j§7;QLiil;;ll_S§@§ch and sei;nre,$
GOld3n v. United States, 510 U.S. 129.
"'6. Where a microphone installation is made
in a hall or room subject to public hire. In this
regard it will be appreciated if you will offer an
opinion in the event the installation is made prior
to the actual hiring of the hall and after the
actual hiring of the hall by tho person in question,
and where the installation is made with the
permission or the management and/or as a result of
trespass.
"In all of the situations envisaged within the
foregoing question, it would seem that the evidence
is admissible on the principle heretofore discussed.
There is clearly no doubt as to its admissibility
in the event that the installation is made prior to
the actual hiring of the hall and with the
permission or the management. While the question
; is not equally clear in the other instance, it
g would seem that on the general principle heretofore
;.discussed, the evidence obtained under all of the
f sets of facts covered by case No. 6, should be
' admissible."
-
.' It should be emphasized that Mr. Holtzoii relied
heavily on the decision in eeldmanpyninited_§tates, particularly
that portion of the decision which held that a microphone
surveillance was not equivalent to an illegal search and seizure
prohibited by the Fourth Amendment. i .
*Underlining added tor emphasis
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instructions t9 F1916, 1e44,Uie4§_
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- _ t Tight Bureau supervision of technical and
microphone surveillances is m nifest in a letter
addressed to all Special Agents in Charge on November 13,
l944. Exhibit 11! It was stated in this letter that
instructions requiring specific Bureau approval for the '
installation of any technical or microphone surveillance
were first issued in a letter to all Special Agents in
Charge on September 5, 1941, and had been brought to
their attention on several occasions thereafter. These
instructions were again being brought to.their attention
to insure that there would be no possibility of misunder-
standing and to advise them that any deviation from these
instructions would result in the most drastic administrative
action.
Five months later, on April 18, 1945, all Special
Agents in Charge were-again reminded that they, or the
Assistant Special Agents in Charge, must personally approve
all requests sent to the Bureau for technical or microphone
survcillnnces. Exhibit 12!
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'><9292
Legal Guidance Obtained from Department 1946 1947I4""|7'_T""4_I"___'77T'*j|li' _p||||-__'"***_|'_7'lr77¬J 1 i
The Bureau: concern tor close supervision and tight
control oi microphones is evident again in the early postwar
period. Following the pattern oi presenting hypothetical
situations involving the use oi microphones which had been
established by the eenorendue to speeiel iesietent to the.
Attorney General Holtzoii in 1944, the Director continued to
make similar inquiries of the Department.
Assistant Attorney General T. Lamar Candle responded
to one such inquiry by memoranda dated December 3 and December
.- 13! The Department: answers to these
hypothetical situations revealed a transformation in its
interpretation of the law regarding the admissibility oi
evidence obtained from microphones.
In briei, Mr. Holtzofi had felt that the evidence
might be admissible even ii a trespass were comnitted, because
a microphone did not constitute an unreasonable search and
seizure under the Fourth Amendment. The Department was now oi
the opinion that evidence against the defendant obtained from a
microphone would not be admissible even if entry into tho
space were made under color oi authority, such as with the
cooperation oi a landlord or hotel manager.13,
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my; In rendering this opinion, the Department stated:
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-"' .-.Hereto£ore in every case in which the
search and seizure have been denounced and
the evidence held inadmissible as constituting
a violation of the rights secured by the
Fourth and Fifth Amendments there has been
n physical trespass against the defendant.
4 Therefore, it would seem that where there
has been a physical trespass upon the premises
occupied by the defendrnt which directly
results in affording the Federal agents with
the means of listening to private conversrtions,
the evidence obtained by that means would be
inadmissible on the ground that it was obtained
by an illegal search and seizure, Ihe
hypothetical situations listed by the Director
of the FBI pose varying degrees of trespass.
The answers to the problems presented are
a matter or Judgment which must be based
upon the relationship between the trespass
and the ability to overhear the conversation."
It is worthy of note that the Department stressed
the physical
installationaspect of the trespass involved in the
or the microphone. It continued to rely on
the authority or Goldman v. United §tates in stating that
there Iould be no violation or the defendant's constitutional
_ rights when the microphone was not
premises occupied by the defendantinstalled within the
and there was no trespass
on those premises. l
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In rendering its opinions on these hypothetical
situations, the Department noted the unsettled state ot
the lav in this area and, where it was not sure of its
ground because there was no case in point, it observed
significantly,
"===tho operation oi the BBL in detecting
crime should not be disturbed merely upon
n possibility...
After a thorough study of this Departmental
opinion, the Bureau incorporated the results into a
letter to All Special Agents in Charge dated March 31,
1947- Exhibit 14!
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Reviev or Bureau Policy by E;ecutiveiCon£erence} dune 9, l§§Q
The unsettled lav regarding the admissibility of
evidence obtained tron microphones was obviously of
, continuing concern to Bureau oificials. That concern and
a realistic eiiort to deal with this situation are reflected
in the deliberations of the Executive Conference held on
June 9, 1950. Exhibit 19 The Conference dealt with the
problems inherent in the use of three types of microphone
, in addition to monitoringinstallations:
conversations in a room, overhears both sides of any1
Iconversation on the telephone; ! a microphone installed
in the space either occupied by the subject or in which the
subject is located at the time the conversation occurs; and
! a microphone located outside the space occupied by a
subject, such as a contact microphone on an adjoining wall
vhich does not involve trespass. -
The Executive Conference reviewed existing policy
on these types oi installations and noted that in none or the
three installations cited did the Bureau advise the
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Department or seek authority tor the installation oi the
nicroghonet It was noted, however, that prior to the
installation or amauthority was obtained from the
Attorney General ter the installation oi a teshnical*surveil-
lance because this, in reality, a form of wire
tap. In seeking such authority, it was also pointed out that
the Attorney General was not advised that the particular
kg, technical installation was a conbination
IIIIIIIIIIIIIIJ ~
In discussing the various types or microphones used
by the Bureau, the conferees took note of the fact that a
microphone installed in the premises oi a subject is, in many
instances, illegal because the installation is accomplished
by trespass. There was also discussion on the point that all
such microphones night be considered illegal by the courts
even though they were installed on the premises prior to
occupation by the subject. It was agreed, therefore, that
. the problem of using such microphones should be approached
under the presumption that they might be considered illegal.
On the other hand, it was agreed that, according to
the existing state oi the law as interpreted tor the Bureau
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by the Department, there appeared to be no necessity to seek
authorization iron the Attorney General tor the installation
oi a contact microphone outside the space occupied by the
subject. This was so since there was no trespass involved
and, at that time, this type of installation was regarded as
legal.
' The Executive Conference oi June 9, 1950, observed
that th Department had, oi course, indirect notice oi the
Bureau's use of the microphone technique. This indirect
notice stemmed from the Bureau's requests, over the years,
tor Departmental opinions as to the admissibility oi evidence
obtained in a variety of hypothetical situations involving
the use of microphones. The Department also had direct
knowledge that the FBI was using microphones from the Bureau's
replies to questions concerning the availability of witnesses
and the admissibility oi evidence in some cases being
considered for prosecution. For example, a microphone was
utilized in the espionage case involving Judith Coplon, an
employee oi the Justice Department.
Nevertheless, the Conference noted_that, under
existing policy, the Bureau was installing and using
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microphones 9n;itsJoanéauthoritxf--without any authorization
tron the Department--and must assume responsibility for them
A .- _ _ _ ___ n _A_a -nan ; _¢ ,_n aa__ A-Buu UL Iwad luavu BL any Lamw. uu
the other hand, it was pointed out that the Bureau, in
countenancing illegal activities by authorizing some micro-
phones which involved trespass, was influenced by its
overriding obligations to gather intelligence information in
the security field and to safeguard the welfare of the countr
In this situation the Bureau faced a dilemma. As
noted previously, the Attorney General had authority by
Presidential Directive to approve wire taps, but no such
authority was given to him in regard to microphone instal-
lations. The Executive Conference of June 9, 1950, observed
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it had not objected to their use. Thus, to raise this issue
with th Attorney General night result, when trespass was
involved, in the loss or this investigative technique so
vital to the fulfillment of the Bresu's responsibilities.
, - _During the Executive Conference or June 9, 1950,
_ ____ _n__4.;_.I L4. j.92__ _-_ J l.__ * * e was opposes to tne use oz sny -Iii: ID
technique known to he illegal. Hr. Tolson believed that
the Bureau's position in using such techniques was untenable
and that the Breau would have to answer to criticism for any
illegal activities. The Director comented, "I have no other
alternative as this is preented but to agree with Tolson."
Under date oi July 5, 1950, a memorandum to the
Department raising the issue or using microphones involving
trespass was prepared. _ E:hibit 16! This memorandum, which
was newer sent to the Bepartment, was returned to the
Domestic Intelligence Division on April 23, 1951, with
instructions to hold it until s more propitious tine.
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extensive discussions were held between Bureau representatives
and oiiieials oi the Department concerning the use oi micro-
phones in the cases against communist leaders then being
prosecuted under the Smith Act. It was agreed that, whenever
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institution or criminal prosecution in any case, the Bureau
souls, upon request, advise the Department in detail
concerning any telephone or microphone surveillances employed
by the Bureau or hy other Federal agencies when the latter
was known. In addition it was agreed that the Bureau would
iurnish such information without a iornal request whenever
it was aware or had reason to believe that the Department was
seriously considering prosecution. Exhibit l
Hr. Belmont, other Bureau representatives, Deputy
Attorney General A. Devitt Vanech, hr. uclnerney, and other
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Exhibit 18! During this conference, Hr. Belncnt_asked
Ir. Hclnerncg whether there was any doubt in his mind that
microphones had been used in cases involving Smith Act
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Issue O1 MicroQhones_lnyolving jrespasg Presented toDegartnent, luol l
In View of allegations made by defense attorneys
in the Smith Act cases relative to FBI electronic coverage
of defendants, a memorandum was sent to the Attorney General
Q
on October 6, 1951. Exhibit 19 ! With regard to nicrophon 6
this memorandum stated:
"As you are aware, this Bureau has also employed
the use oi microphone installations on a highly
restrictive basis, chiefly to obtain intelligence
in£ormation.... In certain instances it has been
possible to install microphones without trespass,
as reflected by opinions rendered in the past by
the Department on this subject matter. In these
instances the information obtained, oi course, is
treated as evidence and therefore is not regarded
as purely intelligence information.
"As you know, in a number or instances it has not
been possible to install microphones without
trespass. In such instances the information
received therefrom is or an intelligence nature
only."
This Bureau memorandum concluded by presenting the
issue in these words: ,
"...I would like to have a definite opinion from
you as to whether, in View of the highly productive
intelligence iniormation gathered from these sources,
we should continue to utilize this technique on the
present highly restricted basis, or whether we should
cease the use of microphone coverage entirely in view
of the issues currently being raised.
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Attorney General Hcrath responded to the Director:
request by memorandum dated Februsy 26, 1952. Exhibit 39 !
He said that the use ct a microphone surveillance which did
4 not involve trespass oonld soe to be oernissible under the
present state oi the law and cited United States v. Goldstein
16 U.S. 129!. He observed that surveillances that "involve
trespass are in the area oi the Fourth Amendment, and evidence
so obtained and iron leads so obtained is inadmissible."
Hr. HcGrath went on to say, The records do not indicate that
this question dealing with microphones has ever been presented
before; therefore, please be advised that I cannot authorize
the installation oi a microphone involving_a%trcspnss* under
existing law." .
On this memorandum the Director noted, "See that
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Following the receipt of the memorandum of -
_ Attorney General Hcrath dated February 26, 1952, the Bureau
Ins still confronted with the problem of what actually
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re sun up, the Department believed that any
microphone installation, with the exception of n contact
device, would constitute a trespass unless approval were
given for the installation by someone who controlled the
premises involved, such as n Bureau informant.
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Exhibit 25>
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In viev of Attorney General cGrath's memorandum of
February 26, 1953, which advised that he could not, under
existing law, authorize the installation or microphones
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inyolving trespnsn, the Executive Conierence not on March 14,
1952, end diecueeed herein polieiee to inplennt this ruling=
Exhibit 23!
Following this Executive Conierence, a letter was
sent to all Special Agents in Charge on Harch 26, 1952.
Exhibit 29! They were adviaed that their requests for
tuthority to utilize microphone surveillances must state
that no trespass oi any kind would he involved either in
the installation or maintenance oi the microphone. For
guidance in determining
n was ea *
previously tarnished toit trespass were involved, their
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, Based on the reply from the Department, coupled
with opinions previously furnished, it now appeared that it
would be possible to install microphones without trespass
only in the following instances:
When Agents had legal access to adjoining property
and installed a contact microphone on the outer
wall of the space controlled by the subject.
ihen a microphone was installed within the
premises with the knowledge and consent of the
occupant. This would apply to persons cooperating
with the Bureau, such as sources and informants.
Ihen a microphone was installed in a public hall
and tho party contracting for the use of the
space did not stipulate that it would be a closed
meeting.
In analyzing the Bureau's position at that tine,
the memorandum dated April 28, 1952, stated "we have now
reached the point where we nust decide whether we should give
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up microphone coverage, tor that is the net result oi the
Department: rulings, or whether our responsibilities tor
internal security and espionage intelligence require the
continued use oi this technique on a restricted basis despite
trespass." Aiter reviewing the absolute necessity for
4 obtaining such vital information in security cases, the
memorandum concluded, "Bearing in mind the intelligence
part or our responsibilities as contrasted to the prosecutive,
it is questionable whether we can aiiord to give up micro-
phone coverage." .
It was recommended in the memorandum that:
"1. We insist basically that microphone surveillances
be installed without trespass.
"2. If it is not possible to install a microphone
as above indicated, and the intelligence to he
gained therefrom is a necessary adjunct to the
investigation involved, consideration be given
to authorizing the installation. These surveil-
lances will be limited to an absolute minimum and
will only be authcrized when vitally necessary and
when prosecution is not contemplated."
The Executive Conference oi Hay 5, 1952, unanimously
recommended approval oi the recommendations set iorth above.
hr. Tolson agreed but suggested that those installations
about which there was a legal question be reviewed. The
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Director concurred and commented, I an inclined to dine
continue all about vhich there is any legal question.
Exhibit 35!
Attorney General Heqrnngry Authqriges microphones lnvolvingIIr<=§;~.=-i==@;=T=i ;=i=.c,u1-ii?@is'_.e¢ ?is@,F?.. i ii=<=§6._ isle-
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The Director conferred with Attorney General
Hedrnnery on June 6, 1952, concerning the problem of micro-
phone installations where trespass was involved. By way or
background, a memorandum fro Hr. Belmont to Hr. Ladd, dated
Hay 23, 1952, had expressed the opinion that the value or
the intelligence information gathered warranted the use of
microphone surveillance: even though trespass was involved.
Exhibit31! However, it was essential that the Bureau obtain
the backing oi the Attorney General tor the use of this
technique. Hr. Tolson had commented that he believed these
microphones should be removed unless the Attorney General
authorized them. The Director noted that he would speak to
. the Attorney General.
In the conference with Attorney General Mcranery
on June 6, 1952, the Director referred to the tact that the
prior Attorney General, Icrnth, had ruled he could not approve
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the installation or microphones where trespass was involved.
Exhibit 32! The Director told Attorney General Heranery
that such installations bad been utilized on a very limited
basis by the FBI and only in cases which directly aiiected
the internal security oi tbs United Statos.- The Director
pointed out that, aiter this ruling by Attorney General Hcrath
on February 26, 1952, the Bureau bad discontinued nearly all
of the nicrophono installations which involved trespass.
Attorney General Hcrancry told the Director that
he thought it was entire1y_proper tor installations or micro-
phones to be made in any case where elements were at work
against the security oi the United States and that, in such
instances, where the Director felt there was a need to install
microphones, even though trespass might he committed, he
would leave it to the Director's Judgment as to the steps to
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Breau oiiicials were in regular contact with Departmental,»
attorneys with regard to a study the Department van making
to determine under that conditions microphone surveillances
night properly be made. The Department: approach to this
problem was outlined in conierences with Departmental
4
attorneys William Foley and Thomas Hall or the Criminal
- Division= .
s On December 1, 1953, attorneys Foley and Hall stated
that it was apparent to then that the Attorney General, as
chic! law enforcement officer of the country, could not be
placed in the position or authorizing outright trespass.
Exhibit 33! However, bearing in mind the value oi the
microphone technique in cases affecting the national welfare
and security, they felt that the Attorney General could, in
ettect, throw his weight behind the Bureau in those cases
where trespass was a technical violation or where trespass
was arguable. Attorneys Foley and Hall stated that they
believed that the previous interpretation by the Department
as to what constituted trespass was tar too restrictive.
Ir. Belmont and Hr. Hennrich of the Breau
suggested to attorneys Foley and Hall at this conference
on December 1, 1953, that it might be possible tor the
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$75 Attorney General to end to the Breau a memorandum modifying
the Department's interpretation or trespass and giving
Departmental backing for the use ct microphones in situationsL
where there was not outright and clear trespass. Specifically,
three situations were cited:'
4 ,
ll where a microphone was placed
subject's dwelling by means
",.-'-3--.3 '.:'- .7'.- I.I -_92_ - r1- 5 ":Hai ! Where a microphone was placed within_the
III subject's room or meeting place through
s actual access to the space but where such
access was gained through the assistance
of a person having legal access to the
i space, such as a landlord, hotel manager,
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Hr. Belmont and Hr. Hennrich estimated that, it
the Bureau received Departmental backing in regard to
. installations of the types described, it would cover more
than 75 per cent of the microphones the Bureau was then using
r in security cases. They noted, however, that the BureauI would still be in the position, in certain other exceptional
cases where prosecution Was not contemplated, of needing
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nicrophone coverage despite the outright trespass involved,
because it would be essential to the national welinre.
An interim memorandum concerning the Department's
study, dated December 9, 1953, was received iron Assistant
Attorney General Iarren Olney, Ill. E:hibit=34! This
Q a~92____.n____.n_92 ___.______1-__ _.___.e..__.. _.. ._IIGPBIUIIIBIIFIJ IHBIIUPIHUUII I'eYl¬I'E
regarding microphone surveillances and reached conclusions,
pertinent portions or which follow:
"The evidence secured by a microphone surveillance
and accompanied by the commission of a trespass may
or may not be admissible, depending on the view
taken B? the Conrts,in balancing the reprehensible
conduct or federal agents in securing the evidence
against the nature of the crime and the weight of
the evidence, of their prerogative to exclude the
evidence by establishing a Judicial rule of evidence,
as in the HcNabb decision, entirely apart from
constitutional considerations.
"In conclusion, this Division is constrained to
emphasize what is already manifest from the above
discussion and analysis, that the legal questions
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It is obvious, therefore, that in reconsidering
this matter and restating our views, it is
inpoeeible to forecast with certainty the future
trends or the Supreme Court in this area and to
predict their Judicial acceptability."
L=2r2==2.FP=1='! PF'?°1E¥°£L1E_."1° .1r11*== Peso _1954
4 ' S
Ihile the Department was engaged in its study oi
microphone surveillances, a signiiicant case was decided by
the United States Supreme Court on February 8, 1954. In
this caee, ;_r1ri_n_e_v. Caligognia, 47 11.8. 123! local law
eniorcenent oiiicere, with authorization iron the district
attorney, installed a microphone surveillance involving
trespass on the premises oi Patrick E. Irvine. The police
reeentered Irvine's premises on two separate occasions to
change the location oi the microphone. Aiter installing the
microphone in his bedroom, they were able to obtain evidence
which led to his arrest on hookmaking charges.
1H5 United States Supreme Court, in n five to four
decision, upheld the conviction on the grounds that the
illegally obtained evidence could be admitted in a state court
tor a state crime and such admission did not violate the due
proceee clause of the Fourteenth Amendment. However, the
Court etrongly denounced the activities or the police and
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suggested that the court record he brought to the attention
or the Attorney General of the United States to determine it
there were any violations oi civil rights statutes.
O! more significance to the work oi the Bureau,
however, was the fact that the Justices, in both the naJority
and dissenting opinions, felt that the actions of the police
were "incredible." This comment by the Justices recalled
th earlier opinion received iron the Department in its
nenorandun oi December 9, 1953, that the Courts night decide
whether evidence obtained by microphone surveillance was or
was not admissible by balancing the "reprehensible" conduct
oi Federal agents in securing the evidence against the
nature or the crime and the weight or the evidence.
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Meantime, the Bureau had not received any statement
tron the Attorney General giving backing tor the use or
Iicrophones in situations where there was not outright and
clear trespass involved. It will be recalled that such
backing had been the Subject or discussion between Bureau
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Ir. Boardnan spoke to Hr. Olney and other
e Departmental attorneys on March 30, 1954. Exhibit 36 !
Hr. Olney reterred to the case or lrvine_v. California,
and discussed it in see detail. He expressed the opinion
an-92§'Il92Il A-I Inn Qliiiilniln P Y QLQQ L ll? 1l"§ Willi! Y
v the tact that the police had installed the microphone in
the subject's bedoom and thereby exposed the private
domestic lite or the occupants. The tact that the police
acted under the color or authority provided by the
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! that the Department Iould back the Bureau
in the use oi microphones in security cases
!'that the Attorney General should furnish
a memorandum to the Bureau covering points.
one, three, and tour above.
_ H. Olney also requested that the Bureau furnish
4 the Department with an iniormal draft on these points from
Ihich the Attorney Genernl's memorandum would be prepared.
Among the suggestions made by Hr. Olney at this
conference on March 31, 1954, was one to pesent proposed
microphone installations to the Attorney General for his
specific authority, as was being done in wire taps. At
the sane time, Hr. Olney stated that he doubted that the
Attorney General would authorize a microphone installation
involving a clear trespass.
_'t"ln his March 31, 1954, memorandum to the Director
reporting this conference with Hr. Olney, Hr. Boardman
pointed out that there were two fundamental drawbacks in
Hr. 01ney's suggestion. First, there would be occasions
' when it was imperative that a microphone be installed
imediately and there could be a delay in obtaining approval
from the Attorney General. Second, it was once again
douhtiul that the Attorney General.wou1d "pprovc a microphone
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installation where there was clear trespass. Nevertheless,
the Bureau's responsibilities demanded that a limited
number of such installations he used. Therefore, the
Bureau continued to taco a dilemma. It could either
install microphones on its own authoity in limited
situations to obtain vital iniornstion or it could risk4
losing coverage necessary in discharging its responsibilities
if these requests tor microphone coverage were presented to
the Attorney General and denied.
Bureau Presents prait Memorandum to the Department
In accordance with the suggestions oi Er. Rogers
and Mr. Olney, the Bureau furnished the Department, On
April l, 1954, a draft oi the proposed memorandum from the
Attorney General backing the Bureau in the use of microphones
involving a trespass. Exhibit 37 !
Ir. Nichols discussed this proposed draft with
Hr. Rogers on April 14, 1954. Exhibit 38 ! Hr. Rogers
stated that, otter further reflection, he did not think
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much better position to defend the Bureau in the event
there should be a technical trespass if he had not
heretofore approved it." Hr. Tblson noted, and the
Director agreed, -..ve would be in a better position to
submit requests to AG as we do wire taps."
4
Final Draft of Proposed Memorandum from Attorney GeneralBrownell " " d * ** art W * d *
' On llay 7, 1954,m-,J,92?alter Yeagley of Hr} 0lney's
office furnished the Bureau a copy of the final draft for
the proposed memorandum from the Attorney General. This
proposed memorandum would provide the Bureau with backing<.-E
in the use of microphone surveillances involving atrespnss.
.,.¢
This final draft was reviewed and evaluated in a memorandum
from Hr. Belmont to Hr. Boardan dated Hay 8, 1954.
4.
Exhibit 39!
The final draft was approved by the Director,
and nr. Yeagley was advised of that approval on may 10, 1954,
That draft became in fact an official memorandum from
Attorney General Brovnell dated Hay 20, 1954, Exhibit 40!
It is important to examine in some detail the
Bureau's evaluation of that final daft to comprehend the
' intent of those who had figured in the negotiations for this
official backing from the Attorney General.
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In his memorandum dated Hay 8, 1954, Ir. Belmont
set forth the following analysis of the final draft for
the proposed memorandum from Attorney General Brownellt
"...the Attorney General would_be giving us
the green light for the use of microphones
in-internal securitzi cases... he! points
out the Bureau has an intelligence function
as well as a duty to develop evidence for
prosecution. In the last sentence of the
memorandum it is stated, *1 recognize that for
the FBI to fulfill its important intelligence
function, considerations of internal security
and the national safety are paramount and,
therefore, may compel the unrestricted use
of this technique in the national interest.
"...relative to crininalrcases, the Attorney
General is not as strong but he takes
cognizance of the need for microphone
surveillances in cases affecting the
national saietifcnd indicates they should
use n on y the more important
investigations.
"...The Attorney General points out the need
for discretion and intelligent restraint in
use of microphones by the FBI in all cases
includingyinternal security matters;-andre:¬e'rs"t6 t n e* ;£'rvi Ee"ea se..T The ttorney
General, in effect, indicates that we
should not put microphones in a bedroom
or some comparable intimate location but
,at the same tine, he points out that if
_?important intelligence or evidence relating
Q to matters connected with the internal
/ security can only be obtained by such an
I installation, it is his opinion that underI.; such circumstances the installation is proper
and is not prohibited by the U. S. Supreme
Court's decision in the Irvine case.
*Underlining added for emphasis
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"...reletive to trespass, each case will
he considered on its own merits but the
Department in resolving the problems which
may erise, will review the eireumstenees
in the light of the practical necessities
of investigation and of the national
interest which must be protected."
ur. Belmont observed, in his memorandum of Hay 8,
I.
1954, that there was no objection to
the memerandnm from Attorney General
that Bureau policy would continue to
for microphone installations without
in cases which might go to prosecutthe final draft of
Brounell, and stated
stress the necessity
trespass, particularly
addition, the Bureau would point out to the field that it
should avoid installations in locations such as bedrooms.
Iith regard to criminal cases, it was noted that the same
rules would apply and care would be taken to restrict
microphone installations to important cases.
r
Attorney General Brownell Authorizes Uicroghones Involving1rf<=»'#l3§=?~=ee=-i_ L5???-T0}?-F3?>1; *
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f The negotiations between Bureau officials and
Departmental attorneys for a modification of the interpretation
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of trespass and for Departmental backing for FBI use of
microphone surveillances culminated in a memorandu from
Attorney General Brownell to the Director dated nay 20,
1954. This memorandum was, as previously noted, identical
with the final draft analyzed by Hr. Belmont and approved
q ,
by the Director. Pertinent portions of this memorandum
follow:
"The recent decision of the Supreme Court l
entitled lrvine v. California, 347 U.S. 128,
denouncing the use of microphone surveillances
by city police in a gambling case makes
appropriate a reappraisal of the use which
may be made in the future by the Federal
Bureau of Investigation of microphone
surveillance in connection with matters
relating to the internal security of the s
country.
"It is clear that in some instances the use of
microphone surveillance is the only possible
way of uncovering the activities of espionage
agents, possible saboteurs, and subversive
persons. In such instances, I am of the opinion
that the national interest requires that
microphone surveillance be utilized by the
Federal Bureau of Investigation. This use
need not be limited to the development of
evidence for prosecution. The FBI has an e
intelligence function in connection with
internal security matters equally as important
as the duty of developing evidence for
presentation to the courts and the national
security requires that the FBI be able to
use microphone surveillance for the proper
discharge of both of such functions. The
epartment of Justice approves the use of
microphone surveillance by the FBI under
these circumstances and for these purposes...
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"...lt is my opinion that the Department should
adopt that interpretation which will permit
microphone coverage by the FBI in a manner most
conducive to our national interest. I recognize
that tor the FBI to fulfill its important
intelligence function, considerationoi internal
security and the national safety are paramount
and, therefore, may compel the unrestricted
use oi this technique in the national interest." Exhibit 40!
BureauHInp1emcntation_ojpepartgentalAuth9ri§stion1;lQ§§
Alter the receipt oi Hr. Brownel1's memorandum oi
ay 26, 1954, immediate steps were taken to insure that hureau
policy and procedures adhered to the guidelines established
by the Attorney General. It was stressed that the FBI would
use microphones on a restricted basis in security and
important criminal cases. The Director instructed at this
time, "I want the to prevail in this project same standards
as prevail in the authorization oi Technicals. No
installations are to be authorized unless approved specifically
by Tolson personally." The Director emphasized that he wanted
"Toison to pass on all microphone installations whether with
or without trespass." Exhibit 41!
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Basic Polio!
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71'? " we-erThe Bureau's Criminal Intelligence Program, as it
exists today, began during the latter part of November, 1957,
following the infamous and much publicized meeting oi more
than 60 recketeers at the estate oi Joseph Barbaraat
Apalachin, Net York, on November 14, 1957.
The planning tor the Bureaupvide Criminal
intelligence Frogram took place at n two-day conference,
held in Washington, D. C., and attended by Bureau otficials
and several Special Agents in Charge who would be expected
to play major roles in the implementation oi this effort.
The original instructions, which were sent to all
field offices on November 27, 1957, outlined the general
avenues of investigation and the goals to be achieved in
establishing broad intelligence coverage of organized crime
in this country. Exhibit 42 ! These instructions stated,
E Buresn instructions inst be ielly eons
the utilization 01 highly contidential sources or microphone
surveillances. No requests tor technical ccovcercngfe; wire taps!
will Ps..=c<=5e1ds5§9.-"*
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Intelligence Program, the iield was urged to use microphone
____.__ K_._. ____.__Q_ _I§ t92____l_ l____.n._ j_. Jgl_____H0850 rot example, GL1 DPQCIHL agent! in bnnrg
serve
were instructed by letter dated June ll, 1959, to be alert
for situations in which extraordinary and contidential
4 ' .
investigative techniques could be employed to advantage.
Exhibit 43 ! This letter cited a microphone surveillance
as a good example or a highly coniidential investigative
technique which had already provided extremely valuable
information concerning the activities or a notorious
New Jersey hoodlum. The letter specifically pointed out
that it would be necessary that aggressiveness, initiative,
and good Judgment be exercised so these techniques would
be utilized in well-selected sitnationsa .
gevigw of yicgophone Utilization in Criminal Intelligence ggpgram
In compliance with a request from ar. Tolson,
Hr. Belmont examined the microphone surveillances being
used in the Criminal Intelligence Program and reported his
findings in a memorandum to Hr. Tolson dated July 2, 1959.
Exhibit 44 3 in this regard, r. aeisent reviewed the
developments leading to Attorney General Brownell's memorandum
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tor the use oi microphones in criminal cases evolved tron
an 492 _ J u_ n_.._._._11Q_ ..._..-_.....s.._. 1- _.1...n_92. 1.-ll U1 I'll! DI!-III-ll:-I-J U IIUI'lII.l. .ll-I-I, Ill] ULIJJZI-I» I-IE
stated, "I recognize that tor the FBI to iuliill its
hnportant intelligence function, considerations oi internal
' security and the national safety are paramount and, therefore,
may compel the unrestricted use oi this technique in the
national interest." By way oi explanation, Mr. Belmont
stated:
"It is noted that the use oi the terminology
national safety was interpreted by the
Bureau to include criminal eases, particularly
as in the AG's letter he uses terminology
snch as the need ier discretion and
intelligent restraint in the use of micro-
ph9nc§%QyH§ggW§Bl in all case§4§I5ciuoIEg
internal security natter§}A It appears,
therefore, that the AG's letter, while
primarily directed toward security matters
as this was the basis on which the issue
was raised with the Department, used
terminology which was interpreted by the
Bnrean te apply tn criminal cases as tell."
Executive Conference giiirms Interpretation of "National
p.
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General beiore instituting microphone surveillance: in
speciiic criminal cases. As a result of this deliberation,
the iollowing sumation, approved by the Director, was
made:
"The Executive Conference considered whether
existing policy with reference to installation
or microphone surveillances should be changed
at this time or whether we should re¢weBent
this matter to the AG for reariirnation or
Departmental policy as set out in the AGs
memorandum or 5/20/54. It was the belie!
of the Executive Conference that the language
oi the AG's 5/20/54 memorandum covered both
Security and Crininal_natters; that we are
adequately protected by this opinion or the
AG, supported by that of Hr. Rogers in his
discussion of this matter with Hr. Nichols
on 4/27/B4. The Executive Conference
unanimously agreed that
Hr. Rogers continues asas long as
AG this matter not
be represented but that we proceed as in the
past on the strength of the 5/20/54 memorandum."
Exhibit 45!
B@m1n=ri*¢i!1s}9 F9?re,?*@§P2eB §aY9}ve¢
By letter dated January 22, 1960, all Special
Agents in Charge were reminded that whenever they requested
authority to install a microphone surveillance complete
details oi the proposed installation must be Iurnished to
the Bureau and they must point out specifically whether
trespass would be involved and whether the microphone would
-45 -
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be instaiied in the ieiephone or a ieiephone instrumeni
e would be used in any way. Exhibit 46 ! The letter
stressed that all Special Agents in Charge must continue
to supervise pereonally all microphone surveillances.
4'
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FEIIEEIL BIIBEMI OF INVESTIGQTIOII
FUIPI DELETED PAGE IIIFOBIIITIOII SHEET
Page s! withheld entirely at this location in the le. One or more of the following statements, where
indicated, explain this deletion.
Deleted under exernptionlsl __ ! _ _ with no segregable
material available for release to you.
Information pertained only to a third party with no reference to you or the subject of your request
Information pertained only to a third party. Your name is listed in the title only.
Docurnentf s! originating with the following government agency ies! W. _ _
__ _ . _ _ , was/were forwarded to them for direct response to you.
Page s! referred for consultation to the following government agencyliesl; __,._i.a..__.%__
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be advised of availability upon return of the material to the FBI.
Pagelsl withheld for the following reason s!:
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TENURE OF ATTORNEY GENERAL ROBERT KENNEDY 1961-1964I:_'*' ie 1' " 1_,,, , ,' i, W ssh, iwr" , is ' " ' ,
Overall Bureau policy on microphone surveillance:
ihich developed from the authority granted in'attorney General
Herbert BroInoll's nemorandu oi Hay 20, 1954, was still being
followed on January 21, 1961, Ihen Robert F. Kennedy was srorn
in as Attorney General.
Frsedesv 4e=11n=1=_ °1'g=~*=1¢s<1 °1'e--as
For a number oi years prior to January 21, 1961,
Hr. Kennedy had built a public image as a staunch crusader
against organized crime. He.had served as counsel for the
Senate Committee which investigated labor racketeering. He
92..1*
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following statement, ...Ie are new treating organized
' crime as the Federal Bureau of Investigation has treated
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- I. Kennedy's crusading tactics against organized
crime caused ene newspaper te eennent, "Qne eertainty about
I
Robert F. Kennedy, when he was named Attorney General, was
that he would exert himself as a crime buster.'"
Mr. Kennedy did, indeed,exert himself against organized
crime. Shortly after he took office he made it clear in
his public utterances that he would conduct a concerted drive
against organized crime in his new position. Exhibit 53!
n 1961, Hr. Kennedy meved te enlist the
combined forces of several Federal investigative agencies
for an intensified drive against organized crime. To
. coordinate this concerted effort, Mr. Kennedy used the
Organized Crime and Racketeering Section of the Department
of Justice. The FBI had, of course, maJor responsibilities
in this program.
Er. Kennedy Informed Internal Revenue Serviee Planned Use:¢_3_:§' E1e§_trro_nic_ A'iFs_ W 1 * ** * ' * * *'_'
On February 16, 1961, Hr. Kennedy held a
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§%a4IRevenue Service Iortimer I. Caplin, the Director, and
other officials. M. Kennedy outlined at this conference
the program which he had_in_nind for making inroads into
organized crime. Exhibit 53
As part oi the proceedings, Hr. Caplin presented
for the examination oi Ir. Kennedy and the Director copies
of instructions he had issued to investigative personnel
of the Internal Revenue Service concerning the responsi-
bilities oi that agency in the drive against organized crime.
These instructions, entitled "Special Racketeer
Investigations," were enclosed in a letter from Ir. Caplin
to Hr. Kennedy which Ir. Caplin delivered personally to
Ir. Kennedy that day. This document nade specific reference
to planned use of electronic aids in investigation of leading
racketeers by the Internal Revenue Service. Page two oi
this document stated, "In conducting such investigations, full
use will be made oi available electronic equipment and other
technical aids, as well as such investigative techniques as
surveillances, undercover work, etc."
Hr._Kennedy Advised oi Bureau's Plans Against OrganizedCrime S "* *
In a memorandum dated April 8, 1961, the Director
was informed about conferences with selected Special Agents
in
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Criminal Intelligence Program. In this memorandum it was
noted that the Bureau had previously furnished Attorney
General Kennedy, for his information, instructions to Burs:
field offices contained in letters to all Special Agents in
Charge dated Harch 1 and larch 30, 1961. Exhibit 54 !
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.7 l t5Deputy Attorney General White Informed of Bureau PolicyEgncerninfgz E:roqf[6p_es,p " H D t -
Early in 1961, Attorney General Kennedy had agre1
to testify concerning proposed wiretap legislation being
considered by the Senate Judiciary Subconnittee. On
April 26,_1961, a meeting between Departmental representat:
and Assistant Director Courtney Evans was held in the offin
of Deputy Attorney General Byron White to formulate a
position on this legislation for the Attorney general,
Exhibit 55 !
During the discussion it vas pointed out that th<
Attorney General should alsoloe prepared to answer questi01
concerning other phases of "eavesdropping," including the
use of microphone surveillances. To assist the Attorney
General in this regard, the Bureaucielivered a memorandum
to Deputy Attorney General White dated Hay 4, 1961, Exhib:
This memorandum stated that the Bureau's views on the use:
microphone surveillances in FBI cases were being furnished
in connection Iith the Attorney General's contemplated
appearance before the Senate Subcomittee on Constitutionai
Rights. Pertinent portions of this memorandum of lay 4, 1!
follow: _
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"Our policy on the use of microphone surveillances
is based upon a memorandum from former Attorney
General Herbert Brownell dated Hay 20, 1954, in
which he approved the use of microphone surveil-
lances with or without trespass. In this memo-
rundum Hr. Brownell said in part:
"'1 recognize that for the FBI to fulfill its
important intelligence function, considerations of
internal security and the national safety are
paramount and, therefore, may compel the unre-
mricted use of this technique in the national
interest.
"In light of this policy, in the internal security
field, we are utilizing microphone surveillances
on a restricted basis even though trespass is necessary
to assist in uncovering the activities of Soviet
intelligence agents and Communist Party leaders.
In the interests of national safety, microphone
surveillances are also utilized on a restricted basis,
even though trespass is necessary, in uncovering major
criminal activities. We are using such coverage in
connection with our investigations of the clandestine
activities of top hoodluns and organized crime. From
an intelligence standpoint, this investigative techniqu
has produced results unobtainable through other means.
The information so obtained is treated in the same
manner as information obtained from wire taps, that
is, not from the standpoint of evidentiary value but
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Attorney General for the specific use o£_the Attorney Genera
it was ofiicial notice to hr. Kennedy and to the Department
of Justice of the Bureau's policy concerning the use of
microphone surveillances. Horeover, it spelled out that the
Bureau had interpreted Attorney General Browne11's letter
I
oi !ay 29, 1954, to give it authorization for use of
microphone surveillances in criminal cases. If there were
disagreement with this interpretation, the Bureau should
have been so advised at that time.
Hr. Kennedy Pleased About FBI hicrophone Qoverage
On July 6, 1961, Mr. Kennedy held a conference of
attorneys in the Department's Organized Crime and Racketeori
Section as the concluding phase of an inquiry he had been
conducting on the activities of this Section. Assistant
Director Evans, who was present at this conference, was
asked by Hr. Kennedy about "electronic devices," similar to
those used in espionage cases, in the investigations of orgs
ized crime. Since there were a number or people present,
Hr. Evans made a general reply which conveyed the message
that he would discuss this matter with the Attorney General
under more appropriate circumstances. Exhibit 57!
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ln a nenorandun dated July 6, l96l, hr. Evans
recorded H. Kennedy's remark, noted that there was
serious question as to whether the Attorney General was
aware of the difference between a technical and a
microphone surveillance, and asked for permission to
4 - discuss this subject with the Attorney General. The
Director approved, and Mr. Evans saw Hr. Kennedy in
regard to this natter on July 7, 1961. Hr. Evans
recorded this discussion with the Attorney General in
a memorandum dated July 7, 1961?. Exhibit 53! The
following pertinent quotation is taken from this
memorandum:
"It was pointed out to the Attorney General
that we had taken action with regard to the
use of microphone surveillances in these
cases organized crime investigations! and
while they represented an expensive inves-
tigative step, we were nevertheless
utilizing them in all instances where
this was technically feasible and where
valuable information might be expected.
The strong objections to the utilization
of telephone taps as contrasted to
microphone surveillances was stressed. The
Attorney General stated he recognized the
reasons why telephone taps should be
restricted to national-defense-type cases
and he was pleased we had been using
microphone surveillances where these
objections do not apply wherever possible
in organized crime matters."!~-I ~
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By the time that Hr. Kennedy had become
Attorney General, the Bureau had learned from its
experience with the Criminal Intelligence Program that
4?the single, most productive intelligence-gathering
technique had been microphone surveillances ofselected
underworld figures.
I Ilany of these microphone surveillances used
$1! tp transmit the information
obtained to an FBI monitoring center. These-
Ql did not, however, constitute a wire tap or '
technical surveillance. Thesegre similar
to "open lines used by stockbrokers and music companies col
to transmit information and music from one iocation to
another. It was normally possible tor the FBI to make
oral arrangements iith the telephone company involved
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To obtain s authorization from Attorney
General Kennedy, a memorandum on FBI stationery,
classified "Top Secret," dated August 17, 1961, and
enclosing the proposed letter to the telephone company
in New York City, was delivered to Ir. Kennedy on
August 17, 1961, by Assistant Director Courtney Evans.
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complete text of this memorandum, ihich was signed by _
Hr. Kennedy:
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The very first sentence of the memorandum of
August 17, 1961, which Hr. Kennedy approved, stated
Q! that it is frequently necessary to
-11: order to monitor microphone _
survetllencee. The memorandum also stated that these
eituntione occur when 1t 1 impossible to locate e
secure noniterlng point in the tmediete victnity or the
prenlsee covered by the microphone. On it face, there-
tore, this document interned former Attorney General
F
Kennedy of the procedures and problems involved in, .
microphone eurveillancee which were broader in scope
; than the epecle ienue presented in regard to
an York City. _
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By affixing his signature to this memorandum,
it is clear that former Attorney General Kennedy was
not only authorizing the use of microphone surveillances
in the Criminal Intelligence Program in New York City '
4 . but was also acknowledging that he was on notice that
these microphone surveillances were used trequently
and in several situations by the FBI elsewhere.
' On December 24, 1965, Assistant to the Director
Dehoach and Assistant Director Gale interviewed former
Assistant Director Evans about what had transpired
when he took this memorandum to Attorney General Kennedy
on August 17, 1961. During this interview, Mr. Evans
described my mi
n connection with microphone surveil-recalled that he
U»!
lances, not only in New York City, but also elsewhere.
Hr. Evans stated that there was no doubt in his mind
that former Attorney General Kennedy was fully aware that
*1 "1 's I
top boodlums. Exhibit 61!<<>>
92
Hr. Kennedy Heguggtg_"Appropriate Surveillance" of
During the Summer 0! 1961, information had come
to the attention of Hr. Kennedy that Teanster President
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James Hoffa allegedly had sources inside the Criminal
Division oi the Department of Justice. He also learned
*h=
Ilr. Hoffa, planned to he in Washington, D. C., on
August 7, 1961, to meet with his "contact" in the
Justice Department. Sincahad no known
official business with the Justice Department, llr. Kennedy
felt that this inuld ha 1 nurra titinu 0 t ct 1th nne ____ _ "l'92 Q C! Tl I. T _ __ ' - -v ---- -----_ -- - ------r---'---- -----.----- --- -
oi' Hr. Hoi:Ia's alleged sources in the Department.
llr. Kennedy re_quested the FBI, through
Assistant Director Evans, to conduct an appropriate
surveillance o-hile he was in Washington
in an attempt to determine the identity of any Department
of Justice employee he contacted. Exhibit 62!
In I memorandum dated Ilarch 13, 1962, Hr. Evans
referred to ltr. Kennedy's request for an "appropriate
surveillance" 01-59 explained that while
"appropriate surveillance" did not explicitly describe
the surveillance requested by Attorney General Kennedy,
there was no question but that the Attorney Gene:-al's
request meant both a physical surveillance and a
microphone surveillance o otel room.
According to llr. Evans, it was understood that this D
investigation was to he discreet but that th
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__.____ _____ I _ a m Q. a _ hnQ_ a_ a m a___;§@i rney uenerai wanted all steps possloio to no taken
determine imade contact with anyone
:?K _ in the Justice Department. Ir. Evans added that the
results of the microphone surveillance were reported
to Hr. Kennedy in daily memoranda as the information
was received. Exhihit 53!
Q1 Kennedy Inquires about Possible EB; gicrophone
Surveillances
On March 30, 1962, Hr. Kennedy sumoned
ur. Evans to his office and told him that Joseph Volpe,
formerly Chief Counsel for the Atomic Energy Commission,
had informed the Attorney General that he had learned on
the "highest authority" that Volpe's office had been
covered with a microphone surveillance during l953 and
1954. Ir. Kennedy asked hr. Evans if this had been an
FBI microphone surveillance. Hr. Evans later reported
to the Attorney General that this was not an FBI
microphone surveillance. It is noteworthy, however,
that Ir. Kennedy's query reveals that there was little
doubt in his mind that the FBI used microphone
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Ir. Kennedy that it was not an FBI microphone
surveillance. Exhibit64 !
§rl_Kenn§dy Listens toiIq;!hecordingsL9f%EBI Hicrophgne
Surveillances
¢
If there were any remaining doubt in
Qrt Kennedy's nind that the FBI sas using nicrophone
surveillances, it should have been dispelled during two
visits he made to FBI field offices. On March 19, 1963,
Hr. Kennedy was briefed on organized crime investigations
in the FBI's Chicago Office. This briefing was attended
by other Departmental officials, including William
Hundley, Chief of the Organized Crime and Racketeering
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fir;..1.- 5.-.' .1-1.5%-During the playing or this tape recording,
both Ir. Kennedy and Hr. Hundley interrupted iron time
to time to inquire as to the identity or a particular
speaker. The voices involved in the conversation were
identified for then. Also during the playing of the
4 tape, or immediately thereafter, Hr. Hundley asked whether
the FBI had a "tech" in a particular establishment which
he nand. He also asked it "techs" were legal or illegal.
hr. Kennedy then stated, "They're all illegal."
Mr. Hundley also asked where the installation
was located from which this tape recording was obtained.
Hr. Kennedy stated that he did not believe that he wanted
to know the exact location of the installation.
Following the playing oi the tape, Hr. Kennedy asked
whether or not the Chicago Police Department was aware
of the information contained in this tape. He was told
that it was not. '
this conierence in the E31; Qhicago Qttice
lasted several hours longer than was originally intended.
Following the conference and again at the airport prior
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organized crime, and stated that he wanted the Chicago
Office to keep up its extensive and intensive
investigations in this field.
The Special Agents involved in this Chicago
conference have subitted sworn statements concerning
' that transpired at the conference, including what
u. Kennedy said. Exhibit es!
' After he returned to Washington, D. C.,
Ir. Kennedy sent a letter to Hr. Harlin Johnson in
which he said that he appreciated the fine presentation
made by Hr. Johnson and his Agents during his visit
to Chicago. Mr. Kennedy added that the presentation
yes sell organised and "very informative."
In regard to this conference in Chicago,
Hr. Hundley told Assistant to the Director DeLoach and
Assistant Director Gale on December 30; 1965, that it
Ins obvious to him at the time of the conference that
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1,;coverage. He did say, however, that he felt that
this was generally understood. Exhibit 67!
On another occasion, Ir. Kennedy visited the
New York Office of the FBI for a briefing on organized
crime. Participants in this conference, held
¢ ovenhe
vere 5. Kennedv, r. Ed Gnthnan of
llr. Kennedy's Staff, Asistant Directors Courtney Evans
and John F. Malone, and approximately 25 FBI Special
Agents assigned to the Nev York Office. At this
conference, a tape recording taken from an FBI microphone
surveillance was played for Hr. Kennedy. The taped
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A gangland murder was the subject of the conversation
ha!-qnnn fhncn tI'n SH """"" """"' " --nee tug
recorded conversation was, at tines, difficult to
understand, Ilr. Kennedy was provided with a. written
transcript to assist him in folloving the conversation.
Because there was some difficulty in under-
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that these individuals do not always meet in the most
' desirable locations and, no matter how good the equipment
is, it cannot overcome the problem of guttural voices and
whispered conversations, such as were on this tape
recording. .
Special Agents of the FBI who participated in
this conference have submitted sworn affidavits as to what
transpired, including the question asked by Mr. Kennedy.
Exhibit 68!
Evidence Mr. Kennedy's staff Was Aware of FBI Use_9f
icrophone Surveillanceg e
' In addition to H. Kennedy's
meat in matters relating to microphone
members of his Staff were, in specificpersonal involve-
surveillances,
security and
criminal cases, on notice that microphone surveillances
were used by the FBI. The following are typical
instances:
! on Hay 25, 1961, Herbert J. Killer, Jr.,
Assistant Attorney General, Criminal Division, Department
of Justice, sent a significant letter to Senator San J.
Ervin, Jr., of North Carolina. The following is the a
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Wham; you for your ietter of iiay ie, ieei.
"I have been advised that as of February 8, 1960,
the Federal Bureau oi Investigation maintained
78 wiretaps.
"You also request iniornation relative to the
nature and extent or the use oi electronic
eavesdropping apparatus by agents of the
Bepartnent ci Justice. I have checked with the
Federal Bureau of Investigation and, as in the
case oi wiretapping, the technique of electronic
listening devices is used on a highly restricted
basis. The Federal Bureau of Investigation has
67 of these devices in operation. The majority
are in the field oi internal security with a few
_us,ecl to ogtain. 1'.-;;l_:;e1_1ig§_nce_ _in£orna.tion_!I,ith
regard to organizgg crige,*Q
"The Department ioels the information in the
third paragraph should remain confidential.
However, whether the information should be made
public is leit with you discretion." Exhibit 69 !
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Acting Assistant Attorney General, Criminal Division, was
orally advised by FBI representatives that the Los Angeles
Office of the FBI had a microphone surveillance on
4 closely allied with the "skimming
. operation" involving the flaw oi illegal diverted funds
tron I-as Vegas gambling casinos to the leadership or
La Cosa Nostra and other top racket elenentawas
being considered for prosecution on an obstruction oi "_
Justice charge. Exhibit 71! u
! On April 23, 1963, Assistant Attorney General
Herbert J. Miller oi the Criminal Division was orally advise:
that the FBI had microphone coverage of several oi the
subjects involved in the case t
a1. This was a large-scale bookmaking operation in
Kansas City, Missouri, Exhibit 72! _
! On July ll, 1963, Assistant Attorney
General Ililler was orally advised by FBI representatives
that a lI1Cl'0phOliO surveillance covering_
' in I-as Vegas, Nevada, had been compromised.
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under subpoena to a Federal Grand Jury in Lon Angelou,
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California, probing tn. .mvm..
a key figure in the "skimming operation" at Las Yegas. l
Exhibit 73! _
! On March 6, 1964, Assistant Director Evans
orally advised Assistant Attorney General Herbert Miller
4 that the FBI had microphone surveillances o
activities in Philadelphia, Pennsylvani
as Attorney General Kennedy knew, Ias a member of
of a case involving Interstate Transportation in Aid of
Racketeering-Extortion, and was awaiting trial. Assistant
Director Evans also told Hr. Killer on March 6, 1964, that
had microphone coverage on tliean
gambling casino in Hot Springs, Arkansas, inas-the FBI
illegal
much as there was a possibility 02 Federal Grand Jury
inquiry into prevalent illegal gambling in that city.
' EIh1b1t 74! '
p_ ! A memorandum dated April 9, 1964, entitled
"Electronic Surveillance" was sent tron the FBI to
Assistant Attorney General Miller. Ir. Miller had tor-
warded a copy of a Departmental memorandum on the subject
0! electronic surveillances, which proposed that the
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and a legal study of this matter. Hr. Miller had asked,
in his letter 0! transmittal, that the FBI cement on
this proposal. The Director's memorandum to Hr. Miller
stated that such a study was not believed desirable
* principally because it would disclose coniidential
investigative techniques. The Director's memorandum
_92__ _.a._.n__ _also stated: ' '
"...as_the Department knows, this Bureau does
utilize, on a very restricted basis, electronic
investigative aids_in the investigation of
important matters affecting the security of
the country and in the collection oi important
criminal intelligence information relating to
organized crime, as well as similar investiga-
tive matters involving the safety and well-
being oi a victim such as in kidnapping cases.
"In such matters, the Department is aware that
these electronic investigative aids have proven
to be useiul in the past and continue to be
very helpful at present." Exhibit 75!
Since criminal intelligence information relating
to organized crime was not one or the categories tor ehich
the Attorney General could approve a technical surveillance
wire tap!, the reference to "electronic investigative
lids in the Director's memorandum could only have been
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8! I. Iillian Hundley, Chief of the
Organized Crime and Racketcering Section oi the Department
of Justice, who also served in this position during the
time Hr. Kennedy was the Attorney General, discussed
his knowledge of FBI microphone surveillances with
Assistant to the Director DeLoacb and Assistant Director
Gale on December 30, 1965. Hr. Hundley stated that he
had been aware that the FBI had been using microphones
in its investigation 0! the underworld "skinning
operations" pertaining to gambling receipts from casinos
in Las Vegas. Hr. Hundley said, "You cannot be in this
business as long as I have been and read the FBI reports
concerning skimming without knowing that this type of
information had to cone as a result oi microphone
coverage." Exhibit 75!
I. Hundley also stated that he had never
discussed this with former Attorney General Kennedy but
that he had discussed microphone coverage in Las Vegas
with iormer Assistant Attorney General Herbert J. Miller
who was head oi the Criminal Division while ur. Kennedy
was the Attorney General. Hundley added that he had
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microphone surveillances in has Vegas after a leak of
information in March, 1963, resulted in the exposure of
an FBI microphone surveillance at the Fremont Hotel in
Las Vegas. 6
Qiyil Suits in §a§_Vegas lnvolving F31 Microphones
Following the discovery in March, 1963, of the
FBI microphone surveillance in the office of Edward
Levinson, President of the Fremont Hotel in Las Vegas,
Nevada, a civil suit was brought on February 26, 1964,
by lswinson and the Fremont Hotel against the telephone
company in Las Vegas. Although this suit was dismissed
with prejudice on Hay 20, 1965, another civil suit was
instituted on Decenber.l0, 1965, against the telephone
company and the Special Agent in Charge, the Assistant
Special Agent in Charge, and two Special Agents of the
has Vegas Office of the FBI. Exhibit 77!
Zhe Fred Black Case.
As noted previously, tracing the flow of funds
at gaahling casinos in
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prime importance in the Bureau's over-all efforts to
combat organized crime.
During the time that Hr. Kennedy was
Attorney General, information was developed that
Washington lobbyist Fred Black, because of his known
' connections with individuals who served as couriers in
the "skimming operation," appeared to be personally
invoiveh in this tlow of funds to La Cosa Nostra. As
part of this investigation, a microphone surveillance
was instituted on Black at the Sheraton-Carlton Hotel,
Washington, D. C., on Febrnary 8, 1963. Exhibit 78!
During an interview with Bureau officials on
June 2, 1966, former Assistant nirecter Evans stated
that While Hr. Kennedy was Attorney General he had briefed
Hr. Kennedy on the Black investigation. Mr. Evans further
stated that on one occasion he furnished Hr. Kennedy
information which could only have come from a microphone.
He added that the Attorney General could well have interred
the usage oi microphones as a result oi receiving this
information. Elhibit 93!
On the basis ct an investigation conducted by
the Internal Revenue Service, Black was convicted in the
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United States District Court, Iashington, D. 0., on
lay 5, 1964, tor violation 0! Federal income tax lava.
The conviction was upheld in the Court of Appeals and the
United States Supreme Court denied certiorari.
Subsequently, on Hay 24, 1966, United States
Solicitor General Thurgood Marshall tiled a memorandum
before the Supreme Court advising the Court that there
was an electronic surveillance of Black and that .
conversations between Black and his attorney had been
intercepted. As a result of-Hr. Marshall's memorandum,
the Supreme Court requested additional details concerning
the electronic coverage of Black.
Almost two weeks before Hr. Marshall's
memorandum was tiled, Assistant to the Director DeLoach
and Assistant Director dale had, on hay ll, 1966, brought
to the Department's attention the pitfalls involved in
so advising the Supreme Court. The Department was told
that the results oi the conversation between Black and
his attorney had not been disseminated outside the Bureau.
Theretore, the prosecution was not aware oi the monitoring
and did not, of course, useit against the deiendant.
furthermore, no motion had been made by the defense to
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determine it the Government had microphone coverage.
In addition, the mnitoring occurred approximately one
year before the trial and involved an attorney who did
not appear as an attorney of record. Finally, the
disclosure would trigger unwarranted criticism of the
1 Fi and the Department and could come at an inappropriate
time in view of the pending case against Bobby Baker
and the civil suit in Las Vegas. Despite these cogent-
arguments, the Department filed the memorandum so it
would have "clean hands." Emhibit 93!
The Department also wanted to have "clean
hands" on the matter of authorization for microphone
surveillances. Attorney General Katzenbach had, in a
conterence on May 23, 1966, attended by Assistant
Direeter Gale, agreed te inelnde in the memerendnm a
footnote stating "there was general Departmental
authorization of longstanding tor the use 0! these
devices." On the following day, the Attorney General
had this footnote deleted iron the memorandum.
Exhibit 94! -
as of July ll, l966, this matter was still
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- _ - -_ _r.-- .- --Do July 16, 1.164, the Director, in n teiephone
conversation with the President, discussed the FBI:
investigation of events surrounding the murder 91!___-i___---_---_ -_ __-._.__ .____-_.___i¬ ___- _._-1_ ____.
Negro educator Lemuel Penn on a Georgia. highway.
Exhibit 80 During this telephone conversation, the
Director told the President that the rs: had installed
I. microphone in a building next to the garage where
Klansuen gathered in Athens, Georgia. _ V
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-;'=nnpnnznnrran POLICY on HICROPHOHB
Eevievoi Bureau Policy, October, lgi
In the interim period from the resignation of
iztorney General Kennedy on September 3, 1964, to the
swearing in of Attorney General Nicholas deB. Katzenbach
on February 13, 1965, existing Bureau policy concerning
special investigative techniques, including microphones,
was reviewed. The results oi this review were set iorth
in a memorandum from former Resistant to the drector
Belmont to Associate Director Tolson dated October 6,
l964. Lishihit 82.1
In regard to microphones, Hr. Belmont stated
that they were being used in security cases and criminal
intelligence matters and that each installation had to be
approved by Hr. Tolson. ne also said that microphone
surveillances had been a primary source oi information on
organized crime, particularly in regard to La Cosa Nostra.
he edded thet this iniereetien hed enehled the EB! te
iniiltrate, penetrate, and disrupt organized crime. Bore-
over, it had also provided leads for the development oi
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Br. Belmont also pointed out in his memorandmn L; 3?I " --.
that the FBI had discontinued dissemination oi iniormation
tram microphone suveillances to the Department oi Justice
and United States Attorneys, except when an impending
murder was involved. This policy had been adopted iollowing
the leak of information from the Department, which exposed
the FBI microphone surveillance at the Fremont Hotel in
Les Vegas in March, 1963. The Director approved the
policies outlined by.Hr. Belmont.
Hr.:§gt§enhach,to@Approve_ill_hicrgphone Surveillnnces
Attorney General Katzenbach,_in a conversation
with the Director on March 30, 1965, stated that he would
like to set up a procedure, similar to that in effect
concerning technical surveillances, whereby he would bed
advised by the Bureau oi microphone surveillance installa-
tions. Exhibit 83! On the same day, the Director sent a
memorandum to the Attorney General which contained the
iollowing:
"In line with your suggestion this
morning, I have already set up the
procedure similar to requesting oi
authority tor phone taps to be
utilized in requesting authority
tor the placement oi microphones.
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1'37 In other words, I shall forward to
you from time to time requests for
authority to install microphones
where deemed imperative for your
consideration and appoval or
disapproval. Furthermore, I have
instructed that, where you have
approved either a phone tap or the
installation of a microphone, you
be advised when such is discontinued
it in less than six months and, it
not discontinued in less than six
months, that a new request be
submitted by me to you for extension
of the telephone tap or microphone
installation. " ' " 343 -4
On May 6, 1965, the Director and Er. Belmont
discussed microphone and technical surveillances with
Attorney General Katzenbach. Exhibit 35! At the outset,
the Attorney General stated that he was not concerned about
the use or these techniques in security cases. He stated
that he agreed with the Director's position, originally
presented to Attorney General Tom Clark, that all technical
surveillances used thn>ugh0ut the Federal Government should
be gnrgved by the Attorne General- I-In than 1:11 rr at A ah __ -- _ __' ____"_y ___--__. _- -__- __g,e_-e_ --e
desirability of channeling all these Federal Government
technical surveillances to the FBI to central control and
handling.
The Director argued successfully against this
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eurveillances to an absolute minimum. It was iurther
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lgiQcountry because of its power and influence, and has been
surrounded by an aura of invincibility. -
Hr. Katzenbach was reminded that the FBI had
been waging an all-out attack on La Coea Noetra. In
this attach, microphone surveillancee had been invaluable
in providing intelligence information leading to
identification of La Coca Noetra nembere, and information
concerning their areas of influence, their organization,
and their activities. '
ttorneyneneral Diecontinuee ill Hicronhgne Suryeillancee_
The Attorney General, on July 12, 1965, informed
the Director that he would like to have all microphone
aurveillances suspended at that time, because of ze
pressure being brought to bear, particularly on the Internal
Revenue Service, by the United States Senate Subcommittee
on Administrative Practice and Procedure headed by
Senator Long of llieeouri. Exhibit 39 The Attorney General
eeid that he ranted to be in a position to state that the
FBI had no microphone surveillance coverage. -
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Q5. -7|. , $1;1-,. .1965, the Director enunciated Bureau policy. In so doing,
he stated: V
"In view of the growing delicacy in this whole tield, I
4-I1! Inn -nasal: no-92l.-q4;&n_-5 -I-an alarm-leaner:-a calm:-nnnnnl-as pull O-anal-nn<lnn'I"L-ll U? ll-ll-l Q I Qlnlllp U3 U U CIJPI UYQ L GHQUD Ir L 92llI FBI-Ill LEEA
' surveillances until the atmosphere has been clarified.
.-_ "I realize the value of technical surveillances as well
as of microphone installations, both in our security
and in our crime investigations, but it it be the will
of Congress and the desire of the Attorney General
that they be completely suspended, we will, of course,
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I do not believe they have been abused by the Bureau
in any instance.
The use oi wiretaps and microphones involving trespass
present more difficult problems because of the inad-
missibility of any evidence obtained in court cases and
because of current Judicial and public attitudes
regarding their use. It is my understanding'that such
devices will not be used without my authorizati on,
although in emergency circustances they may be used
subject to my later ratification. At this time I
' believe it desirable that all such techniques be confined
to the gathering of intelligence in national security
matters, and I pill continue to approve all such requests
in the future as I have in the past. I see no need to
curtail any such activities in the national security
field.Q
"It is also my belief that there are occasions outside
of the strict definition of national security for
example, organized crime! when it would be appropriate
to use such techniques for intelligence purposes.
However, in the light of the present atmosphere I
believe that efforts in the innedtte future should
be confined to national security. I realize that
this restriction will hamper our efforts against
organized crime and will require a redoubled effort 9292
gnrrent Bureau Policy on Microphone Surveillanees, 196d
- After the Attorney General again granted the FBI
authority to use iicrephone surte aces to gather i- -
in national security matters, the Bureau, following the
procedure establzls had by Hr. Katzenbach to obtain his .1
psi/on the part of the Eureau to develop intelligence . -through other means." Exhibit87! 2;;X:92_
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aurveillances were reviewed on an individual basis, and
the Director ordered then to be discontinued.
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lfreei dentiajl l!emorandu:n_o£_ _{u.ne 730, _l9§5_
_ IIarrII|l5_r.1t92'l'Q'I"] can no-u-I 'nnn'n+=
mental attorneys conferred regarding a Presidential
memorandum, dated June 30, 1965, which dealt with technical
' and microphone eurvoillnnces. Exhibit 99! This memorandum,
addressed to all heads of executive departments and agencies,
established strict guidelines tor tho use oi technical sur-
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Because the Bureau obtained authority irem the
Attorney General and consulted with the Department regarding
the use or these surveillance techniques, the Departmental
representatives stated that the Bureau was already complying
with the_Presidential memorandum and that it would not be
4 necessary to submit an inventory oi equipment.
éttorney General Batzenbach Prepared to Stand Behind EB;
During December, 1965, newspaper and other sources
brought to the attention of the Bureau that former Attorney
General Robert F. Kennedy had allegedly stated that he
never authorized the use of microphone surveillances in
FBI investigations of organized crime.
By memorandum from the Director to the Attorney
JI__ ___q c - Q - _ -_4- _ - - . .
uenerai, dated January a, Luce, rererence was made to state-
ments in the press which indicated that former Attorney
General Kennedy and Departmental officials had not been aware
of the FBI's use of microphones in the investigation oi
' organized crime. Exhibit 91! The Director then set iorth
- facts which illustrated that hr. Kennedy and Departmental
officials were on notice that the FBI Ian utilizing
3 T
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nicrophone surveillnnces in its investigation oi organized
crime. These iacts have been incorporated into an eariier
_-Qa4__ _ _ _ -_ _BEBE
Tennre of Attorne? General
i Robert Kennedy, 1961-1964."
In a memorandum dated January 13, 1966, Attorney
4
General Eatzenbach referred to the relationship between
iornor Attorney General Kennedy and the FBI in regard to
the use of microphone surveillances in the investigation
oi organized crime. Exhibit:92! Br. Katzenbach stated
that Hr. Kennedy had iniormed him, at the time oi the
original Les Vegas law suit against the telephone company,
end sehsequently, that he was unaware that the FBI used
microphone surveillances against organized crime.
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THE LONG -1 - res -i =<~-s if Y - -
Y ' L-
COHHITTEI
In early 1965, the United States Senate Subcommittee
on Adinistrative Practice and Procedure, headed by Senator
Edward V. Long of Missouri and popularly known as the
ILong Committee, began inquiries into Federal encroachments
on citizens privacy. The Committee's early inquiries H
centered largely on the use oi electronic surveillances
by the Internal Revenue Service and that agency received "lgvgslo
CD115r vacy
derable adverse publicity as a result of these_hearings
g i s " Hea isea srscéduret esam¥2£sa°oE-§he$s&a&si§%b°°§a%§tes 2% hsmie i1, Beginning in early 1966, and with thguDirector§s es '
approval, Assistant to the Director DeLoaeh and Assistant
Director Gale conferred with Senator Long and with the
Committee's Chief Counsel
present to them a iactual
limited use of electronic
controlled administrative
Following theseBernard Fensterwald, Jr., to
account of the Bureau's strictly
surveillances under tightly
procedures. Exhibit 95!
conierences, the Director sent
Senator Long a letter dated January 20, 1966. Exhibit 9e!'
In this letter, the Director expressed his appreciation tor
the opportunity to Iork with the Senator and his Committee
staff and for the opportunity to submit to them for their
close scrutiny the FBI's policies and procedures regarding
_ 92
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an
On April 25, 1966, Senator Long advised Ir. DeLoach that
he had no intention whatsoever oi holding committee hearings regarding
the EBI's use of listening devices. Exhibit 97! The Senator
repeated an earlier statement that, at the right psychological time,
hq,intended to release to the press the Director's letter of
January 20, 1966, and a statement from the Committee absolving the
FBI of any wrongdoing in its use of microphones and wire taps;
According to Senator Long, the time for releasing the Director's
letter and the Committee's statement was not then propitious because
newspapermen, such as Drew Pearson and David Kraslow, were pressuring
him to hold public hearings concerning the FBI's use of electronic
eavesdropping devices. Since Senator Long had not made these
releases as oi July ll, 1966, he apparently feels that the time
is still not propitious.
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DEPART?'IZ.*.'TAL ATTCFPFEY WILLIAM L. GARDNER APPEARED AT TI-{E
DETROIT FEI OFFICE, HAY 17, 1976, AND APPARENTLY COMPLETED RE-
VIET OF DETROIT FILES LATE AFTERNOON AS HE DEPARTED DETROIT OFFICE _
INDICATED HE CONTEMPLATED RETURN WASHINGTON, D.C-, MORNING,
MAY 18, 1976. PER HIS REQUEST GARDNER REVIEWED THE FOLLOWING
nsr.=.011" FILESCAPTIONED as _
AKA 5G5 . - SWP° 106- 334 S'P - A gig- /1/'7/a§~ X// <2
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IDO-29835, VOLUME 12, SERIAL 682, FD-326, DATED NOVEMBER 2, T972,
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REVEALING FRIDAY NIGHT SOC1ALISTSkFPRUM MEETING, DECEMER IT;
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CF J. STAKLEY PCTTINGER, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTSOVEWBER 30, 1966
RZCAEDIEG CATIGORY E, EUESTIOH S OF APRIL 21, 1975, LETTER
CIVISIOH, AS FURHIEHED EY REFZRENCED AIRTEL, THE DETROIT OFFICE
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