1954 May 20

Attorney General Brownell Advises FBI to Evade Supreme Court Decision on Eavesdropping


In response to the Supreme Court’s decision in Irvine v. California on February 8, 1954, Attorney General Herbert Brownell on this day advised FBI Director J. Edgar Hoover that he could evade the decision if the information gathered through a wiretap was not to be used for prosecution. He explained that “in some instances the use of national interest requires that microphone surveillance is the only possible way” to gather needed intelligence. He added that whether placing a listening device involved a burglary to enter the premises would have to be resolved “according to the circumstances of each case.”

Brownell’s action was another example of how many U.S. attorney’s general (and presidents) willfully violated or evaded the law on the surveillance of Americans. See, for example, President Franklin D. Roosevelt’s advice to Attorney General Robert Jackson on May 21, 1940 to evade a recent Supreme Court decision on wiretapping.

This incident reveals that while many of the FBI’s actions under J. Edgar Hoover were secret and unknown to his superiors, many others were directly authorized or passively approved by the attorney general or the president. The notorious COINTELPRO program, for example, which arguably involved the most abusive FBI actions, was approved by the National Security Council on March 8, 1956, with both the president and the attorney general giving their silent assent.

The memo is available in: Athan Theoharis, From the Secret Files of J. Edgar Hoover, p. 141 (1991)

Read about the history of the FBI: Curtis Gentry, J. Edgar Hoover: The Man and the Secrets (1991)

Learn more about Brownell: Herbert Brownell, Advising Ike (1993)

Watch an oral history interview with Brownellhttp://series.c-span.org/Events/Oral-Histories-Former-Attorney-General-Herbert-Brownell/10737439282/

Read Brownell’s official Justice Department biography (with links to his speeches):  http://www.justice.gov/ag/aghistpage.php?id=61

Learn about the history of wiretapping controversies: https://www.aclu.org/criminal-law-reform/aclu-history-wiretapping-new-kind-search-and-seizure

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