1940 May 21

FDR Okays Continued FBI Wiretapping


President Franklin Roosevelt, on this day, told Attorney General Robert Jackson to ignore a recent Supreme Court ruling on wiretapping, claiming it did not apply to national security. The Court, in Nardone v. United States (December 11, 1939), ruled that wiretapping was illegal under the 1934 Communications Act.

President Roosevelt’s instructions to the attorney general on this day represented just one of several examples in modern American history when presidents claimed a “national security exception” to existing laws. On August 24, 1936 FDR authorized J. Edgar Hoover to resume political spying by the FBI, and then to investigate “subversive activities” on September 6, 1939. On May 20, 1954, for example, President Eisenhower’s Attorney General Herbert Brownell advised the FBI on how to evade a recent Supreme Court decision on eavesdropping.

In short, 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 most famous recent instance is when President George W. Bush, on October 4, 2001, ordered the National Security Agency to secretly conduct wiretapping, in violation of the 1978 Foreign Intelligence Surveillance Act (October 25, 1978). Bush’s action was exposed by The New York Times on December 16, 2005.

FDR to Hoover: “However, I am convinced that the Supreme Court never intended any dictum in the particular case it decided to apply to grave matters involving the defense of the nation.”

Read: Curt Gentry, J. Edgar Hoover: The Man and the Secrets (1991)

For documents and analysis on the history of secret government spying, see Athan Theoharis, From the Secret Files of J. Edgar Hoover (1992)

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