Covering the Front and Back Pages of the Newspaper
September 26, 2002
LAW: Justice Douglas' Fears
Speaking of "Bugs" Harkin, the story brings back memories of one of the more bizarre Supreme Court opinions I've ever read - one that speaks both to the climate of hysteria in the early 1970s and to Justice Douglas' paranoia: his opinion dissenting from the denial of certiorari in Heutsche v. United States, which includes the following passage:
Mr. Justice Holmes in Olmstead v. United States, 277 U.S. 438, 470 (dissenting), called wire-tapping 'dirty business.' That decision was rendered in 1928. Since that time 'dirty business' has become the apt phrase describing the regime under which we now live. . . . We who live in the District of Columbia know that electronic surveillance is commonplace. I am indeed morally certain that the Conference Room of this Court has been 'bugged'; and President Johnson during his term in the White House asserted to me that even his phone was tapped.
We deal with a disease that has permeated our society. . . . The conversation of one's lawyer over the telephone may be as helpful to Big Brother as the conversation of the accused herself. . . . If electronic surveillance were strictly employed by the Executive Branch, we might be chary in enlarging its duties as requested here. But since we live in a regime where the 'dirty business' of wiretapping runs rampant, I would apply the statute liberally to check the disease which almost every newspaper tells us has poisoned out body politic.
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In a country where the Government overhears over 500,000 conversations a year pursuant to court authorized wiretaps alone, it is difficult to gainsay anyone's fear of the intrusion of Big Brother's ear. The daily news brings fresh evidence to make a reality of Chief Justice Warren's warning that the 'fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual. . . .' In such circumstances the Government's claim that it should not be put to the task of searching its files for evidence of specific surveillance cannot be treated lightly. I take cognizance of the fact that the mass of aggregate data on the citizenry yielded in this Orwellian era may indeed make the task a difficult one.