Wiretapping Wipe-Out

When he was sworn in as Attorney General more than three years ago, John Mitchell vowed that a major goal during his tenure at the Justice Department would be a systematic crackdown on organized crime and the narcotics traffic. Since then, the Government has made an impressive attempt to keep Mitchell's promise, bringing indictments against 4,934 supposed evildoers since 1969. But some of that accomplishment will apparently be undone because Mitchell failed to observe the law governing the authorization of wiretaps. As many as 1,000 defendants could have their cases thrown out of court as a result of improper procedures in the Attorney General's office. Says one Justice Department official: "This is the biggest goof-up we've ever had."

Under the Omnibus Crime Control and Safe Streets Act of 1968, only the Attorney General or a "specially designated" Assistant Attorney General has the power to authorize federal investigators to seek a court warrant for wiretapping. The law deliberately limited authorization of wiretaps in order to allay fears of widespread, unchecked surveillance. In the Nixon Administration, only Mitchell was legally empowered to authorize wiretaps. He did not delegate that authority to an Assistant Attorney General permitted, under the law, to act in his behalf.

Yet for nearly 21 months--from April 1970 to November 1971-- wiretap applications were often reviewed and granted, not by Mitchell, but by a civil service bureaucrat. An aide scrawled Mitchell's initials on many of the 375 wiretap authorizations made during that period. Since many of the cases involved are based primarily on evidence obtained by electronic surveillance, Government prosecutors find their cases collapsing after trial judges disallow the improperly authorized wiretaps. So far, 78 are being challenged in court; an appellate court has overturned the convictions of members of a smuggling organization in Miami, and a Detroit judge has suppressed wiretap evidence in a gambling case.

According to Justice Department procedures, after Mitchell gave the go-ahead. Will Wilson, a former Assistant Attorney General in charge of the criminal division, was to write a formal letter instructing investigators to get a court order for the proposed eavesdrop. But many of Wilson's letters were actually signed by two of his aides, Henry Petersen and Harold Shapiro. Both Mitchell and Wilson permitted aides to sign for them, despite the legal requirement that Mitchell or a designated assistant personally review each bugging application. The practice went on until James Hogan, a defense lawyer in the Miami case, noticed the irregularity. Said Hogan: "When I examined the various authorization papers, I saw that Will Wilson's signature was written three different ways. Once it was even misspelled." Precisely how many cases could be thrown out of court because of the irregularities is still not determined. Petersen, now an Assistant Attorney General, says: "We don't want to know that. It's not going to make us feel any better."

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