A Whole New Ball Game
By Fred J. Cook
is reprinted from The Nation, October 11, 1980, with
it received little press attention at the time, the 168-page
memorandum of law filed in July in Federal District Court
in Manhattan by the attorney for Alger Hiss, thirty years
after his conviction for perjury, contains the most shocking
revelations yet. As Hiss attorney Victor Rabinowitz pointed
out in oral argument in September, documents obtained from
Government files under the Freedom of Information Act (F.O.l.A.)
and cited in the memorandum of law show that Hiss was victimized
by a prosecutorial vendetta.
new memorandum is backed up by 250 pages of exhibits, many
obtained from Federal Bureau of Investigation files during
the past two years. These disclose that Hiss's home telephone
in Washington, D.C. was tapped for nearly two years, the transcripts
of the taps comprising more than 730 pages. He was also subjected
to mail covers on his correspondence; telegrams sent to him
in 1945 were intercepted; letters were opened and copied (one,
addressed to his attorney, was forwarded to the prosecuting
attorney in New York with the injunction he was not to let
higher-ups in the Justice Department know he had It). Finally,
Hiss was subjected periodically to round-the-clock surveillance
and at other times to spot surveillance; the residence of
an unidentified person apparently suspected of links to Hiss
was burglarized and documents photographed.
Rabinowitz, attorney for the National Emergency Civil Liberties
Committee, filed the new brief for Hiss two years after the
original coram nobis action (coram nobis is a rarely used
legal device designed to correct judicial error) was started
in July 1978. Whatever the outcome at the district level,
the case is certain to be appealed, so it could take two years
before a final judgment is rendered.
new brief is not an attempt to retry the Hiss case but rather
argues that his conviction should be expunged from the record
because of the wholesale violation of his rights. It repeats
and strengthens many of the allegations in the original action,
but adds to them a host of new charges resulting from documents
slowly and painfully extracted from F.B.I. files through persistent
Freedom of Information Act requests. Even so, as Rabinowitz's
brief makes clear, what the Hiss defense is now able to show
obviously represents only the tip of the iceberg. Files are
missing, wiretaps have been destroyed, names on documents
that have been obtained have been obliterated. But enough
survived the shredding process in the form of interoffice
memorandums to establish an almost wholesale contempt for
due process in the determination to "get" Hiss one way or
another. Rablnowitz puts it this way in his brief:
now, with the release of some of the government documents,
concerning F.B.I. investigative techniques regarding Hiss,
the full extent of surveillance wiretapping, mail opening,
mail covers, physical surveillance and other in intrusive
techniques is not dear. Nevertheless, it is apparent that
information gathered through the exploitation of unlawful
wiretaps and other illegal surveillance was used at trial
and consequently the conviction must be reversed.
wiretapping and mail-opening revelations in the new brief
and supporting documents could taint the whole prosecution
of Hiss so badly that, if the Federal Court follows well-established
precedents, the guilty verdict returned against Hiss in 1950
might well be found in error. Rabinowitz hammered hard in
his new brief at the precedent established in the Judith Coplon
Coplon, an employee in the Justice Department in Washington.
was arrested in New York on March 6,1949, in the company of
a Russian attache to the United Nations. In her handbag were
a number of secret Justice Department documents which, it
was alleged, she had been about to pass to her Russian admirer.
Indicted in both Washington and New York for espionage and
the attempt to transmit information to the representative
of a foreign power, Coplon was twice convicted and both
convictions were later nullified when the Justice Department,
after first flatly denying in court that there had been any
wiretapping, was compelled to confess that every phone Coplon
used at home and in her office had been bugged.
same pattern, Rabinowitz has now shown, was repeated in the
Hiss case. The most "intrusive invasion" of Hiss's
rights, he wrote in the new brief, occurred "from December
13, 1945, until the Hisses moved from Washington, D.C., to
New York City on September 13, 1947. A 'technical surveillance'
a wiretap was placed on the Hiss telephone at
their residence on P Street in Washington. The logs of this
surveillance constitute 29 volumes of F.B.I. serials, in which
an enormous amount of information about the Hisses' personal
lives, relationships with friends and associates, and habits
information, Rabinowitz argues, must have been of inestimable
help to the prosecution when Hiss was charged with perjury
for denying the accusations of Whittaker Chambers that he
had been a Communist and a spy. Chambers, a Time magazine
editor, had admitted acting as a spy courier, passing along
documents he said he obtained from Hiss. When he testified
at the two Hiss trials in New York (the first ended in a hung
jury, the second in a conviction), the prosecution placed
heavy emphasis on Chambers's and his wife's apparently accurate
knowledge of the appointments of the Hisses' home in Washington
information that could have come from those pages of wiretaps.
(Chambers spent five months virtually full time going over
his testimony with F.B.I. agents prior to the trial.)
Rabinowitz points out, "Everything was recorded from the Hisses'
dinner plans to conversations with journalists." In an August
12, 1947, document, for example, the F.B.I. declared it had
obtained "specific valuable information" from a May 31 wiretap
of a conversation between Hiss and the renowned Washington
columnist Walter Lippmann. Such incidents, Rabinowitz charges,
make it clear that this sweeping wiretapping of Hiss was equivalent
to "a general search having nothing to do with an espionage
Washington F.B.I. records, revealing as they are, are far
from complete, Rabinowitz argues. He points out that F.B.I.
Director J. Edgar Hoover had applied to the Attorney General
for permission to begin the wiretapping. While Hoover's application
to his superior survives, nothing has been found In the F.B.I.
files so far to indicate that he ever obtained the necessary
approval. The Washington Field Office of the F.B.I. had to
request permission to continue the wiretap every sixty days,
citing information obtained as justification. It is these
requests, like the one mentioning the Hiss-Lippmann conversation,
that have survived as evidence of the scope of the surveillance.
the Hisses moved to New York City in 1947, the indications
are that the wiretapping continued, but the files of the New
York Bureau were subsequently shredded. The Coplon case may
have been the cause of this precaution. Washington headquarters
had instructed New York prior to Coplon's trial to destroy
the wiretap records, but to preserve the information gathered,
identifying it as originating with an "informant." When this
cover-up was exposed at CopIon's trial, a new and more secure
system was adopted. Wiretap records or the information gained
from them were no longer kept in a "subject's" main file.
Instead, "subfiles" that would be more "secure" were established.
Such subfiles maintained by the New York Bureau on Alger Hiss
have apparently vanished into the shredder. In connection
with a F.O.I.A. request Hiss filed with the writer William
Reuben, Rabinowitz took a deposition from Martin Wood, supervising
special agent in charge of the F.B.I's Freedom of Information
records Division at Washington headquarters. In answer to
interrogatories, the F.B.I. had identified a New York Field
Office File No. 69-14920 as apparently pertaining to to Hiss.
This file had had subfiles designated A through E, but all
the material in the subfiles had "been destroyed at a date
unknown," the Government conceded. Wood protested that he
didn't know what the destroyed files might have contained,
but he admitted at one point that it "appeared" they might
have been wiretap records.
scope of the illegal surveillance to which Hiss was subjected
broadens when one gets into the areas of mail covers and mail
openings. A mail cover (i.e., recording all names and addresses
on incoming correspondence) was placed on Hiss in 1941, ostensibly
in connection with an F.B.I. investigation of possible Hatch
Act violations. The Hatch Act prohibited public employees
from taking active roles in political campaigns. A second
mail cover was placed on Hiss in 1945 and, at the same time,
the F.B.I. obtained records of telephone toll calls made from
the Hisses' residence during the years 1943, 1944 and 1945.
The mail covers soon degenerated into mail openings, the sparse
available evidence suggests. Although first-class mail is
supposed to be inviolate, F.B.I. records show that, sometime
before 1947, a letter written by Hiss's wife, Priscilla, to
her son by a previous marriage, Timothy Hobson, "was intercepted
and its contents read." In March 1947, a letter from a Michael
Greenberg to Hiss inquiring about applying for employment
with the United Nations "was also intercepted in a manner
not revealed by the documents."
late 1945 period appears to have been critical. Chambers had
begun to tell his tales of Communist influence in Government
in 1939 and had subsequently been joined by the so-called
"spy queen," Elizabeth Bentley, some of whose stories have
since been discredited. At the time, however, the F.B.I. stepped
up its questioning of Chambers and placed a more intensive
surveillance on Hiss. Beginning on November 28, 1945, F.B.I.
records reveal Hiss was placed under twenty-four-hour surveillance.
After the around-the-clock surveillance ended on December
14, 1945, Hiss was subjected to spot surveillances at various
times until September 1947.
investigation of Hiss intensified after his move to New York
[in September 1947]," Rabinowitz charges in his brief. "Other
key figures in Chambers' allegations were subjected to wiretaps
and warrantless entries. Two unidentified persons were tapped...
another's residence entered and documents photographed. The
Hiss 1936-37 summer residence, the landlord of which was a
defense witness at the first trial, was subjected to a mail
cover and toll checks." Several vague entries in the released
documents clearly indicate that Hiss couldn't breathe over
a telephone without the sound being recorded. An October 29,
1949 report described some information as having been gathered
from "monitory [sic] telephone contacts of Alger Hiss." This
was subsequent to the first Hiss trial, which began May 31,
1949; the second trial ended January 20, 1950.
the first trial, which ended in a hung jury, the illegal activities
of Government agents became more frenetic. The recently obtained
F.B.I. documents show that, in 1950, a letter addressed to
Hiss was given to U.S. Attorney Thomas Murphy, the Federal
prosecutor in both Hiss trials, by someone at the Post Office.
Murphy and the F.B.I. were both directed not to inform the
Justice Department about the letter. "These highly questionable
concerns and procedures suggest that the letter was intercepted
unlawfully and that fact was deliberately hidden even from
the prosecutors' superiors," Rabinowitz states in the brief.
He added that F.B.I. files had turned up another one-page
letter to Hiss, dated August 6, 1950, but the name of the
author was not revealed nor was it disclosed how this document
came into the possession of the F.B.I. The interceptions and
interference with Hiss's defense went on and on. The F.B.I.
intercepted a telegram from a David Sherman to Hiss's attorneys.
"How this domestic communication was obtained is not evidenced
from the documents," Rabinowitz wrote.
intensive surveillance on every level of illegality failed
to produce any incriminating evidence against Alger Hiss,
for when the Government went to trial it had to depend again
largely upon the testimony of Chambers, who had once said
under oath that Hiss had never been a spy. Even U.S. Attorney
Murphy acknowledged in the first Hiss trial that if the jury
didn't believe Chambers, the Government had no case. As a
result, Murphy and his aides went to extremes to protect Chambers.
The defense had asked (as was its right) that the prosecution
turn over to it all earlier statements that Chambers had made
to Federal officials. A couple of paragraphs were surrendered,
but there was much, much more in Federal files that Murphy
concealed by assuring the court that nothing more existed.
was, for example, Chambers's own admission to the F.B.I. that
he had been a homosexual for years. The Hiss defense had heard
such rumors, but never raised the question at the trials for
lack of proof. The proof, to which they were entitled, existed
in the prosecution's files which Murphy and his aides protected.
But it was not made available to the psychiatrists Hiss's
defense team produced to discredit Chambers's testimony, one
of whom listed abnormal sexuality as evidence of a psychopathic
also kept secret Chambers's own long, often inconsistent account
of his safari through the Communist jungle and his acquaintance
with Hiss. As Rabinowitz argues, many details in this supposedly
authentic account did not gibe with the story Chambers told
from the witness stand. A vital element in Chambers's story
involved sixty-five State Department documents and four handwritten
memos which, he testified, he had obtained from Hiss. The
last of these documents was dated April 1, 1938 but on sixteen
prior occasions under oath, Chambers had contended he left
the party in 1937. Obviously, this would not do. And so, at
the Hiss trials, his unwavering recollection through the years
was amended, and he testified that he broke with Communism
on April 15, 1938 a date that did not conflict with the
dates on the documents he had produced. And there was, at
the time of the trials, no documentary proof to refute him.
Hiss's conviction, however, Chester Lane, who took over Hiss's
case on appeal, obtained what appeared to be such proof. The
one specific checkpoint in Chambers's testimony had been his
assertion that after he broke with Communism and went into
hiding, sitting sometimes at night with a gun across his knees,
he obtained a book translation job from Oxford University
Press. Correspondence in the files of Oxford University Press
suggested that Chambers was out of the party well before Aprl
15, 1938 and if so, he couldn't have been a spy courier
for the last of the documents he had sworn he obtained from
Oxford University Press files established three dates that
appeared to discredit Chambers's testimony. A letter written
from the London office, dated March 4, 1938, inquired about
the progress the new translator (Chambers) was making on the
book. A shipping tag in the New York office showed that what
was apparently the last batch of the manuscript to be translated
had been mailed to Chambers on March 18, 1938. And on April
12, Paul Willert, editor of Oxford University Press, had mailed
Chambers an additional cheek for $250, apologizing because
it was being sent rather belatedly.
himself felt certain that he had met Chambers in late 1937
or very early in 1938, but more than ten years later he could
not fix the exact date. He recalled, however, that at the
time they met, Chambers claimed to be a fugitive from Communism.
Chambers talked wildly about the OGPU being out to get him
and appeared to Willert to be "hysterical and suffering from
a persecution mania."
information went to the heart of the case, in effect destroying
Chambers's credibility. It is, therefore, significant that
Freedom of Information actions have now uncovered the fact
that two letters from Paul Willert, dated in December 1951,
were intercepted and copies "sent from Washington to the New
York Field Office," perhaps for the guidance of U.S. Attorneys
and the F.B.I. Ultimately, they may have helped Chambers to
alter his story. One of these letters had been addressed to
Claude B. Cross, Hiss's attorney at the second trial. Rabinowitz
in his brief makes the point: "Although the letter was not
sent to Hiss, there nevertheless is a violation of Hiss's
fundamental right to the assistance of counsel."
disclosures compound the charges in Rablnowitz's original
brief that Hiss's rights had been violated by the activities
of Horace W. Schmahl, a private detective. Schmahl had been
hired to help the Hiss defense, but documents obtained under
the Freedom of Information Act show he met repeatedly with
the F.B.I. and the prosecutor. One of his contributions was
a complete outline of defense plans before the first Hiss
trial, and he consulted with Murphy frequently throughout
the trials and the post-trial appeal.
new brief contains many other revelations, but at the heart
of it are the disclosures of unremitting wiretapping, interception
of telegrams, opening of mail the complete invasion of the
defense before, during and after the trials. These sweeping
disclosures go far beyond the wiretapping that incensed two
Federal courts and impelled them to throw out the Judith Coplon
spy case. A few quotes from the appeals hearings in that case
Washington, when Government attorneys tried to argue that
the Coplon wiretaps had not tainted their case because the
evidence so obtained had not been used against Coplon, Chief
Judge E. Barrett Prettyman commented tartly that this was
"an extremely optimistic view," and added: "I'd like it explained
to me how any appellant can have a fair trial if conversation
between him and his counsel is intercepted."
New York, Judge Learned Hand brought a Federal prosecutor
up short as he tried to argue that the Government had not
been guilty of "deliberate or wanton destruction of wiretap
records." Judge Hand snapped: "Could there have been anything
more wanton and deliberate than was shown by the evidence?"
He cited the Washington F.B.I.'s specific order to New York
to destroy such records an order that apparently established
a consistent policy affecting the Hiss case as well.
wiretapping offenses against due process that so offended
two Federal courts in the Coplon case appear a pale patch
to the wholesale invasions of privacy and intrusions into
the defense in the Hiss case (and the use by the prosecution
of information obtained through these violations may have
predetermined the jury's verdict). The questions of Judge
Richard Owen during the recent hearing provide few clues as
to what the New York Federal Court in Manhattan will make
to The Latest Evidence