By Fred J. Cook

This is reprinted from The Nation, October 11, 1980, with permission.

Although 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.

The 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.

Victor 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.

The 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:

Even 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.

The 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 case.

Judith 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.

The 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 is recorded."

This 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.)

As 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 investigation."

The 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.

When 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.

The 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."

The 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.

"The 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.

After 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.

This 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.

There 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 personality.

They 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.

After 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 Hiss.

The 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.

Willert 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."

This 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."

These 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.

The 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 are instructive.

In 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."

In 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.

The 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 of it.

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