These alternatives do not adequately protect the interests of privacy or of the security of citizens of the United States. Neither alternative, we submit, is acceptable and the Constitution does not require that we accept them.

It has been argued that the President might abuse his power to authorize national security wiretapping. This is put forward to challenge the "reasonableness" of a Presidential authorization, under the Fourth Amendment, and to insist that such authorization be made by the judiciary. Yet the courts that have questioned the constitutionality of the Presidential authorization on this ground are showing a remarkable inconsistency, which I will explain.

In 1803 the U. S. Supreme Court asserted its power to declare an act of Congress unconstitutional in the case of Marbury v. Madison. Chief Justice John Marshall emphasized that a Federal judge is required by his oath of office to discharge his duties "agreeably to the Constitution and laws of the United States." How could he do this, Marshall asked, if the Constitution "is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime."

In challenging the President's power to authorize national security wiretapping, the Sixth Circuit Court of Appeals reasserted the power of the courts to make such judgments of constitutionality, drawing heavily on the Marbury v. Madison opinion. Yet the very argument of the courts' obligations under oath made in Marbury v. Madison must apply as well to the President's obligations under his oath-the more so since his oath is prescribed in specific words in the Constitution, while the judiciary's oath is not. The President's oath obligates him to "preserve, protect, and defend" the Constitution and the U. S. Government. To deny the President the means of obtaining intelligence on which to base actions in defense of that Government would be to deny him powers essential to the discharge of his oath. If this is the real state of things, to borrow Marshall's words, "this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime."

Since electronic surveillance is an effective means of gathering intelligence in national security cases, and is used by all major countries for such purposes, the President would be derelict if he did not use it where necessary and appropriate in defense of the constitutional Government.

Thus to claim that the President might abuse this power is the same as claiming that there should be no office with such power-an obviously selfdefeating proposition. It is the same as arguing that the courts might abuse the power of constitutional review that Chief Justice Marshall found implicit in his oath. Such an argument was effectively answered not only in Marshall's Marbury v. Madison opinion, but also a number of years earlier by Alexander Hamilton, who wrote that "if it prove anything, would prove that there ought to be no judges."

Are we, then, to trust the courts to fulfill their oath of office without abusing it, but not trust the President in fulfilling his oath? Clearly the hard questions of government must be decided by someone. To withhold such basic powers from the President on the ground that they might be abused is to argue, in a paraphrase of Hamilton's words, "that there ought to be no President."

Finally, the distinction to which I alluded earlier-that between wiretapping in criminal cases and wiretapping in national security situations-is not the one that some lower Federal courts have today chosen to draw. Rather, they attempt to justify a distinction between so-called "foreign" national security wiretapping and so-called "domestic" national security wiretapping.

The use of the terms "foreign" and "domestic intelligence" and "foreign" and "domestic organizations" has resulted in a great deal of confusion and has created a dichotomy, which cannot be supported in law or fact. There is no dividing line between hostile foreign forces seeking to undermine our internal security and hostile "domestic groups" seeking the overthrow of our Government by any means necessary. I don't see how we can separate the two, but if it were possible, I would say that history has shown greater danger from the domestic variety.

As a legal proposition, what difference is there between the threat posed to the security of the United States by those who act as agents of a foreign power and that posed by an allegedly "domestic" organization? The Constitution requires the President to swear that he will "preserve, protect, and defend the Constitution of the United States." It does not say that he will "preserve, pro

tect, and defend" it only against foreign agents, and that he must permit all others to destroy it if they will. It makes no distinction in its charge of responsibility to the President, and he can make none in his sworn duty to carry out that charge. You cannot separate foreign from domestic threats to the Government and say that we should meet one less decisively than the other. Either we have a constitutional Government that can defend itself against illegal attack, or in the last analysis we have anarchy. I firmly believe that the Constitution does not contain the seeds of its own destruction. Rather, it provides an enlightened basis by which man can prove that he can maintain both his freedom and his Government.

REMARKS OF WILLIAM H. REHNQUIST, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, AT A PANEL DISCUSSION ON PRIVACY AND THE LAW IN THE 1970's, AT THE AMERICAN BAR ASSOCIATION CONVENTION, LONDON, ENGLAND

"LAW ENFORCEMENT AND PRIVACY"

Since accepting a position in the United States Department of Justice some two and a half years ago, I have found myself asked to speak on a variety of subjects on which my opinion as a private citizen would have been of interest to very few persons, indeed. Most of these subjects are ones about which I knew virtually nothing at the time I became an Assistant Attorney General; whether I am less ignorant two and a half years later you will be better able to judge at the close of my remarks than now. I have tried, though perhaps not always successfully, to avoid following the rather facetious advice that Arthur Balfour is said to have given Lord Halifax shortly after the latter was first elected to Parliament. Lord Halifax, in his memoirs, says that he consulted Balfour, then the leader of the Conservative Party, as to an appropriate subject and length for his maiden speech in the House of Commons. Balfour told him, said Halifax:

"Speak as often and as long as you can on every occasion. You will rapidly develop that utter contempt for your audience which is the hallmark of every true bore."

The subject of "Privacy and the Law in the 1970s" is without doubt one of the fundamental social and political issues of this decade. Discussion, say nothing of solution, of the many problems which it poses cannot profitably be advanced by generalized praise of good or denunciation of evil. While today I am going to address myself, in keeping with the suggestion of the panel chairman, to the relationship between law enforcement and privacy, it is well to bear in mind that this is but one of the problem's facets. The "information explosion", as it has been termed by some commentators, has resulted in part from an almost geometrical increase in federal benefit programs in the United States in the last three or four decades. I suspect the experience in Great Britain has not been dissimilar. I think the distinction between what I would call administrative information gathering-the obtaining of information from citizens for the purpose of conducting a census, administering a governmental pension or health program, and other functions such as this-as opposed to the investigative intelligence gathering of the law enforcement arm of the government— deserves special emphasis, because the difference between these two functions produces essentially different considerations of privacy policy in the equation. My remarks today are addressed only to the gathering of criminal investigative intelligence.

The United States, of course, has a federal system of government, in which both the national law enforcement function and the state law enforcement functions are substantially independent of one another, subject only to the overriding commands of the Constitution. The President, as Chief Executive, is charged with the duty "to take care that the laws be faithfully executed”. and it devolves upon the Department of Justice to enforce a wide variety of criminal statutes which have been made a part of the federal law by Congress. State governments discharge a similar function through offices of local prosecutors and through the office of the state attorney general.

I think analysis in terms of privacy is best served by distinguishing at least three different types of law enforcement activities which may be said to raise privacy problems.

First, there are the efforts on the part of what I shall refer to generically as the "government" to compel the production of evidence, either testimonial or documentary. This may occur as a result of an administrative subpoena, it may occur in a grand jury proceeding, or it may occur at the actual trial of the case. Traditionally this area has been thought to involve the traditional criminal law type safeguards-the privilege against self-incrimination, the right to counsel, the requirement of materiality, and the like. While it may have remote privacy implications, they have not figured prominently in the current privacy debate in the United States.

Second, there is the authority of the government to search persons, dwellings, automobiles, and other nonpublic areas for evidence which may lead to the solution of a crime. In the United States, such authority is limited by the Fourth Amendment to our Constitution, prohibiting unreasonable searches and seizures.

One area of this branch of governmental authority-wiretapping-has been a subject of considerable debate in our country, and I shall address it in more detail in a moment.

Third, there is the question of the extent to which the government may properly observe persons and activities conducted in public places-meeting halls, amphitheaters, streets, and parks. Some of those concerned with privacy have insisted that limitations, either legislative or constitutional, be placed on governmental activity in this area, while on the other hand those charged with responsibility for law enforcement have felt that many of the proposed limitations would seriously hamper the law enforcement function without producing a correspondent social benefit in the increased privacy that would be available to citizens. To this subject, also, I shall return in more detail in a moment. Wiretapping

"Wiretapping" in its more limited sense refers to the interception of a telephonic communication of which the parties to the conversation are unaware. Loosely used, it can include "bugging"-the placing in a room, unbeknownst to its occupants, or on a party to a conversation, unbeknownst to the other parties, a transmitting device which will either record the conversation itself or transmit it to some other place where it will then be recorded. These latter manifestations are frequently associated with the use of undercover informants, who, though they are in the confidence of a suspected group of criminals, are nonetheless in the employ of the government.

There is something a little bit on the seamy side about all of these procedures, and in an ideal society their lack of social usefulness would doubtless cause them to be prohibited. Since the society in which we live-I speak for the United States, but I suspect the same is true here-is not ideal, the question is whether the admitted infringements on expected privacy which these methods of investigation give rise to are justifiable in terms of the aid they provide in the solution of serious and extensive crime.

In the United States, the Supreme Court about 45 years ago held that wiretapping was not a violation of the Constitution. Congress shortly afterward by statute prohibited the divulgence or use as evidence in the federal courts of information obtained through wiretapping. Less than five years ago, the Supreme Court overturned the earlier decision, and held that wiretapping was a form of "search and seizure" within the language of the Fourth Amendment to our Constitution. The Court indicated in that decision, and in other decisions rendered about that time, that a statutory authorization for wiretapping, providing for the rough equivalent of a warrant prior to the commencement of the tap, would be constitutional. Congress followed the Court's suggestion, and in the Omnibus Crime Act of 1968 authorized wiretapping under this sort of supervision.

There is no question that the vastly expanded use of electronic means of communication, and the vastly increased efficiency of the technology of interception and overhearing, have made wiretapping in its more general sense a more potent weapon for law enforcement personnel than it was forty or fifty years ago. But during this same forty or fifty years we in the United States have witnessed the burgeoning of what is loosely called "organized crime", which has attached its tentacles to more than one legitimate business or industry in our country. It, too, has increased apace with and through the use of modern technology.

The present Administration of the Department of Justice in the United States is committed to the use of wiretapping under the safeguards prescribed by Congress, and under the administrative safeguard requiring each application for a warrant to be personally authorized by the Attorney General. The commitment is based in large part on the fact that an effective attack on organized crime cannot be mounted without wiretapping.

When we deal with the activities of organized crime, we deal with the most sordid sort of trafficking in drugs, prostitution, and gambling, as well as in illegitimate aberrations of legitimate business. Persistent efforts, not always unsuccessful, to corrupt local law enforcement officials; murder, committed by anonymous hired guns, are its trademarks. Normal detection techniques in the tradition of Sherlock Holmes, Hercule Poirot, and the long succession of Scotland Yard inspectors who have been immortalized in print, are of far less use here. The faceless killer never knew the victim, and may never have seen him before; the bagman is an easily replaceable hood at the lowest level of the organization. The heads of these syndicates perform no criminal act themselves; they simply instruct others to perform them for him. Painstaking and imaginative sifting of readily available evidence, which may solve the murders envisioned by Arthur Conan Doyle and Agatha Christie will scarcely dent the upper echelons of organized crime.

Thus, the structure of crime in this area has changed just as dramatically as technology. If law enforcement methods do not somehow keep pace with these changes we must virtually write off the hope for making substantial inroads into this widespread and sinister form of criminal activity.

Is the invasion of privacy entailed by wiretapping too high a price to pay for a successful method of attacking this and similar types of crime? I think not, given the safeguards which attend its use in the United States. The Attorney General must report to Congress the total number of federal applications for wiretapping made each year, and the report he furnished indicated that last year the federal government sought 183 wiretap warrants. This is not a "pervasive" use of wiretapping, using that adjective in its narrowest possible sense. It is instead a restrained and careful use of that technique which has led to series of genuinely significant arrests and convictions in the field of organized crime in the past three years.

In the limited area of what are described for want of a better word as "national security" investigations-the executive branch in the United States for more than thirty years has asserted the right to wiretap without securing any Fourth Amendment type of warrant. This position has been taken through the Administrations of six successive Presidents of the United States, dating from Franklin D. Roosevelt, and it is the government's position that the prac tice is both consistent with the Fourth Amendment and necessary to the effective protection of the national security. The practice has recently been the subject of sharp and quite widespread criticism. The issue has been submitted to several federal district courts and one court of appeals, which have reached differing results. The Supreme Court has agreed to decide the issue in its next term, at which time the issue of the legality of the practice will be settled. Whatever may be the ultimate decision by our highest Court on the merits of the question, I believe that a refusal of the Justice Department, in its role as advocate before the courts for the executive branch of the government, to vigorously argue in favor of its legality would be a wholly unwarranted abdication of the Department's responsibility.

Surveillance

To what extent may law enforcement officials properly observe members of the citizenry in public places? It has been suggested by at least one prominent figure in the privacy debate in our country that no suspect ought to be subject to such surveillance unless there is "probable cause" to believe that he is guilty of committing a crime. The imposition of such a standard, in my view, would be a virtually fatal blow to law enforcement.

At the outset of an investigation, law enforcement officers are confronted with the fact that a crime has been committed, and with varying numbers of "leads" which may or may not offer some hope for its ultimate solution. Every such lead must be run down if a solution is to be effected, even though the great majority of leads turn out to be dead ends. Frequently, in the process of running down dead-end leads, investigative attention turns to

people who later prove to be entirely innocent of any offense. But their innocence can be known only in retrospect; the ultimately productive lead may look no better than the unproductive ones at the time an investigation has begun.

In view of the very nature of the investigative process, it would be highly unrealistic to require that there be "probable cause" to suspect an individual of having committed a crime in order that his activities may be inquired into in connection with the investigation of the crime. Quite the contrary, probable cause-for an arrest or specific search-is hopefully to be found at the conclusion of an investigation and ought not to be required as a justification for its commencement.

The basic limitation which may properly be placed on investigative authority is that it must be directed either to the solution or to the prevention of a crime, and that it pursue leads reasonably believed to aid in that activity.

In the United States we have recently had experience with the collection of what may be loosely called "civil-disturbance" information by Army intelligence sources, rather than by regular law enforcement officials. This program, begun about five years ago because of the same generally agreed need for a great deal more information about potential trouble spots in urban centers, tended to become broader and broader in scope as it filtered down the echelons of the Army command. Examples have recently been adduced of Army intelligence files kept on prominent public figures, and consisting largely of newspaper accounts of the statements made by these figures on current political issues. Whatever may have been the merits of the program in its inception, it rather clearly got out of hand. That program has been discontinued by the present Administration. The cataloging of the opinions of citizens, public or private, on the issues of the day is not a proper function of government in a free society. The collection of genuine civil disturbance information, to the limited extent necessary under federal law, has now been returned to the regular law enforcement branches of the government. Who Shall Regulate the Regulators?

Many of those deeply concerned with privacy in our country feel that either by court decree or legislation the extent of law enforcement activities in the fields which I have discussed should be sharply curtailed. Implicit in their suggestion is that somehow the Executive Branch of the United States Government is not in any sense responsible to the public will and that controls must be imposed by any other branches on the Executive Branch. While our Executive is separate from the Legislative Branch, rather than directly responsible to it, it is surely ultimately responsible to the electorate of the Nation. The President stands for reelection every four years, and must at that time-as well as at frequent intervals in between-defend his stewardship of Executive power.

As to the merits of proposed legislative or judicial curtailment of the investigative authority of law enforcement agencies, I simply do not believe that a limitation on the investigative activities of law enforcement officials engaged in seeking the solution to crime would be either desirable or workable. If such a restriction were to have teeth in it, it would necessarily involve judicial review of an investigation, not at its end, but at its commencement. The opportunity for skillful defense lawyers to obtain information of great value to their clients, and to seriously delay a legitimate investigation, would be greatly enhanced by the availability of such a proceeding.

On the other hand restriction of the dissemination of information gathered in the process of criminal investigation is quite appropriate and desirable. Certainly the casual release of such information by law enforcement officials to persons outside the Government who have no legitimate need to have it is reprehensible. It is presently prohibited by regulation in the Department of Justice, and in many other law enforcement agencies. The embodiment of this sort of prohibition in a statute which was the result of a careful balancing of the competing interests would doubtless be entirely acceptable to those engaged in law enforcement.

I hope in my presentation this morning I have given you some idea about how the United States Department of Justice approaches the questions of surveillance and personal privacy, and the balance that must be struck between the two. It is quite possible to select from among countless government activities instances of clear abuse of the individual right of privacy, and to