« ForrigeFortsett »
sounding phrase, read “organized crime”) or "where human life is in jeopardy" (for that, read “murder, kidnapping, robbery, arson, burglary, and the sale of narcotics”). With Truman's quick concurrence, the narrow exception virtually became the rule. It was President Johnson who—at the urging of another Clark (this one more sensitive to civil liberties ) :—again narrowed exception. In doing so, he introduced the current phrase "national security" which falls somewhere between Roosevelt's national "defense" and Truman's "domestic security.”
It is not entirely clear why the government needs a national-security exception to the ordinary rules now governing wiretaps. When the exception was first created, there was an absolute prohibition against all wiretapping by federal officials—with or without a warrant. (The rule was not technically framed in terms of a prohibition on tapping, but rather in terms of a prohibition on all use of such evidence and its fruits-in federal criminal prosecutions.) Thus, if national-security wiretaps were to be conducted at all, they would have to be authorized under an exception to the ordinary rules. In 1967, however, the Supreme Court said that wiretaps could be conducted—where any kind of criminal conduct was suspected-provided that the government secured a warrant based on probable cause and narrowly limited in time and scope. Under that decision, the FBI may lawfully conduct wiretaps in national-security cases if they secure a warrant. Unwilling to comply with this requirement, the federal government claims that national-security taps are still an exception to the ordinary rules, even though the ordinary rules which gave rise to the national-security exception have now been dramatically changed.
The government, arguing in support of this position before the lower courts, invoked “the inherent power of the President to safeguard the security of the nation"—the "historical power of the sovereign to preserve itself." The government was saying, in effect, that there is no separation of powers—no checks or balances on the executive by the other branches—when the President decides that the security of the nation is involved. The President must be trusted to exercise his powers in a constitutional manner, since "the occupant of that office, like the members of this Court, takes a solemn oath to protect and defend the Constitution,” and this “carries with it the weightiest presumption that those powers will not be abused.” (The attorney general-to whom the President has delegated all authority in these matters—also takes such an oath ; but it is not without relevance that the attorney general is the country's top prosecutor; nor is it immaterial that two of the holders of this office during the past ten years have also been Presidential campaign managers, intensely involved in partisan politics.) If by some chance these powers were to be abused by the President or his deputies, the argument continues, then the "final significant restraint” lies not with the courts, but with the "electorate" which “can reflect its dissatisfaction with the exercise of the power."
This argument—which entirely neglects the counter-majoritarian purpose of the Bill of Rights and the anti-centralist thrust of the Constitution itself-has been rejected by the Supreme Court over and over again. The classic response was formulated in a case growing out of Lincoln's attempt to limit the judicial power during the Civil War:
This nation, as experience has proved ..., has no right to expect that it will always have wise and humane rulers, sincerely attached to the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln. ... If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew—the history of the world had told them—that unlimited power, wherever lodged
at such a time, wás especially hazardous to freemen. More recently, the Supreme Court rejected a similar assertion of executive power in the Pentagon Papers case, and it was probably this rejection tha led the government to play down the “inherent power” argument in its wiretap brief recently filed in the Supreme Court. Instead, the government is now claiming that warrantless national-security taps were authorized by Congress in the Omnibus Crime Control and Safe Streets Act of 1968.
5 In fairness to Justice Clark, it should be noted that subsequently he became quite critical of wiretapping.
That act actually provides three separate national-security exceptions to its otherwise absolute requirement of a warrant before any tap. The first authorizes a 48-hour tap if "an emergency situation exists” with respect to "conspiratorial activities threatening the national-security interests,” provided that a warrant is immediately sought at the expiration of that period. The government did not act pursuant to that emergency exception in the Plamondon case. Nor is it relying on the second exception, which is limited to the prevention of attack by a foreign enemy or the gathering of foreign intelligence information. The “exception” which is being relied on by the government provides as follows: "Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.” That provision, however, begs the critical question: "What precisely is 'the constitutional power of the President in dealing with domestic threats to the structure and existence of the government?” As the lower court observed, the 1968 act was “clearly designed to place Congress in a completely neutral position in the very controversy with which this case is concerned.” Moreover, even if Congress had explicitly exempted domestic national-security wiretaps from the warrant requirement of the Fourth Amendment, the constitutionality of that exemption would still have to be decided by the Supreme Court.
In passing on that difficult constitutional question, the Supreme Court might well ponder why the government is so vigorously asserting its right to dispense with warrants in national-security cases. Is it interested merely in preserving its convictions in the few pending cases that might be reversed if warrantless taps, conducted years ago, were held unconstitutional? Or does it have a real-and legitimate-need to tap phones without judicial intervention-need to tap phones without judicial intervention in this category of cases? There is little doubt that it could secure a warrant in any case in which there were a plausible—even a weak-claim that the national security required a tap. After all, the government may seek its warrant from the magistrate or judge of its choice. In the unlikely event that it were to fail on the first (or even the second) attempt, it could continue until it succeeded.?
The government explains its unwillingness to comply with the warrant requirement by suggesting that compliance would pose problems of security, presumably because an indiscreet or corruptible judge or court employee might betray the tap or disclose the identity of a secret informant whose information was used in the warrant application. But the government's wide discretion in selecting the judge before whom it will make the application diminishes the force of this argument. Surely there are some judges whose patriotism and discretion are beyond question in the view of the government. In an extremely delicate case, for example, the government could present its application to the Chief Justice without even the clerk being made privy to its contents. Moreover, under existing law, the government need not disclose the name of its informant-even to the judge in secret—in order to secure a warrant. Finally, the government concedes that in the event of a prosecution against anyone whose conversation was overheard, it must disclose the entire record of the tap to a judge in a secret proceeding (as it did in the Plamondon case). Now, if the government is willing to trust the discretion of a judge (selected at random) not to disclose the contents of a tap after it has occurred, why is it not willing to trust the discretion of a judge (chosen by the government) not to reveal the existence of a tap before it has occurred? The "indiscreet judge” ar
The Fourth Amendment does not unambiguously require a warrant for all searches. It provides for the right to be secure "against unreasonable searches," and it also specifies that "no warrant shall issue, but upon probable cause. .." The court, however, has interpreted the amendment to require a warrant for all searches, except in a narrow class of emergencies—for example, where there is imminent danger that the evidence will be destroyed. In such cases, the search must be justified, after the fact, as “reasonable" if its fruits are to be employed. But the government has taken the position that the usual standard of reasonableness is inapplicable to a national-security wiretap, even in an after-the-fact judicial evaluation. It argues that "great deference must be given to the attorney general's judgment" and that the range of review is "extremely limited."
7 of the 217 wiretap-warrant applications during the last two years, only one was denied.
gument, though vigorously pressed by the government, is obviously a makeweight.
There is a weightier argument against requiring a warrant in national-security cases, but the government has been reluctant to articulate it. A warrant, after all, must be based on probable cause that a crime has been, is being, or is about to be committed. The government would like to be free, however, to conduct certain wiretaps even when probable cause is lacking. For example, the Soviet ambassador engages in no crime when he discusses his country's ne gotiating position on the Mideast or the SALT talks, but our government would like to—and surely will try to—monitor such conversations (as the Soviet government just as surely tries to monitor similar conversations by our diplomats). If a warrant, based on ordinary probable cause, were required, the monitoring of this kind of conversation would become legally impossible.s
But this argument, which has considerable force in the context of foreign-intelligence wiretapping, is wholly inapplicable to the kind of tapping at issue in the case now before the Supreme Court. For the tap in the Plamondon case was not installed for purposes of gathering foreign intelligence; it was installed, in the words of the government, "to protect the national security against the threat posed by individuals and groups within the United States.” Put most generously to the government, this means that the tap was directed against American citizens and organizations suspected of engaging in and planning bombings, riots, and other violent activities. All such activities are, of course, illegal, and anyone who is planning them or even talking about planning them -is, under present government thinking, guilty of conspiracy (witness the Berrigan indictment). Surely, in any such case there would be little difficulty in obtaining a warrant. Yet the government insists that it must—and that it will-continue to tap phones without securing the judicial approval that it could so readily get in any plausible case.
If it is true that warrants in national-security cases would be so easy to obtain, then another question-really the converse of the question previously posed—is suggested: Why do civil libertarians press so hard for what appears to be the hollow protection of a warrant secured from a government-selected magistrate? Or to put it another way, why is the warrant issue viewed as so crucial by both sides?
To understand why civil libertarians feel the way they do about warrants in national-security cases requires a bit of background on the way they view wire. taps in general. To begin with, a great many civil libertarians oppose all wire tapping, even when authorized by warrant. They single out that technique of law enforcement because of its tendency to be indiscriminately over-inclusive As Ramsey Clark has put it: “No technique of law enforcement casts a wider net than electronic surveillance. Blind, it catches everything in the sea of sound but cannot discriminate between fish and fowl.” Of course, no technique of law enforcement casts a perfectly narrow net. We do, after all, convict some innocent people; we shoot some fleeing "felons" who turn out to be guiltless bystanders; we preventively detain some defendants who are ultimately acquitted. But we do insist, as we should, that these deprivations be imposed mostly on people who are guilty, and only rarel yon those who are innocent.
Wiretapping is different. It is a deprivation that falls mostly on the innocent. The ratio of “innocent" monitored conversations to “guilty" monitored conversations is extremely high, especially in national-security cases. This is so for a number of reasons. National-security taps are often installed on the phones of persons who are conceded to be innocent of any wrongdoing. And even taps installed on the phones of persons who are themselves guilty succeed in picking up the conversations of many innocent callers and recipients of calls. Finally, most of the monitored conversations, even between two guilty persons, involve matters unrelated to any wrongdoing. Moreover, because wiretapping is a clandestine "deprivation,” its precise effects are difficult to assess. The behavior of some persons whose conversations are not, in fact, being moni.
8 A warrant requirement would not necessarily prevent the continuation of all warrantless taps. It would merely prevent prosecution in the small number of cases where a defendant's conversations were overheard. Recently, however, an affirmative suit was filed on behalf of the Jewish Defense League seeking monetary damages for the warrantless tapping of their telephones.
tored is significantly affected by the fear that their phones are tapped (witness the "debugging” operations recently conducted by various Senators and Congressmen), while others, whose phones are being tapped, but who do notand never will—know that their conversations were monitored, are entirely unaffected. Yet despite the pervasiveness of the wiretap, and its obvious chilling effect, the government blandly asserts in its brief that "[t]he overhearing of a telephone conversation involves a lesser invasion of privacy than a physical search of a man's home or his person.” (This assertion sharply raises the question of whether an administration that values the privacy of conversation and thought less than the privacy of property is the appropriate authority to decide, without any judicial check, that a phone must be tapped for nationalsecurity purposes.)
Making national-security taps conditional on a warrant, some civil libertarians argue, would reduce the ratio of innocent to guilty conversations overheard because warrants must be narrowly circumscribed, limited in time and scope, and related to criminal conduct. While recognizing that most magistrates issue wiretap warrants as if they were presents at Christmastime, the civil libertarians contend that there might be some reluctance to issue them in instances where it was plain that the primary motivation was political and that the national-security concern was a pretext. For it is widely assumed by civil libertarians today that a considerable number of domestic national-security wiretaps are conducted primarily for reasons unrelated to genuine nationalsecurity concerns. They are thought to be directed against political dissidents—both inside and outside the government—and general troublemakers who could be adequately, and lawfully, dealt with by the ordinary process of the criminal law. This is not to say that a plausible national-security concern -broadly defined—is lacking in each instance of a tap. It is to say that this concern frequently serves as an excuse for a broad surveillance whose primary purpose is either political or conventional law enforcement.
Whether or not the civil libertarians are correct in their assessment of the value of warrants in curbing abuse, their claim that domestic national-security wiretaps have been authorized in highly questionable cases is supported by the evidence currently available. Consider, for example, the tapping of Martin Luther King's telephone (and the electronic "bugging” of his hotel rooms). These warrantless invasions of King's privacy—and the privacy of countless others who conversed with him-have been defended as necessary for the national security. But in what specific sense did the security of this nation depend on the FBI's overhearing King's telephone conversations and eavesdropping on his hotel-room activities? A number of justifications have been offered by those close to Robert Kennedy, who, as attorney general acceded to J. Edgar Hoover's request to authorize the tap. (No authorization was ever given for the bug in the hotel rooms.)
The Kennedy version goes something like this: two of King's close associates -one a New York lawyer, the other a member of the SCLC staff-were thought to be either Communist agents, party members, or sympathizers. After receiving warnings from the Justice Department that associating with these persons might damage the civil-rights movement, King dismissed the tainted staff member and initially severed his relationship with the suspected lawyer. But after a while, contact with the lawyer was gradually reestablished. It was this that led Kennedy to authorize Hoover to tap King's home phones and those in his Atlanta and New York offices.
Burke Marshall-Kennedy's respected and civil-liberties-minded assistant attorney general-has made the shocking statement that his boss may have “refused too long" to authorize the King national-security tap. "I can't tell you who the man was or what the allegations were,” he says, “but I can tell you I think it would not be responsible for an attorney general-in view of the characterizations of what that man was doing and who he was working for—for the attorney general to refuse a tap.” He continues, suggestively but mysteriously : “If you take it as being true that there has been an espionage system and that the Bureau has an obligation to do things about that-if you put that all together, I would say you could say he refused too long."
Very well, then, let us "take" all that as "being true.” Let us assume the very worst: that the New York lawyer was a real Russian spy, working for, and being paid by, the KGB. Assume further that his sole job was to influence King in directions favored by the Soviet Union. Assume even further that he was succeeding. Would this justify a national-security tap on King's phone? There is surely no claim that King was being used to further espionage or sabotage activities. He was, after all, engaged primarily in entirely lawful and constitutionally protected activity (even if that activity could hypothetically be shown to have favored the interests of the Soviet Union). He made and received thousands of calls to and from concerned, patriotic, and lawabiding American citizens about matters that were none of the government's business to overhear. He also engaged in-or erroneously believed he was engaged in-a private life, which also was none of the government's business to monitor. His telephone contact with the New York lawyer was an extremely small and sporadic part of his activities (and there no evidence that he met with him in the bugged hotel rooms). Yet the wiretap picked up and recorded all of the conversations on these phones. Even if the scenario suggested by the Marshall version is accurate, should it not have been more sensible to tap the New York lawyer's phones? (Indeed, since it is technically feasible to monitor and record only calls placed between two specified numbers, it would have been possible to tap and record only those calls placed between King and the suspected lawyer.)
It is significant that a former public official as respected and dedicated as Burke Marshall would argue that it would "not be responsible" for an attorney general to have declined, or even delayed, authorization for a warrantless national-security wiretap on the basis of the evidence that he suggests existed. We only rarely have men in positions of power as sensitive and as committed to civil liberties as Marshall. If this is what we can expect of a Burke Marshall, what can we expect of the men who generally populate high office ?
Another justification offered by some Kennedy intimates is that the tap was authorized, as former attorney general Katzenbach put it, "for the protection of Dr. King.” Giving the FBI the power to protect King is like giving the cat the power to protect the canary. In fact, it is now widely acknowledged that no sooner did J. Edgar Hoover come up with some damaging information about King-relating to his sex life that he leaked it to the press. Was this also done to protect King?
It is not difficult to understand what really motivated the King wiretap. The existence of the lawyer in New York provided a plausible that is perhaps too strong a word-argument that some vague national-security interest was involved. The FBI seized upon this excuse to request authorization to do what they wanted to do for other-completely illegitimate-reasons. It was difficult for the Justive Department to deny the request : what would it look like later on if it did turn out that King was indeed involved with Communists and if Hoover leaked to his Congressional or newspaper cronies the fact that Kennedy had stood in the way of an investigation which would have disclosed this? So Kennedy took the least politically risky course. And J. Edgar Hoover got his wiretap.
The King episode does not stand alone in suggesting that the primary reason certain domestic national-security taps are employed has little to do with the genuine needs of national security. The recent case involving Muhammad Ali, which revealed the previously unacknowledged King tap, also disclosed that pervasive taps had been authorized on the phones of Elijah Muhammad, the leader of the Black Muslim Church. Here, too, I would speculate that there may have been a plausible national-security interest in a limited aspect of Elijah Muhammad's activity. But the warrantless tap was not limited, as one with a warrant would have to be. It extended to every call to and from Elijah Muhmmad's various offices over over a considerable period of time. And it picked up conversations relating to political and personal activities that were none of the government's legitimate business (for example, a disclosure that a well-known person's brother had been kicked out of the Muslim Church for being out with a girl all night).
The phrase "domestic national-security wiretap" is not self-limiting or selfdefining. It means what its history tells us it means. It means what this and previous administrations have defined it to mean. Only if we are given some idea of how it has been used can the people, and the courts, have any intelligent basis for judging whether the alleged need for a domestic national-security exception outweighs its potential for abuse. On the basis of the evidence presently available, I would suggest that if we were to examine all the domestic national-security wiretaps conducted by the FBI, a disturbing picture