The state snoops did a little better; they got 103 convictions, but then they listened in on half again as many conversations. Federal eavesdropping produced no convictions for anything other than gambling.

None of this comes cheap, not at those conviction rates. In 1970, Federal and state surveillance was reported to have cost $3 million and the 1971 cost is projected at closer to $5-million, but these are gross under-estimates. Most importantly, they do not include the cost of "national security" tapping without court orders.

Nor do the official cost reports take any account at all of the vast amount of time lawyers, judges and investigators take to prepare applications, keep records and handle court challenges. Mr. Schwartz believes the actual cost of eavesdropping may be "many times the 1970 figure of $3-million." The lion's share of all that money is being spent to try to control gambling-which is not the kind of crime most of us thought Mr. Nixon had in mind during his 1968 campaign.

It all adds up to what Herman Schwartz calls "gross and widespread invasions of privacy" in order to get "a handful of convictions of gamblers, pushers and the like." Surely, he suggests, "we have less pernicious ways to spend our scarce dollars."

WIRETAPS AND NATIONAL SECURITY

(Alan M. Dershowitz)

(Alan M. Dershowitz, professor of law at Harvard, is currently at the Center for Advanced Study in the Behavioral Sciences at Stanford)

During its current term, the Supreme Court will be hearing argument on whether warrantless "national-security" wiretaps are constitutional. The phrase "national security" conjures up the image of spies, sabotage, and invasion, but a considerable number of such taps are conducted against domestic organizations or individuals who are suspected of activities deemed contrary to the national interest. It was recently learned, for example, that such persons as Martin Luther King and Elijah Muhammad and such organizations as the Jewish Defense League and the Black Panther party have been the subject of extended national-security taps. These taps are authorized exclusively by the prosecutorial arm of the government-by the attorney general-without the need for a judicial warrant based on probable cause. How many nationalsecurity taps and "bugs" are currently in operation, and against what sorts of persons, is a well-guarded secret, but bits of information that are slowly emerging raise some disturbing questions.

1

The case presenting the issue of the constitutionality of warrantless nationalsecurity taps involves "Pun" Plamondon. an alleged "White Panther standing trial for conspiracy to blow up a CIA office in Ann Arbor, Michigan. Plamondon's lawyer, William Kunstler, filed a pre-trial motion asking the government to disclose whether any of the defendant's conversations had been monitored. Motions of this kind are made rather routinely these days in socalled political cases, and-not infrequently-they strike paydirt, as Kunstler's motion did. It elicited an affidavit from the attorney general himself, acknowledging that "Plamondon has participated in conversations which were overheard by government agents," and that no warrant had been obtained. But Mitchell vigorously asserted that the tap-which was on some unnamed person's phone, not on Plamondon's-was legal, since it was "employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the government."

1A "bug" is a monitoring device concealed anywhere and capable of picking up conversations as well as other sounds; a wiretap picks up only phone conversations. Some confusion has resulted from the fact that "bugs" are sometimes installed in the mechanism of a telephone. The government is fond of citing statistics purporting to demonstrate that the number of "national-security surveillances"-a phrase that includes both bugs and taps-has "significantly declined" over the past few years. These statis. tics are fallacious for two obvious reasons: 1) they include figures only on the number of warrantless taps, not bugs; and 2) they show a decline around the time the Supreme Court implicitly authorized the use of taps with a warrant. (Prior to that decision, all taps involving national security were warrantless, and were therefore included in the government statistics; now warrants are secured for some of these taps, and only the warrantless ones are listed by the government.)

The lower court disagreed. It described the "sweep of the assertion of the Presidential power" to tap without a warrant as "both eloquent and breath- · taking," but it declined to "suspend an important principle of the Constitution." It held that "in dealing with the threat of domestic subversion," the warrant requirement of the Fourth Amendment could not be dispensed with. (The lower court did not decide whether a warrantless tap could be authorized to protect the country from "attack, espionage or sabotage by foes or agents of a foreign power," since the government had conceded that the Plamondon tap was not installed for any such "foreign intelligence" purpose.) The court ordered the government to disclose to Plamondon the transcripts of each of his monitored conversations. If this ruling is upheld, Plamondon could be tried and convicted only if the government can prove that neither the indictment nor any of the trial evidence emanated from the tainted tap.

The issue thus presented for the Supreme Court to resolve is a fundamental one, going to the heart of the "separation of powers" on which our government is based. For the executive branch is asserting the power to dispense with an important judicial “check" on its action, namely the requirement that a judicial officer determine whether there is probable cause on which to issue a warrant. It is somewhat surprising that the Supreme Court has never decided-or even intimated how it would decide whether national-security wiretaps constitute an exception to the warrant requirement, especially since the practice of warrant-less national-security taps is now more than thirty years old.

It was on May 21, 1940 that President Franklin Roosevelt sent to his attorney general the confidential memorandum that is regarded as the bap-. tismal certificate of the national-security wiretap (though, significantly, the term "national security" was not used). Roosevelt began by expressing his agreement with an early Supreme Court decision that "under ordinary and normal circumstances wiretapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights." But these were not ordinary and normal times: America was preparing to enter the war; German and Japanese spy rings were operating on both coasts; and "certain other nations" had been engaged "in preparation for sabotage." Concluding that the Supreme Court had never intended its prohibition on wiretapping to extend "to gave matters involving the defense of the nation," Roosevelt informed the FBI that they were "at liberty to secure information by listening devices direct[ed] to the conversations... of persons suspected of subversive activities against the government . . ., including suspected spies.' The President cautioned, however, that these investigations must be limited "to a minimum" and "insofar as possible to aliens."

99 4

But governments grow comfortable with special war powers, even when peace returns. And so, after the cessation of hostilities, Attorney General Tom Clark convinced President Truman that "the present troubled period in international affairs, accompanied as it is by an increase in subversive activity here at home," required a continuation of the "investigative measures" authorized by Roosevelt. Nor was Clark content merely with retaining the status quo. Warn-. ing that "the country is threatened by a very substantial increase in crime"an exaggeration typically made by attorneys general requesting additional powers or appropriations-he "reluctantly" requested the President to approve the power to tap "in cases vitally affecting the domestic security" (for that high

2 The American Bar Association Project on Minimum Standards for Criminal Justice "considered and rejected [a proposal which would have recognized a.. power in the President not subject to prior judicial review to deal with purely domestic subversive groups." Instead, it recognized a power limited to "foreign intelligence activities." Thus, it is precisely the power rejected by the ABA committee certainly no radical organization-that the government is asserting in the Plamondon case. In its brief before the Supreme Court, the government argues that no real distinction can be drawn between foreign and domestic subversion (though in prior cases it had argued in favor of such a distinction). Moreover, if no distinction can be drawn between foreign and domestic subversion, it would seem to follow that warrants should be required in both cases. Finally, a real distinction can be drawn between foreign-intelligence gathering and domestic subversion.

3 The baptismal rather than the birth certificate, because it is acknowledged that J. Edgar Hoover was widely engaged in such wiretaps well before obtaining the President's formal authority to do so.

Since the McCarthy era the word "subversive" has taken on an extremely broad meaning. At the time Roosevelt used it in his 1940 memorandum, it still retained its somewhat narrower (though still imprecise) dictionary meaning: "intended to bring › about the overthrow of the government by unlawful means."

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, was 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 that 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.

6

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 negotiating 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.

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 wiretaps in general. To begin with, a great many civil libertarians oppose all wiretapping, 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

SA 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.