[From the Washington Post, June 20, 1972]

COURT CURBS WIRETAPPING OF RADICALS

(By John P. MacKenzie)

A unanimous Supreme Court rejected yesterday the Nixon administration's claim that the Executive Branch may wiretap suspected "domestic" radicals without a court warrant.

In a major rebuff to an important administration law enforcement policy, the court held that freedom for private dissent "cannot safely be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch."

The blow was delivered by one of President Nixon's own appointees to the court, Lewis F. Powll Jr., writing for himself and five other justices. Concurring separately were Chief Justice Warren E. Burger and Justice Byron R. White.

Beginning in the 1969 prosecution of the "Chicago 8" conspiracy defendants, one of many cases vitally affected by yesterday's decision, the Justice Department asserted that judicial supervision was not required when the President and Attorney General deemed a specific wiretap necessary for protection against subversion from within.

But Powell, despite past public support for wiretapping and a reputation for concern over national security, said the Justice Department had failed to make out a case for "the time tested means" of judicial warrants for safeguarding Fourth Amendment guarantees against unreasonable searches and seizures.

Presidents since Franklin D. Roosevelt have asserted the power to conduct electronic surveillance against suspected foreign agents without permission from a court but it was not until John N. Mitchell became Attorney General that the government claimed similar authority concerning home-grown radicals who were not accused of acting as foreign-supported spies or revolutionaires. Emphasizing that the foreign agent problem was not before the high court, Powell said that even the domestic issues pressed by the department "merit the most careful consideration" when urged "on behalf of the President."

"We do not reject them lightly," said Powell, "especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history."

Powell then went on to reject every administration argument, including the contention that internal security matters are "too subtle and complex" for judges.

"There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases," Powell said, adding:

"If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probably cause for surveillance."

Powell denied that there was significant danger of compromising intelligence secrets when government lawyers must go secretly to a court for warrants.

He noted that Congress, in passing wiretapping legislation in 1968, already had imposed a sensitive responsibility on judges by authorizing wiretapping and bugging warrants in espionage, sabotage and treason investigations.

"Although some added burden will be imposed upon the attorney general, this inconvenience is justified in a free society to protect constitutional values . . . By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur."

Powell said public uneasiness was justified by the "danger to political dissent" inherent in the vague concept of national security, since "the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs."

He added, "The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power."

The reassurance stems from the independent judgment of a neutral and detached magistrate who determines whether there is a reasonable basis for the electronic intrusion upon privacy, Powell said.

He indicated that under appropriate guidelines for such warrants, the government might have been able to obtain approval to eavesdrop on Lawrence

(Pun) Plamondon, a leader of the radical White Panther Party accused of conspiring to blow up a Central Intelligence Agency building at Ann Arbor, Mich.

Lower courts ruled that wiretap records in the case must be turned over for defense inspection to see whether the illegal taps produced part of the prosecution's case. Yesterday's decision forces the government to choose between disclosure to the defense and abanodning the prosecution in the Ann Arbor case, the Chicago case now on appeal, and numberous others.

Powell offered a suggestion that Congress might enact special standards for the warrants, perhaps allowing agents to install listening devices for longer periods than provided in the 1968 law for conventional crime investigations.

He totally rejected the government's argument that Congress had immunized domestic radical taps from the warrant requirements.

Attorney General Richard G. Kleindienst said last night that he is terminating all domestic security wiretaps that conflict with the court's opinion. He said his staff would work with Congress to seek new warrant standards in line with the court's suggestion.

Joining Powell were Justices William O. Douglas, William J. Brennan Jr., Potter Stewart, Thurgood Marshall and Harry A. Blackmun. Burger noted simply that he concurred "in the result" and White based his concurrence on language in the 1968 act.

Justice William H. Rehnquist, who helped shape the government's arguments as a Justice official last year, did not participate.

[From the New York Times, June 20, 1972]

HIGH COURT CURBS U.S. WIRETAPPING AIMED AT RADICALS-RULES WARRANT IS NECESSARY FOR FEDERAL SURVEILLANCE IN DOMESTIC MATTERS

(By Fred P. Graham)

WASHINGTON-The Supreme Court declared unconstitutional today the Federal Government's practice of wiretapping without first obtaining court approval, domestic radicals considered dangerous to the national security.

The Court, 8 to 0, rejected the Nixon Administration's assertion that the President's authority to protect the nation from internal subversion gives the Government the constitutional power to wiretap "dangerous" radical groups without obtaining court warrants.

"Fourth Amendment freedoms [against "unreasonable searches and seizures"] cannot properly be guaranteed if domestic surveillances may be conducted solely within the discretion of the executive branch," the Court declared.

JUSTICE AGENCY SETBACK

Without ruling on the constitutionality of warrantless wiretapping against agents of foreign powers, the Court held that "national security" wiretapping of domestic radicals who have no foreign ties can be done only with the type of court warrants currently used in police wiretapping of organized crime.

The ruling was stunning legal setback for the Justice Department, which failed to muster a single vote from a Court with four justices appointed by President Nixon.

Attorney General Richard G. Kleindienst announced after learning of the decision that he had "directed the termination of all electronic surveillance in cases involving security that conflict with the Court's opinion." He said that subsequent surveillance would be done "only under procedures that comply" with the decision.

The opinion was written by Justice Lewis F. Powell Jr., who was appointed to the Court shortly after he wrote a newspaper article strongly supporting the President's "national security" wiretap power.

FEAR OPPOSED AS PRICE

Justice Powell had termed the complaints against the Government's wiretapping "a tempest in a teapot" and had suggested that the distinctions between warrantless wiretapping of foreign agents and domestic subversives was

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.8

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 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 nationai-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 Lu'ther 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 1 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

"largely meaningless." But he assured the Senators at his confirmation hearing that his mind was still open.

His opinion today leaned heavily upon the threat to free speech that he saw in unbridled governmental wiretapping of dissenters.

"History abundantly documents the tendency of government-however benevolent and benign in its motives-to view with suspicion those who most fervently dispute its policies," he wrote.

"The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power," he continued. "Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation."

Justice William H. Rehnquist, another Nixon appointee who had made statements supporting the President's wiretap authority before joining the Court, did not participate in the decision. He had suggested that he would participate by remaining behind the bench when the case was argued. He gave no reason for stepping aside today.

By coincidence, the historic decision was announced only seconds after Attorney General Kleindienst, an aggressive proponent of warrantless wiretapping, formally presented the Supreme Court his credentials as the Government's chief legal officer.

Mr. Kleindienst, clad in the cutaway coat and striped trousers customarily worn by Government attorneys in the Supreme Court, was welcomed by Chief Justice Warren E. Burger in a brief statement as the Court session began.

KLEINDIENST LEAVES

Then as the Justices settled back for thte announcement of the first decision, Mr. Kleindienst strode from the courtroom, not waiting long enough to hear that the long-awaited wiretapping ruling was about to be handed down.

An important result of the decision is that any defendant in a Federal prosecution has a right to see complete transcripts of any conversations overheard on a warrantless "domestic security" listening device so that his lawyer can make certain that no illegally obtained information is being used by the prosecution.

Court records indicate that victims of such wiretapping could include defendants in the "Chicago Seven" riot-conspiracy case, the kidnapping conspiracy case involving the Rev. Philip F. Berrigan and other prosecutions of antiwar activists and black radicals.

Mr. Kleindienst said that his staff would screen all such cases to decide whether to disclose the wiretap transcripts or drop the prosecutions.

Today's ruling had its roots in a decision by President Roosevelt in 1940 that he had the power to wiretap suspected German spies. In 1946, President Truman broadened the practice to include American citizens suspected of espionage.

It was not until 1967, when the Supreme Court ruled that electronic surveillance was subject to the Fourth Amendment's warrant requirements, that the Government was confronted with the issue of what to do about this type of "national security" surveillance.

In 1968 Congress passed a law authorizing law enforcement officers to get court warrants to investigate a wide variety of crimes. The law stated that it would not affect any constitutional authority the President might have to wiretap in national security cases without warrants.

This confronted the Nixon Administration with the choice of trying to obtain court warrants for its national security surveillance or to take the chance that the Supreme Court would uphold warrantless eavesdropping.

LATTER COURSE TAKEN

Attorney General John N. Mitchell took the latter course -one so controversial among career attorneys that when the case reached the Supreme Court no member of the Solicitor General's office argued the Government's case.

Robert C. Mardian, then Assistant Attorney General in charge of the Internal Security Division, made the argument. He was opposed by Arthur Kinoy of the Center for Constitutional Rights in New York, and William T. Gossett of Detroit.