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would emerge. We would find numerous cases where a plausible but narrow national-security concern has been used as an excuse for an improper and pervasive wiretap whose real purpose is political surveillance. Unfortunately, however, there is no way for the citizenry—or even the courts—to examine the logs of all national-security wiretaps. We are left instead with the assurancs of people like former attorney general Herbert Brownell that “Experience demonstrates that the Federal Bureau of Investigation has never abused the wiretap authority.”
But what "experience” is Brownell referring to? To whom has this been “demonstrated"? Certainly not to the public. I, for one, do not feel that we can rely on the self-interested assurances of former Justice Department officials that all is in order. My surmişe is that if the Justice Department were to turn over the records of domestic national-security wiretaps in any given year for study to a non-partisan group of scholars, many abuses of the kind suggested above would emerge. If I am wrong—if an impartial evaluation were to disclose that warrantless domestic national-security taps have been narrowly employed only in cases of immediate, extreme, and irremediable danger to our survival—then there might be grounds for exempting this class of wiretaps from the usual constitutional requirements. But neither the people nor the courts can intelligently decide whether this is so until we are given some idea of how such wiretaps have in fact been used. In the meantime, on the basis of what we already know, we have good reason for supposing that “national security' is sometimes invoked as a pretext for political surveillance of an altogether illegitimate kind.
A Blow STRUCK FOR THE REVOLUTION
(By Jacob Marateck) [Jacob Marateck (1883–1950) was a Polish Jew who, following a youthful career as a yeshiva student and labor agitator in Warsaw, served for a number of years in the Russian army. After a variety of adventures—including membership in the imperial bodyguard and alleged involvement in a plot to assassinate the Czar-he escaped to America. The present memoir of the Russian Japanese War 1904–5 was taken from one of the twenty-seven handwritten notebooks kept by Marateck throughout his life; it has been adapted from the Yiddish by Shimon Wincelberg.]
The second day of Rosh Hashanah we line up for the train to Manchuria. Our lietutenant, a moody graybeard in his sixties, who ascribes his low rank to lack of “protection” at Court, tells us we're lucky. How are we lucky? We will get to ride to the battlefield in comfort, while the enemy, primitive little beasts that they are, will have to walk. He makes "battlefield" sound like a scheduled stop on the Trans-Siberian Railway. As for the “primitive” Japanese, I incline to suspect they are not exactly receiving us with open arms.
My friend Glasnick whispers I should let the lieutenant know we would also be happy to walk, and with a little luck the war will be over by the time we get there. But I'm a one-striper, a squadleader, and keep my mouth shut, scowling with authority.
The train has ninety-six cars, each packed to at least three times what it can hold. This way, the railroad is able, on one track, to deliver its quota of 30,000 replacements a month. I try not to think about the men we are “replacing."
We sit in our compartment, barely able to stir an elbow, each of us still hoarding his own fears and memories. For the moment, Russians, Ukrainians, Poles, and Jews sit packed together in a pleasnat atmosphere of revolutionary harmony. That is, somebody starts out by wondering how many of us will return alive, and soon somebody else ends up proposing that, at the next halt, we surround our officers and kill them all, then make the train go back to Petersburg and proclaim the Revolution.
No one bothers to remember that the officers have all our ammunition under lock and key. Not that it makes much difference. They're fine talkers and dreamers, our Russians, but hopelessly addicted to authority. When Glasnik wants as usual to add his comments, I quietly shut him up. I know from past experience, no matter which way the conversation turns out, they'll end up blaming it all on the Jews.
Days pass. We are all stiff and irritable from the lack of space, and no one any longer talks revolution because by now we hate the stink of one another.
But soon we come to appreciate our crowded compartments. The train has to cross Lake Baikal on rails laid over the ice, which often suddenly cracks open into yawning rifts and crevices. To keep the cars from being too heavy, the officers are taken across by horse-drawn sledge, and the rest of us walk, our rifles with their eternally fixed bayonets resting on one shoulder. Forty miles across the windswept ice, with only brief pauses for hot soup from our mobile kitchens. By morning it turns out a number of men have disappeared, probably drowned, and many more suffer from frostbite.
Another week in the unheated train, and one morning we awaken to a strange landscape in which the roofs of houses curve upward like boats, and the trees put me in mind of things that might be growing on the moon. This is Asia. The people here have darker skins and narrow, villainous Oriental eyes. Most of the men believe them already to be “Japs," having little notion that Japan is almost as far from here as Moscow.
The Orientals scatter like chickens whenever the train comes to a halt and we pile out to stretch our legs. Only some peddlers are willing to approach. The officers drive them away, they might be spies.
At one of our stops we are told to send a detail to a nearby village. They are to fetch five oxen purchased for us to slaughter for food. After a week on little but hard black bread, foul soup, and hot tea, we await their return in high spirits.
[From the Washington Evening Star, June 30, 1972) RULED ILLEGAL BY COURT_BANNED “BUGS" TURNED OFF
(By Lyle Denniston) Federal agnets have turned off secret listening devices that became illegal under the upreme Court ruling against government eavesdrop policy, the Justice Department says.
The number that went out of use in the wake of yesterday's ruling was not disclosed, but the department had had just under 50 devices in use since Jan. 1, a spokesman said.
Atty. Gen. Richard G. Kleindienst ordered agents to “terminate ... all electronic surveillance in cases involving domestic security that conflict with the court's opinion.”
With no dissents, the court ruled unconstitutional the three-year-old policy of the Nixon administration for eavesdropping on “domestic subversives” without advance permission by a federal court.
The ruling was a stunning defeat for a major administration program for gathering "intelligence data" about individuals and groups whose actions it considers a possible threat to the government. It seemed likely that the ruling would have these consequences :
A number of federal prosecutions might be dismissed because of the government's unwillingness to disclose the logs of eavesdropping made illegal by the new decision.
A series of lawsuits might be filed against the government by individuals claiming that illegal surveillance had interfered with their rights.
A period of uncertainty seemed likely to prevail until Congress reacted to a Supreme Court suggestion for new procedures to guide "domestic
security” eavesdropping. Within hours after the ruling, Kleindienst not only ordered the illegal devices turned off, but also put the Justice Department staff to work studying the pending cases which might be affected by the decision.
Kleindienst also ordered department staff members “to work closely with Congress in formulating legislative standards” that would govern court orders for eavesdropping in domestic security cases.
Since the Nixon administration came into office, federal agents have been using secret listening devices without court orders in "domestic security' cases at a rate of about 100 a year, according to the department.
A report filed with Congress last year showed that a total of 94 deviceswiretaps or hidden microphones or "bugs"- —were used in 1969 and 113 in 1970 without court approval in cases involving homefront “subversives."
A department spokesman said that just under 100 were used in this category in 1971, and that, so far this year, just under 50 had been used.
SOME CASES UNAFFECTED
Kleindienst's order requiring federal eavesdropping agents to comply with the new ruling did not extend to secret devices to monitor “foreign intelligence in national security matters."
That was because the Supreme Court, in its new decision, expressly declined to rule on the legality of government surveillance without a court order in cases involving "activities of foreign powers, within or without this country.”
Presumably, that left the Justice Department with some flexibility in deciding which domestic “subversives” it still could monitor on the theory that they had had some “significant connection" with a foreign government or agency.
In the case which the Supreme Court decided yesterday, the justices concluded that the surveillance was illegal since “there is no evidence of any involvement, directly or indirectly, of a foreign power" with the man whose conversations had been overheard by a wiretap—Lawrence R. “Pun” Plamondon, a member of the White Panther party accused of bombing a Central Intelligence Agency office in Ann Arbor, Mich., on Sept. 29, 1968.
Some department officials believed that “not very many" cases would be affected. However, it seemed possible that the ruling could affect some of the more controversial cases the administration has filed—including the Berrigan bombing-kidnap conspiracy, several cases involving the Black Panther party, some cases involving the bombing of the U.S. Capitol last year, and several growing out of last year's Mayday anti-war outbreak here.
Another problem facing the government was the possibility that a number of persons involved in other controversial cases—like the Pentagon Papers' disclosure case-could make a series of new demands for any revelation of illegal eavesdropping.
In reaching their decision, the justices did make one possible gesture toward government eavesdropping policy: It ruled that Congress could make it easier to get court approval for eavesdropping in domestic security cases than in "ordinary” criminal cases.
Specifically, it suggested that Congress might want to permit courts to issue eavesdropping orders on less definite evidence than would be required for a normal criminal case; that the eavesdropping might be allowed to continue for periods longer than the initial 60 days, plus 30-day extensions, provided for under the 1968 law; that the power to issue orders be confined to one court rather than shared by all federal courts in the nation; and that the government need not be bour by the 1968 law's provision requiring public reports of eavesdropping 30 days after an approved monitoring has ended.
ALL ARGUMENTS REJECTED
The justices rejected all five major arguments the government had made to defend its eavesdropping policy :
That the president and the attorney general had sole authority under the Constitution to decide when to use eavesdropping in any national security case; that they should have this power because they would use it “reasonably ;' that they should have this authority because they would use it only to gather intelligence data, not criminal evidence; that courts did not have the knowledge or background to act on security investigations, and that national security might be imperiled if courts or court personnel “leaked” data about security investigations.
The court's ruling on surveillance was the most far-reaching action it took yesterday as it continued to work toward summer adjournment. The justices scheduled another session for Thursday to issue more opinions.
[From the Washington Post, June 20, 1972)
(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 biow 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 nec ary 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 0. 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