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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 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 wire· tapping 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 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
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
"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.
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.
Mr. Kinoy represented three members of the radical White Panther party who were accused of plotting to bomb a Central Intelligence Agency office in Detroit. Mr. Gossett argued for United States District Judge Damon Keith, who ordered the Justice Department to disclose the transcripts of the defendants' conversations obtained by wiretaps installed without court permission.
The United States Court of Appeals for the Seventh Circuit upheld Judge Keith.
Justice Powell's opinion held that the 1968 statute did not give the Government the power to wiretap without court authority, but merely left untouched any constitutional power it might have had anyway.
He stressed that the Court was leaving for another day a decision on whether warrants will be required to wiretap foreign spies and that the decision today covered only those with “no significant connection with a foreign power, its agents or agencies."
Justice Department officials are expected to argue that many of the radicals who have been wiretapped have had contacts with Communist countries, and the ruling could make left-wing groups more circumspect about their future dealing with foreign governments.
Legal experts disagree as to whether the Government can obtain warrants under the 1968 act for surveillance of radicals, becaus the Government must show probable cause that a specific law is about to be violated. National security surveillance is usually based upon more nebulous suspicions.
Justice Powell's opinion virtually invited Congress to pass a new law to allow for this special type of wiretapping, but any proposal so loaded with overtones of political surveillance would be expected to face difficulty on Capital Hill,
Chief Justice Burger noted that he concurred only in the result. Justice Byron R. White, in a separate concurring opinion, said that the warrantless surveillance might have been legal under the “national security” exception of the 1968 law, but that the Justice Department's Court papers did not satify the statute.
LIBERTIES UNION STATEMENT
In New York today, the American Civil Liberties Union hailed the wiretapping decision. A statement by the organization's executive director, Aryeh Neier, said:
*The Supreme Court has rejected the Government's boldest claim of powers to intrude upon individual liberties. The Government had claimed that in the undefined interests of 'national security' it could engage in a vast, lengthy, unsupervised and unchecked invasion of the privacy of people having only the remotest link with anything in any way criminal or even wrong.
“If this claim had been upheld, there would have been virtually no limits to the range of governmental intrusion on liberty that would have been implicitly authorized once the Government invoked the talisman of 'national security.'
"In rejecting the Government's claims, the Court has vindicated the constitutional liberties of all Americans.”
[From the New York Daily News, June 20, 1972]
TOP COURT LIMITS WIRETAPS
(By Jeffrey Antevil) WASHINGTON.-In a major rebuff to the Nixon Administration, the Supreme Court rejected unanimously today the Justice Department's argument that the government can legally wiretap suspected domestic “subversives” without first getting a court order.
Declaring in a Michigan case that such bugging without a warrant is unconstitutional, Justice Lewis F. Powell wrote for the court that "unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy."
Former Attorney General John N. Mitchell, who brought the test case to the high court, argued that the individual's right to privacy must yield to the government's need to defend itself against potential threats to the national security. Thus, he said, the government has the power to eavesdrop on sus
pected domestic subversive groups without prior judicial approval, just as it does in foreign intelligence cases.
CALL CONCEPT VAGUE
Powell, a Nixon appointee, declared in an opinion joined by justices William 0. Douglas, Thurgood Marshall, Potter Stewart, Harry A. Blackmun and Willaim J. Brennan Jr. that “the danger to political dissent is acute where the government attempts to act under so vague a concept as the power to protect domestic security'."
“The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power,” Powell added.,
Chief Justice Warren E. Burger and Justice Byron R. White wrote separate opinions agreeing with the majority action in the case of Lawrence Plamandon, a member of the now-defunct White Panther Party who was accused of conspiring to blow up CIA offices in Ann Arbor, Mich. Justice William H. Rehnquist, an assistant attorney general until this year, did not participate in the case.
LOWER COURT ORDER Two lower court judges, rejecting the government's position, had ordered transcripts of wiretaps of Plamandon's conversations turned over to his lawyers.
The Justice Department has continued to wiretap other domestic militant groups, such as the Wetherman faction of the Students for a Democratic Society, while its appeal was pending. In other action today, the court:
Agreed with New York's claim, in a dispute with Pennsylvania over $1.5 million in uncashed Western Union money orders, that the money belongs to the state where the person entitled to claim it was last known to live.
Agreed to consider next term New York's claim that complaints by state prison inmates about their treatment should be made in state, not federal courts.
Ruled in an Arkansas case that a man acquitted of a murder charge cannot, under the constitutional ban against doubel jeopardy, be tried for robbery in the same incident.
Agreed to rule next term whether its 1969 decision barring court-martial trials of servicemen for non-service-related offenses should be made retroactive to clear the records of thousands of former servicemen convicted before that date.
Upheld a law in Florida allowing a municipal clerk who is not a judge to issue arrest warrants.
[From the New York Times, June 22, 1972]
KLEINDIENST SEES A DECLINE IN WIRETAPS
(By Fred P. Graham) WASHINGTON.-Attorney General Richard G. Kleindienst said today that last Monday's Supreme Court decision on wiretapping would reduce the Government's intelligence about subversive activities, “but not to an extent that will damage our national security.'
The Supreme Court held that the Government must obtain court warrants before wiretapping may be used against allegedly subversive radical domestic groups. For at least 26 years, the Government had been wiretapping such groups without court permission.
Mr. Kleindienst said in an interview that the ruling, would cut down on eavesdropping for intelligence-gathering purposes because the Federal law on wiretapping requires proof that a crime has been or is about to be committed before Government agents will be given a warrant to eavesdrop.
‘NOT A DEAD-END STREET'
But he said the 8-to-0 decision 'is not a dead-end street for electronic surveillance because the Government could request warrants when a radical group appeared to be planning a specific crime.