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He said the Justice Department would cooperate with Congress in drawing up a new wiretapping law to permit court warrants in “domestic security” situations that were not clearly covered under the present law.

Mr. Kleindienst said that as soon as he read the Supreme Court's opinion last Monday, he asked the Federal Bureau of Investigation for an inventory of internal security wiretaps then in use without warranty.

There were "less than 30," he said. Of these, he said, “less than 10" were considered to be directed at groups that were not significantly involved with foreign power. Mr. Kleindienst said all of these had immediately been turned off.

He declared that the Justice Department would not attempt to continue eavesdropping on domestic groups without warrants by contending that the groups had foreign ties. The Supreme Court ruling left it undecided whether the Government might continue to wiretap without court approval where foreign intelligence was involved.

MITCHELL SIMILARITY SEEN

Mr. Kleindienst's statements were made during a luncheon with members of the Washington Bureau of The New York Times.

Mr. Kleindienst, who was sworn in as Attoreny General earlier this month, said there would not be “too much of a difference" between his Justice Department and that of his predecessor, John N. Mitchell.

He said that Mr. Mitchell had accomplished more than his Democratic predecessors in civil rights but that under the Kleindienst regime “more emphasis on civil rights enforcement" than was evident under Mr. Mitchell could be expected.

He also said that there would be “a much more intensive program of penology reform.

He disclosed that he and his family had been involved in efforts to rehabilitate two young men who would otherwise have been sent to prison. To protect their privacy, Mr. Kleindienst declined to give more details.

Mr. Kleindienst said he would not make policital speeches or criticize the Democratic candidate during the Presidential campaign. Instead, he said, he will “go around the country telling the accomplishments of this Government in the justice area."

But he conceded that the Democrats could legitimately appointment. He said he would expect the Democratic nominee to say in his acceptance speech : “I will give you a new Attorney General—who won't sell out to I.T.T.”

This was an allusion to Richard M. Nixon's pledge, in his acceptance speech at the 1968 Republican convention, to name a new Attorney General to replace Ramsey Clark. Some Democrats tried to block Mr. Kleindienst's confirmation by alleging that he had been improperly involved in the settlement of three antitrust suits against the International Telephone and Telegraph Corporation-a charge he denied then and again in the interview today.

[From Newsweek Magazine, July 3]

THE SUPREME COURT: UNTAPPED It was three years ago that the Nixon Administration first enunciated the principle that domestic “radicals" were fair game for government bugging and wiretapping-without prior court approval-in the interests of national security. That policy quickly became a hallmark of John Mitchell's Justice Department and the focus of mounting protests and paranoia on the left. But last week, in a stunning 8-to-0 decision, the Supreme Court rebuked the Administration and declared the practice unconstitutional. “The fear of unauthorized official eavesdropping [must not] deter virgorous citizen dissent," said the High Court. “For private dissent, no less than public discourse, is essential to our free society."

The decision constituted a historic reaffirmation of the First and Fourth Amendments—the right to free speech and the guarantee against unreasonable search and seizure. Beyond that, it was a sharp reminder of how unpredictable the Supreme Court can be even to a President who had handpicked four of the nine Justices to complement his own tough views on law, order and the limits of dissent. Civil libertarians, of course, greeted the ruling with wholehearted enthusiasm, and the Justice Department immediately began pulling the plug on those few of its snooping operations that it admitted fell under the new prohibition. Perhaps more important, the department has to consider how to go ahead with similar surveillance in the future—and whether to drop a sizable number of cases now pending.

CLAIM

Eavesdropping in the interest of domestic security has been going on at least since Harry S. Truman's Administration. What distinguished the Nixonians from their predecessors was that they not only did it but said so—and in fact claimed it as a perfectly legitimate exercise of government power. The controversy, and the claim, surfaced when the Administration admitted having listened in on some of the Chicago Eight, the odd-lot assortment of radicals charged with having incited rioting at the 1968 Democratic convention. The government relied heavily on the Safe Streets Act of 1968, which specifically exempted from regulation any authority the President might have to order taps in security cases. This, said the Administration, meant not just agents of foreign powers but domestic subversives as well.

Ironically, last week's Supreme Court decision knocking down that broadgauge definition of "national security” was delivered by Justice Lewis F. Powell Jr., who had strongly supported the practice prior to his nomination by President Nixon. Powell promised senators at his confirmation hearings that he would keep an open mind on the question, and his closely reasoned opinion demonstrated that he had. The case at hand involved Lawrence Robert (Pun) Plamondon, a member of the radical White Panthers, who was charged with dynamiting offices of the Central Intelligence Agency at Ann Arbor, Mich., in 1968. As in the Chicago Eight case, the government admitted that some of Plamondon's conversations had been overheard by agents tapping the phones of an undisclosed organization for security purposes. And againt it claimed that such surveillance, without a warrant, was legal under language in the Safe Streets Act. But Federal District Judge Damon J. Keith in Detroit disagreed and ordered transcripts of any illegal taps turned over to the defense.

Justice Powell upheld the district judge, ruling that Congress had not given the President any wiretap power but only refused to limit whatever authority he might already have under the Constitution. Powell left aside the question of snooping on foreign agents, or U.S. citizens significantly involved with a foreign power. But he held that a proper balance between national security on the one hand, and the constitutional right to privacy and free speech on the other, demanded a decent respect for established search-warrant procedures in domestic cases. “Fourth Amendment freedoms cannot properly be guaranteed,” Powell wrote, “if domestic security surveillances may be conducted solely within the discretion of the executive branch.” He also found, government arguments to the contrary, that judges were perfectly capable of keeping secrets and of understanding security cases. “If the threat is too subtle or complex for our senior law-enforcement officers to convey its significance to a court,” he remarked tartly, “one may question whether there is probable cause for surveillance."

Attorney General Richard Kleindienst, a vigorous proponent of wiretapping domestic “subversives," reacted quickly once the ruling was issued. He ordered the termination of “all electronic surveillance that conflicts with the Court's opinion” (fewer than a dozen cases, according to a spokesman) and announced that the department would work with Congress to develop reasonable standards for warrants in national security cases. It also seemed likely that the government would place greater emphasis on the foreign ties forged by many domestic radicals with Cuba, Hanoi and North Korea. But the most immediate question raised by last week's decision was whether to turn over potentially embarrassing wiretap transcripts in a score or so of important cases already pending—or drop the prosecutions. Among the defendants : Chicago Eight alumni Abbie Hoffman and David Dellinger and antiwar priest Philip Berrigan.

[From Time Magazine, July 3]

NEW CURB ON BUGGING

Shortly after taking office, the Nixon Administration claimed the right to eavesdrop—without a judicial warrant-on anyone it chose to consider a threat to the national security. By the time the issue reached the Supreme Court, Nixon had appointed four new Justices, so the Government thought its chances of enforcing the claim seemed promising. But last week, by a vote of 8 to 0, with Justice William Rehnquist abstaining, the court declared that bugging or tapping domestic political "suspects” without a warrant is illegal. "Those charged with this investigative and prosecutorial duty should not be, the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks," said Justice Lewis Powell.

The Administration's failure to make a case was highlighted by the fact that Powell wrote the court's opinion. Just last year, when Powell was a law. yer in private practice, he wrote that "the outcry against wiretapping is a tempest in a teapot. Law-abiding citizens have nothing to fear." From his new vantage point on the Supreme Court, however, Powell found that the Government's electronic survillance was not "a welcome development-even when employed with restraint.”

TOO COMPLEX

The Justice Department had wanted to avoid the Fourth Amendment's rule on warrants because it uses electronic devices to gather general intelligence on various political groups, and it argued that its reasons for doing so are too "complex and subtle" for a judge to evaluate competently. Powell responded sharply : “If the threat is too subtle or complex, one may question whether there is probable cause for surveillance. ... The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.”

Powell did not deal, however, with warrantless eavesdropping on foreign agents, which the Government has felt free to do ever since President Roosevelt authorized taps on suspected spies during World War II. “No doubt,” said Powell, “There are cases where it will be difficult to distinguish between domestic and foreign' activities directed against the Government. But this is not such a case."

Specifically, the case before the court involved Lawrence (“Pun") Plamondon, a member of a left-wing organization called the White Panthers, who was accused of bombing a CIA office in Ann Arbor, Mich. The Administration did not contend that any foreign government was involved, and therefore, the court ruled, there was no question that Plamondon was protected by the Fourth Amendment.

Attorney General Richard Kleindienst appeared unfazed by the court's decision. “I asked the FBI to compile a list of surveillance devices yesterday after1oon, and they should all be pulled by now," he tol TIME's David Beck- ??? Line Missing in Copy ??? with the day after the decision. How many such devices were there? "Very few. You could probably count them on the fingers of both hands. We only used them where we thought there was a threat of violence. I had just authorized a couple more last week, but I'm not going to talk about any individual taps. If I say anything, they [defendants and suspects] will come in and ask for transcripts of everything we took.”.

NO BLEEDING HEART

Kleindienst was referring to a Supreme Court ruling three years ago which declared that individuals subjected to illegal eavesdrops have a right to transcripts of what has been overheard if they are to be prosecuted. Warrantless taps are known to have been used, for example, in investigations of the Chicago Seven and in the recent Berrigan case. Wherever violations are found, the Justice Department will have to either disclose the details of the eavesdropping or drop prosecution. Wouldn't it be only proper to inform anyone who has been illegally overheard ? "Hell, no," said Kleindienst. “Our duty is to prosecute persons who commit crimes. We don't have to confess our sins anywhere, like some bleeding heart. We were acting in good faith."

What paths will the Administration now follow? The President at his press conference said that no legislation would be sought to eliminate the warrant

requirement. Other Administration sources, however, were interested by a suggestion in the court's opinion that Congress could establish different and presumably easier standards for issuing warrants in security cases.

Meanwhile, according to a spokesman for Justice's Internal Security Division, “the ruling will make the division's job a little more difficult, but it certainly doesn't put it out of business. We took the position before the court that you cannot separate foreign from domestic threats, and we still believe that. It's a fine line, one that the court could only define as "no significant connection with a foreign power.' I imagine that we will consider any real connection to be ‘significant' until we're instructed otherwise."

[From the Wayne Law Review, Vol. 14, 1968]
THE “NATIONAL SECURITY" JUSTIFICATION FOR ELECTRONIC

EAVESDROPPING : AN ELUSIVE EXCEPTION

(By Athan G. Theoharist and Elizabeth Meyertt)

I

THE ARGUMENTS

Electronic surveillance and wiretapping are today's more sophisticated forms of the ancient practice of eavesdropping. Although the subject of innumerable pages of comment, congressional hearings and recent Supreme Court decisions, the state of the law remains essentially as it was in 1934, unclear. The Supreme Court, in Katz v. United States, clarified the area in one respect: electronic eavesdropping is not per se unconstitutional. A decision remains to be made with respect to the situations in which electronic eavesdropping is, and is not, appropriate.

The Constitution does not specifically prohibit electronic eavesdropping as a method of police investigation; it merely regulates the police methods, as illustrated by the concern, especially of the recent cases, with the procedural questions of the search warrants issued. Serious constitutional objections to the use of electronic eavesdropping have been raised, and the desirability of such an investigative technique must be determined in the light of these objections. Various legal and psychological arguments have been made against eavesdropping, but whatever their orientation, they place a high value on the individual's right of privacy and abhor the "dirty business" 3 of eavesdropping. The legal arguments generally are based upon alleged violations of the first, fourth, fifth and sixth amendments of the Constitution. The eavesdropping critics advocate the application of an exclusionary rule to regulate police practices 4 where it is found that eavesdropping infringes upon these rights.

It is contended that electronic surveillance violates the first amendment by creating a prior restraint on free speech ; 5 a person, aware that someone else might be monitoring his conversation and recording his words, is afraid to speak candidly. Typically, this argument is answered by the contention that the innocent person has nothing to fear. However, the prior restraint objection has

† Assistant Professor of History, Wayne State University, B.A. 1956, B.A. 1957, M.A. 1959 in Political Science, Ph.D. 1965 in History, University of Chicago.

†† Senior editor, Wayne Law Review; B.A. 1965, Kalamazoo College; J.D. 1968, Wayne State University.

The authors wish to express appreciation to Wayne State University and the Truman Institute for National and International Affairs, the research facilities of which made this article possible.

1 389 U.S. 347 (1967).

2 E.g., Katz v. United States, 389 U.S. 347 (1967); Berger v. New York, 388 U.S. 41 (1967); Osborn v. United States, 385 U.S. 323 (1966).

3 Olmstead v. United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting).

4 Aspen, Court-Ordered Wiretapping: An Experiment in Illinois, 15 DePaul I. Rev. 15, 16-17 (1965); Comment, On Applying the "Mere Evidence" Rule to Government Eavesdropping, 14 Ú.C.L.A.L. Rev. 1110 (1967).

5 Schwartz, The Wiretapping Problem Today, 2 Crim. L. Bull., Dec. 1966, at 3; King, Wiretapping and Electronic Surveillance: A Neglected Constitutional Consideration, 66 Dick. L. Rev. 17, 25-30 (1961); King, Electronic Surveillance and Constitutional Rights : Some Recent Developments and Observations, 33 Geo. Wash. L. Rev. 240, 266-67 (1964); Note, Eavesdropping and the Constitution: A Reappraisal of the Fourth Amendment Framework, 50 Minn. L. Rev. 378, 397-400 (1965).

considerable contemporary significance when the possibility of electronic eavesdropping is considered in the context of the current upsurge in political reaction, dissent and recent overt attempts to stifle criticism of the administration's foreign policy. The value of free dissent in a democratic society is so substantial that the objection to the subtle propensities of electronic eavesdropping is significant.

The fourth amendment provides that a magistrate may issue a search warrant upon a showing of probable cause and requires that the objects which are to be seized be specifically and particularly described. The indefiniteness of words and the indiscriminate nature of any warrant issued form the basis of the fourth admendment eavesdropping problem.? The objection is that in the course of the investigation much irrelevant and innocent conversation will be transcribed since it is impossible to determine at what precise moment the words which are meaningful to the investigation might be uttered. Thus, it is contended that wiretapping is an unreasonable exploratory search and seizure.

The fifth amendment objection arises when the words are recorded in order to be replayed later as evidence at trial.8 Thus, the person incriminates himself not by virtue of statements made with full knowledge of the circumstances under which and to whom they were being made, but by mechanical reproduction of his own words surreptitiously gathered. The trend of modern decisions involving the fifth amendment has been toward eliminating the reliance upon incriminating statements made by the defendant.9 These fifth amendment arguments are bolstered by the invocation of the right to counsel protected by the sixth amendment.10 It is contended that the use of incriminating statements recorded after the investigation has focused upon the defendant denies him the benefit of effective advice of counsel.

The final legal argument is that electronic eavesdropping is proscribed by the penumbra theory of Griswold v. Connecticut.11 The essence of this theory is that the Bill of Rights' guarantees create a constitutionally protected zone which is banned from police intrusion. Since the essential character of all the objections is the right to privacy, it is sometimes contended that this area comes within the protective zones of privacy established in the Griswold case. 12 The value of privacy as concerns the psychological needs of the individual forms the basis for an additional objection to electronic eavesdropping. These needs, in Professor Westin's formulation,13 are “personal autonomy,” 14 "emotional release,” 15 and “limited and protected communication." 16

8 An example of this is General Hershey's letter to local draft boards on Vietnam war protestors. N.Y. Times, Nov. 8, 1967, at 1, col. 2; id., Nov. 9, 1967, at 2, col. 4.

Other fourth amendment objections are the failure to obtain any warrant at all and the tendency of magistrates to merely rubberstamp all warrant requests. See generally Katz v. United States, 389 U.S. 347 (1967); Berger v. New York, 388 U.S. 41 (1967); Silverman v. United States, 365. U.S. 505, 512 (1961) (Douglas, J., concurring) i Semerjian, Proposals on Wiretapping in Light of Recent Senate Hearings, 45 B.U.L. Rev. 216, 223-29 (1965); Hines, Fourth Amendment Limitations on Eavesdropping and Wiretapping, 16 Cleve.-Mar. L. Rev. 467 (1967); Schwartz, supra note 5, at 9-12; Donnelly, Electronic Eavesdropping, 38 Notre Dame Law. 667 (1963); Comment, Eavesdropping Orders and the Fourth Amendment, 66 Colum. L. Řev. 355 (1966); Comment Eavesdropping, Informers and the Right of Privacy : A Judicial Tightrope, 52 Cornell L.Q. 975, 985-89 (1967); Note, Eavesdropping and the Constitution : A Reappraisal of the Fourth Amendment Framework, 50 Minn, L. Rev. 378, 400-13 (1965); Comment, A New Constitutional Limit for Electronic Surveillance Cases, 7 Wm. & Mary L. Rev. 93 (1966); cf. Lopez v. United States, 373 U.S. 427, 463 (1963) (Brennan, J., dissenting).

8 Hines, supra note 7, at 468; King, supra_note 5, at 265-66; Note, supra note 7, at 400-13; Comment, A New Constitutional Limit for Electronic Surveillance Cases, 7 Wm. & Mary L. Rev. 93 (1966).

9 E.g., Miranda v. Arizona, 384 U.S. 436 (1966); Escobedo v. Illinois, 378 U.S. 478 (1964).

10 Comment, Electronic Surveillance, 17 Baylor L. Rev. 338, 352-53 (1965); Note, supra note 7, at 400-08.

11 381 U.S. 479 (1965) ; see Katz v. United States, 389 U.S. 347, 350 n.4 (1967); 40 St. John's L. Rev. 59, 65 (1965).

12 Closely related to this theory, and perhaps an unconscious underlying basis for it, is the apprehension of abuse of the recorded surveillance. The feared abuses are tampered tapes and the possibility of extortion. President's Commission on Law Enforcement and Administration of Justice, Task Force Report on Organized Crime 98 (1967).

13 A. Westin, Privacy and Freedom 32-42 (1967).

14. This concept refers to the need to protect a central core of the individual's personality from public divulgence.

15 The individual needs to have "emotional release" as a safety value of sanity to vent his frustrations in the form of angry attack on the system.

16 Confidential relationships must be allowed in order to enable the person to choose a limited group with which he can share his "secrets" without being forced to conceal everything of personal importance from all others.

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