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 Meyer††)

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,1 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,2 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.

1389 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). 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 U.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

6 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); 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. Rev. 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, 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).

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.

Proponents of the use of electronic eavesdropping contend that while there are valid objections concerning the individual's rights, countervailing societal interests must be taken into account. Initially the inadequacies of more orthodox police techniques to satisfy the needs of efficient administration of justice with respect to highly secretive, conspiratorial crimes and espionage 17 must be considered. It is argued that electronic eavesdropping is warranted in at least some cases to give the police an adequate tool to combat sophisticated organized crime. These crimes are generally conspiratorial with a hierarchy of participants; the leaders never actually participate in the crimes committed, and it is difficult to gather incriminating evidence without electronic eavesdropping.18 Further justification is based upon the oft cited contention that without wiretapping New York would never have convicted James "Jimmy" Hines, John Paul Carbo, Charles "Lucky" Luciano, and Anthony Carfano, all important members of organized crime.19

Another argument with respect to the inadequacy of orthodox police methods is based upon the fact that the conspirators often communicate without meeting together. Robert Kennedy, when Attorney General, testified before the Senate Judiciary Committee that the Cosa Nostra, for example, uses the telephone extensively and that the Apalachin (New York) type of meeting is a rare occurrence.20 Moreover, informers courageous enough to testify in open court are extemely rare.21 To these factors are attributed the Cosa Nostra's success in avoiding prosecution, and these same factors are used as supportive evidence by proponents of legalized eavesdropping when referring to the need of the police to use electronic devices.22

The authors believe that, in light of the serious constitutional objections which have been raised and the competing social needs, the use of electronic eavesdropping can be condoned only where ordinary police techniques have failed.23 In the areas of organized crime and espionage directed by a foreign government the threat is serious enough and ordinary police methods inadequate enough to countenance the use of electronic eavesdropping. Only in these two areas is a balance between individual rights and investigatory leeway reached and a statute should be passed to codify this balance, providing for limited electronic surveillance.

II

THE HISTORICAL DEVELOPMENT OF WIRETAP POLICY

In spite of historically separate treatment by the Court, wiretapping and electronic eavesdropping are basically similar in nature. This is demonstrated by the Court's recent failure to distinguish between the two in Berger v. New York 24 and Katz v. United States.25 Wiretapping, subject to the same constitutional limitations as other forms of electronic eavesdropping, is, in addition,

17 Brown, The Great Wiretapping Debate and the Crisis in Law Enforcement, at N.Y.L.F. 265, 273 (1960); Brown & Peer, The Wiretapping Entanglement: How to Strengthen Law Enforcement and Preserve Privacy, 44 Cornell L.Q. 175 (1959); Lumbard. The Lawyers' Responsibility for Due Process and Law Enforcement, 12 Syracuse L. Rev. 431, 441 (1961); Lumbard, Wiretapping and Senate Bill 675, 5 Am. Crim. L.Q. 130 (1967), Silver, The Wiretapping-Eavesdropping Problem: A Prosecutor's View, 44 Minn. L. Rev. 835, 848-49 (1960); Comment, A Federal Wiretap Law-Needed Weapon Against Organized Crime, 13 DePaul L. Rev. 98, 109-10 (1963); Note, Electronic Surveillance and the Right of Privacy, 27 Mont. L. Rev. 173, 175-76 (1966).

18 President's Commission on Law Enforcement and Administration of Justice, supra note 12, at 92.

19 Hearings on S. 1086 Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 87th Cong., 1st Sess. 432 (1961); see Berger v. New York, 388 U.S. 41, 61-62 (1967); Aspen, Court-Ordered Wiretapping: An Experiment in Illinois, 15 DePaul L. Rev. 15, 18-19 (1965); Comment, A Federal Wiretap LawNeeded Weapon Against Organized Crime, 13 DePaul L. Rev. 98, 101 n.6 (1963). 20 Hearings on S. 2813 & S. 1495 Before the Senate Comm. on the Judiciary 87th Cong., 2d Sess. 12 (1962).

21 Hearings pursuant to S. Res. 39 on Invasions of Privacy (Government Agencies) Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 89th Cong., 1st Sess., pt. 3, at 1158 (1965).

22 See Brown, supra note 17, at 281-82; Lumbard, The Lawyers' Responsibility for Due Process and Law Enforcement, 12 Syracuse L. Rev. 431, 436 (1961); Comment, supra note 19, at 98.

23 See Comment, Eavesdropping, Informers and the Right of Privacy: A Judicial Tightrope, 52 Cornell L.Q. 975, 976-80 (1967).

24 388 U.S. 41 (1967).

25 389 U.S. 347 (1967).

limited by statute. Section 605 of the Federal Communications Act of 1934 26 prohibits the interception and public divulgence of the contents of any wire communication or its interception for personal benefit. The Department of Justice has contended that this section requires both interception and divulgence to invoke the statute, therefore, taps for investigative purposes, not used as evidence, are legal.27 The Court, however, has not accepted this interpretation.28 Other forms of electronic eavesdropping are not prohibited by statute and are subject only to the constitutional limitations imposed by judicial decisions. Until 1967 an exclusionary rule was applied only to electronic surveilliance accomplished by means of trespass of a constitutionally protected area.29 Consent of one of the parties obviated the problem,30 and interception without a trespass was permissible.31 The Supreme Court's decisions in Berger and Katz changed the basic tenor of the law in this area. In Berger, the Court held unconstitutional a New York statute providing for the issuance of eavesdropping warrants and an investigation held thereunder, outlining the standards a "constitutional" state or federal eavesdropping statute must meet. 32 The Court held that authorization to eavesdrop be issued only upon probable cause to believe that a specific crime has been or is being committed; that the conversations to be seized be particularly described; that the authorization be of short duration; that the authorization terminate once the conversation sought is seized; that there be a "showing of exigency in order to avoid notice"; 33 and that there be a mandatory return on the warrant.

In Katz, the Court finally discarded the formalistic test based on a technical trespass of a constitutionally protected area and analyzed the problem as a general invasion of privacy question, although they were careful to disclaim any use of the fourth amendment to establish a more general constitutional right to privacy. The search in this case was held unconstitutional because the government agents:

were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled during the conduct of the search itself to observe precise limits established in advance by a specific court order nor were they directed after the search had been completed to notify the authorizing magistrate in detail of all that had been seized.34

The Court, in holding that no eavesdrop could conceivably come within any of the exceptions to the rule requiring a search warrant, has defeated any argument that legal eavesdropping might be necessary without prior judicial authorization because of some last minute tip, at least in those cases to which the Court was addressing itself.35

The present state of federal administrative policy on electronic eavesdropping is definitive. Congressional hearings of the early 1960's disclosed widespread government agency use of electronic eavesdropping. Following this, President Johnson issued a directive ordering all federal agencies to cease wiretapping.36 Finally, in 1967 Attorney General Ramsey Clark issued a memorandum essentially ordering the cessation of wiretapping and electronic eavesdropping without his authority. Clark's memorandum provided that:

26 47 U.S.C. § 605 (1964).

27 See Katzenbach, An Approach to the Problems of Wiretapping, 32 F.R.D. 107 (1963). See also Swire, Eavesdropping and Electronic Surveillance: An Approach for a State Legislature, 4 Harve. J. Legis. 23 24-27 (1966).

28 Orfield, Wiretapping in Federal Criminal Cases, 42 Texas L. Rev. 983, 992 (1964). 29 E.g., Berger v. New York, 388 U.S. 41 (1967); Lopez v. United States, 373 U.S. 427 (1963); Silverman v. United States, 365 U.S. 505 (1961). See generally Gasque Wiretapping a History of Federal Legislation and Supreme Court Decisions, 15 S.C.L. Rev. 593 (1963).

30 Osborn v. United States, 385 U.S. 323 (1966); Lopez v. United States, 373 U.S. 427 (1967); On Lee v. United States, 343 U.S. 747 (1952).

31 E.g., Goldman v. United States, 316 U.S. 129 (1942); Olmstead v. United States, 277 U.S. 438 (1928).

32 Berger v. New York, 388 U.S. 41 (1967). This article does not deal with the related problem of secret agents which differs with respect to overt deception, encouragement, and solicitation. For an excellent discussion of this problem see Note, Judicial Control of Secret Agents, 76 Yale L.J. 994 (1967).

33 Berger v. New York, 388 U.S. 31 (1967).

24 Katz v. United States, 389 U.S. 347, 356 (1967).

35 Id. at 358 n.23.

36 See Hearings on S. 928 Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess., pt. 1, at 33 (1967).

It is essential that all agencies having any responsibility for law enforcement take steps to make certain that electronic and related devices designed to intercept, overhear, or record private verbal communications be subject to tight administrative control to assure that they will not be used in the manner in which it is illegal and that even legal use of such devices will be strictly controlled.

Section 605 of the Communications Act . prohibits the interception and divulgence or use of telephone communications and is applicable to federal law enforcement agents. .

Interception by federal personnel of telephone conversations by any mechanical or electronic devices unless with the consent of one of the parties to the conversation is prohibited by presidential directive and this prohibition applies whether or not information which may be acquired through interception is intended to be used in any way or to be subsequently divulged outside the agency involved . .

Any use of mechanical or electronic devices by federal personnel to overhear or record nontelephone conversations involving a violation of the Constitution or a statute is prohibited.

...

Agencies shall, except as provided. . . below obtain advance written approval from the Attorney General for any use of mechanical or electronic devices to overhear, record nontelephone conversations without the consent of all the parties to such conversations.37

The only exception to this thorough-going federal policy, which regularly goes unquestioned, is for "national security" cases. With respect to this exception the memorandum states:

[T]he foregoing rules have been formulated with respect to all agency investigations other than investigations directly related to the protection of the national security. Special problems arising with respect to the use of devices of the type referred to herein in national security investigations shall continue to be taken up directly with the Attorney General in the light of existing stringent restrictions.38

To fully understand the consequences of this "national security" justification -which derives no basis from the language of section 605-and to understand the statute proposed herein, an intensive review of the congressional history and administrative practice concerning electronic eavesdropping during the past thirty years is necessary. Throughout this period the law remained unchanged; all wiretapping violated the absolute ban of section 605 of the Federal Communications Act of 1934, and all other electronic eavesdropping which resulted in a trespass of a constitutionally protected area was prohibited.

Prior to the 1940's the justification for wiretapping was based primarily upon domestic issues-the need to detect kidnappers, extortionists, and to curb the illegal activities of organized crime. After 1940 the rationale shifted, emphasizing international issues-the justification was the need to protect the "national security." This new rationale, advanced both within the executive branch and before Congress, presumably sought well-defined and limited grants of authority to protect the nation against foreign subversion.39 In fact, as opposed to this rhetoric, the procedures were vaguely defined and the actual resort to illegal wiretapping was extensive. The role of the Department of Justice in this sphere was one of serious abuse; perhaps since the Department's concern was primarily with effective prosecution rather the protection of individual rights. The situation became complicated as section 605 was ignored and presidential directives were issued removing effective restraints on federal power and authority ostensibly for "national security" and hence political rea

sons.

The most important events which contributed to this changed rationale, derived from the political context, were World War II and the Cold War. World War II provided an event of specific and limited duration that was

37 N.Y. Times, July 7, 1967, at col. 2-3.

38 Id. col. 6.

39 See, e.g., Letter from Attorney General Clark_to President Truman, July 17, 1946, on file in Truman Library, Stephen Speingarn Papers (executive branch rationale) N.Y. Times, Jan. 15, 1949, at 1, col. 8 (Justice Dep't rationale to Congress).