MR. LEWIN: All I want to add to that is that we have not in this paper, or I think generally, come to any firm conclusion that wiretapping under all circumstances and all conditions is unjustified. In fact, federal law authorizes it. Certainly, at one extreme, one supposes that if a wiretap were installed on every telephone in the United States, and there were enough agents to listen in on every telephone, random wiretaps would turn up information that might be useful to law-enforcement authorities. But obviously that's an impermissible infringement on constitutional rights. So the only mechanism that has been devised thus far, and which we're constitutionally committed to, is examination by an impartial magistrate of the facts used to justify a tap. Our view is that even in national security cases, that is a mechanism that could and should be used. I think anybody who's had anything to do with the search warrant system, however, in both federal and state courts, will tell you that the examination by an impartial magistrate is not always what the Supreme Court may think it to be. There are magistrates and judges who just rubber-stamp what's put before them. In fact, as we said, although the act requires that every eavesdropping warrant that's turned down be reported to the administrative office in the U.S. courts, there's not a single report of a warrant being turned down this year. MR. MARSHALL: As I understand, you've been talking about taps and bugs that were authorized by someone, maybe wrongly authorized, but authorized by the Attorney General or the Director. I think people have the impression that Bureau agents are sometimes forced, through the incentives and the pressures on them, to get the job done, to use these devices in ways that are not authorized even within the rules of the Bureau. For example, in cooperation with local authorities. Does your paper evaluate that aspect of it? MR. NAVASKY: Yes, to some degree, but we found conflicting evidence. As our paper states, Bill Turner will tell you when he was an agent he installed unauthorized electronic surveillance. But other people deny that it goes on and will say it's not within the psychology of the FBI, it's not the way it's run. It's a very tightly run organization. But Bill Turner calls these unauthorized taps suicide taps and says every agent knows what a suicide tap is. Now it seems to me that a more interesting question is how much the Bureau inspires other agencies to do things they're not supposed to do. If you look at the reports filed with the U.S. courts, there may be 180 federal wiretaps. But there are also 320 state and local wiretaps. The Bureau has access to these because they have contact with local law-enforcement agencies. How many illegal taps does the FBI inspire? In 1965 it was revealed by a former member of Army intelligence that he had tapped Mrs. Roosevelt's hotel room during World War II. The newspaper report indicated that he did it at the invitation of the FBI. They asked: Can you help us? But a lot of times this is not done. They don't say: Go tap someone's telephone. They say to the local police agency in Georgia, for example: can you tell us when Dr. King will be arriving in New York? And the local police agency in Georgia calls back a week later and says: Dr. King is coming to New York on the four-thirty plane from Atlanta on American Airlines. The Bureau's piece of paper will say, "T 3. a reliable informant, says Dr. King is arriving in New York on the four-thirty plane from Atlanta." Well, the Bureau may have silently inspired the local agency to listen in on Dr. King's travel plans, and yet the Bureau has done nothing illegal under the arrangement. MR. BITTMAN: Mr. Navasky stated that one of the major problems with wiretapping and electronic eavesdropping is the fact that these have often resulted from unilateral decisions by the executive branch. There was no external auditing body governing the actions of the executive branch. In 1968, as I'm sure almost everyone in this room knows, Congress gave specific statutory authority for wiretapping and bugging. It has set up certain procedures governing this activity. You must get judicial approval. There are certain built-in safeguards. Now, I have a few questions. Are you unalterably opposed to all bugging and wiretapping, whether done in national security cases or in organized crime cases? Do you believe the statute is unconstitutional? Do you believe that the requirement of judicial authority is nothing but a rubber stamp? And if you do not belive there are sufficient safeguards, what additional safeguards would you suggest? MR. NAVASKY: Number one. We distinguished in our paper between bugging and tapping before and after the 1968 act. Now as of the 1968 act, which does provide procedures, I don't know whether the procedures for national security taps, as interpreted by the Attorney General and, presumably, the President, are going to hold up in court. The law has language which says, in effect, go to court and get warrants even in espionage, sabotage, treason and riot cases, among others. But then a second part of the law says the President can tap and bug without a warrant if national security is involved. And so it's under the second part of the law that the Attorney General has found authority to allow Mr. Hoover to tap telephones in the so-called national security area, without going to court. I would contend, number one, that as a matter of legislative intent that was not what was intended. This interpretation of the law should be struck down. Number two, if there is a national security exception, that exception still cannot constitutionally apply to domestic groups, like the Panthers. Number three, you asked if I believe in wiretapping and bugging under any circumstances. We were talking at lunch about that. I told Mr. Lewin that I used to think that the government ought to be able to listen in on hard-core international espionage matters. It ought to be able to listen in on "the enemy." The more I look into it, however, and the more I see how ingenious the executive branch is at going beyond the little words that lawyers and congressmen draft, the less confident I become that even this ought to be allowed. MR. LEWIN: I think in answer to Bill Bittman's question, if I can supplement what Vic said, our concern is that the act has really made no substantial difference in restricting what the FBI does. It's expanded it instead. First, the act has given the Bureau a procedure under which it can lawfully wiretap and bug in gambling cases, narcotics cases and the entire range of cases that, before 1968, could not be justified at all. Second, in the so-called national security area, the Bureau and the Attorney General are still not going to court for judicial warrants, even where there is really no need for confidentiality. This is because the national security exception is broadly construed, thereby allowing them to keep many cases from judicial scrutiny. So in answer to one of your questions, I'm in favor of meaningful judicial oversight of wiretapping and electronic surveillance-in other words, based on a warrant for a limited period of time. But I'm afraid that as the act is construed by the present Administration, far too many cases are excluded from its reach by the national security exception. SUPREME COURT OF THE UNITED STATES [Syllabus] UNITED STATES v. UNITED STATES DISTRICT COURT FOR THE EASTERN CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 70-153. Argued February 24, 1972-Decided June 19, 1972 The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property. In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of "gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government." On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld. Title III of the Omnibus Crime Control and Safe Streets Act, which authorizes court-approved electronic surveillance for specified crimes, contains a provisions in 18 U.S.C. § 2511 (3) that nothing in that law limits the President's constitutional power to protect against the overthrow of the Government or against "any other clear and present danger to the structure or existence of the Government." The Government relies on § 2511(3) in support of its contention that "in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances without prior judicial approval." Held: 1. Section 2511 (3) is merely a disclaimer of congressional intent to define presidential powers in matters affecting national security, and is not a grant of authority to conduct warrantless national security surveillances. Pp. 4-10. 2. The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case. Pp. 16–23, 25. (a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression. Pp. 16-17. (b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the executive branch without the detached judgment of a neutral magistrate. Pp. 18-20. (c) Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 20-23. 444 F.2d 651, affirmed. Powell, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, STEWART, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion. BURGER, C. J., concurred in the result. WHITE, J., filed an opinion concurring in the judgment. REHNQUIST, J., took no part in the consideration or decision of the case. SUPREME COURT OF THE UNITED STATTS [No. 70-153] UNITED STATES, PETITIONER, v. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE JUNE 19, 1972. MR. JUSTICE POWELL delivered the opinion of the Court. The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degress,1 without guidance from the Congress or a definitive decision of this Court. This case brings the issue here for the first time. Its resolution is a matter of national concern, requiring sensitivity both to the Government's right to protect itself from unlawful subversion and attack and to the citizen's right to be secure in his privacy against unreasonable Government intrusion. This case arises from a criminal proceeding in the United States District Court for the Eastern District of Michigan, in which the United States charged three defendants with conspiracy to destroy Government property in violation of 18 U.S.C. § 371. One of the defendants, Plamondon, was charged with the dynamite bombing of an office of the Central Intelligence Agency in Ann Arbor, Michigan. 1 See n. 10, infra. During pretrial proceedings, the defendants moved to compel the United Statds to disclose certain electronic surveillance information and to conduct a hearing to determine whether this information "tainted" the evidence on which the indictment was based or which the Government intended to offer at trial. In response, the Government filed an affidavit of the Attorney General, acknowledging that its agents had overheard conversations in which Plamondon had participated. The affidavit also stated that the Attorney General approved the wiretaps "to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government." 2 The affidavit, together with the logs of the surveillance, were filed in a sealed exhibit for in camera inspection by the District Court. On the basis of the Attorney General's affidavit and the sealed exhibit, the Government asserted that the surveillances were lawful, though conducted without prior judicial approval, as a reasonable exercise of the President's power (exercised through the Attorney General) to protect the national security. The District Court held that the surveillance violated the Fourth Amendment, and ordered the Government to make full disclosure to Plamondon of his overheard conversations. F. Supp. The Government then filed in the Court of Appeals for the Sixth Circuit a petition for a writ of mandamus to set aside the District Court order, which was stayed pending final disposition of the case. After concluding that it had jurisdiction, that court held that the surveillances were unlawful and that the District Court had properly required disclosure of the overheard conversations, 444 F. 2d 651 (1971). We granted certorari, 403 U.S. 930. I Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520, authorizes the use of electronic surveillance for classes of crimes carefully specified in 18 U.S.C § 2516. Such surveillance is subject to prior court order. Section 2518 sets forth the detailed and particularized application necessary to obtain such an order as well as carefully circumscribed conditions for its use. The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression. Much of Title III was drawn to meet the constitutional requirements for electronic surveillance enunciated by this Court in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967). 2 The Attorney General's affidavit reads as follows: "JOHN N. MITCHELL being duly sworn deposes and says: "1. I am the Attorney General of the United States. "2. This affidavit is submitted in connection with the Government's opposition to the disclosure to the defendant Plamondon of information concerning the overhearing of his conversations which occurred during the course of electronic surveillances which the Government contends were legal. over "3. The defendant Plamondon has participated in conversations which were heard by Government agents who were monitoring wiretaps which were being employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government. The records of the Department of Justice reflect the installation of these wiretaps had been expressly approved by the Attorney General. "4. Submitted with this affidavit is a sealed exhibit containing the records of the intercepted conversations, a description of the premises that were the subjects of the surveillances, and copies of the memoranda reflecting the Attorney General's express approval of the installation of the surveillances. 5. I certify that it would prejudice the national interest to disclose the particular facts concerning these surveillances other than to the court in camera. Accordingly, the sealed exhibit referred to herein is being submitted solely for the court's in camera inspection and a copy of the sealed exhibit is not being furnished to the defendants. I would request the court, at the conclusion of its hearing on this matter, to place the sealed exhibit in a sealed envelope and return it to the Department of Justice where it will be retained under seal so that it may be submitted to any appellate court that may review this matter." 3 Jurisdiction was challenged before the Court of Appeals on the ground that the District Court's order was interlocutory and not appealable under 28 U.S.C. § 1291. On this issue, the Court correctly held that it did have jurisdiction, relying upon the All Writs Statute, 28 U.S.C. § 1651, and cases cited in its opinion, 444 F.2d, at 655-656. No attack was made in this Court as to the appropriateness of the writ of mandamus procedure. Together with the elaborate surveillance requirements in Title III, there is the following proviso, 18 U.S.C. § 2511(3): "Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1103; 47 U.S.C. § 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial, hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power." (Emphasis supplied.) The Government relies on § 2511 (3). It argues that "in excepting national security surveillances from the Act's warrant requirement Congress recognized the President's authority to conduct such surveillances without prior judicial approval." Govt. Brief, pp. 7, 28. The section thus is viewed as a recognition or affirmance of a constitutional authority in the President to conduct warrantless domestic security surveillance such as that involved in this case. We think the language of § 2511(3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that: "Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect against the dangers specified. At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers-among other things-to protection "against actual or potential attack or other hostile acts of a foreign power." But so far as the use of the President's electronic surveillance power is concerned, the language is essentially neutral. Section 2511 (3) certainly confers no power, as the language is wholly inappropriate for such a purpose. It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them. This view is reinforced by the general context of Title III. Section 2511 (1) broadly prohibits the use of electronic surveillance "except as otherwise specifically provided in this chapter." Subsection (2) thereof contains four specific exceptions. In each of the specified exceptions, the statutory language is as follows: "IT shall not be unlawful . . . to intercept" the particular type of communication described.4 The language of subsection (3), here involved, is to be contrasted with the language of the exceptions set forth in the preceding subsection. Rather than stating that warrantless presidential uses of electronic surveillance "shall not be unlawful" and thus employing the standard language of exception, subsection (3) merely disclaims any intention to "limit the constitutional power of the President." The express grant of authority to conduct surveillances is found in § 2516, which authorizes the Attorney General to make application to a federal judge when surveillance may provide evidence of certain offenses. These offenses are described with meticulous care and specificity. Where the Act authorizes surveillance, the procedure to be followed is specified in § 2518. Subsection (1) thereof requires application to a judge of competent jurisdiction for a prior order of approval, and states in detail the infor These exceptions relate to certain activities of communication common carriers and the Federal Communications Commission, and to specified situations where a party to the communication has consented to the interception. |