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Second, and again on the assumption that the surveillance here involved fell within the exception provided by $ 2511 (3), no constitutional issue need be reached in this case if the fruits of the wiretap were inadmissible on statutory grounds in the criminal proceedings pending against respondent Plamondon. Section 2511(3) itself states that "[t]he contents of any wire or oral communi. cation 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 added.) There has been no determination by the District Court that it would be reasonable to use the fruits of the wiretap against Plamondon or that it would be necessary to do so to implement the purposes for which the tap was authorized.
My own conclusion, again, is that as long as nonconstitutional, statutory grounds for excluding the evidence or its fruits have not been disposed of it is improvident to reach the constitutional issue.
I would thus affirm the judgment of the Court of Appeals unless the Court is prepared to reconsider the necessity for an adversary, rather than an in camera, hearing with respect to taint. If in camera proceedings are sufficient and no taint is discerned by the judge, this case is over, whatever the legality of the tap.
AMERICAN CIVIL LIBERTIES UNION REPORT ON THE COSTS AND BENEFITS
OF ELECTRONIC SURVEILLANCE
(By Herman Schwartz, Professor of Law, State University of New York at
SUMMARY OF FINDINGS ON THE AMOUNT, BENEFITS, AND COSTS OF OFFICIAL
ELECTRONIC SURVEILLANCE I. Amount of surveillance
1. There is a vast amount of electronic surveillance, which is not covered by the figures submitted. These fall into two categories :
(a) National security (domestic and foreign) ;
(b) One-party consent bugging where an informant is wired for sound and police listen in.
(a) National security surveillance involves a great many taps and bugs, on many, many people, over long periods of time; the total number per year is completely unknown, so that comparisons with court-ordered eavesdropping are difficult; however, virtually every prosecution of someone whose politics are distasteful to the government seems to turn up a national security tap or bug.
(b) The one-party consent eavesdropping is perhaps the most widely used form of electronic surveillance, and unlike the national security surveillance, is used on the state as well as federal level.
2. Tens of thousands of people are reported to have been overheard by federal agents in hundreds of thousands of reported surveillances, many if not most of whom are quite innocent, not including the substantial amount of national security eavesdropping which inevitably involves a great many people per surveillance, nor the one-part consent surveillance. It is not clear that quite that many separate individuals were overheard because one cannot know from the figures whether there was any duplication so that the same person was recorded on several orders.
The totals for 1968–1970 are:
1968 1969 1970
174 302 597
147 271 583
4, 312 31, 436 25,652 61,400
66, 716 173, 711 381, 865
1 I have been informed by the Administrative Office of the U.S. Courts, which compiles and issues the figures, that an "intercept" in the report refers to a conversation.
In addition, there were an additional 171 federal installations by June 14, 1971.
The breakdown is as follows:
(a) In 1968, when there was no federal eavesdropping, state officers overheard 4312 people in 66,716 conversations in a reported figure of 147 installations.
(b) In 1969, federal officials overheard 4560 people in 44,940 conversations on 30 installed surveillances out of 33 authorizations.
State officials overheard 26,876 people in 128,171 conversations on 241 installed out of 271 authorized surveillances.
The total was 31,436 people in 173,711 conversations.
(c) In 1970, federal officers overheard 10,260 people in 147,780 conversations in 180 installations out of 183 authorizations.
State officers overheard 15,392 people in 234,085 conversations 403 installations out of 414 authorizations.
The total was 25,652 people in 381,865 conversations on 583 installations and 597 authorizations.
(d) In 1971, the projected federal surveillance is about 375–400 installations which at the 1970 average people and conversations per tap, may result in overhearing about 21,000 people on 300,000 conversations.
1. We don't know how many people and conversations were overheard in security or one-party consent eavesdropping.
2. There are some unexplained peculiarities in the figures, raising doubts as to accruacy.
3. Indeed, we know so little about how well the reporting has been monitored, and the history of self-reporting by police and other enforcement agencies is so poor, that the figures must be taken with scepticism, particularly such subjective items as "incriminating," see below.
4. Contrary to Mr. Justice Lewis Powell's statement, federal officers did not eavesdrop almost exclusively in murder, kidnapping, extortion and narcotics cases. In 1970, federal officials eavesdropped on no homicide or kidnapping cases and in 1969, on only one kidnapping case. In 1970, federal officials eavesdropped in 119 gambling cases, 40 narcotic cases, 16 credit extortion cases, and a few miscellaneous items. The state effort is also overwhelming for gambling. II. The results of this surveillance
(a) In 1968, state eavesdropping produced no reported convictions, 268 arrests and 15,464 incriminating conversations out of the 4,312 people and 66,716 conversations overheard.
(b) In 1969, federal eavesdropping produced 24 convictions, 139 arrests and 36,840 incriminating conversations out of the 4,560 people and 44,940 conversations overheard.
In 1969, state eavesdropping produced 80 convictions, 486 arrests and 31,452 incriminating conversations, out of the 26,876 people and 128,771 conversations overheard.
(c) As of the report's closing date (12/31/70), in 1970 federal eavesdropping had produced 18 convictions, 613 arrests and 102,780 incriminating conversations out of the 10,260 people and 147,780 conversations overheard. An interesting breakdown is that for the 21 non-gambling and non-drug cases, the results were no convictions, 27 arrests (7 in one case related to another tap and 10 in another) and 1,193 incriminating conversations out of 1,214 people and 5,966 conversations overheard in these cases. Even in the gambling area, there were some 18 cases where no arrests were made, and where 1,760 people and 6,122 conversations were overheard, with only 215 of the conversations considered incriminating.
As of the report's date (12/31/70) in 1970, state eavesdropping produced 103 convictions, 1,261 arrests and 71,069 incriminating conversations out of the 15,392 people and 234,085 conversations overheard.
COMMENT 1. The percentage of convictions per people overheard is so small as to be virtually de minimis: In 1968, no reports; in 1969, 106 convictions out of
31,436 people overheard or about 13 of 1%; in 1970, as of 12/31/70, 151 convictions out of 25,652 people, or a little better than 12 of 1%. So far—and the reports are admittedly not all in yet—257 convictions reported for 61,400 people overheard, again not counting national security or one-party consent surveillance.
2. With respect to the reported convictions, we cannot know, except from self-serving Justice Department statements, whether the electronic surveillance was necessary or even helpful in the cases where it was used, even if convictions resulted—we only know that the surveillance was associated with the result.
3. Arrests are a very inadequate measure of effectiveness, since relatively few arrests ultimately produce convictions, and arrest figures are inherently unreliable.
4. The number or percentage of "incriminating" interceptions is of little to no value, since it is a highly subjective judgment and has no inherent significance. Even here, however, the percentages for non-drug, non-gambling and state cases are very low.
5. Since it seems clear that gambling and drugs cannot either be stamped out or freed from criminal entanglement merely by law enforcement techniques, is it worth allowing such a gross invasion of privacy? Indeed, all reports are to the effect that drug supplies have not substantially declined despite the increased law enforcement and electronic surveillance, and the battle against gambling has always been a failure. III. The costs of this surveillance as reported, unreported and misreported
(a) In 1968, the state surveillance was too incompletely reported to derive useful cost figures.
(b) In 1969, federal surveillance was reported to cost $265,650 and state surveillance about $415,000, or a total of $680,650.
(c) In 1970, federal surveillance was reported to cost over $2 million, and state surveillance about $1 million, or a total of $3 million.
(d) In 1971, at the projected rate of 375–400 per year, federal surveillance will cost close to $5 million.
1. The above figures are grossly understated, since they omit:
(a) the large amount of national security eavesdropping; and
(b) the vast amount of one-part consent surveillance, and
(c) the enormous amount of man-hours by lawyers, judges and investigators to prepare applications, to keep records and to handle court challenges. The appropriate cost figure for this electronic surveillance effort may be many times the 1970 figure of $3 million.
2. There are unexplained cost differences between similar types of eavesdropping, raising questions as to accuracy of the figures. For example, FBI and Strike Force cost figures are much lower than Narcotics Bureau figures ; the discrepancies on the state level are so great as to raise serious doubts about giving these figures any value.
1. National security
The national security claim is that the Executive has the right to eavesdrop electronically in order to gather intelligence about foreign and domestic groups and individuals whom the Attorney General considers dangerous, without any judicial or other check on the reasonableness of such surveillance, before it takes place, and only a minimal review if any judicial review happens to occur after. The merits of this issue will not be discussed here, but only the amount of such surveillance.
FBI Director Hoover and Attorney General Mitchell claim that the government engages in a relatively small amount of this type. For example, in April 1971, Mr. Hoover asserted that there were some 37 national security installations in operation on March 1, 1971, and Mr. Mitchell has stated that there were no more than 30 or 40.
This figure is highly misleading for it is immediately compared with the much higher number of court ordered surveillances, i.e., 180 in 1970. The 30-40 figure is misleading because it refers to the number in operation at any one time, in contrast with the figures for court-ordered surveillance, which are for the whole year. A check of 3 days chosen at random for court-ordered federal eavesdropping in 1970 shows far fewer than 30-40 at any one time: the figures for June 30, 1970, shows the following numbers of installation in effect, based on the figures in Table A for (1) date of installation and (2) number of days in effect:
On June 30, 1970, 8 were in operation.
On December 31, 1970, 0 were in operation. These figures may be inaccurate, since the date of application may not be the date of installation, and the number of days of operation may not have been continuous; also the days chosen may be atypical. But the error is not likely to be so great as to overcome the gap between the three figures above and the 37 conceded national security surveillances. Some of these latter undoubtedly stayed in for the entire year, but other probably did not. Given the government's refusal to provide any further information, there is no way of knowing the total number of national security taps and bugs per year. All we do know is that figures supplied to Senator Edward M. Kennedy by Attorney General Mitchell indicate the federal government tapped and bugged three times as many days for national security purposes, as it did pursuant to court-order. *
A high estimate for the total number of national security eavesdropping is suggested by the fact that in virtually every prosecution of a militant, or activist dissenter a "national security" tap or bug comes to light-Benjamin Spock, the Berrigans, the White Panthers in Michigan, Abbie Hoggman and the Mayday demonstrations, the Chicago 7 trial, Black Panther prosecutions in Connecticut and California, a Weatherwoman prosecution in Buffalo, the Jewish Defense League, apparently Daniel Ellsberg, etc., etc., etc., etc., to say nothing of the known taps on Martin Luther King, Jr., Elijah Muhammad and others. The brief for the respondent in United States v. U.S. District Court, U.S. Sup. Ct., Oct. 1971 term, 70–153, the domestic security wiretap case, contains a lengthy list of such cases.
There is also reason to suspect that the “30-40 at any one time" figure is itself dubously low. As Fred Graham of the New York Times has recently shown, there is a long history of governmental duplicity in this matter. This history includes: (1) artful references in prior years by FBI Director Hoover to less than 100 wiretaps (all allegedly in "national security" cases) which carefully omitted reference to a huge number of bugs, i.e., room microphones; (2) replacement of taps by bugs to keep down the number of taps for purposes of the annual report; and (3) even assertions that some taps were disconnected the day before Mr. Hoover's testimony so that he could present a low figure as of the day he was testifying, an assertion which Mr. Hoover has, of course, indignantly denied.
One FBI agent has described Attorney General Mitchell (who authorizes these national security taps and bugs) as "a signing fool. . . . We just ask him and he signs them," (Newsweek, 5/10/71, p. 30A), and there is some evidence to support this implication of less than scrupulously restrained authority. For example, in the Jewish Defense League case, Mitchell certified that the JDL was tapped in connection with foreign security matters and that "it would prejudice the national interest to disclose the particular facts contained in the sealed exhibits concerning this surveillance other than to the court, in camera.” Yet, when the Court ordered that these logs be turned over to the defendant two weeks later, the Department complied, rather than face a dismissal of the case, even though it could easily have refused and appealed, the basis for the order being a rather novel (though to this observer, correct) legal position. Indeed, in that case, it was also disclosed that whereas the government initially asserted that the tapping of the JDL stopped when the indictment came down, the surveillance actually continued well after the indictment, almost up to the day the government agreed to turn over the logs. Inevitably, lawyer-client conversations were overheard, recalling the Judith Coplon case.
*Senator Kennedy has not yet released the correspondence, but has publicly announced his conclusions as to the comparative time periods at a B'nai B'rith speech on October 19, 1971, and at the hearings on Supreme Court nomination of William Rehnquist.
Not only may this surveillance be very widespread, but because of the alleged desire to obtain general intelligence for preventive purposes about dangerous groups, it continues for a very long time indeed, as the JDL case showed, and as congressional testimony and experience in other cases shows. See H. Schwarts, The Legitimation of Electronic Eavesdropping: The Politics of " Law and Order,” 67 Mich. L. Rev. 455, 468–72 (1969). Moreover, such surveillance is especially likely to catch numerous innocent people, as all such “strategic intelligence" surveillance is admitted by the FBI to do. Id. at 469–70.
AMERICAN CIVIL LIBERTIES UNION REPORT ON THE COSTS AND BENEFITS
OF ELECTRONIC SURVEILLANCE-1972 (by Herman Schwartz, Professor of Law, State University of New York at
The Electronic Eavesdropping Act has now been in operation some four and a half years. Hundreds of wiretaps and bugs have been installed, numerous court cases have been decided, millions of dollars have been spent, but the controversy over the value and dangers of electronic surveillance continues. In 1968 Richard M. Nixon promised to reverse Ramsey Clark's policies and use wiretapping to reduce crime—what kind of crime, and how that would be done, was not made clear. Four years, much money, and many crimes later, electronic surveillance is still being touted by its supporters as, in Frank Hogan's phrase, “the single most valuable weapon in the fight against organized crime.” Wiretapping is given credit for major convictions in the drug area ; Brooklyn District Attorney Eugene Gold promises to break the back of organized crime with his million and a half feet on a Canarsie junk yard trailer. Nevertheless, grave reservations about electronic eavesdropping continue.
One of the more useful features of the rather pourous statute pushed through in the wake of Robert Kennedy's death in 1968 by Senator John L. McClellan and his friends, is a requirement that prosecutors and judges involved in authorizing court-order wiretapping and bugging make annual reports on this surveillance which would set forth the type of surveillance (telephone tap or microphone bug), where and how long it was in operation, the crimes it was installed for, the number of people and conversations overheard, how much it cost and the results. These reports are published every May by the Administrative Office of the United States Courts. Four of these reports have been issued so far.
In the Spring of 1971, Senator McClellan announced he would hold hearings on the reports and what they showed. These have not yet been held or even scheduled; as of this writing (February 1973); one can only guess at the rea
The reports have nevertheless, been available, and though it is still too early to fully assess the results, certain conclusions have become clear. Some of these were published in December 1971 in report prepared by this writer for the American Civil Liberties Union on the 1968–1970 statistics. The 1971 figures became available in 1972 and it seems worthwhile to update that report, and also to add some statistical and other information that has come to light since December 1971. Again, it may still be too early for definitive conclusions—the 1972 figures available in May 1973 will be particularly useful since they will probably contain fairly complete results on the heavy federal tapping and bugging in 1970. But, as noted, certain conclusions are beginning to take shape.
The 1971 ACLU report opened with a disclaimer about the incompleteness of the reported figures, which omitted the so-called national security eavesdropping and the consent variety. Neither of these requires a court order, and thus
1 This study was made possible by a grant from the Playboy Foundation. I should also like to thank Marc Chodrow, who assisted in the statistical compilation and analysis.