The United States has made no claim in this case that the statute may not constitutionally be applied to the surveillance at issue here.3 Nor has it denied that to comply with the Act the surveillance must either be supported by a warrant or fall within the bounds of the exceptions provided by § 2511(3). Nevertheless, as I read the opinions of the District Court and the Court of Appeals, neither court stopped to inquire whether the challenged interception was illegal under the statute but proceeded directly to the constitutional issue without adverting to the time-honored rule that courts should abjure constitutional issues except where necessary to decision of the case before them. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-347 (1936) (concurring opinion). Because I conclude that on the record before us the surveillance undertaken by the Government in this case was illegal under the statute itself, I find it unnecessary, and therefore improper, to consider or decide the constitutional questions which the courts below improvidently reached. The threshold statutory question is simply put: Was the electronic surveillance undertaken by the Government in this case a measure deemed necessary by the President to implement either the first or second branch of the exception carved out by § 2511(3) to the general requirement of a warrant? The answer, it seems to me, must turn on the affidavit of the Attorney General offered by the United States in opposition to defendants' motion to disclose surveillance records. It is apparent that there is nothing whatsoever in this affidavit suggesting that the surveillance was undertaken within the first branch of the § 2511 (3) exception, that is, to protect against foreign attack, to gather foreign intelligence or to protect national security information. The sole assertion was that the monitoring at issue was 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 Govern ment." App. 20. Neither can I conclude from this characterization that the wiretap employed here fell within the exception recognized by the second sentence of § 2511(3); for it utterly fails to assume responsibility for the judgment that Congress demanded that the surveillance was necessary to prevent overthrow by force or other unlawful means or that there was any other clear and present danger to the structure or existence of the Government. The affidavit speaks only of attempts to attack or subvert; it makes no reference to force or unlawfulness; it articulates no conclusion that the attempts involved any clear and present danger to the existence or structure of the Government. The shortcomings of the affidavit when measured against § 2511 (3) are patent. Indeed, the United States in oral argument conceded no less. The specific inquiry put to Government counsel was: "[D]o you think the affidavit, standing alone, satisfies the Safe Streets Act?" The Assistant Attorney General 3 See the Transcript of Oral Argument in this Court, pp. 13-14: "Q. I take it from your answer that Congress could forbid the President from doing what you suggest he has the power to do in this case? "Mr. Mardian [Assistant Attorney General]: That issue is not before this Court"Q. Well, I would-my next question will suggest that it is. Would you say, though, that Congress could forbid the President? "Mr. Mardian: I think under the rule announced by this court in Colony Catering that within certain limits the Congress could severely restrict the power of the President in this area. "Q. Well, let's assume Congress says, then, that the Attorney General, or the President may authorize the Attorney General in specific situations to carry out electronic surveillance if the Attorney General certifies that there is a clear and present danger to the security of the United States? "Mr. Mardian: I think that Congress has already provided that, and "Q. Well, would you say that Congress would have the power to limit surveillances to situations where those conditions were satisfied? "Mr. Mardian: Yes, I would-I would concur in that, Your Honor." A coloquy appearing in the debates on the bill, appearing at Cong. Rec. Vol. 114, Pt. 11, pp. 14,750-14,751, indicates that some Senators considered § 2511(3) as merely stating an intention not to interfere with the constitutional powers which the President might otherwise have to engage in warrantless electronic surveillance. But the Department of Justice, it was said, participated in the drafting of § 2511(3) and there is no indication in the legislative history that there was any claim or thought that the supposed powers of the President reached beyond those described in the section. In any case, it seem clear that the congressional policy of noninterference was limited to the terms of § 2511 (3). answered "No sir, we do not rely upon the affidavit itself Arg., p. 15.4 Tr. of Oral Government counsel, however, seek to save their case by reference to the in camera exhibit submitted to the District Court to supplement the Attorney General's affidavit.5 It is said that the exhibit includes the request for wiretap approval submitted to the Attorney General, that the request asserted the need to avert a clear and present danger to the structure and existence of the Government, and that the Attorney General endorsed his approval on the request.6 But I am unconvinced the mere endorsement of the Attorney General on the request for approval submitted to him must be taken as the Attorney General's own opinion that the wiretap was necessary to avert a clear and present danger to the existence or structure of the Government when in an affidavit later filed in court and specifically characterizing the purposes of the interception and at least impliedly the grounds for his prior approval, the Attorney General said only that the tap was undertaken to secure intelligence thought necessary to protect against attempts to attack and subvert the structure of Government. If the Attorney General's approval of the interception is to be given a judicially cognizable meaning different from the meaning he seems to have ascribed to it in his affidavit filed in court, there obviously must be further proceedings in the District Court. Moreover, I am reluctant myself to proceed in the first instance to examine the in camera material and either sustain or reject the surveillance as a necessary measure to avert the dangers referred to in § 2511 (3). What Congress excepted from the warrant requirement was a surveillance which the President would assume responsibility for deeming an essential measure to protect against clear and present danger. No judge can satisfy this congressional requirement. Without the necessary threshold determination, the interception is, in my 'opinion, contrary to the terms of the statute and subject therefore to the prohibition contained in § 2515 against the use of the fruits of the warrantless electronic surveillance as evidence at any trial." There remain two additional interrelated reasons for not reaching the constitutional issue. First, even if it were determined that the Attorney General purported to authorize an electronic surveillance for purposes exempt from the general provisions of the Act there would remain the issue whether his discretion was properly authorized. The United States concedes that the act of the Attorney General authorizing a warrantless wiretap is subject to judicial review to some extent, Brief for the United States, pp. 21-23, and it seems improvident to proceed to constitutional questions until it is determined that the Act itself does not bar the interception here in question. See also Transcript of Oral Argument, p. 17: "Q. [I]f all the in camera document contained was what the affidavit contained, it would not comply with the Safe Streets Act? "Mr. Mardian: I would concur in that, Your Honor." 5 The Government appears to have shifted ground in this respect. In its initial brief to this Court, the Government quoted the Attorney General's affidavit and then said, without qualification. "These are the grounds upon which the Attorney General authorized the surveillance in the present case." Brief for the United States, p. 21. Moreover, counsel for the Government stated at oral argument "that the in camera submission was not intended as a justification for the authorization, but simply [as] a proof of the fact that the authorization had been granted by the Attorney General of the United States, over his own signature." Tr. of Oral Arg., pp. 6-7. Later at oral argument, however, the Government said: "[T]he affidavit was never intended as the basis for justifying the surveillance in question The justification, and again I suggest that it is only a partial justification, is contained in the in camera exhibit which was submitted to Judge Keith We do not rely upon the affidavit itself but the in camera exhibit." Tr. of Oral Arg., at pp. 14-15. An in its reply brief, the Government says flatly: "These [in camera] documents, and not the affidavit, are the proper basis for determining the ground upon which the Attorney General acted." Reply Brief for the United States, p. 9. Procedures in practice at the time of the request here in issue apparently resulted in the Attorney General merely countersigning a request which asserted a need for a wiretap. We are told that under present procedures the Attorney General makes an express written finding of clear and present danger to the structure and existence of the Government before he authorizes a tap. Tr. of Oral Arg., pp. 17-18. 7 Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefore may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter." 18 U.S.C. § 2515. 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 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 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 (By Herman Schwartz, Professor of Law, State University of New York at Buffalo) SUMMARY OF FINDINGS ON THE AMOUNT, BENEFITS, AND COSTS OF OFFICIAL I. Amount of surveillance ELECTRONIC 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. 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. COMMENT 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 48 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 % of 1%; in 1970, as of 12/31/70, 151 convictions out of 25,652 people, or a little better than 2 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. COMMENT 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. 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 |