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33. United States v. Keith, No. 71-1105, United States Court of Appeals for the Sixth Circuit, decided April 8, 1971, held that an authorization of a wiretap in a domestic security matters by the Attorney General without judicial sanction violated the Fourth Amendment's ban on unreasonable searches and seizures.
CONFIDENTIAL MEMORANDUM FOR THE ATTORNEY GENERAL
THE WHITE HOUSE,
Washington, D.C., May 21, 1940. I have agreed with the broad purpose of the Supreme Court decision relating to wiretapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; aid is also right in its opinion that under ordinary and normal circumstances wiretapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.
However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.
It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called "fifth columns" in other countries and in preparation for sabotage, as well as in actual sabotage.
It is too late to do anything about it after sabotage, assassinations and "fifth column" activities are completed.
You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices direct to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.
OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C., July 17, 1946. The PRESIDENT, The White House.
MY DEAR MR. PRESIDENT: Under date of May 21, 1940, President Franklin D. Roosevelt, in a memorandum addressed to Attorney General Jackson, stated :
"You are therefore authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigating agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United Sates, including suspected spies.”
This directive was followed by Attorneys General Jackson and Biddle, and is being followed currently in this Department. I consider it appropriate, however, to bring the subject to your statement at this time.
It seems to me that in the present troubled period in international affairs accompanied as it is by an increase in subversive activity here at home, it is as necessary as it was in 1940 to take the investigative measures referred to in President Roosevelt's memorandum. At the same time, the country is threatened by a very substantial increase in crime. While I am reluctant to suggest any use whatever of these special investigative measures in domestic cases, it seems to me imperative to use them in cases vitally affecting the domestic security, or where human life is in jeopardy.
As so modified, I believe the outstanding directive should be continued in force. If you concur in this policy, I should appreciate it if you would so indicate at the foot of this letter.
In my opinion, the measures proposed are within the authority of law, and I have in the files of the Department materials indicating to me that my two most recent predecessors as Attorney General would concur in this view. Respectfully yours,
(S) Tom C. CLARK,
Attorney General. July 17, 1947. I concur.
(S) HARRY S. TRUMAN.
THE WHITE HOUSE,
Washington, D.C., June 30, 1965. MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
I am strongly opposed to the interception of telephone conversations as a general investigative technique. I recognize that mechanical and electronic devices may sometimes be essential in protecting our national security. Nevertheless, it is clear that indiscriminate use of these investigative devices to overhear telephone conversations, without the knowledge or consent of any of the persons involved, could result in serious abuses and invasions of privacy. In my view, the invasion of privacy of communications is a highly offensive practice which should be engaged in only where the national security is at stake. To avoid any misunderstanding on this subject in the Federal Government, I am establishing the following basic guidelines to be followed by all government agencies:
(1) No federal personnel is to intercept telephone conversations within the United States by any mechanical or electronic device, without the consent of one of the parties involved. (except in connection with investigations related to the national security).
(2) No interception shall be undertaken or continued without first obtaining the approval of the Attorney General.
(3) All federal agencies shall immediately conform their practices and procedures to the provisions of this order.
Utilization of mechanical or electronic devices to overhear non-telephone conversations is an even more difficult problem, which raises substantial and unresolved questions of Constitutional interpretation. I desire that each agency conducting such investigations consult with the Attorney General to ascertain whether the agency's practices are fully in accord with the law and with a decent regard for the rights of others.
Every agency head shall submit to the Attorney General within 30 days a complete inventory of all mechanical and electronic equipment and devices used for or capable of intercepting telephone conversations. In addition, such reports shall contain a list of any interceptions currently authorized and the reasons for them.
(S) LYNDON B. JOHNSON.
REMARKS OF ATTORNEY GENERAL JOHN N. MITCHELL, BEFORE THE
KENTUCKY STATE BAR ASSOCIATION, CINCINNATI, OHIO Tonight I want to discuss two fundamental American rights: The individual's right of privacy and the people's right to preserve their form of Government.
Americans cherish their right of privacy, and they react strongly when they think it is threatened. At the outset, therefore, I want to speak candidly about recent efforts to frighten Americans into the conviction that their privacy is in jeopardy from an agency of their own Government. Specifically I refer to charges by a certain Senator and a certain Congressman against the Federal Bureau of Investigation and J. Edgar Hoover.
Let me set the record straight here and now.
Charge No. One: On April 14 the Senator made a lengthy speech claiming that the FBI makes "general political surveillance” of members of the Senate. He based this startling conclusion on the fact that FBI, representatives had attended an Earth Day Rally last year where the Senator had been one of the speakers.
The FBI does not conduct general political surveillance of Senators, Congressmen or any one else. The reason the FBI attended the rally had nothing to do with the Senator. They were there only to observe certain persons whose known records indicated the possibility of violent or unlawful conduct. Indeed, one such person—who shared the speakers' platform with the Senator—was out on bail at the time under Federal conviction for inciting to riot. Let me ask you: If the FBI trailed a suspect to a ball game of the Cincinnati Reds, would Johnnie Bench have reason to think he was under surveillance?
The plain fact is that the Senator was not under surveillance and he knew he was not under surveillance. Yet he twisted the facts to make a political headline, and he owes an apology and a retraction to the FBI and Mr. Hoover.
Charge No. Two: On April 5 the Congressman stated flatly and unequivocally that the FBI "taps telephones of members of this body and members of the Senate”—and he later said he had "proof positive" to support his charges.
He even had the audacity to compare the FBI to Hitler's Gestapo.
His unproven charges were widely cireulated, and he was repeatedly challenged by his colleagues and others to produce proof. Day after day he refused to do so. Yesterday he finally took the floor of the House and made a lengthy speech. It was full of adjectives, but not one iota of proof of the reckless charges he had made. Instead, it turned out that he thought he heard interference on his phone at home and suspected it was being tapped. He had it checked by the telephone company, which reported to him that his phone had not been tapped. The Congressman stated that the phone company always denies a tap that has been made by the FBI, so he said this proved his point. When "no" means "yes," I am reminded of the type of hypochondriac who insists he is sick, regardless of the doctor's assurances. The Congressman , has been afflicted by a new type of paranoia--called tapanoia--the belief that your telephone is being tapped.
I repeat what I said at the time: The FBI has not tapped the telephone of any member of the House or Senate—now or in the past. And the Congressman also owes a full retraction and apology to Mr. Hoover and the FBI.
I do not want to mislead you into thinking there have been no investigations of Congressmen. Where there is probable cause to believe a Federal crime has been committed, the FBI has a duty to obtain evidence. I am happy to add that with two or three possible exceptions, members of Congress agree that they are entitled to no special immunity from the normal process of law. On rare occasions over the years, a members of Congress has indeed been the subject of normal investigative procedures—but not wiretapping-when the evidence indicated that such procedures were appropriate and necessary.
But with regard to the charges of general surveillance and wiretapping of Congressmen, those who are trying so hard to discredit the FBI for their own political purposes can't come through with the facts. All they have come up with is confirmation that the FBI is carrying out its statutory duties in the manner that the American people would want them carried out.
New let us move from the realm of fantasy to the real world of fact. As you know, the whole question of electronic surveillance has been evolving in the courts for many years. In the Katz decision of 1967, the Supreme Court held for the first time that the Fourth Amendment protects private conversations as well as private premises from "unreasonable searches and seizures.” It also held that a prior court order is necessary for electronic surveillance. But it left open the question of whether such a court order is necessary in a situation involving the national security.
Taking this cue, Congress enacted some careful wiretapping legislation in 1968. Wiretapping by private parties was outlawed, but Government wiretapping was authorized in cases of specified serious crimes. Such wiretapping is strictly regulated by the need to get a court order from a judge after showing probable cause for belief that a crime has been or would be committed. The detailed requirements of the law actually provide more protection of privaey rights than does the warrant procedure that has long been established for physical searches and seizures.
Thus I cannot conceive how court-authorized wiretapping as such can continue to be a public issue, any more than making a search or seizure with a warrant. The principle has been set forth by the Supreme Court and the procedures have been spelled out by Congress.
I might add that its use has proven extremely effective in getting evidence that would otherwise be impossible against organized criminals. From January 1969 to March 1971, 315 Federal court-authorized wiretaps—including 51 extensions—were executed. All but 12 produced incriminating evidence. As a result, over 900 persons were arrested and so far, 100 of them were convicted. Additional convictions will undoubtedly result as other defendants among those arres are brought to trial.
Far from being a source of public fear, as some would have us believe, court-authorized wiretapping provides added protection to the public against organized crime. Used with careful legal limitations, as it has been under the 1968 law, it is a positive benefit to the community.
Let me turn now to the other type of wiretapping that was also covered in the 1968 Act. Congress specifically excepted from the court order requirement the President's need to obtain information to protect the nation against foreign attack or against, and I quote, “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." This was also in conformity with Justice Byron White's concurring opinion in the Katz case, in which he wrote:
"We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable."
The fact is that such wiretapping had been used at least since 1940, when President Franklin D. Roosevelt called attention to the danger of “Fifth Columns" and authorized the Attorney General to use “listening devices" against "persons suspected of subversive activities against the Government of the United States, including suspected spies.” He added, “You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.”
Let me point out that national security wiretapping without a court order has been used by every subsequent Administration. Congress agreed in its 1968 law, believing that such wiretapping was outside the traditional type of judicial decision involving probable cause for a warrant. National security wiretapping is an executive decision, requiring a variety of national considerations other than judicial ones.
Since this 1968 legislation, the wiretap issue has continued to unfold in the courts. A distinction has been manufactured between so-called “foreign national security wiretapping” and so called “domestic national security wiretapping.” Two Federal district courts have ruled that the "domestic” variety is unconstitutional without a court order. Two other district courts have ruled that such wiretapping is constitutional with a court order. The Sixth Circuit Court of Appeals, sitting here in Cincinnati, has upheld the contention of one of the district courts that so-called “domestic national security wiretapping" requires a court order.
I have made these brief historical references to make it clear that national security wiretapping is not a sudden invention of this Administration. What is new is the contention that national security wiretapping should be separated into "foreign" and "domestic,” and that the latter should require a court order.
This raises a number of questions, which I would like to discuss.
Answer: As you know, a court order is required to execute a wiretap in the prosectuion of a criminal offense. In order to obtain such a court order, considerable evidence must already have been gained to show "probable cause.” Time is not of the essence in gathering such prior evidence.
But in a case where the national security is threatened, prevention is the first consideration. We first need intelligence on the movements of suspected conspirators, not formal evidence on which to convict them. In order for a national security wiretap to do any good it should come near the beginning of the investigation. Yet at that time we may not have enough evidence to show probable cause for a court order to wiretap. In fact, if we had such evidence we could probably prevent the threat in question without needing a wiretap.
I hope I have said enough to show that the requirement for a court order is appropriately applied to orthodox criminal-type wiretaps, but it does not fit the situation when applied to the national security field. By the time enough evidence is obtained to show probable cause, it may well be too late.
Question: Does a national security wiretap without court order conflict with the individual's right of privacy, and must it give way before that right!
Answer: Privacy is a precious right, but it is never absolute to the exclusion of other rights. The Fourth Amendment, which protects privacy, does not prohibit all searches and seizures. It prohibits only unreasonable searches and seizures. This contrasts to the unqualified guarantees in the First, Fifth and Sixth amendments. In fact, the courts have even indicated that the right of free speech set forth so clearly in the First Amendment must be 'weighed against other individual rights in such areas as slander, libel, plagiarism, copyright, and the right of privacy itself.
On the other hand, what about another right-the right of the public to protect itself and to preserve the government it has created? This right is implicit in the Constitution's very existence, and in the political theory on which it is based. I refer to the social contract by which man voluntarily gives up a degree of jungle liberty to a government of his own making, which in turn protects his liberties against jungle attack by others.
Preserving such a government is most certainly a right of the people who constituted it. As Abraham Lincoln said in his First Inaugural Address, “It is safe to assert that no government proper ever had a provision in its organic law for its own termination.” And as I would add, the United States Constitution does not end with the words, “This document will self-destruct.”
My point is that the issue of privacy must be considered in this dual context; where these two rights appear to conflict, then we must do what we can to preserve both as fully as possible. But neither commands our total allegiance while the other is dismissed out of hand.
Question: Does the tapping of telephone lines constitute a reasonable exercise of the Government's right of self-preservation?
Answer: It is not only reasonable in this context, but the proper authorities would be derelict if they did not use it. Where there is reason to believe persons are planning a violent attack on the existing structure of the Government, that Government is justified in finding out about those plans. It would be little comfort, after the Government had been overthrown by force, to say, "Well, we didn't feel we should eavesdrop.”
Question: What about something less than the threat of actual overthrow! The bombing of the Capitol building? The assassination of a President? If we could prevent such monstrous acts through wiretap knowledge, do we have the constitutional right? In such cases should the Government's right to defend itself against violent attack prevail over the individual's right of privacy!
Answer: It must prevail, unless we wish to allow our orderly representative government to be disrupted. Liberty no less than security is endangered when government is prevented from governing.
Question: Should we distinguish between “foreign" national security wiretapping and “domestic” national security wiretapping?
Answer: How do we distinguish "domestic" and "foreign" enemies of our governmental structure? If they are aliens who are working on their own and are not connected with the government of another country, is their threat foreign? If they are American citizens directed by a foreign power, is the threat domestic? And while we are trying to find out which is which, may we tap a wire, or do we have to wait and search the rubble to find out?
If the institutions of our government have been destroyed, does it help to be able to say, "they have been destroyed from within ?"
If this case seems too remote, let us look again at an occurrence that has been all too real. I refer to Presidential assassination, which certainly would
fall under the classification of “a clear and present danger to the structure or i existence of the Government." Since the Civil War four Presidents-Lincoln,
Garfield, McKinley, and Kennedy-have been assassinated. Unsuccessful attempts were made on the life of one President-elect, Franklin D. Roosevelt, and one President, Harry Truman. None of these six deeds was done at the direction of a foreign power; I believe those who would make a distinction between foreign and domestic subversion would classify them as "domestic." At least two of them—the cases of Lincoln and Truman-were conspiracies. The question is, if it would have been possible to uncover these conspiracies and prevent them through wiretapping, should the Government have done so?
I would answer this with another question : Are we to stand by and let the plot unfold, so we can say, "Yes, it was a true-blue American bullet ?"