He made the statements as he gave his most detailed legal argument thus far in support of the Administration's assertion that the threat from foreign and domestic elements was indivisible, and that the President had the authority to wiretap both without court authority.

Lawyers inside the Government and out expressed surprise that Mr. Mitchell would take this legal issue to the people as he did today in a speech and a press release, because the question is now before the Supreme Court in the form of an appeal by the Justice Department.

REJECTED BY APPEALS COURT

The United States Court of Appeals for the Sixth Circuit rejected the Administration's argument last April, ruling that when the Government wished to wiretap domestic groups, it must obtain judicial approval. Asserting that that decision was wrong, the Justice Department has asked the Supreme Court to review it.

In the past, when matters have been pending before the Supreme Court, Justice Department officials have avoided making statements that might be regarded as exerting pressure upon the justices.

Mr. Mitchell's statements were made in a 15-page speech prepared for delivery tonight before the Virginia Bar Association in Roanoke. It was released this afternoon by the Justice Department's press office, together with a threepage press release that quoted Mr. Mitchell as specifically disputing the Appeals Court ruling.

The press release characterized Mr. Mitchell's speech as asserting that such wiretapping "meets the constitutional test of reasonable search and seizure and that such surveillance is necessary to permit the President to fulfill the obligations of his office."

PRESIDENT'S DUTY

In his speech, Mr. Mitchell based his case on the President's constitutional duty to protect the country.

"Were the President to permit the overthrow of [the] Government by unconstitutional means, he would be violating his constitutional oath," he said. "The Constitution of the United States cannot possibly be construed as containing provisions inconsistent with its own survival. It is the charter for a viable government system, not a suicide pact."

He asserted that there was no dividing line between hostile foreign forces and domestic elements seeking to overthrow the Government. Domestic subversives are "ideologically and in many instances directly" connected with foreign interests, he said. If it were possible to separate the two, he added, "history has shown greater danger from the domestic variety."

Mr. Mitchell said that surveillance of such groups was not affected by a 1967 Supreme Court decision, Katz v. United States, that held that wiretapping was covered by the Fourth Amendment's prohibition against unreasonable searches and seizures, and that the police must obtain wiretap warrants before using eavesdropping devices.

He argued that it was not unreasonable to wiretap subversives or suspected bombers. The distinction to be drawn, he said, is not whether the subjects are foreign or domestic, but whether the wiretaps are used for "intelligence" or prosecution purposes.

When they are used to gather intelligence, and the information is not to be used in court, he said the President and his officials were in a far better position to know if a device should be installed than the Federal judges across the country.

"You cannot separate foreign from domestic threats to the Government and say that we should meet one less decisively than the other," Mr. Mitchell said. "Either we have a constitutional Government that can defend itself against illegal attack, or in the last analysis we have anarchy."

[From the Nation, June 14, 1971]

MISLEADING THE PRESIDENTS-THIRTY YEARS OF WIRE TAPPING

(By Athan G. Theoharis)

[Mr. Theoharis, associate professor of American history at Marquette University, is the author of Seeds of Repression: Harry S. Truman and the Origins of McCarthyism (Quadrangle Books) and The Yalta Myths: An Issue in American Politics, 1945-55 (University of Missouri Press). The research for this article, in which Mr. Theoharis was assisted by Paul Quirk of Marquette University and Lynn Parsons of Wayne State University, was supported financially by the Truman Institute for National and International Affairs.] The history of government use of wire tapping, particularly during the early years of the Truman Presidency, provides one reason for concern over White House-Justice Department relations. In 1940, responding to the outbreak of war in Europe and the subversive role played during the 1930s by Fascist parties in France, Austria and Czechoslovakia, the Roosevelt administration supported legislation to legalize wire tapping in "national defense" cases. At that time Rep. Emanuel Celler (D. N.Y.) had introduced a bill that would have amended section 605 of the Communications Act of 1934 and permitted the FBI, subject to the approval of the Attorney General, to wire tap in cases involving interference or attempts to interfere with the national defense by sabotage, espionage, conspiracy, violation of the neutrality laws, or "in any other manner." Information thus obtained was to be admissible as evidence. The Congress failed to enact the legislation and, lacking legislative authorization, President Roosevelt on May 21, 1940 issued instead an executive order stipulating:

I have agreed with the broad purpose of the Supreme Court decision [in Nardone] relating to wiretapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence received over tapped wires in the prosecution of citizens in criminal cases; and it is also right in its opinion that under ordinary and normal circumstances wiretapping by government agents should not be carried out 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 active 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 investigating 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. (Emphasis added.)

With the end of World War II and Harry S. Truman's accession to the Presidency, the issue of continuing this directive came into question. In July 1946, Tom C. Clark, Truman's Attorney General, pressed the President to continue the wire-tapping authorization. Exploiting Truman's anxieties about deteriorating U.S.-Soviet relations, the active role of the U.S. Communist Party in civil rights and labor activities, and recent disclosures of subversion or lax security procedures, Clark wrote the President on July 17, 1946:

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 direct to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies."

The directive was followed by Attorneys General Jackson and Biddle, and is being currently followed in the Department. I consider it appropriate to bring the subject to your approval at this time.

It seems to me in the present troubled period in international affairs, accompanied as it is by an increase in subversive activities 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 special investigative measures in domestic cases, it seems 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. (Emphasis added.)

While implying that this new directive would be a simple extension of Roosevelt's policy, and thereby reducing any suspicions that Truman might have held about wire tapping and the relationship of this policy to that of his predecessor, Clark had significantly distorted the Roosvelt directive. In his quote from the operative paragraph of Roosevelt's directive, Clark had deleted its last qualifying sentence-"You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens." Moreover, Clark's letter did not convey the essence of the Roosevelt memorandum, whether Roosevelt's concern about the abuse of this authority or his restriction of wire tapping to foreign activities involving sabotage. In addition, Clark's intent went significantly beyond Roosevelt's, in that he proposed that wire tapping be used to investigate domestic crime or "subversive" activities. In the absence of good staff work that would have apprised him of the specific nature of Roosevelt's policy, and accepting the assurances of his Attorney General, Truman signed the letter. By so doing, he provided the basis for a significant change in executive wire-tapping policy. The manner by which this extension was secured reveals much about the relationship of the President and his Attorney General and the effective control that an executive exercises over his subordinates. Subsequent developments raise questions about Justice Department use of public relations. Thus, when popular concern about FBI wire tapping arose in the Judith Coplon case in 1949 and again in 1950, the Department of Justice sought through press releases to convey the impression not only that wire tapping was tightly controlled and restrained, but that the basis for this authority derived from President Roosevelt. In March 1949, Attorney General Clark maintained that FBI wire tapping had occurred only "in limited cases with the express approval in each individual instance of the Attorney General. There has been no new policy or procedure since the initial policy was stated by President Roosevelt and this has continued to be the Department's policy whenever the security of the nation is involved." (Emphasis added.)

Knowing how wire tapping was extended and publicly justified during the Truman years is sufficient reason for requiring that the legislature delineate specifically the limits to executive "national security" uses of the technique. As matters stand, there is assurance neither that the President will use wire tapping with restraint nor that he will be fully apprised of procedures instituted within his own administration. The complexity and far-reaching responsibilities of the modern Presidency have increased the possibility that the Chief Executive will not be fully informed about the basis for policy decisions or the procedures of his subordinates. Necessarily dependent for advice and information on nonresponsible subordinates, a cold-war President is vulnerable to being manipulated and, beyond that, to mainipulating the Congress and the public. The corruption inherent in unlimited grants of power requires that traditional processes of control be established, that the simple affirmation of "national security" not remove constraints that would limit abuse or specifically delineate executive authority.

In this sense, the language of Title III of the Omnibus Crime Control Act of June 1968 is too vague to provide the safeguards that national policy requires.

Moreover, when formulating and debating the Act, Congress failed to fulfill its legislative responsibilities and let references to "national security" avert the necessary consideration of Presidential powers and uses of wire tapping. This authorization of wire tapping by federal, state and local law-enforcement agencies demands careful scrutiny as to its constitutionality, wisdom and necessity. Most important, it must be determined whether a simple claim of "national security" seriously restricts the liberties of non-conformists, radicals or dissenters. In this article, I shall discuss the "national security" provision of Title III of the Omnibus Crime Control Act of 1968; the related question of the constitutionality of wire tapping in criminal cases will not be treated. The major themes of the debate over this authorization were immediately outlined when Ramsey Clark, incumbent Attorney General, after passage of the Act and during testimony before the Senate Appropriations Committee, expressly opposed wire tapping as a general tool of law enforcement. It was not necessary, Clark affirmed, in criminal investigations; constitutional limitations made it virtually useless as a method of crime detection. More effective law enforcement at the local level was the best means to prosecute crime. Consistent with this position, Clark refused to employ the broad grant of authority provided by the Act, restricting federal use to national security cases. John Mitchell, Clark's successor, does not share this aversion; he has expressed his intention to utilize the authority provided by the Act. His statement of Justice policy, particularly enunciated in a brief filed in Chicago Federal District Court and released in Washington on June 13, 1969, outlined the general objectives and methods of departmental wire-tapping policy. In this brief, the Attorney General maintained that the Department of Justice had legal power, without court approval, to eavesdrop on members of organizations it believed intended to "attack or subvert the Government by unlawful means." Mr. Mitchell further acknowledged that the Justice Department had instituted wire taps on four of the eight defendants in the Chicago conspiracy trial. Outlining the justification for this action, the brief contended:

There can be no doubt that there are today in this country organizations which intend to use force and other illegal means to attack and subvert the existing form of government. Moreover, in recent years there have been an increasing number of circumstances in which Federal troops have been called upon by the states to aid in the suppression of riots. Faced with such a state of affairs, any President who takes seriously his oath to "preserve, protect and defend the Constitution" will no doubt determine that it is not "unreasonable" to utilize electronic surveillance to gather intelligence information concerning these organizations which are committed to the use of illegal methods to bring about changes in our form of government and which may be seeking to foment violent disorders....

The question whether it is appropriate to utilize electronic surveillance to gather intelligence information concerning the activities and plans of such organizations in order to protect the nation against the possible danger which they present is one that properly comes within the competence of the executive and not the judicial branch.

The vagueness of this policy statement, the implication that wire tapping would be used for domestic surveillance without court authorization, at the sole discretion of the executive branch and with no heed either to the prohibitions of the Fourth Amednment or to the court-approved requirements of Title III of the Omnibus Crime Control Act-heightened fears within the legal profession and among certain liberal and radical organizations. This alarm coincided with further disclosures about Justice Department and FBI investigative activities. At about the time of the passage of the 1968 Act, it became known that the FBI had wire tapped not only the Chicago conspiracy trial defendants but also Joe Namath, Mohammed Ali, Dr. Martin Luther King, Jr., Stokely Carmichael, Elijah Muhammad, the Black Panthers, certain anti-war groups, H. Rap Brown, Roy Cohn, Dr. Benjamin Spock, and the other defendants in the Boston draft case. Indeed, one civil libertarian, commenting on the extent of this use, feared that: "Given the nature and manifestations of unrest in our cities, there is a real possibility that eavesdropping could be employed to control the protests of the poor and their supporters who petition for redress of grievances."

In response, the ACLU on June 26, 1969 filed a suit in the U.S. District Court in Washington on behalf of nine anti-war and Black Power organizations

and the eight defendants in the Chicago conspiracy trial. Seeking to ban electronic surveillage of political dissenters, and citing the Justice Department's June 13th brief and its implied use of "national security" to justify surveillance of dissident political groups, the ACLU brief condemned Attorney General Mitchell and FBI Director Hoover for having "assumed judicial, penal and otherwise regulatory control over the protesting activities of all dissenting Americans," and for their announced policy of "unfettered executive power to determine possible danger."

The concern motivating the ACLU suit seemed to be confirmed by a subsequent New York Times story reporting the response of Nixon Administration aides to recent bombing incidents. On April 12, 1970, the Times reported that these unidentified aides viewed the occurrence of domestic bombings as posing a serious internal security threat that required electronic surveillance. One of them remarked to the Times correspondent that had the FBI put a tap on the phone of Diane Oughton, who was killed in a Greenwich Village bomb explosion, it might have been able to arrest her before the bomb exploded The Times writer wondered whether the Administration was making a case for greater surveillance of domestic radicals.

The fear that wire tapping can amount to poltical surveillance of radicals and dissenters leads one to examine the broad authority granted by the Omnibus Crime Control Act. Section 2511, Title III stipulates:

Nothing contained in this statute or in section 605 of the Communications Act of 1934... shall limit the constitutional powers 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 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 aaginst 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... only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power. (Emphasis added.)

The majority report of the Senate Judiciary Committee, issued on April 29, 1968, stressed the same themes. Its language did nothing to define more precisely the limts to executive wire-tapping authority in the realm of "national security." While emphasizing the need to prohibit unauthorized use of wire tapping and to prevent its abuses, the report nonetheless added:

It is obvious that whatever means are necessary should and must be taken to protect the national security interest. Wiretapping and electronic surveillance are proper means for the acquisition of counterintelligence against hostile actions of foreign powers. Nothing in the proposed legislation seeks to disturb the power of the President in this area. Limitations that might be deemed proper in the field of domestic affairs become artificial when international relations and internal security are at stake. The report further emphasized :

Paragraph (3) is intended to reflect a distinction between the administration of domestic criminal legislation not constituting a danger to the structure and existence of the Government with the conduct of foreign affairs. It makes it clear that nothing in the proposed chapter or other act amended by the proposed legislation is intended to limit the power of the President to obtain information by whatever means to protect the United States from the acts of foreign powers including acutal or potential attack of foreign intelligence activities, or any other danger to the structure or existence of the Government. When foreign affairs and internal security are involved, the proposed system of court ordered electronic surveillance envisioned for the administration of domestic criminal legislation is not intended necessarilly to be applicable.... The only limitation recognized in this use is that the interception be deemed reasonable based on an ad hoc judgment taking into consideration all of the facts and circumstances of the individual case. (Emphasis added).