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tored is significantly affected by the fear that their phones are tapped (witness the "debugging" operations recently conducted by various Senators and Congressmen), while others, whose phones are being tapped, but who do notand never will know that their conversations were monitored, are entirely unaffected. Yet despite the pervasiveness of the wiretap, and its obvious chilling effect, the government blandly asserts in its brief that "[t]he overhearing of a telephone conversation involves a lesser invasion of privacy than a physical search of a man's home or his person.' (This assertion sharply raises the question of whether an administration that values the privacy of conversation and thought less than the privacy of property is the appropriate authority to decide, without any judicial check, that a phone must be tapped for nationalsecurity purposes.)

Making national-security taps conditional on a warrant, some civil libertarians argue, would reduce the ratio of innocent to guilty conversations overheard because warrants must be narrowly circumscribed, limited in time and scope, and related to criminal conduct. While recognizing that most magistrates issue wiretap warrants as if they were presents at Christmastime, the civil libertarians contend that there might be some reluctance to issue them in instances where it was plain that the primary motivation was political and that the national-security concern was a pretext. For it is widely assumed by civil libertarians today that a considerable number of domestic national-security wiretaps are conducted primarily for reasons unrelated to genuine nationalsecurity concerns. They are thought to be directed against political dissidents both inside and outside the government-and general troublemakers who could be adequately, and lawfully, dealt with by the ordinary process of the criminal law. This is not to say that a plausible national-security concern -broadly defined-is lacking in each instance of a tap. It is to say that this concern frequently serves as an excuse for a broad surveillance whose primary purpose is either political or conventional law enforcement.

Whether or not the civil libertarians are correct in their assessment of the value of warrants in curbing abuse, their claim that domestic national-security wiretaps have been authorized in highly questionable cases is supported by the evidence currently available. Consider, for example, the tapping of Martin Lu'ther King's telephone (and the electronic "bugging" of his hotel rooms). These warrantless invasions of King's privacy-and the privacy of countless others who conversed with him-have been defended as necessary for the national security. But in what specific sense did the security of this nation depend on the FBI's overhearing King's telephone conversations and eavesdropping on his hotel-room activities? A number of justifications have been offered by those close to Robert Kennedy, who, as attorney general acceded to J. Edgar Hoover's request to authorize the tap. (No authorization was ever given for the bug in the hotel rooms.)

The Kennedy version goes something like this: two of King's close associates -one a New York lawyer, the other a member of the SCLC staff were thought to be either Communist agents, party members, or sympathizers. After receiving warnings from the Justice Department that associating with these persons might damage the civil-rights movement, King dismissed the tainted staff member and initially severed his relationship with the suspected lawyer. But after a while, contact with the lawyer was gradually reestablished. It was this that led Kennedy to authorize Hoover to tap King's home phones and those in his Atlanta and New York offices.

Burke Marshall-Kennedy's respected and civil-liberties-minded assistant attorney general-has made the shocking statement that his boss may have "refused too long" to authorize the King national-security tap. "I can't tell you who the man was or what the allegations were," he says, "but I can tell you I think it would not be responsible for an attorney general-in view of the characterizations of what that man was doing and who he was working for-for the attorney general to refuse a tap." He continues, suggestively but mysteriously: "If you take it as being true that there has been an espionage system and that the Bureau has an obligation to do things about that-if you put that all together, I would say you could say he refused too long."

Very well, then, let us "take" all that as "being true." Let us assume the very worst that the New York lawyer was a real Russian spy, working for, and being paid by, the KGB. Assume further that his sole job was to influence King in directions favored by the Soviet Union. Assume even further that he

was succeeding. Would this justify a national-security tap on King's phone? There is surely no claim that King was being used to further espionage or sabotage activities. He was, after all, engaged primarily in entirely lawful and constitutionally protected activity (even if that activity could hypothetically be shown to have favored the interests of the Soviet Union). He made and received thousands of calls to and from concerned, patriotic, and lawabiding American citizens about matters that were none of the government's business to overhear. He also engaged in-or erroneously believed he was engaged in—a private life, which also was none of the government's business to monitor. His telephone contact with the New York lawyer was an extremely small and sporadic part of his activities (and there is no evidence that he met with him in the bugged hotel rooms). Yet the wiretap picked up and recorded all of the conversations on these phones. Even if the scenario suggested by the Marshall version is accurate, should it not have been more sensible to tap the New York lawyer's phones? (Indeed, since it is technically feasible to monitor and record only calls placed between two specified numbers, it would have been possible to tap and record only those calls placed between King and the suspected lawyer.)

It is significant that a former public official as respected and dedicated as Burke Marshall would argue that it would "not be responsible" for an attorney general to have declined, or even delayed, authorization for a warrantless national-security wiretap on the basis of the evidence that he suggests existed. We only rarely have men in positions of power as sensitive and as committed to civil liberties as Marshall. If this is what we can expect of a Burke Marshall, what can we expect of the men who generally populate high office?

Another justification offered by some Kennedy intimates is that the tap was authorized, as former attorney general Katzenbach put it, "for the protection of Dr. King." Giving the FBI the power to protect King is like giving the cat the power to protect the canary. In fact, it is now widely acknowledged that no sooner did J. Edgar Hoover come up with some damaging information about King-relating to his sex life-that he leaked it to the press. Was this also done to protect King?

It is not difficult to understand what really motivated the King wiretap. The existence of the lawyer in New York provided a plausible that is perhaps too strong a word-argument that some vague national-security interest was involved. The FBI seized upon this excuse to request authorization to do what they wanted to do for other completely illegitimate-reasons. It was difficult for the Justive Department to deny the request: what would it look like later on if it did turn out that King was indeed involved with Communists and if Hoover leaked to his Congressional or newspaper cronies the fact that Kennedy had stood in the way of an investigation which would have disclosed this? So Kennedy took the least politically risky course. And J. Edgar Hoover got his wiretap.

The King episode does not stand alone in suggesting that the primary reason certain domestic national-security taps are employed has little to do with the genuine needs of national security. The recent case involving Muhammad Ali, which revealed the previously unacknowledged King tap, also disclosed that pervasive taps had been authorized on the phones of Elijah Muhammad, the leader of the Black Muslim Church. Here, too, I would speculate that there may have been a plausible national-security interest in a limited aspect of Elijah Muhammad's activity. But the warrantless tap was not limited, as one with a warrant would have to be. It extended to every call to and from Elijah Muhmmad's various offices over over a considerable period of time. And it picked up conversations relating to political and personal activities that were none of the government's legitimate business (for example, a disclosure that a well-known person's brother had been kicked out of the Muslim Church for being out with a girl all night).

The phrase "domestic national-security wiretap" is not self-limiting or selfdefining. It means what its history tells us it means. It means what this and previous administrations have defined it to mean. Only if we are given some idea of how it has been used can the people, and the courts, have any intelligent basis for judging whether the alleged need for a domestic national-security exception outweighs its potential for abuse. On the basis of the evidence presently available, I would suggest that if we were to examine all the domestic national-security wiretaps conducted by the FBI, a disturbing picture

would emerge. We would find numerous cases where a plausible but narrow national-security concern has been used as an excuse for an improper and pervasive wiretap whose real purpose is political surveillance. Unfortunately, however, there is no way for the citizenry-or even the courts-to examine the logs of all national-security wiretaps. We are left instead with the assurancs of people like former attorney general Herbert Brownell that "Experience demonstrates that the Federal Bureau of Investigation has never abused the wiretap authority."

But what "experience" is Brownell referring to? To whom has this been "demonstrated"? Certainly not to the public. I, for one, do not feel that we can rely on the self-interested assurances of former Justice Department officials that all is in order. My surmise is that if the Justice Department were to turn over the records of domestic national-security wiretaps in any given year for study to a non-partisan group of scholars, many abuses of the kind suggested above would emerge. If I am wrong-if an impartial evaluation were to disclose that warrantless domestic national-security taps have been narrowly employed only in cases of immediate, extreme, and irremediable danger to our survival-then there might be grounds for exempting this class of wiretaps from the usual constitutional requirements. But neither the people nor the courts can intelligently decide whether this is so until we are given some idea of how such wiretaps have in fact been used. In the meantime, on the basis of what we already know, we have good reason for supposing that "national security" is sometimes invoked as a pretext for political surveillance of an altogether illegitimate kind.

A BLOW STRUCK FOR THE REVOLUTION

(By Jacob Marateck)

[Jacob Marateck (1883-1950) was a Polish Jew who, following a youthful career as a yeshiva student and labor agitator in Warsaw, served for a number of years in the Russian army. After a variety of adventures-including membership in the imperial bodyguard and alleged involvement in a plot to assassinate the Czar-he escaped to America. The present memoir of the Russian-Japanese War 1904-5 was taken from one of the twenty-seven handwritten notebooks kept by Marateck throughout his life; it has been adapted from the Yiddish by Shimon Wincelberg.]

The second day of Rosh Hashanah we line up for the train to Manchuria. Our lietutenant, a moody graybeard in his sixties, who ascribes his low rank to lack of "protection" at Court, tells us we're lucky. How are we lucky? We will get to ride to the battlefield in comfort, while the enemy, primitive little beasts that they are, will have to walk. He makes "battlefield" sound like a scheduled stop on the Trans-Siberian Railway. As for the "primitive" Japanese, I incline to suspect they are not exactly receiving us with open arms.

My friend Glasnick whispers I should let the lieutenant know we would also be happy to walk, and with a little luck the war will be over by the time we get there. But I'm a one-striper, a squadleader, and keep my mouth shut, scowling with authority.

The train has ninety-six cars, each packed to at least three times what it can hold. This way, the railroad is able, on one track, to deliver its quota of 30,000 replacements a month. I try not to think about the men we are “replacing."

We sit in our compartment, barely able to stir an elbow, each of us still hoarding his own fears and memories. For the moment, Russians, Ukrainians, Poles, and Jews sit packed together in a pleasnat atmosphere of revolutionary harmony. That is, somebody starts out by wondering how many of us will return alive, and soon somebody else ends up proposing that, at the next halt, we surround our officers and kill them all, then make the train go back to Petersburg and proclaim the Revolution.

No one bothers to remember that the officers have all our ammunition under lock and key. Not that it makes much difference. They're fine talkers and dreamers, our Russians, but hopelessly addicted to authority. When Glasnik wants as usual to add his comments, I quietly shut him up. I know from past experience, no matter which way the conversation turns out, they'll end up blaming it all on the Jews.

93-045-73-10

Days pass. We are all stiff and irritable from the lack of space, and no one any longer talks revolution because by now we hate the stink of one another. But soon we come to appreciate our crowded compartments. The train has to cross Lake Baikal on rails laid over the ice, which often suddenly cracks open into yawning rifts and crevices. To keep the cars from being too heavy, the officers are taken across by horse-drawn sledge, and the rest of us walk, our rifles with their eternally fixed bayonets resting on one shoulder. Forty miles across the windswept ice, with only brief pauses for hot soup from our mobile kitchens. By morning it turns out a number of men have disappeared, probably drowned, and many more suffer from frostbite.

Another week in the unheated train, and one morning we awaken to a strange landscape in which the roofs of houses curve upward like boats, and the trees put me in mind of things that might be growing on the moon. This is Asia. The people here have darker skins and narrow, villainous Oriental eyes. Most of the men believe them already to be "Japs," having little notion that Japan is almost as far from here as Moscow.

The Orientals scatter like chickens whenever the train comes to a halt and we pile out to stretch our legs. Only some peddlers are willing to approach. The officers drive them away, they might be spies.

At one of our stops we are told to send a detail to a nearby village. They are to fetch five oxen purchased for us to slaughter for food. After a week on little but hard black bread, foul soup, and hot tea, we await their return in high spirits.

[From the Washington Evening Star, June 30, 1972] RULED ILLEGAL BY COURT-BANNED "BUGS" TURNED OFF

(By Lyle Denniston)

Federal agnets have turned off secret listening devices that became illegal under the Supreme Court ruling against government eavesdrop policy, the Justice Department says.

The number that went out of use in the wake of yesterday's ruling was not disclosed, but the department had had just under 50 devices in use since Jan. 1, a spokesman said.

Atty. Gen. Richard G. Kleindienst ordered agents to "terminate . . . all electronic surveillance in cases involving domestic security that conflict with the court's opinion."

With no dissents, the court ruled unconstitutional the three-year-old policy of the Nixon administration for eavesdropping on "domestic subversives" without advance permission by a federal court.

The ruling was a stunning defeat for a major administration program for gathering "intelligence data" about individuals and groups whose actions it considers a possible threat to the government.

It seemed likely that the ruling would have these consequences:

A number of federal prosecutions might be dismissed because of the government's unwillingness to disclose the logs of eavesdropping made illegal by the new decision.

A series of lawsuits might be filed against the government by individuals claiming that illegal surveillance had interfered with their rights.

A period of uncertainty seemed likely to prevail until Congress reacted to a Supreme Court suggestion for new procedures to guide "domestic security" eavesdropping.

Within hours after the ruling, Kleindienst not only ordered the illegal devices turned off, but also put the Justice Department staff to work studying the pending cases which might be affected by the decision.

Kleindienst also ordered department staff members "to work closely with Congress in formulating legislative standards" that would govern court orders for eavesdropping in domestic security cases.

Since the Nixon administration came into office, federal agents have been using secret listening devices without court orders in "domestic security" cases at a rate of about 100 a year, according to the department.

A report filed with Congress last year showed that a total of 94 deviceswiretaps or hidden microphones or "bugs"-were used in 1969 and 113 in 1970 without court approval in cases involving homefront "subversives."

A department spokesman said that just under 100 were used in this category in 1971, and that, so far this year, just under 50 had been used.

SOME CASES UNAFFECTED

Kleindienst's order requiring federal eavesdropping agents to comply with the new ruling did not extend to secret devices to monitor "foreign intelligence in national security matters."

That was because the Supreme Court, in its new decision, expressly declined to rule on the legality of government surveillance without a court order in cases involving "activities of foreign powers, within or without this country."

SOME FLEXIBILITY

Presumably, that left the Justice Department with some flexibility in deciding which domestic "subversives" it still could monitor on the theory that they had had some "significant connection" with a foreign government or agency.

In the case which the Supreme Court decided yesterday, the justices conIcluded that the surveillance was illegal since "there is no evidence of any involvement, directly or indirectly, of a foreign power" with the man whose conversations had been overheard by a wiretap-Lawrence R. "Pun" Plamondon, a member of the White Panther party accused of bombing a Central Intelligence Agency office in Ann Arbor, Mich., on Sept. 29, 1968.

Some department officials believed that "not very many" cases would be affected. However, it seemed possible that the ruling could affect some of the more controversial cases the administration has filed-including the Berrigan bombing-kidnap conspiracy, several cases involving the Black Panther party, some cases involving the bombing of the U.S. Capitol last year, and several growing out of last year's Mayday anti-war outbreak here.

Another problem facing the government was the possibility that a number of persons involved in other controversial cases-like the Pentagon Papers' disclosure case-could make a series of new demands for any revelation of illegal eavesdropping.

In reaching their decision, the justices did make one possible gesture toward government eavesdropping policy: It ruled that Congress could make it easier to get court approval for eavesdropping in domestic security cases than in "ordinary" criminal cases.

Specifically, it suggested that Congress might want to permit courts to issue eavesdropping orders on less definite evidence than would be required for a normal criminal case; that the eavesdropping might be allowed to continue for periods longer than the initial 60 days, plus 30-day extensions, provided for under the 1968 law; that the power to issue orders be confined to one court rather than shared by all federal courts in the nation; and that the government need not be bound by the 1968 law's provision requiring public reports of eavesdropping 30 days after an approved monitoring has ended.

ALL ARGUMENTS REJECTED

The justices rejected all five major arguments the government had made to defend its eavesdropping policy:

That the president and the attorney general had sole authority under the Constitution to decide when to use eavesdropping in any national security case; that they should have this power because they would use it "reasonably" that they should have this authority because they would use it only to gather intelligence data, not criminal evidence; that courts did not have the knowledge or background to act on security investigations, and that national security might be imperiled if courts or court personnel "leaked" data about security investigations.

The court's ruling on surveillance was the most far-reaching action it took yesterday as it continued to work toward summer adjournment. The justices scheduled another session for Thursday to issue more opinions.

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