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Mr. Kinoy represented three members of the radical White Panther party who were accused of plotting to bomb a Central Intelligence Agency office in Detroit. Mr. Gossett argued for United States District Judge Damon Keith, who ordered the Justice Department to disclose the transcripts of the defendants' conversations obtained by wiretaps installed without court permission.

The United States Court of Appeals for the Seventh Circuit upheld Judge Keith.

Justice Powell's opinion held that the 1968 statute did not give the Government the power to wiretap without court authority, but merely left untouched any constitutional power it might have had anyway.

He stressed that the Court was leaving for another day a decision on whether warrants will be required to wiretap foreign spies and that the decision today covered only those with "no significant connection with a foreign power, its agents or agencies."

Justice Department officials are expected to argue that many of the radicals who have been wiretapped have had contacts with Communist countries, and the ruling could make left-wing groups more circumspect about their future dealing with foreign governments.

Legal experts disagree as to whether the Government can obtain warrants under the 1968 act for surveillance of radicals, because the Government must show probable cause that a specific law is about to be violated. National security surveillance is usually based upon more nebulous suspicions.

Justice Powell's opinion virtually invited Congress to pass a new law to allow for this special type of wiretapping, but any proposal so loaded with overtones of political surveillance would be expected to face difficulty on Capital Hill.

Chief Justice Burger noted that he concurred only in the result. Justice Byron R. White, in a separate concurring opinion, said that the warrantless surveillance might have been legal under the "national security" exception of the 1968 law, but that the Justice Department's Court papers did not satify the statute.

LIBERTIES UNION STATEMENT

In New York today, the American Civil Liberties Union hailed the wiretapping decision. A statement by the organization's executive director, Aryeh Neier, said:

"The Supreme Court has rejected the Government's boldest claim of powers to intrude upon individual liberties. The Government had claimed that in the undefined interests of 'national security' it could engage in a vast, lengthy, unsupervised and unchecked invasion of the privacy of people having only the remotest link with anything in any way criminal or even wrong.

"If this claim had been upheld, there would have been virtually no limits to the range of governmental intrusion on liberty that would have been implicitly authorized once the Government invoked the talisman of ‘national security.' "In rejecting the Government's claims, the Court has vindicated the constitutional liberties of all Americans."

[From the New York Daily News, June 20, 1972]

TOP COURT LIMITS WIRETAPS

(By Jeffrey Antevil)

WASHINGTON.-In a major rebuff to the Nixon Administration, the Supreme Court rejected unanimously today the Justice Department's argument that the government can legally wiretap suspected domestic "subversives" without first getting a court order.

Declaring in a Michigan case that such bugging without a warrant is unconstitutional, Justice Lewis F. Powell wrote for the court that "unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy."

Former Attorney General John N. Mitchell, who brought the test case to the high court, argued that the individual's right to privacy must yield to the government's need to defend itself against potential threats to the national security. Thus, he said, the government has the power to eavesdrop on sus

pected domestic subversive groups without prior judicial approval, just as it does in foreign intelligence cases.

CALL CONCEPT VAGUE

Powell, a Nixon appointee, declared in an opinion joined by justices William O. Douglas, Thurgood Marshall, Potter Stewart, Harry A. Blackmun and Willaim J. Brennan Jr. that "the danger to political dissent is acute where the government attempts to act under so vague a concept as the power to protect 'domestic security."

"The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power," Powell added.,

Chief Justice Warren E. Burger and Justice Byron R. White wrote separate opinions agreeing with the majority action in the case of Lawrence Plamandon, a member of the now-defunct White Panther Party who was accused of conspiring to blow up CIA offices in Ann Arbor, Mich. Justice William H. Rehnquist, an assistant attorney general until this year, did not participate in the case.

LOWER COURT ORDER

Two lower court judges, rejecting the government's position, had ordered transcripts of wiretaps of Plamandon's conversations turned over to his lawyers.

The Justice Department has continued to wiretap other domestic militant groups, such as the Wetherman faction of the Students for a Democratic Society, while its appeal was pending.

In other action today, the court:

Agreed with New York's claim, in a dispute with Pennsylvania over $1.5 million in uncashed Western Union money orders, that the money belongs to the state where the person entitled to claim it was last known to live. Agreed to consider next term New York's claim that complaints by state prison inmates about their treatment should be made in state, not federal courts.

Ruled in an Arkansas case that a man acquitted of a murder charge cannot, under the constitutional ban against doubel jeopardy, be tried for robbery in the same incident.

Agreed to rule next term whether its 1969 decision barring court-martial trials of servicemen for non-service-related offenses should be made retroactive to clear the records of thousands of former servicemen convicted before that date.

Upheld a law in Florida allowing a municipal clerk who is not a judge to issue arrest warrants.

[From the New York Times, June 22, 1972]

KLEINDIENST SEES A DECLINE IN WIRETAPS

(By Fred P. Graham)

WASHINGTON.-Attorney General Richard G. Kleindienst said today that last Monday's Supreme Court decision on wiretapping would reduce the Government's intelligence about subversive activities, "but not to an extent that will damage our national security."

The Supreme Court held that the Government must obtain court warrants before wiretapping may be used against allegedly subversive radical domestic groups. For at least 26 years, the Government had been wiretapping such groups without court permission.

Mr. Kleindienst said in an interview that the ruling, would cut down on eavesdropping for intelligence-gathering purposes because the Federal law on wiretapping requires proof that a crime has been or is about to be committed before Government agents will be given a warrant to eavesdrop.

'NOT A DEAD-END STREET'

But he said the 8-to-0 decision 'is not a dead-end street for electronic surveillance because the Government could request warrants when a radical group appeared to be planning a specific crime.

He said the Justice Department would cooperate with Congress in drawing up a new wiretapping law to permit court warrants in "domestic security" situations that were not clearly covered under the present law.

Mr. Kleindienst said that as soon as he read the Supreme Court's opinion last Monday, he asked the Federal Bureau of Investigation for an inventory of internal security wiretaps then in use without warranty.

There were "less than 30," he said. Of these, he said, "less than 10" were considered to be directed at groups that were not significantly involved with foreign power. Mr. Kleindienst said all of these had immediately been turned off.

He declared that the Justice Department would not attempt to continue eavesdropping on domestic groups without warrants by contending that the groups had foreign ties. The Supreme Court ruling left it undecided whether the Government might continue to wiretap without court approval where foreign intelligence was involved.

MITCHELL SIMILARITY SEEN

Mr. Kleindienst's statements were made during a luncheon with members of the Washington Bureau of The New York Times.

Mr. Kleindienst, who was sworn in as Attoreny General earlier this month, said there would not be "too much of a difference" between his Justice Department and that of his predecessor, John N. Mitchell.

He said that Mr. Mitchell had accomplished more than his Democratic predecessors in civil rights but that under the Kleindienst regime "more emphasis on civil rights enforcement" than was evident under Mr. Mitchell could be expected.

He also said that there would be "a much more intensive program of penology reform.

He disclosed that he and his family had been involved in efforts to rehabilitate two young men who would otherwise have been sent to prison. To protect their privacy, Mr. Kleindienst declined to give more details.

Mr. Kleindienst said he would not make policital speeches or criticize the Democratic candidate during the Presidential campaign. Instead, he said, he will "go around the country telling the accomplishments of this Government in the justice area."

But he conceded that the Democrats could legitimately appointment. He said he would expect the Democratic nominee to say in his acceptance speech: "I will give you a new Attorney General-who won't sell out to I.T.T.”

This was an allusion to Richard M. Nixon's pledge, in his acceptance speech at the 1968 Republican convention, to name a new Attorney General to replace Ramsey Clark. Some Democrats tried to block Mr. Kleindienst's confirmation by alleging that he had been improperly involved in the settlement of three antitrust suits against the International Telephone and Telegraph Corporation—a charge he denied then and again in the interview today.

[From Newsweek Magazine, July 3]

THE SUPREME COURT: UNTAPPED

It was three years ago that the Nixon Administration first enunciated the principle that domestic "radicals" were fair game for government bugging and wiretapping--without prior court approval in the interests of national security. That policy quickly became a hallmark of John Mitchell's Justice Department and the focus of mounting protests and paranoia on the left. But last week, in a stunning 8-to-0 decision, the Supreme Court rebuked the Administration and declared the practice unconstitutional. "The fear of unauthorized official eavesdropping [must not] deter virgorous citizen dissent," said the High Court. "For private dissent, no less than public discourse, is essential to our free society."

The decision constituted a historic reaffirmation of the First and Fourth Amendments-the right to free speech and the guarantee against unreasonable search and seizure. Beyond that, it was a sharp reminder of how unpredictable the Supreme Court can be even to a President who had handpicked four of the nine Justices to complement his own tough views on law, order and the

limits of dissent. Civil libertarians, of course, greeted the ruling with wholehearted enthusiasm, and the Justice Department immediately began pulling the plug on those few of its snooping operations that it admitted fell under the new prohibition. Perhaps more important, the department has to consider how to go ahead with similar surveillance in the future-and whether to drop a sizable number of cases now pending.

CLAIM

Eavesdropping in the interest of domestic security has been going on at least since Harry S. Truman's Administration. What distinguished the Nixonians from their predecessors was that they not only did it but said so-and in fact claimed it as a perfectly legitimate exercise of government power. The controversy, and the claim, surfaced when the Administration admitted having listened in on some of the Chicago Eight, the odd-lot assortment of radicals charged with having incited rioting at the 1968 Democratic convention. The government relied heavily on the Safe Streets Act of 1968, which specifically exempted from regulation any authority the President might have to order taps in security cases. This, said the Administration, meant not just agents of foreign powers but domestic subversives as well.

Ironically, last week's Supreme Court decision knocking down that broadgauge definition of "national security" was delivered by Justice Lewis F. Powell Jr., who had strongly supported the practice prior to his nomination by President Nixon. Powell promised senators at his confirmation hearings that he would keep an open mind on the question, and his closely reasoned opinion demonstrated that he had. The case at hand involved Lawrence Robert (Pun) Plamondon, a member of the radical White Panthers, who was charged with dynamiting offices of the Central Intelligence Agency at Ann Arbor, Mich., in 1968. As in the Chicago Eight case, the government admitted that some of Plamondon's conversations had been overheard by agents tapping the phones of an undisclosed organization for security purposes. And againt it claimed that such surveillance, without a warrant, was legal under language in the Safe Streets Act. But Federal District Judge Damon J. Keith in Detroit disagreed and ordered transcripts of any illegal taps turned over to the defense.

Justice Powell upheld the district judge, ruling that Congress had not given the President any wiretap power but only refused to limit whatever authority he might already have under the Constitution. Powell left aside the question of snooping on foreign agents, or U.S. citizens significantly involved with a foreign power. But he held that a proper balance between national security on the one hand, and the constitutional right to privacy and free speech on the other, demanded a decent respect for established search-warrant procedures in domestic cases. "Fourth Amendment freedoms cannot properly be guaranteed," Powell wrote, "if domestic security surveillances may be conducted solely within the discretion of the executive branch." He also found, government arguments to the contrary, that judges were perfectly capable of keeping secrets and of understanding security cases. "If the threat is too subtle or complex for our senior law-enforcement officers to convey its significance to a court," he remarked tartly, "one may question whether there is probable cause for surveillance."

Attorney General Richard Kleindienst, a vigorous proponent of wiretapping domestic "subversives," reacted quickly once the ruling was issued. He ordered the termination of "all electronic surveillance . that conflicts with the Court's opinion" (fewer than a dozen cases, according to a spokesman) and announced that the department would work with Congress to develop reasonable standards for warrants in national security cases. It also seemed likely that the government would place greater emphasis on the foreign ties forged by many domestic radicals with Cuba, Hanoi and North Korea. But the most immediate question raised by last week's decision was whether to turn over potentially embarrassing wiretap transcripts in a score or so of important cases already pending-or drop the prosecutions. Among the defendants: Chicago Eight alumni Abbie Hoffman and David Dellinger and antiwar priest Philip Berrigan.

[From Time Magazine, July 3]

NEW CURB ON BUGGING

Shortly after taking office, the Nixon Administration claimed the right to eavesdrop-without a judicial warrant-on anyone it chose to consider a threat to the national security. By the time the issue reached the Supreme Court, Nixon had appointed four new Justices, so the Government thought its chances of enforcing the claim seemed promising. But last week, by a vote of 8 to 0, with Justice William Rehnquist abstaining, the court declared that bugging or tapping domestic political "suspects" without a warrant is illegal. "Those charged with this investigative and prosecutorial duty should not be, the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks," said Justice Lewis Powell.

The Administration's failure to make a case was highlighted by the fact that Powell wrote the court's opinion. Just last year, when Powell was a law. yer in private practice, he wrote that "the outcry against wiretapping is a tempest in a teapot. Law-abiding citizens have nothing to fear." From his new vantage point on the Supreme Court, however, Powell found that the Government's electronic survillance was not "a welcome development-even when employed with restraint."

TOO COMPLEX

The Justice Department had wanted to avoid the Fourth Amendment's rule on warrants because it uses electronic devices to gather general intelligence on various political groups, and it argued that its reasons for doing so are too "complex and subtle" for a judge to evaluate competently. Powell responded sharply: "If the threat is too subtle or complex, one may question whether there is probable cause for surveillance. . . . The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power."

Powell did not deal, however, with warrantless eavesdropping on foreign agents, which the Government has felt free to do ever since President Roosevelt authorized taps on suspected spies during World War II. "No doubt," said Powell, "There are cases where it will be difficult to distinguish between 'domestic' and 'foreign' activities directed against the Government. But this is not such a case."

Specifically, the case before the court involved Lawrence ("Pun") Plamondon, a member of a left-wing organization called the White Panthers, who was accused of bombing a CIA office in Ann Arbor, Mich. The Administration did not contend that any foreign government was involved, and therefore, the court ruled, there was no question that Plamondon was protected by the Fourth Amendment.

Attorney General Richard Kleindienst appeared unfazed by the court's decision. "I asked the FBI to compile a list of surveillance devices yesterday afternoon, and they should all be pulled by now," he told TIME's David Beck- ??? Line Missing in Copy ??? with the day after the decision. How many such devices were there? "Very few. You could probably count them on the fingers of both hands. We only used them where we thought there was a threat of violence. I had just authorized a couple more last week, but I'm not going to talk about any individual taps. If I say anything, they [defendants and suspects] will come in and ask for transcripts of everything we took."

NO BLEEDING HEART

Kleindienst was referring to a Supreme Court ruling three years ago which declared that individuals subjected to illegal eavesdrops have a right to transcripts of what has been overheard if they are to be prosecuted. Warrantless taps are known to have been used, for example, in investigations of the Chicago Seven and in the recent Berrigan case. Wherever violations are found, the Justice Department will have to either disclose the details of the eavesdropping or drop prosecution. Wouldn't it be only proper to inform anyone who has been illegally overheard? "Hell, no," said Kleindienst. "Our duty is to prosecute persons who commit crimes. We don't have to confess our sins anywhere, like some bleeding heart. We were acting in good faith."

What paths will the Administration now follow? The President at his press conference said that no legislation would be sought to eliminate the warrant

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