pre-Keith decision which appears to say that Executive expertise and factual background not only rendered presidential decision to install a wiretap immune from the warrant requirement, but also totally insulated it from post hoc review; appellate court did, however, conduct in camera inspection
How later courts described this case
- pre-Keith decision which appears to say that Executive expertise and factual background not only rendered presidential decision to install a wiretap immune from the warrant requirement, but also totally insulated it from post hoc review; appellate court did, however, conduct in camera inspection
- “[r]estrietions upon the President’s power which are appropriate in cases of domestic security become artificial in the context of the international sphere”
- President’s authority to conduct foreign affairs in-eludes ability to conduct foreign intelligence surveillance without a warrant
- “Restrictions upon the President’s power which are appropriate in cases of domestic security become artificial in the context of the international sphere.”
Written by the judges who cited it.
The opinion
GOLDBERG, Circuit Judge
(specially concurring):
I concur not only in the affirmance of this conviction, but also in the opinion of the Court. My words of special concurrence relate only to Part V and are intended merely to make explicit what is now implicit in the excellent opinion of my Brother Bell.
There can be no quibble or quarrel with the findings and conclusions that the wiretap under consideration here had its origin and complete implementation in the field of foreign intelligence. This Court and the able district judge have conducted inescapably independent reviews of the action of the then Attorney General in authorizing this warrant-less electronic surveillance. All agree in the determination that the wiretap was indeed directly related to legitimate foreign intelligence gathering activities for national security purposes; and that it was, therefore, a legal wiretap and not within the ambit of Alderman v. United States, 1969, 394 U.S. 165 , 89 S.Ct. 961 , 22 L.Ed.2d 176 . This case in no way involved the spurious use of national security as a cover for warrantless electronic surveillance of accused and potential criminal defendants, domestic radicals, or political dissenters; and the panel opinion narrowly barricades warrantless wiretaps within the confines of legitimate foreign intelligence surveillance.
It is unfortunate for the development of the law in this area of foreign intelligence wiretapping that the essential information on which the legality of executive action turns — the subject, location, scope, and duration of the surveillance —cannot be revealed. This circumstance places tremendous responsibility for both national security and cherished constitutional rights in the hands of individual judges, acting largely in ignorance of the related decisions of their colleagues and permanently insulated from the helpful criticisms and suggestions that result from the adversary process and the publication of explanatory opinions. Nevertheless, it remains the difficult but essential burden- of the courts to be ever vigilant, so that foreign intelligence never becomes a pro forma justification for any degree of intrusion into zones of privacy guaranteed by the Fourth Amendment. Courts must insure that there be no future tidal wave of warrantless wiretaps and that the floodgates controlling their use not be opened for domestic intelligence purposes. The judiciary must not be astigmatic in the presence of warrantless surveillance; rather judges must microscopically examine the wiretaps in order to determine whether they had their origin in foreign intelligence or were merely camouflaged domestic intrusions. The serious step of recognizing the legality of a warrantless wiretap can be justified only when, as in the case before us, the foreign and sensitive nature of the government surveillance is crystal clear.
*428 We must not trespass into the field of foreign intelligence and frustrate the executive in the pursuance of its obligations to conduct our foreign affairs. The Fourth Amendment, however, is no less a part of our Constitution than Article II, and its great protection against unreasonable invasions of privacy must remain inviolate. The fact that we develop the law of national security wiretaps largely in camera can never be allowed to lessen our zeal in the protection of fundamental rights. Indeed, the very secrecy surrounding our decisions requires that we give the closest scrutiny to executive assertions of national security interest.