# United States v. John D. Ehrlichman

> Court of Appeals for the D.C. Circuit · February 22, 1977 · 546 F.2d 910

URL: https://www.frixlaw.com/law-library/cases/9463377

## Case

- **Full name:** UNITED STATES of America v. John D. EHRLICHMAN, Appellant
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** February 22, 1977
- **Citations:** 546 F.2d 910; 178 U.S. App. D.C. 144
- **Precedential status:** Published
- **Opinion:** Concurrence by Leyenthal
- **Judges:** Leyenthal, Leventhal, Wilkey, Merhige, Eastern, Virginia
- **Cited by:** 89 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9463377

## How later opinions describe it (automated extraction)

- finding that foreign intelligence exception to the warrant requirement was not available where there was no "specific authorization by the President or the Attorney General” for the searches in question
- noting in dicta that "no court has ruled that the President does not have [the prerogative to authorize warrantless foreign intelligence collection] in a case involving foreign agents or collaborators with a foreign power”

## Opinion text

LEYENTHAL, Circuit Judge, joined by MERHIGE, District Judge,
concurring:
This supplemental concurring opinion is not meant to derogate from Judge Wilkey’s opinion for the court, in which I join, but is occasioned by the amicus curiae memorandum submitted by the Department of Justice. Because it is not necessary to pass on the contention tendered therein, the court’s opinion prudentially avoids discussion of it. But ari entirely proper and useful function of a concurring opinion is to identify matters that did not call for dispositive ruling. And since the Department's amicus memorandum seems to me to cut across the very protection the Fourth Amendment was designed most fundamentally to provide, I view my responsibility as a judge as calling on me to voice my concern.
Brief of Special Prosecutor
When I read the Brief for the United States filed on May 2, 1975, signed by Special Prosecutor Henry S. Ruth, Jr. and other members of the Watergate Special Prosecution Force, I was completely convinced — un *934 less appellant’s oral argument provided insights not foreshadowed in his brief — that it demolished appellant’s contention that the break-in of Dr. Fielding’s office was consistent with the Fourth Amendment. I was satisfied that it was entirely sound in its doctrine that a physical break-in to a home or office without a judicial warrant contravenes the Fourth Amendment, where as here the dark-of-night entry and search, planned weeks in advance, did not present “exigent circumstances” or any other of the “few specifically established and well-delineated exceptions” to the warrant requirement. See Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967). 1
In the Brief for the United States the Special Prosecutor relies on “200 years of precedent interpreting and shaping the Fourth Amendment” as establishing that a warrant must be obtained in all cases for the physical search of a citizen’s home or office, citing such cases as Wolf v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949) 2 (warrantless and unconsented entry into a doctor’s offices for the purpose of rummaging through his files), Johnson v. United States, 333 U.S. 10, 13-14 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948), Silverman v. United States, 365 U.S. 505, 511 , 81 S.Ct. 679 , 5 L.Ed.2d 734 (1961). He sees no reason to depart from that rule on national security grounds. Indeed the cases motivating adoption of the Fourth Amendment struck down governmental claims of unregulated power to search for evidence of treason and sedition. 3 No American case since has sustained the right to search a home or office without a warrant merely in the name of national security. Althoúgh the precise issue at stake here has not previously been raised, those cases dealing with espionage prosecutions, where the national security implications were evident, refused to tolerate any deviation from standard Fourth Amendment requirements. 4 In expanding the basic protections of the Fourth Amend *935 ment, the wiretap cases have not simultaneously eroded the Fourth Amendment’s general protections already clearly in existence.
Amicus Curiae Memorandum
On May 30, 1975, a few weeks before the date set for oral argument, there was filed in this court a two-page Memorandum for the United States as Amicus Curiae, signed by John C. Kenney, Acting Assistant Attorney General. It set forth that it was submitted pursuant to Rule 29, Fed.Rules of Appellate Procedure and “states the views of the United States” concerning the issue of the legality of forms of surveillance in the United States in cases involving foreign espionage or intelligence. The view thus set forth is this, that a warrantless search is lawful under the Fourth Amendment provided there is “solid reason to believe that foreign espionage or intelligence is involved,” intrusion into any zone of expected privacy is “kept to the minimum” and there is “personal authorization by the President or the Attorney General.” As to searches governed by such conditions, the Memorandum puts it there is no constitutional difference between searches conducted by wiretapping and those involving physical entries into private premises. The Memorandum concludes its presentation of “the position of the Department of Justice”:
It is and has long been the Department’s view that warrantless searches involving physical entries into private premises are justified under the proper circumstances when related to foreign espionage or intelligence (see U.S. Brief p. 45, n. 39).
That footnote 39 of the earlier-filed United States Brief, signed by Mr. Ruth, reads as follows:
39 Attorneys General in certain circumstances have permitted warrantless foreign intelligence surveillance involving a technical trespass solely for the purpose of placing a bug.
The Resulting Problem
The facts of this case required a rejection of appellant’s contention whether the court accepted the position set forth in the Brief for the United States or the position set forth in the Memorandum for the United States as Amicus Curiae. Because none of the defendants in this action claimed or offered to prove that either the President or the Attorney General specifically authorized the break-in, it was unnecessary for us to decide whether or not a physical break-in and search undertaken for foreign security reasons on the specific authority of the President or Attorney General would meet the requirements of the Fourth Amendment. Without such authorization, no possible claim of the validity of undertaking such a search could be maintained.
What troubles me about the application of conventional judicial approach, calling for decision on narrowest grounds available, is that regardless of what the judges say, their action in failing to reject the contention in the Justice Department Memorandum may be taken to signify that it has substance.
It troubles me particularly because the position is asserted by the Department of Justice, the law department of the Executive Branch, and has reverberations. That kind of assertion of an exception to settled doctrine may lead to an assumption by highly placed officials that the settled doctrine is now “eroded”. 5
*936 The very assertion of the exception by the Department of Justice accomplishes some diminution of the sense of privacy of all. While the Memorandum posits as a condition that there must be “solid reason” to believe foreign espionage or intelligence is involved, that determination requires judgment and discretion. The Keith opinion identifies the problem when there is executive discretion without review — stating that “unreviewed executive discretion may yield too readily to pressures” and “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.” United States v. United States District Court, 407 U.S. 297, 317 , 92 S.Ct. 2125, 2136 , 32 L.Ed.2d 752 (1972). Citizens whose views are in opposition to the Administration’s may be pursued on the ground of some relation to foreign intelligence, although that is not in fact the case. Indeed, in this case it was admitted that Dr. Fielding, whose office was broken into, had no relation whatever to foreign intelligence, and although that was speculated as a possibility as to Dr. Ellsberg, no information linking Dr. Ellsberg to foreign intelligence has yet been disclosed.
The problem is deepened by the reality that any executive action on the basis of the asserted exception will be unknown. The mere impairment of a general sense of privacy apparently would not confer standing to challenge unknown actions. Laird v. Tatum, 408 U.S. 1 , 92 S.Ct. 2318 , 33 L.Ed.2d 154 (1972). Yet when executive authority is not only asserted but acted upon, that somehow seems to lead to an argument based on practice. Indeed, the Memorandum Amicus Curiae seeks to build on the fact that in certain instances the Attorney General has authorized a technical trespass to place a bug, as noted in the United States Brief, translating this into a long-settled view that there is authority for “physical entries into private premises” 6 without taking any note of the position of the United States Brief, that technical trespasses to conduct electronic surveillance stand in a different position from entries to conduct physical seizures or visual searches of papers, and that the two types of intrusion have had distinctively different conceptual approaches and legal histories. 7
*937 The Amicus brief in effect seeks to rewrite history by saying that the Department of Justice has always sanctioned trespasses, and seeks to finesse the distinction between technical trespass for electronic surveillance and the kind of breaking and entering that was for hundreds of years labelled a core violation of fundamental rights. That the “long-settled” position of the Department marked a crucial distinction between the two trespasses is confirmed by the recent report of a Senate Select Committee which found; “There is no indication that any Attorney General was informed of FBI ‘black bag jobs’, and a ‘Do Not File’ procedure was designed to preclude outside discovery of the FBI’s use of the technique.” 8
As appears from the history reviewed in the margin (footnote 7), in the days after Olmstead (1928) and before Katz (1967), there were Presidential directives — in 1940, 1946, and 1965 — permitting the Attorney General to secure information by intercept of telephone communications in the interest of national security. While these plainly permitted phone taps implemented off the suspect’s premises, they did not specifically authorize physical trespass, and the 1961 Silverman opinion held that even though there was no general Fourth Amendment ban on warrantless wiretaps, there was a ban on warrantless electronic eavesdropping gained by “unauthorized physical penetration into the premises.”
There may well be a critical difference between electronic surveillance and physical entries for the purpose of search and seizure of papers, and a two-page ipse dixit statement of views in the Memorandum does not suffice to lead me to question the presentation in the United States Brief. While history is not determinative, physical entry into the home was the “chief evil” appreciated by the framers of the Constitution. United States v. United States Dis *938 trict Court, 407 U.S. 297, 313 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972). This argues strongly for the proposition that the safeguard against this chief evil is not to be whittled away on abstract grounds of symmetry, merely because the new evil of electronic surveillance was possibly subject to a national security exception when, in 1967, it came to be regulated by constitutional doctrine.
The analysis in Keith makes it clear that the importance of the interest protected has bearing on the permissibility of warrantless intrusions. 9 In testimony before the Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities, November 6, 1975, Attorney General Levi has also recognized that “[t]he nature of the search and seizure can be very important. An entry into a house to search its interior may be viewed as more serious than the overhearing of a certain type of conversation. The risk of abuse may loom larger in one case than the other.” (p. 32). He also notes that the warrant requirement depends on both “the purpose and degree of intrusion.” (p. 46). The Attorney General apparently contends that a high purpose of the intrusion outweighs from a constitutional standpoint the physical act of intrusion itself. Yet the Attorney General recognizes that the nature of the intrusion may outweigh the purpose, and that a judicial warrant is a precondition before there can be an intrusion on a citizen who is not suspected of any foreign link against the United States. This he identifies as being the exact ruling of Zweibon v. Mitchell, 170 U.S.App.D.C. 1 , 516 F.2d 594 (1975, en banc).
Even if it be assumed that the Supreme Court will take a step so far declared only by Justice White, and hold warrantless electronic surveillance justified in the case of foreign intelligence activities, that step may be responsive to an assertion that practical realities require a continuous and protracted electronic surveillance, of certain foreign representatives or agents, that does not lend itself to the warrant procedure. 10 Any claim of authorization to make physical entries, however, would project a more discrete kind of intrusion, without the same claim to a need for avoiding a warrant procedure. The Attorney General’s testimony makes this kind of distinction in the electronic surveillance context, noting that “the more limited in time and target a surveillance is, the more nearly analogous it appears to be with a traditional criminal search which involves a particular target location or individual at a specific time,” and thus apparently the more “amenable to some sort of warrant requirement.” 11 And Justice Powell’s opinion in Keith certainly rejects lesser contentions against a judicial warrant, that judicial machinery cannot be trusted with secrets, and with the ability to handle the differences between security issues and the probable cause of past criminality normally considered by judges.
The foreign security rationale of the Justice Department’s amicus memorandum would apply even if there were no “exigent circumstances” that would justify use of the emergency exception. That rationale *939 lacks any principle of self-containment. The basic premise of stated Fourth Amendment law — that in the absence of exigent circumstances a physical search is per se unreasonable without a judicial warrant — is thus to be sacrificed on the altar of security, and this in the context of a physical search of a person who was not believed to be a traitor but was merely a repository of information on the personality of a patient, who in turn was deemed involved in our nation’s foreign security. 12
One is hard put to know how to cope with the assertion in the Amicus Curiae Memorandum that it “has long been” the position of the Department of Justice that warrant-less physical entries are justified “under the proper circumstances when related to foreign espionage or intelligence.” Was this position disclosed? In what respect does a practice that is not disclosed reflect a “position” of legality? It has recently developed that the FBI has in the past secretly made physical entries for the purpose of “black bag” jobs. It could fairly be put that the secrecy at the time was a recognition of the illegality of the practice. 13 We have no indication that any Attorney General was informed of these (see text at note 8, supra). We are certainly not told the nature of the “proper circumstances” in which any Attorney General allowed physical entries “when related to foreign espionage or intelligence.” Was this after the 1961 Silverman case? Was the invasion of premises of foreign governments (where it may be argued the Fourth Amendment offers no protection)? Or of foreign agents of foreign governments?
Justice Powell’s concern over unreviewed executive discretion is not squarely met by the Justice Department’s position that the search here would stand on different ground if authorized by former Attorney General Mitchell. Justice Powell warned that the availability of a doctrine permitting unreviewed executive discretion to conduct surveillance in the name of security provides temptation to abuse rights, and he cited Chief Justice Warren’s caution in United States v. Robel, 389 U.S. 258, 264 , 88 S.Ct. 419, 424 , 19 L.Ed.2d 508 (1967): 14
[Tjhis concept of “national defense” cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term “national defense” is the notion of defending those values and ideals which set this Nation apart ... It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . which makes the defense of the Nation worthwhile.
The long and short of it is that the Amicus Memorandum seeks to use Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), which expanded Fourth Amendment protection to the field of electronic surveillance, as a means of contracting Fourth Amendment protection outside the electronic surveillance domain. In Katz the Court “refused to lock the Fourth Amendment into instances of actual physical trespass.” 15 Katz and Keith were intended to open, not lock, the protection of the Fourth Amendment.
*940 Without purporting to provide a binding ruling on the matter — for it affects the liability of neither Ehrlichman nor his codefendants — I thus record this reaction to the legal arguments presented in this case. The federal courts should not tinker with the Supreme Court’s presently announced doctrine, requiring a warrant for physical entries except in exigent circumstances, unless and until the Supreme Court says so. Neither the Executive’s hitherto undisclosed past conduct nor its present Amicus claim justifies expansion of the exigency exception.
. This was obviously not a search incident to arrest, nor a seizure of evidence in “plain view” of the police. The exception for exigent circumstances is developed in such cases as Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967); Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966); Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); Dorman v. United States, 140 U.S.App. D.C. 313, 435 F.2d 385 (en banc, 1970).
. Overruled on other grounds in Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961).
. The Framers formulated the Fourth Amendment against the background of Entick v. Carrington, 95 Eng.Rep. 807 (1765), a case found by the Supreme Court in Boyd v. United States, 116 U.S. 616, 627 , 6 S.Ct. 524, 530 , 20 L.Ed. 746 (1886) to be “sufficiently explanatory of what was meant by unreasonable searches and seizures.” Entick upheld damages against the Secretary of State, who issued a general executive warrant to seize papers in a case of seditious libel. In a 1761 debate that helped inaugurate opposition to Great Britain, James Otis denounced the similar practice of using writs of assistance to empower revenue officers to search on their discretion for smuggled goods as “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book” since they placed the “liberty of every man in the hands of every petty officer.” Quoted in Boyd v. United States, 119 U.S. at 625, 6 S.Ct. at 529 .
Undertaking a search without a warrant on the “belief, however well founded, that an article sought is concealed in a dwelling house,” Agnelio v. United States, 269 U.S. 20, 33 , 46 S.Ct. 4, 6 , 70 L.Ed. 145 (1925) has consistently and repeatedly been condemned as inconsistent with the Fourth Amendment’s requirements. See, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 477-78 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967); Johnson v. United States, 333 U.S. 10, 14 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948).
. See, United States v. Coplon, 185 F.2d 629, 635 (2d Cir. 1950) (warrantless arrest of Justice Department employee apparently engaged in passing defense information to a Soviet agent held inconsistent with statutory requirements; no consideration was given any national security justification for such an arrest; Abel v. United States, 362 U.S. 217 , 80 S.Ct. 683 , 4 L.Ed.2d 668 (1960) (valid search incident to a deportation arrest upheld which produced evidence of espionage activities; the Court nevertheless noted that “the preliminary stages of a criminal prosecution must be pursued in strict obedience to the safeguards and restrictions of the Constitution and laws of the United States.”) at 226, 80 S.Ct. at 690 .
. See Hearings before the Select Committee on Presidential Campaign Activities of the United States Senate, 93d Cong., 1st Sess. Book 6 (testimony of July 25, 1973) p. 2601:
Senator Talmadge: Do you remember when we were in law school, we studied a famous principle of law that came from England and also is well known in this country, that no matter how humble a man’s cottage is, that even the King of England cannot enter without his consent.
Mr. Ehrlichman: I am afraid that has been considerably eroded over the years, has it not?
Senator Talmadge: Down in my country we still think it is a pretty legitimate principle of law.
Senator Talmadge’s words recall the historic declamation by William Pitt, first Earl of Chat-ham, distinguished also for denouncing the American policy of George III, in his address to the House of Lords:
*936 “The poorest man may in his cottage bid defiance to the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter! — all his force dares not cross the threshold of the ruined tenement!”
(Quoted in I. Brougham, Statesmen in the Time of George III. 52 (1839).)
. The United States Brief notes, however, that the United States did not defend this proposition when presented with the opportunity in United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. denied sub nom. Ivanov v. United States, 419 U.S. 8 .81, 95 S.Ct. 147 , 42 L.Ed.2d 121 (1974), by failing to resist disclosure of trespassory surveillance logs.
. In holding the Fourth Amendment applicable only to searches “of material things” (277 U.S. at 464, 48 S.Ct. 564 ) and not to electronic surveillance, the 1928 Olmstead case emphasized that the wiretaps were made “without trespass upon any property of the defendants.” Olmstead v. United States, 277 U.S. 438, 457 , 48 S.Ct. 564, 565 , 72 L.Ed. 944 (1928); Overld in Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) It had already been established in Gouled v. United States, 255 U.S. 298 , 41 S.Ct. 261 , 65 L.Ed. 647 (1921) (disapproved in part in Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967) that a search by stealth of a citizen’s private quarters is an unreasonable search. In Silverman v. United States, 365 U.S. 505 , issued March 6, 1961, the Court ruled (at 509-10, 81 S.Ct. 679, at 681-82 , 5 L.Ed.2d 734 ) that “eavesdropping by means of an unauthorized physical penetration into the premises occupied by the petitioners” was “beyond the pale” of prior decisions of a divided Court holding that “eavesdropping accomplished by other electronic means did not amount to an invasion of Fourth Amendment rights.”
Although the Olmstead decision put warrant-less nontrespassory electronic surveillance outside the scope of the Fourth Amendment, the Court’s Nardone decisions of 1937 and 1939 construed the Federal “wiretap” statute as prohibiting the intercept and disclosure of wiretap-garnered information by Executive officials, even in court, as “inconsistent with ethical standards and destructive of personal liberty.” Nardone v. United States, 308 U.S. 338, 340 , 60 S.Ct. 266, 267 , 84 L.Ed. 307 (1939); Nardone v. United States, 302 U.S. 379, 383 , 58 S.Ct. 275 , 82 L.Ed. 314 (1937). The Attorney General had *937 construed the statute as permitting intercept in the absence of disclosure.
It was against this background of statutory rather than constitutional prohibition of warrantless surveillance that the national security exception for wiretapping was first invoked. In 1940 President Roosevelt authorized the Attorney General to secure information by listening devices of conversations of persons suspected of subversive activities against the United States Government. That outstanding directive was continued by President Truman in 1946. In 1965 President Johnson issued a directive that the interception of telephone communications “should be engaged in only where national security is at stake;” and approval of the Attorney General is obtained. As Acting Attorney General Ramsey Clark extended that directive to all “listening devices in private areas.” The prohibition put on such electronic interceptions thus respected statutory and voluntary limits on surveillance even though the Fourth Amendment under Olmstead did not require such restraint. (Cited memoranda collected at 514 F.2d at 246-48).
After the Supreme Court decided Katz in 1967, and held the Fourth Amendment applicable to electronic surveillance, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, requiring and providing for judicial authorizations of such surveillance. 18 U.S.C. § 2511 (3) provided that nothing in the original wiretap law (§ 605 of the Communications Act of 1934, 47 U.S.C. § 605 ) or this Act “shall limit the constitutional power of the President . . to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities.” When Katz was decided by the Supreme Court in 1967, one Justice (White) indicated that the Fourth Amendment was not applicable if the President or the Attorney General had determined that electronic surveillance was necessary to protect the security of the Nation. (389 U.S. at 363-64, 88 S.Ct. 507 ). Two Justices disagreed and denied that this could dispense with a warrant (see Douglas and Brennan, J J. at pp. 359-60, 88 S.Ct. 507 ). The other Justices declined to rule on that issue, see 389 U.S. 358 , footnote 23, 88 S.Ct. 507 , and Stewart, J. in Giordano v. United States, 394 U.S. 310, at 315 , 89 S.Ct. 1163 , 22 L.Ed.2d 297 (1969). Two circuit courts subsequently upheld as valid warrantless electronic surveillance, in instances where the surveillances had been expressly approved by the Attorney General. United States v. Butenko, 494 F.2d 593 (3d Cir.) (en banc), cert. denied, sub nom. Ivanov v. United States, 419 U.S. 881 , 95 S.Ct. 147 , 42 L.Ed.2d 121 (1974), Attorney General approval, set forth in 318 F.Supp. 66, 70-71 (D.C.N.J.1970); United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 960 , 94 S.Ct. 1490 , 39 L.Ed.2d 575 (1974).
. S.Rep.No.94-755, 94th Cong., 2d Sess,, Final Report of the Select Committee to Study Governmental Operations with respect to Intelligence Activities, Vol. II (1976), p. 61.
. Electronic surveillance in terms of intrusiveness, notice, utility and methodology, differs fundamentally from more traditional searches, and the Supreme Court has dealt separately with the problems it poses. White’s opinion in Katz , only refers to electronic surveillance as permissible without a warrant under a national security exception. And the Court’s consideration in Keith of the claim of a domestic security exception focused on the special features of electronic surveillance instead of reasoning from the physical search cases.
. Attorney General Levi, in his November 6, 1975, testimony before the Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities, drew a distinction in terms of the significance and value of a judicial warrant among three categories of electronic surveillances undertaken to protect national security: surveillance to protect against specific anticipated criminal offenses of a particular foreign agent; a more extended or continuous surveillance directed at an identified foreign agent to monitor his activities, contacts and to gain knowledge about his county; virtually continuous surveillance without specifically predetermined targets for the gathering of foreign intelligence information.
. Id. at p. 50 (mimeo).
. See, e. g., Zweibon v. Mitchell, supra, 516 F.2d at 652-53 .
. The Senate Select Committee similarly explains the practice of secrecy:
The only internal FBI memorandum found discussing the policy for surreptitious entries confirms that this was the procedure and states that “we do not obtain authorization from outside the Bureau” because the technique was “clearly illegal.” The memorandum indicates that “black bag jobs” were used not only “in the espionage field” but also against “subversive elements” not directly connected to espionage activity. It added that the techniques resulted “on numerous occasions” in obtaining the “highly secret and closely guarded” membership and mailing lists of “subversive” groups.
S.Rep.No.74-755, 94th Cong., 2d Sess., Final Report of the Select Committee to Study Governmental Operations with respect to Intelligence Activities, Vol. II (1976), p. 62.
. United States v. U. S. District Court, supra, 407 U.S. at 332 , 92 S.Ct. 2125 .
. United States v. U. S. District Court, supra, 407 U.S. at 313 , 92 S.Ct. at 2135.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463377. Public record. Not legal advice.