Appendix — ZWEIBON v. MITCHELL (Nos. 75-1056, 75-1046, 75-1059)

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Appendix A

994

Bertram ZWEIBON et al., Appellants,

John N. MITCHELL, Individually and

as Attorney General of the United

States of America, et al.

No. 73-1847.

United States Court of Appeals,

District of Columbia Circuit.

Argued Oct. 23, 1974

Decided June 23, 1975.

As Amended June 24, 1975.

Rehearing Denied Aug. 29, 1975.

Members of organization which was

demonstrating against Soviet policy

brought action aginst Attorney General

and special agents or special employees

of the Federal Bureau of Investigation

to recover damages allegedly sustained

as result of alleged unlawful electronic

surveillance of the organization’s New

York headquarters. The United States

District Court for the District of Colum-

bia, 363 F.Supp. 936, John H. Pratt, J.,

entered judgment for the Attorney Gen-

eral and the FBI agents. The organiza-

tion members appealed. The Court of

Appeals, J. Skelly Wright, Circuit Judge,

in an opinion in which two Judges joined

in its entirety and one Judge joined in

part, held that a warrant is required be-

fore a wiretap is installed on a domestic

organization that is neither the agent of

nor acting in collaboration with a for-

eign power, even if the surveillance is

installed under Presidential! directive in

the name of foreign intelligence gather-

ing for protection of the national! securi-

ty; the warrant must be obtained and

executed in compliance with the proce-

dures of Title III of the Omnibus Crime

Control and Safe Streets Act of 1968:

that the members stated a cause of ac-

tion; and that the members would be

entitled to the liquidated damages recov-

ery provided in that Act, unless the de-

fen ants could establish -an affirmative

defense of good faith.

Reversed and remanded.

516 FEDERAL REPORTER, 2d SERIES

McGowan, Circuit Judge, concurred

in the judgment and filed opinion.

Robb, Circuit Judge, concurred in

the judgment and filed opinion.

Wilkey, Circuit Judge, concurred in

part and dissented in part and filed opin-

ion.

MacKinnon, Circuit Judge, con-

curred in part and dissented in part and

filed opinion

Bazelon, Chief Judge, dissented as to

Part III-B of the opinion of Circuit

Judge J. Skelly Wright and filed an

opinion.

1. United States =78(5)

Illegal nontrespassory electronic sur-

veillance is within the ambit of the Fed-

eral Tort Claims Act. (Per Wright, Cir-

cuit Judge, with three Judges concurring

and three additional Judges concurring

in the judgment.) 28 U.S.C.A. §§ 2671

2680, 2680(h)

2. Searches and Seizures @7(10), 8

Warrantless electronic surveillance

by FBI agents, approved by the Attor-

ney General, constituted a Fourth

Amendment violation for which federal

cause of action for damages existed.

(Per Wright, Circuit Judge, with three

Judges concurring and three additional

Judges concurring in the judgment.)

U.S.C.A.Const. Amend. 4

3. Telecommunications 2 496

A warrant must be obtained before

a wiretap is installed on a domestic or-

ganization that is neither the agent of

nor acting in collaboration with a for-

eign power, even if the surveillance is

installed under presidential directive in

the name of foreign intelligence gather-

ing for protection of the national securi-

ty. (Per Wright, Circuit Judge, with

three Judges concurring and three addi-

tional Judges concurring in the judg-

ment.) U.S.C.A.Const. Amend. 4

4. Telecommunications 496

Whatever the legitimate scope of

the power of the President to conduct

legitimate national security wiretaps,

ZWEIBON v. MITCHELL

595

Cite as 516 F.2d 504 (1975)

and whatever the standard which must

be met to justify the intrusion of a wire-

tap, the decision as to whether the scope

has been exceeded or the standard has

been met is to be made by a neutral and

disinterested magistrate or judge rather

than by an executive official engaged in

investigatory or prosecutorial duties, at

least in situations where the subject of

the surveillance is a domestic organiza-

tion that is not the agent of or acting in

collaboration with a foreign power. (Per

Wright, Circuit Judge, with three Judges

concurring and three additional Judges

concurring in the judgment.) U.S.C.A.

Const. Amend. 4.

5. Searches and Seizures @7(10)

Telecommunications 496

Although any electronic surveillance

is presumptively unlawful if instituted

without compliance with the strictures of

Title II] of the Omnibus Crime Control

and Safe Streets Act of 1968, a surveil-

lance immune from the Fourth Amend-

ment’s warrant requirement would not

be rendered unlawful by Title III. (Per

Wright, Circuit Judge, with three Judges

concurring and three additional Judges

concurring in the judgment.) U.S.C.A.

Const. Amend. 4; 18 U.S.C.A. §§ 2510

2520, 2511(3).

6. Searches and Seizures @7(10)

Although some presidents had au-

thorized non-trespassory national] securi-

ty electronic surveillance and wiretaps,

the practice arose when there were no

constitutional barriers to such surveil-

lance, and did not justify dispensing with

the Fourth Amendment warrant require-

ment after the decision in Katz v. Unit-

ed States, 389 U.S. 347 (1967). (Per

Wright, Circuit Judge, with three Judges

concurring and three additional Judges

concurring in the judgment.) U5S.C.A

Const. Amend. 4.

7. Constitutional Law 45

An unconstitutional practice, no

matter how inveterate, cannot be con-

doned by the judiciary. (Per Wright,

Circuit Judge, with three Judges concur-

ring and three additional Judges concur-

ring in the judgment.)

8. Searches and Seizures @=7(1)

Since warrantless trespassory

searches were the “hard core” Executive

abuses which the Fourth Amendment

was designed to proscribe and since the

Supreme Court has abrogated the tres-

passory/non-trespassory line as a viable

criterion for categorizing Executive ac-

tions for Fourth Amendment purposes,

the President’s warrantless non-trespas-

sory searches should be similarly pro-

scribed; it is more in keeping with the

spirit and purpose of the Fourth Amend-

ment to close areas of assertedly nonre-

viewable executive prerogative rather

than to retreat in doctrinal areas which

have been settled since the amendment

was first promulgated. (Per Wright,

Circuit Judge, with three Judges concur-

ring and three additional Judges concur-

ring in the judgment.) U.S.C.A-Const

Amend. 4.

9. International Law @10.8

The “act of state” doctrine provides

that the acts of a foreign sovereign aré

not subject to review in the courts of

another sovereign and must be presumed

to be valid. (Per Wright, Circuit Judge,

with three Judges concurring and three

additional Judges concurring in the judg-

ment.)

See publication Words and Phrases

for other judicial constructions and

definitions

10. Courts @ 260.4

Rather than declining jurisdiction

when the “act of state” doctrine is in-

voked, a court must exercise its jurisdic-

tion and decide the case on the merits,

after according the foreign act an irre-

buttable presumption of legality. (Per

Wright, Circuit Judge, with three Judges

concurring and three additional Judges

concurring in the judgment.)

11. Constitutional Law @72

The more directly “foreign” actions

affect domestic activities protected by

the Bill of Rights, the more urgent is the

need for judicial oversight of the Presi-

dent's actions, particularly when the ac-

tions have not been authorized by Con-

gress and are not so public as to permit

596

informed scrutiny and review through

the political process. (Per Wright, Cir-

cuit Judge, with three Judges concurring

and three additional Judges concurring

in the judgment.) U.S.C.A Const.

Amend. 4.

12. Constitutional Law @=68(1)

The decision whether a citizen's pri-

vacy may constitutionally be invaded is

not a “political” question entrusted to

the Executive; rather, it is a question of

providing a bulwark against Executive

excess, a task which the Fourth Amend-

ment deliberately allocated to the neu-

tral officials of the Judiciary. (Per

Wright, Circuit Judge, with three Judges

concurring and three additional Judges

concurring in the judgment.) U.S.C.A

Const. Amend. 4

13. United States 28

The Executive power in the domain

of foreign relations is not exempt from

judicial review or immune to constitu-

tional limitations. (Per Wright, Circuit

Judge, with three Judges concurring and

three additional Judges concurring in the

judgment.)

14. Searches and Seizures @=3.2, 7(10)

Telecommunications 2496

The reasonableness of warrantless

national security surveillance is not to be

determined by the circumstances of the

particular case but by the competing in-

terests implicated in the category of

eases of which this is but one example;

a court must ask not only whether there

is a legitimate presidential need to con-

duct national security surveillance but

also whether a warrant—which safe-

guards First and Fourth Amendment

values—would frustrate the legitimate

governmental goal in that category of

(Per Wright, Circuit Judge, with

three Judges concurring and three addi-

tional Judges concurring in the judg-

ment.) U.S.C.A.Const. Amends. 1, 4

cases.

15. Searches and Seizures @=3.2, 7(29)

Although the Fourth Amendment

does not prohibit all warrantless searches

and seizures, the presumption has always

been that a warrant should be obtained

516 FEDERAL REPORTER, 2d SERIES

whenever practicable; exceptions to the

warrant requirement are based on exi-

gent or other circumstances where delay

would frustrate legitimate police activi-

ty. (Per Wright, Circuit Judge, with

three Judges concurring and three addi-

tional Judges concurring in the judg-

ment.) U.S.C.A.Const. Amend. 4.

16. Searches and Seizures *=3.6(2)

Factors which might cause a court

to issue a search warrant on less than

traditional probable cause are not them-

selves factors which require tota! abro-

gation of the warrant procedure for de-

termining if the lowered probable cause

standard is actually met. (Per Wright,

Circuit Judge, with three Judges concur-

ring and three additional Judges concur-

ring in the judgment.) U.S.C.A.Const.

Amend. 4

17. Searches and Seizures @=7(10)

Fact that a “border search” is con-

ducted incident to conferral of the privi-

lege of admittance to the country, such a

search is “consented” to in order to ob-

tain the benefit that is only to be accord-

ed those who can show that they should

gain admittance and there is no substan-

tial likelihood that border searches will

chill exercise of First Amendment rights

justify the special treatment accorded

“border searches” under the Fourth

Amendment. (Per Wright, Circuit

Judge, with three Judges concurring and

three additional Judges concurring in the

judgment.) U.S.C.A.Const. Amends. 1, 4.

18. Constitutional Law @=82, 90.1(1), 91

Telecommunications #496

Pricr judicial review of request for

electronic surveillance is important not

only to protect the privacy interests of

those whose conversations the govern-

ment seeks to overhear, but also to pro-

tect free and robust exercise of the First

Amendment rights of speech and associa-

tion. (Per Wright, Circuit Judge, with

three Judges concurring and three addi-

tional Judges concurring in the judg-

ment.) U.S.C.A.Const. Amends. 1, 4.

19. Telecommunications #496

Prior judicial review when a group

is the proposed subject of a wiretap will

ZWEIBON v. MITCHELL

597

Cite as 516 F.2d St4 (1975)

permit a neutral determination as to

whether the who allegedly

engaged in criminal activity or who al-

legedly must be overheard to obtain na-

individuals

tional security information are actually

of the group, what their level

of participation in the group is, and

whether the actions and their consequent

members

legal ramifications may properly be at-

tributed to the group as well as to the

individuals involved. (Per Wright, Circuit

Judge, with three Judges concurring an’

three additional Judges concurring in the

'$.C.A.Const 14

judgment.) | Amends

20. Criminal Law 641.12(1)

Surreptitious surveillance of individ-

uals under criminal indictment may deny

surveillance effectiv

in derogation of their

(Per Wright,

Judges concur-

subject of assist-

ance of counsel

Sixth Amendment rights

Judge, with three

ring and three additional Judges concur-

judgment.) U.S.C.A.Const

= 496

proceeding to obtain a

21. Telecommunications

A ct irt Ina

warrant for electronic surveillance

should order recording of all conversa-

tions that enforcement officials overhear

and may require that, as soon as the

agent determines that a conversation

does not pertain to the authorized sub-

ject ¢ f the wire lap, both the overhearing

and the recording cease until another

conversation has been initiated (Per

Wright,

concurring and

Circuit Judge, with three Judges

additional Judges

U.S.C.A

three

concurring in the judgment.)

Const. Amends. 1, 4

22. Searches and Seizures @=7(10)

Telecommunications = 496

idicial review of

Prior a request, in

the name of nationa: for elec-

security,

ronic surveillance of a domestic organi-

ation should be

required unless it will

frustrate the legitimate goals of surveil-

lance; possible factors that might dic-

tate abrogation of the warrant require-

mer nclude lack of judicial compe-

tence to deal with foreign affairs data,

danger of security leaks which might en-

danger the es of informants and

agents and which might seriously harm

national security, fact that such surveil-

lance is not being used for criminal pros-

ecutions, but only for “strategic” intelli-

gence gathering, possibility that delay

involved in warrant procedure might re-

sult in substantial harm to national se-

curity and that the administrative bur-

Executive branch

but none of these

den on courts or the

would be enormous;

factors is persuasive as a reason for ab-

rogating the warrant procedure when

the President seeks to obtain informa-

tion that affects foreign affairs. (Per

Wright, Circuit Judge, with three Judges

concurring and three additional Judges

concurring in the judgment.) U.S.C.A

Const. Amend. 4.

23. Evidence @4]1

Court of Appeals would take judicial

of fact that a not

of federal

grounds in law enforcement that would

notice insubstantial

number judges have hack-

probably render them particularly sensi-

tive to the problems the FBI is confront-

ed with in its intelligence-gathering ca-

pacity. (Per Wright, Circuit Judge, with

three Judges concurring and three addi-

tional Judges concurring in the judg-

ment.)

24. Searches and Seizures @7(1)

Reasonableness of search and seizure

cannot depend on information secured

after it occurs. (Per Wright, Circuit

Judge, with three Judges concurring and

three additional Judges concurring in the

judgment.) U.S.C.A.Const. Amend. 4

25. Searches and Seizures e9%

Every search and seizure is properly

subject to judicial review, and the fact

that some searches are not actually re-

mere (Per

Wright, Circuit Judge, with three Judges

concurring and three additional Judges

concurring in the judgment.) U.S.C.A

Const. Amend. 4

viewed is a convenience

26. Telecommunications 2496

“Probable cause” in the context of

seeking electronic surveillance in the in-

terest of “national security” need not be

as strict as “probable cause” in the con

598

text of ordinary criminal] investigations

(Per Wright, Circuit Judge, with three

Judges concurring and three additional

Judges concurring in the judgment.)

U.S.C.A.Const. Amend. 4; 18 US.C.A

§§ 2510 2520.

27. Searches and Seizures @=7(1)

The Fourth Amendment is not limit-

ed to remedies in the criminal process;

privacy interests are not weakened

merely because an offensive search. does

not lead to a criminal prosecution and it

is anomalous to suggest that the more

innocent the individual, the less protec-

tion his privacy interests merit. (Per

Wright, Circuit Judge, with three Judges

concurring and three additional Judges

concurring in the judgment.) U.S.C.A

Const. Amend. 4

28. Telecommunications @496

There may be exigent circumstances

where imminent danger of loss of vital

information would justify dispensing

with the warrant procedure for obtain-

ing authorization of electronic surveil-

lance although a warrant should general-

ly be obtainable during the period in

which wiretap preparations are being

made and executive authorization .s be

ing sought. (Per Wright, Circuit Judge,

with three Judges concurring and three

additional Judges concurring in the judg-

ment.) U.S.C.A.Const. Amend. 4; 18

U.S.C.A. §§ 2510-2520.

29. Searches and Seizures @=7(10)

Analysis of potential factors for ab-

rogating the warrant requirement in na-

tional security cases suggests that absent

exigent circumstances, no wiretapping in

the area of foreign affairs should be ex-

empt from prior judicial scrutiny, irre-

spective of the justification for the sur-

veillance or the importance of the infor-

mation sought. (Per Wright, Circuit

Judge, with three Judges concurring and

three additional Judges concurring in the

judgment.) U.S.C.A.Const. Amend. 4

30. Telecommunications 2496

Warrants must be obtained before

electronic surveillance can take place on

a domestic organization when the domes-

516 FEDERAL REPORTER, 2

SERIES

tic organization is neither an agent of

nor acting in collaboration with, the

eign power posing the national security

threat. (Per Wright, Circuit Judge, with

three Judges concurring and three addi-

tional Judges concurring in the judg-

ment.) U.S.C.A.Const. Amen. 4; 18

U.S.C.A. §§ 2510-2520

for-

31. Searches and Seizures @=3.3(1)

The government is not entitled to

engage in warrantless surreptitious sur-

veillance of activity, which would other-

wise remain private and protected, mere-

ly because another government is antag-

onized by such activity; © the extent

that such activity constitutes domestic

crime, there is no reason to accord the

suspect constitutional protection

merely because a foreign power objects

to the activity; to the extent such activi-

ty constitutes protected speech, there js

the inherent danger that the government

will use the objections of foreign powers

to dampen protests to its foreign rela-

tions (Per Wright, Circuit

Judge, with three Judges concurring and

three additional Judges concurring in the

judgment.) U.S.C.A.Const. Amend. 4.

less

policies

32. Searches and Seizures @=7(10)

Telecommunications 2496

It would be proper to issue warrant

for national security wiretap of a domes-

tic organization when there is “probable

cause” to believe that certain categories

of intelligence information are likely t

be obtained from the surveillance, even

though evidence of crime is neither

sought nor likely to be uncovered; but

not every search must be deemed to be

“reasonable” merely because some infor-

mation relevant to any decision relating

to foreign affairs is likely to be obtained

from the surveillance. (Per Wright, Cir-

cuit Judge, with three Judges concurring

and three additional Judges concurring

in the judgment.) U.S.C.A.Const.

Amend. 4; 18 U.S.C.A. §§ 2510-2520.

33. Telecommunications @=496

A possible factor that judges might

consider in determining whether a pro-

posed national security wiretap would be

reasonable is a showing that the subject

ZWEIBON v. MITCHELL 599

Cite as 516 F.2d S04 (1975)

of the surveillance is hostile to the

government and that alternative means

of obtaining the information, such as

subpoenas or routine FBI questioning,

have been exhausted or would prove to

be unsuccessful or inconsistent with the

information gathering goals. (Per

Wright, Circuit Judge, with three Judges

concurring and three additional Judges

concurring in the judgment.) U.S.C.A.

Const. Amend. 4; 18 U.S.C.A

§ 2518(1\(c).

3A. Telecommunications 2496

Among factors which judges should

consider in deciding whether “probable

cause’ exists to install national security

wiretaps are the importance of the infor-

mation sought by the government, the

availability of less intrusive means for

obtaining the information and the de-

gree to which surveillance of a particular

scope and duration will infringe individ-

ual rights. (Per Wright, Circuit Judge,

with three Judges concurring and three

additional Judges concurring in the judg-

ment.) U.S.C.A.Const. Amend. 4; 18

U.S.C.A. §§ 2510-2520.

35. Searches and Seizures 8

Telecommunications @ 498

The recovery permitted under the

federal cause of action for a constitu-

tional violation of Fourth Amendment

rights by reason of illegal electronic sur-

veillance is limited to compensatory dam-

ages; under the Omnibus Crime Control

and Safe Streets Act of 1968, the plain-

uff could recover actual damages, with

minimum liquidated damages, punitive

damages and attorney's fees (Per

Wright, Circuit Judge, with three Judges

concurring and three additional Judges

concurring in the judgment.) 28 U.S

C.A. § 1331; 18 U.S.C.A. §§ 2511, 2520

36. Searches and Seizures @8

Telecommunications 498

In an action for violation of Fourth

Amendment rights because of allegedly

illegal wiretapping, the government

agents would be entitled to interpose a

general “good faith” defense, while in an

action brought under the Omnibus Crime

Control and Safe Streets Act of 1968,

the government agents could interpose

only a narrow and specific good-faith de-

fense. (Per Wright, Circuit Judge, with

three Judges concurring and three addi-

tional Judges concurring in the judg-

ment.) U.S.C.A.Const. Amend. 4; 18

U.S.C.A. §§ 2510-2520.

37. Telecommunications 2498

Where warrant was constitutionally

required for the electronic surveillance

and wiretapping of phones of members

of domestic organization but a warrant

was not obtained by the Attorney Gener-

al nor by members of the FBI, the or-

ganization’s members were entitled to

the liquidated damages recovery provid-

ed by the Omnibus Crime Control and

Safe Streets Act of 1968 unless the At-

torney General and the agents could es-

tablish an affirmative defense of good

faith. (Per Wright, Circuit Judge, with

three Judges concurring and three addi-

tional Judges concurring in the judg-

ment.) U.S.C.A.Const. Amend. 4; 18

U.S.C.A. §§ 2510-2520.

38. Searches and Seizures 8

Complaint of members of domestic

organization who had been subjected to

warrantless wiretap stated cause of ac-

tion against the Attorney General and

special agents of the FBI for violation of

the members’ rights under the Fourth

Amendment. (Per Wright, Circuit

Judge, with three Judges concurring and

three additional Judges concurring in the

judgment.) U.S.C.A.Const. Amend. 4.

39. Telecommunications 2496

It was the intent of Congress that

the procedures and remedies of Title III

of the Omnibus Crime Control and Safe

Streets Act of 1968 would apply to all

electronic surveillance which must, under

the Fourth Amendment, be conducted

pursuant to a warrant procedure. (Per

Wright, Circuit judge, with three Judges

concurring and three additional Judges

concurring in the judgment.) U.S.C.A

Const. Amend. 4; 18 U.S.C.A. §§ 2510

2520.

40. Telecommunications #496

Those provisions of Title III of the

Omnibus Crime Control and Safe Streets

600

Act of 1968 which, in the context of pure

intelligence-gathering activities, would

frustrate the constitutional power of the

President, cannot be applied to such sur-

veillance. (Per Wright, Circuit Judge,

with three Judges concurring and three

additional Judges concurring in the judg-

ment.) 18 U.S.C.A. §§ 2511(3), 2518(8)

(d), (9, 10), 2519, 2520.

41. Telecommunications @=498

Attorney General and FBI agents

would be entitled to avoid damages for

the unconstitutional electronic surveil-

lance of members of domestic organiza-

tion on both the members’ action for vio-

lation of constitutional rights and action

for violation of the Omnibus Crime Con-

trol and Safe Streets Act of 1968 in the

event they could establish that they had

a subjective good-faith belief that it was

constitutional to install warrantless wire-

taps under the circumstances of the case

and that this belief was itself reasonable

(Per Wright, Circuit Judge, with two

Judges concurring and three additional

Judges concurring in the judgment.)

U.S.C.A.Const. Amend. 4; 18 U.S.C.A

§§ 2510-2520.

42. Telecommunications #498

United States #47

In an action for damages for viola-

tion of the warrant requirements of the

Omnibus Crime Control and Safe Streets

Act of 1968, executive officials are enti-

tled to raise defense that they acted in

good faith in that they reasonably be-

lieved they were exercising the constitu-

tionally inherent powers of the Presi-

dent. (Per Wright, Circuit Judge, with

two Judges concurring and three addi-

tional Judges concurring in the judg-

ment.) 18 U.S.C.A. §§ 2511(3), 2518(7),

ORO

— Syllabus by the Court

Appellants, 16 individuals who were

members of the Jewish Defense League

(JDL), a domestic political organization,

brought this damage action against ap-

pellees—John Mitchell, then Attorney

General, and nine special agents of the

Federal Bureau of Investigation—alleg-

ing that in the course of an electronic

surveillance installed by appellees on

516 FEDERAL REPORTER, 2d SERIES

JDL’s New York headquarters appel-

lants’ conversations were illegally over-

heard in violation of both the Fourth

Amendment and Title III of the Omni-

bus Crime Control and Safe Streets Act

of 1968, 18 U.S.C. §§ 2510 2520 (1970)

The primary defense interposed against

this action was the that the

surveillance was in fact legal because it

was “authorized by the President of the

United States, acting through the Attor-

ney General in the exercise of his au-

thority relating to foreign affairs and

was deemed essential to protect this na-

tion and its citizens against hostile acts

of a foreign power and to obtain foreign

intelligence information deemed essential

to the security of the United States.”

The legality of such warrantless surveil-

lance, based on threats to the national

security involving foreign powers, had

been explicitly reserved by the Supreme

Court in United States v. United States

District Court [Keith], 407 U.S. 297, 92

S.Ct. 2125, 32 L.Ed.2d 752 (1972), which

held that no such exception to the war-

rant requirement exists when the nation-

al security threat solely involves domes-

tic organizations. The District Court in

this case held that the reserved question

in Keith should be decided in favor of

appellees, and found that, in light of

JDL’s activities—both violent and peace-

ful—directed against Soviet diplomatic

and cultural installations in this country

and the threat of Soviet retaliation

against Americans living in Moscow and

a worsening of Soviet-American diplo-

matic relations, warrantless installation

of these wiretaps was reasonable within

the meaning of the Fourth Amendment

The District Court further ruled that the

provisions of Title III were inapposite

when national security surveillance is in-

volved, and granted appellees’ motion for

summary judgment. Held: A warrant

must be obtained before a wiretap is in-

stalled on a domestic organization that is

neither the agent of nor acting in collab-

oration with a foreign power, even if the

surveillance is installed under presiden-

tial directive in the name of foreign in-

telligence gathering for protection of the

national security. Moreover, the

assertion

War-

ZWEIBON v. MITCHELL 601

Cite as 514 F 2d S44 11975)

rant must be obtained and executed in

compliance with the procedures of Title

III

363 F.Supp. 936 (1973) is reversed

and remanded for further proceedings

not inconsistent with this opinion

Circuit Judge J. SKELLY WRIGHT,

in an opinion joined by Circuit Judges

LEVENTHAL and SPOTTSWOOD W

ROBINSON, III, and by Chief Judge

BAZELON except as to Part IIIB, con-

cerning which he filed a dissenting opin-

ion, concluded that:

1 In Bivens v. Six Unknown

Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29

L.Ed.2d 619 (1971), the Supreme Court

held that a federal cause of action for

damages exists to remedy violations of

the Fourth Amendment. The warrant-

less surveillance conducted by appellees

constitutes such a Fourth Amendment

violation. Infra, 170 U.S.App.D.C. at

, 516 F.2d at 611-644.

(a) Although Presidents since the

time of Franklin Roosevelt have autho-

rized warrantless national security sur-

veillance, the practice does not justify

dispensing with the warrant require-

ment. Since the practice developed at a

time when there were no Fourth Amend-

ment restrictions on non-trespassory sur-

veillance, we cannot view it as an af-

firmative declaration by prior Presidents

that their surveillance activities were im-

mune from constitutional strictures. In

any event, an unconstitutional practice,

no matter how inveterate, cannot be con-

doned by the judiciary. Infra, 170 U:S.

App.D.C. at , 516 F.2d at 616

620.

(b) Prior Supreme Court decisions

concerning the broad plenary powers of

the President in the field of foreign af-

fairs do not predetermine the proper ac-

commodation of presidential powers with

the mandate of the Fourth Amendment

and do not require that the President's

national securnty surveillance orders be

either exempted from any judicial re-

view or exempted from prior judicial

$i6 24 savy

scrutiny. Although these cases indicate

that the President’s power to obtain for-

eign intelligence information is vast,

they do not suggest that he is immune

from constitutional requirements; the

procedural question of how the President

may constitutionally exercise his power:

remains even though those substantive

powers are found to exist. I/nfra, 170

U.S.App.D.C. at , 516 F.2d at

616-627

some other courts facing the question of

national security surveil-

lance have asserted that, since “reasona-

bleness” is the ultimate test under the

Fourth Amendment, the reasonableness

of such warrantless surveillance is to be

determined on the circumstances of the

particular case. However, this approach

is inconsistent with the methodology the

Supreme Court has consistently followed

when addressing Fourth Amendment

problems: absent special circumstances,

a warrantless search is per se unlawful

As the Keith decision indicates, a court

must ask more than whether there is a

legitimate presidential need to conduct

electronic surveillance; it must also ask

whether a warrant, which places a neu-

tral and detached magistrate or judge

warrantless

between investigative or prosecutorial

officials of the Executive Branch and

the First and Fourth Amendment rights

of our citizens, should be obtained before

doing so. This requires an analysis of

whether a warrant would frustrate the

legitimate governmental goal in the cat-

egory of cases of which this is but one

example. Infra, 170 U.S.App.D.C. at

, 516 F.2d at 627-633

(d) In balancing individual rights

and governmental needs in the intelli-

gence gathering area, it is clear that pri-

or judicial review can prevent Executive

abuses and safeguard not only the

Fourth Amendment right of privacy, but

also the First Amendment values of

freedom of speech and association. Thus

prior judicial review should be required

unless it will frustrate the legitimate

goals of surveillance. A search of prior

cases upholding the President's asserted

602

right to conduct warrantless foreign se-

curity surveillance reveals almost a total

lack of reasons for not requiring a war-

rant. Nevertheless, possible factors that

might dictate abrogation of the warrant

requirement include (1) lack of judicial

competence to deal with foreign affairs

data; (2) danger of security leaks which

might endanger the lives of informants

and agents and which might seriously

harm national security; (3) the fact that

such surveillance is not being used for

criminal prosecutions, but only for “stra-

tegic” intelligence gathering; (4) the

possibility that the delay involved in the

warrant procedure might result in sub-

stantial harm to national security; and

(5) the fact that the administrative bur-

den on the courts or the Executive

Branch which would result from such a

requirement would be enormous. Our

analysis of these factors indicates that

none is persuasive as a reason for abro-

gating the warrant procedure when the

President seeks to obtain information

that affects foreign affairs. Infra, 170

U.S.App.D.C. at , 516 F.2d at

633-652.

(e) Although the above analysis sug-

gests that, except for situations where

exigent circumstances are present, there

should be no category of surveillance for

which the President need not obtain a

warrant, our holding today does not

sweep that broadly. We only hold in

this case that, even where foreign affairs

are involved, the President must obtain a

warrant when the domestic organization

which is the subject of the surveillance is

neither an agent of nor acting in collabo-

ration with the foreign power posing the

national security threat. This holding is

particularly reinforced by the rationale

and approach of the Keith decision. I[n-

fra, 170 U.S.App.D.C. at — , 516

F.2d at 650-655.

(f) Since judges will be forced to de-

cide whether “probable cause” to insiall

national security wiretaps exists, we of-

fer some guidance on the factors which

judges should consider in issuing war-

rants. These include the importance of

the information sought by the Govern-

516 FEDERAL REPORTER, 2d SERIES

ment, the availability of less intrusive

means for obtaining the information,

and the degree to which surveillance of a

particular scope and duration will in.

fringe individual rights. Infra, 170 U.S.

App.D.C. at ~, 516 F.2d at 655-

659.

2. Congress intended that the pro-

cedures and remedies of Title III of the

Omnibus Crime Control and Safe Streets

Act of 1968 would apply to all surveil-

lance which must, under the Constitu-

tion, be conducted pursuant to a warrant

procedure. Since we hold that a war-

rant is constitutionally required under

the circumstances of this case, appellants

are entitled to the liquidated damages

recovery provided in that Act, unless ap-

pellees on remand establish an affirma-

tive defense of good faith. Infra, 170

U.S.App.D.C. at , 516 F.2d at

659-673.

(a) The dictum in Keith concerning

possible future congressional legislation

in the national security area is consistent

with our holding that Congress intended

Title III to be as comprehensive as possi-

ble, covering all surveillance which the

Constitution dictates must be conducted

only after securing judicial approval.

This statutory construction is supported

by the language of Title III, by its legis-

lative history, by the fate of proposed

wiretap legislation over the past 20

years, and by various policy considera-

tions. Infra, 170 U.S.App.D.C. at

, 516 F.2d at 659-670.

(b) Appellees may on remand, how-

ever, avoid damages on both constitu-

tional and statutory grounds if they can

establish (1) that they had a subjective

good faith belief that it was constitu-

tional to install warrantless wiretaps un-

der the circumstances of this case, and

(2) that this belief was itself reasonable

Infra, 170 U.S.App.D.C. at —— -—,

516 F.2d at 670-673

Circuit Judge McGOWAN, concur-

ring in the judgment of the court only

on statutory grounds, concluded that in

order to escape the statute’s genera! pro-

10a

ZWEIBON vy. MITCHELL 603

Cite as S16 F 2d 54 11975)

hibition of warrantless electronic surveil- (c) The arguments for a “foreign af-

lance, 18 U.S.C. § 2511(*) (1970), the in fairs” exemption from the warrant re-

stant wiretaps must fall within the stat-

utory exemption for “measures

necessary to protect the Nation against

actual or potential attack or other hostile

acts of a foreign power.” Id. § 2511 (3)

Since, in Judge McGowan’'s such

measures do not include surveillances di-

View,

rected, as these were, at citizens having

no affinity with a foreign power whose

hostile acts are feared, he would hold the

instant surveillances illegal on that

ground alone, without reference to the

Constitution

Circuit Judge ROBB concurs in the

judgment of the court on statutory

grounds without reaching the constitu-

tional questions

Circuit Judge WILKEY, concurring

in the judgment of the court only on

constitutional grounds and dissenting on

statutory grounds, concluded that

Although not regulated by or in vio-

lation of the provisions of Title III, the

warrantless surveillance of the JDL

nevertheless violated the minimal proce-

dural requirements of the Constitution;

therefore, the appellants have a cause of

action against the appellees for damages

under the Fourth Amendment

(a) The question whether the sur-

veillance should exempted from the

Fourth Amendment's warrant

ment can only be answered by balancing

require

the exigencies of intelligence gathering

in this the

values placed on prior judicial approval

case against constitutional

(ob) The waiver approved by the Dis-

trict Court is an extremely broad exemp

tion whose employment by the Fxecutive

might be subject to inordinate abuse. It

threat to the Fourth

values of privacy, political

poses a wrave

Amendment

freedom, and judicial oversight of gov-

ernmental searches and seizures which

are not outweighed in this case by the

need for speed, secrecy, expertise, and

Presidential freedom of action in foreign

intelligence operations

quirement are strongest where foreign

agents and collaborators with a foreign

power are involved. In addition, an ex-

emption limited to this narrow class of

criminals minimizes conflict with First

and Fourth Amendment values.

(d) If a “foreign affairs” exemption

exists, therefore, it applies only to sur-

veillances involving foreign agents and

collaborators. It has no application to

the warrantless wiretaps employed by

the Executive here.

Circuit Judge MacKINNON concurs

in part, dissents in part, and files a sepa-

rate statement.

Appeal from the United States Dis-

trict Court for the District of Columbia

(D.C. Civil No. 2025-71).

Nathan Lewin, Washington, D. C.,

with whom Herbert J. Miller, Jr., and

Martin D. Minsker, Washington, D. C.,

were on the brief, for appellants.

Edward S. Christenbury, Atty., Dept

of Justice, with whom Henry E. Peter-

sen, Asst. Atty. Gen., and Kevin T. Ma-

roney, Deputy Asst. Atty. Gen., were on

the brief, for appellees.

Before BAZELON, Chief Judge, and

WRIGHT, McGOWAN, LEVENTHAL,

ROBINSON, MacKINNON, ROBB and

WILKEY, Circuit Judges, sitting en

hane

Circuit Judge J. SKELLY WRIGHT

announced the judgment of the court

and delivered an opinion in which Circuit

Judges LEVENTHAL and ROBINSON

concurred and in which Chief Judge BA-

ZELON concurred except as to Part III

B, concerning which he filed an opinion

dissenting in part

Circuit Judges MecGOWAN and ROBB

filed opinions concurring in

ment

Circuit Judge WILKEY filed an opin-

ion concurring in part and dissenting in

part

the judg-

MacKINNON filed a

Circuit Judge

dissenting opimon

lla

516 FEDERAL REPORTER, 2d SERIES

604

J. SKELLY WRIGHT, Circuit Judge

Over the past several years there has

been increasing anxiety! and increasing

litigation? concerning actions which the

Executive Branch of our Government

has undertaken under the rubric of “na-

tional security.” Undoubtedly the Presi-

dent, our Chief Executive and Com-

mander-in-Chief of our Armed Forces, is

imbued by the Constitution with vast

and indispensable powers for dealing

with the vital problems generated by our

relations with foreign powers, including

1. See, e g., Berger, The Incarnation of Execu

tive Privilege, 22 UCLAL.Rev. 4, 26 29

(1974); Symposiurr, The Military After Viet

nam: The Search for Legal Controls, 49 Indi

ana L.J. 539, passim (1974), Hearings on the

Role of Dr. Henry Kissinger in the Wiretap-

ping of Certain Government Officials and

Newsmen Before the Senate Committee on

Foreign Relations, 93d Cong, 2d Sess, passim

(1974), Joint Hearings Before the Subcommit-

tee on Administrative Practice and Procedure

and the Subcommittee on Constitutional

Rights of the Committee on the Judiciary and

the Subcommittee on Surveillance of the Com

mittee on Foreign Relations on Warrantless

Wiretapping and Electronic Surveillance, 93d

Cong., 2d Sess., passim (1974), Subcommittee

on Surveillance of the Senate Committee on

Foreign Relations and the Subcommittee on

Administrative Practice and Procedure of the

Senate Committee on the Judiciary, 94th

Cong., Ist Sess., Report on Warrant ss Wire.

tapping and Electronic Surveillance (Commit

tee print 1975), Report to the President by the

Commission on CIA activities within the Unit

ed States, passim (June 1975), United States

v. Barker, 168 US.App.D.C. 312, 315, 514 F.2d

208, 211 (No. 73-2185, decided Feb. 25, 1975)

(en banc) (Watergate burglars believed they

were on national security assignment), Ameri

can Character Trial and Triumph, Harper's,

Oct. 1974, passim (articles by individuals in

volved in Watergate activities); N.Y. Times,

Dec. 22, 1974, at 1, col. 8 (allegations of do

mestic intelligence activity by CIA), Wash

ington Post, March 22, 1978, at 1, col. 2 (20

year-old program of surreptitious opening of

first-class mail by CIA), notes 107 & 197 infra

2. See. e g. Schlesinger v Holtzman, 414 U.S

1321, 94 S.Ct. 11, 38 L.Ed. 2d 33 (1973) (chal

lenge to Executive-ordered military operations

in Cambodia), Laird v. Tatum, 408 US. 1, 92

S.Ct. 2318, 33 L.Ed.2d 154 (1972) (challenge to

Army's domestic surveillance activities), Unit

ed States v United States District Court, 407

US. 297, 92 S.Ct. 2125, 32 L.Ed. 2d 752 (1972)

(hereinafter cited as Keith) (challenge to war

rantiess internal security surveillance), New

the duty to protect this country from

foreign aggression or subversion® The

very existence of such tremendous pow-

er, however, renders it susceptible to

abuse * and endangers those fundamental

personal liberties which the Government

was instituted to secure for its citizens

and whose exercise elevates the nation

to # stature worthy of defense® Thus,

although the attempt to claim Executive

prerogatives or infringe liberty in the

name of security and order may be moti-

vaied by the highest of ideals,® the judi-

York Times Co. v. United States, 403 US. 713,

91 SCt 2140, 29 L.Ed 2d 822 (1971) (attempt

to enjoin publication of classified maternal),

United States v. Ehrlichman, DDC., 376

F Supp. 29 (1974) (memorandum and order)

(national secunty defense to burglary of Dr

Elisberg's psychiatrist's office)

3. See infra, 170 U.S App DC at

: 516 F.2d at 615 626, 630

631. See also Keith, supra note 2, 407 US. at

310 311, 92 SCt. 2125

4. Cf Lord Acton, Essays on

Power 365 (Beacon Press 1948)

5. As Mr Chief Justice Warren noted in hold

ing one section of the Subversive Activities

Control Act of 1950 to be an unconstitutional

abridgment of the First Amendment right of

association

Freedom and

[T)his concept of “national defense” cannot

be deemed an end in itself, justifying any

exercise of legislative power designed to pro

mote such a goal. Implicit in the term “na

tional defense” is the notion of defending

those values and ideals which set this Na

tion apart * * * It would indeed be

ironic if, in the name of national defense, we

would sanction the subversion of one of

those liberties—the freedom of association—+

which makes the defense of the Nation

worthwhile

United States v. Robel, 389 U.S 258, 264, 88

S.Ct. 419, 424, 19 L.Ed. 2d 508 (1967)

6. Almost 50 years ago. Mr Justice Brandeis

perceptively and eloquently observed

Experience should teach us to be most on

our guard to protect liberty when the

government's purposes are beneficent) Men

born to freedom are naturally alert to repel

invasion of their liberty by evil-minded rul

ers The greatest dangers to liberty lurk in

insidious encroachments by men of zeal

well meaning but without understanding

Olmstead v United States, 277 US 438, 479

45 S(t 564, 573, 72 L.Ed 944 (1928) (dissent

ing opinion) See also Knauff v Shaughnessy

338 US 537, 551, 70 SCt 309, 317, 94 L.Ed

ZWEIBON v. MITCHELL

605

Cite ae 516 F 2d S64 (1875)

ciary must remain vigilantly prepared to

fulfil! its own responsibility to channel

Executive action within constitutional

The present case embodies this

in a@ particularly acute form,

since we are faced with the delicate and

difficult task of reconciling the Presi-

dent's asserted power to obtain foreign

intelligence information through use of

electronic surveillance with the citizen's

cherished right to maintain his privacy

and associations inviolate against unrea-

sonable governmental intrusion. More-

we must determine whether Con-

gress, in enacting Title III of the Omni-

bus Crime Control and Safe Streets Act

of 1968, 18 U.S.C. §§ 2510-2520 (1970),

intended to affect this relationship by

bounds.’

problem

over,

317 (1950) (Jackson, J., dissenting) (‘‘[s]ecurity

is like liberty in that many are the crimes

committed in its name

United States v. Nixon, 418 U.S. 683, 703, 94

S.Ct. 305 3105, 41 L.Ed2d 1039 (1974)

recently reiterated this long-standing principle

“)

Many decisions of this Court * © * have

unequivocally reaffirmed the holding of Mar

bury v. Madison, | Cranch 137 (1803), that

“it is emphatically the province and duty of

the judicia! department to say what the law

is.”

See also cases cited infra, 170 US App. DC

at , 516 F.2d at 626-627. See gener

ally Symposium, United States v Nixon, 22

UC.L.A.L.Rev. 1-140 (1974)

Although the named plaintiffs sought to

bring this suit as a class action on behalf of all

others similarly situated, see JA at 7, the Dis

trict Court never ruled on this issue. See

Zweibon v. Mitchell, D.D.C., Civil No. 2025

71, slip op. at 3 (Oct. 27, 1972) (pretrial hear

ing). We express no opinion as to the proprie

ty of a class action in a case sucn as the

present one, particularly given the fact that

forced disclosure of the names of those indi

viduals whose conversations were overheard

might itself pose difficult statutory or constitu

uuonal problems

Claims

were

that illegal searches and seizures

conducted by investigative or law en

forcement officers of the United States on or

after March 16, 1974 may now be brought

directly against the federal government. See

Pub L 93 253, § 2, 88 Stat. 50 (1974), amend

ing 28 USC § 2680(h) (1970) (intentional

torts exception to Federal Tort Claims Act, 28

Us¢ §§ 2671-2680 (1970)) Although the

language of the amendment does not appear to

encompass illegal non-trespassory electron

surveillance, Congress clearly indicated that

providing a remedy for illegal Executive

surveillance.

[1] Plaintiffs-appellants, 16 individu-

als who were members of the Jewish

Defense League (JDL) during the period

covered by this action,’ sought damages

from John Mitchell, then Attorney Gen-

eral of the United States, and nine spe-

cial agents or employees of the Federal

Bureau of Investigation’ for electronic

surveillance overhearings of plaintiffs’

telephone conversations which transpired

during the month of October 1970 and

from January 5 through June 30, 1971."

The overhearings were alleged to violate

plaintiffs’ rights under both Title III of

such situations were in fact within the ambit

of the Act. See 1974 U.S.Code Cong. & Adm

News 2789, 2791 (S.Rep.No.588, 93d Cong., 2d

Sess. (1974)) (“it is the intent of the Commit-

{on Government Operations] that these

borderline cases under the present law, such

as trespass and invasion of privacy, “suid be

viewed as clearly within the scove of the Fed-

eral Torts Claims Act”). Since the surveil-

lance in this case occurred in 1970-71, how.

ever, the amendment has no effect on the cur-

rent proceedings

tee

10. See JA at 73-74. There is some discrepan-

cy as to the date the surveillance was termi-

nated. Plaintiffs alleged, and the District

Court held, that the surveillance continued un-

til June 30, 1971. Id. at 8; Zweibon v. Mitch.

ell, D.D.C., 363 F.Supp. 936, 938 (1973). How-

evér, Mr. Mitchell's deposition and FBI records

indicate that the surveillance lasted until July

3. JA at 56-57 (deposition of Mr. Mitchell);

memorandum from J. Edgar Hoover, FBI Di-

rector, to Attorney General Mitchell, July 9,

1971. The more conservative June 30 date

would indicate a 208-day duration of the sur-

veillance

Mr. Mitchell, as Attorney General, authoriz-

ed installation of the surveillance equipment

Acting pursuant to his direction, the other de

fendants listened to plaintiffs’ telephone con-

versations and summarized their contents in

logs which were made available to plaintiffs

by order of the District Court. See 363

F Supp at 935 All of the original recordings

had been destroyed pursuant to a general FBI

policy on intelligence surveillance. See JA at

58 (deposition of Mr. Mitchell). This policy,

which is inconsistent with Government repre

sentations made on other occasions, has trou-

See, eg. United States v

482 F 2d 38, 47-48 (1973)

bled other courts

Huss, 2 Cir

. l3a

516 FEDERAL REPORTER, 2

606

the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. §§ 2510

2520 (1970)," and the Fourth Amend-

ment.”

The instant action was filed shortly

after pretrial proceedings in the consoli-

dated criminal cases United States v

Bieber, No. 71-CR-479 (E.D.N_Y.), and

United States v. Joffe, No. 71-CR-480

(E.D.N.Y.)," revealed that the Justice

Department had installed wiretaps on

the telephones of JDL’s New York head-

11. Title Ill of the Omnibus Crime Control and

Safe Streets Act of 1968 is Congress’ compre-

hensive legislation authonzing use of electron.

ic surveillance in specifically delineated cir-

cumstances and under carefully reguiated pro

cedures. For general discussicns of Title III,

see, e. g., United States v. Tortorello, 2 Cir.,

480 F.2d 764, 771-775 & n.6, cert. denied, 414

U.S. 866, 94 SCt. 63, 38 LEd2d 86 (1973)

(upholding constitutionality of Title III), and

cases cited therein, United States v. Scott

D.D.C., 331 F.Supp. 233, 238-249 (1971); Unit

ed States v. Escandar, S DFia., 319 F.Supp

295, 297-302 (1970). For detailed discussion

of the damage provision of Title Ill and its

relevance to this case, see infra, 170 U.S.App

D.C. at , 516 F.2d at 659-673

12. See infra 170 U.S. App. D.C at

, 516 F.2d at 611-614

13. Indictments in these cases were returned on

May 12, 1971

14. The proceedings were conducted in compli-

ance with the Supreme Court's holding in Al

derman v. United States, 394 U.S. 165, 89 S.Ct

961, 22 L_ Ed.2d 176 (1969), which specified the

standards and procedures to be followed in

deciding whether evidence in a criminal tria!

was the tainted product of an illegal surveil-

lance. Although a tna! judge may initially de

termine in camera whether a surveillance is

lawful, see Giordano v. United States, 394 U.S

310, 313-314, 89 S.Ct. 1163, 22 L.Ed.2d 297

(1969) (Stewart, J.. concurnng), cf. Taglianetti

v. United States, 394 U.S. 316, 89 S.Ct. 1099,

22 L.Ed.2d 302 (1969), Alderman required that

the records of all illegal taps, even if not argu

ably relevant to the prosecution, be turned

over to a defendant who has stancing to object

to their admission into evidence; an adversary

hearing could then be held on the issue of

whether they also tainted other evidence. The

rationale for this decision was that “the task 1s

too complex, and the margin of error too

great, to rely wholly on the in camera judg

ment of the tnal court to identify those

records which fmght have contributed to the

Government's case 394 U.S. at 182, 89 S.Ct

at 971. See also note 113 infra

SERIES

quarters without prior judicial approval,

and had overheard conversations of cer-

tain defendants who were about to stand

trial. At a subsequent hearing before

Judge Weinstein," the Government pros-

ecutor admitted that six telephone lines

had been involved in the taps and that

there were “volumes and volumes” of

transcripts of intercepted communica-

tions.” Plaintiffs-appellants herein al-

lege that their conversations were ille-

gally monitored™ by this surveillance

With respect to surveillance which occurred

prior to enactment of Title Ill, the Alderman

decision has been modified legislatively. See 18

US.C. § 3504 (1970) (transcnpts of illegal

wiretaps need only be disclosed if judge deter-

mines they are relevant to pending claim of

admissibility). See also United States v. Bu

tenko, 3 Cir, 494 F.2d 593, 637-641 (1974)

(Gibbons, J., dissenting), cert. denied, sub

nom. Ivanov v. United States, 419 U.S. 881, 95

SCt. 147, 43 LEd2d 121 (1974) (discussing

constitutionality of § 3504). Mandatory disclo

sure of the contents of illegal surveillance

overhearings is still required for wiretaps oc-

curring after June 19, 1968. See 1970 U.S

Code Cong. & Adm.News 4027. See also 18

U.S.C. § 2518(10)(a) (1970)

15. Brief for appellants at 4. The hearing be

fore Judge Weinstein is unreported

16. Each court presented with the question of

the legality of these wiretaps in the criminal

context has either not reached the issue, see

United States v. Bieber, E.D.N.Y., 71~-CR-479,

slip op. at 6 (July 23, 1971) (sentencing memo-

randum and order), found them to be illegal,

see United States v. Schwartz, E.DN.Y., 71

CR-977 (Sept. 26, 1972), quoted infra, 170 U.S

App.D.C. at , 516 F.2d at 653, or noted the

Sovernment’s concession that the taps were

egal, see United States v. Cohen, S.D.NY.,

358 F.Supp. 112, finding of contempt vacated

and remanded, sub nom. United States v

Huss, supra note 10. Appellees now insist

that those findings were due to the fact that

the courts were not fully informed of the data

upon which the decision to install the wiretaps

was made See brief for appellees at 6 n4

Zweibon v. Mitchell, D.C.Cir, No. 73-1847

transcript of Sept. 10, 1974 proceedings at 31

33. Although we certainly do not hold appe!

lees to be collaterally estopped from asserting

the legality of these surveillances, we find it

cunous that surveillances which were merely a

‘domestic security wiretap’ which the

“government concede([d) * * * were un

lawful” when a contempt citation was in

volved, see United States v Huss, supra note

10, 482 F 2d at 42, have become “foreign” se

pS 2 NN Ee

l4a

ZWEIBON v. MITCHELL

607

Cite as 516 F 2d SO4 (1875)

during calls they made to or from, or

calls they received on or from, those te}-

ephones

Although defendants-appellees have

since admitted that each of the named

plaintiffs had in fact been overiward

during conversations over the telephones

in question, they claim that this surveil-

lance did not abridge plaintiffs’ statuto-

ry or constitutional rights." The pri-

mary ground for this position was expli-

cated in an affidavit submitted by for-

mer Attorney General Mitchell, in which

he stated: ®

The surveillance of this telephone

installation authorized by the

President of the United States, acting

through the Attorney Genera! in the

exercise of his authority relating to

the nation’s foreign affairs and was

deemed essential to protect this nation

and its citizens against hostile acts of

a foreign power and to obtain foreign

intelligence information deemed essen-

tial to the security of the United

— FT

was

curity wiretaps now that personal liability in

damages is alleged. See infra, 170 U.S App

D.C. at : & note 42, 516 F.2d

at 607-610 & note 42

17. Brief for appellees at 4-5; JA at 20 (answer

to complaint)

18. See JA at 14. This quote is from the affida

vit of the Attorney General of the United

States filed June i2, 1971 in United States v

Bieber, supra note 15. It was attached as Ex

hibit A to plaintiffs’ complaint in this case, and

it was repeated almost verbatim as the ‘First

Defense” in defendants’ answer to that com

plaint See JA at 17, 20

Defendants also interposed several defenses

whose validity was never reached by the Dis

trict Court and which are urged upon us in

support of the position that, even if the actions

of the Executive were unlawful, defendants

should not be held liable in damages. These

defenses are based on the following theories

(1) If the illegality of these wiretaps is based

upon the Supreme Court's decision in Keith

supra note 2, discussed infra, 170 U.S App

D.C. at . 516 F.2d at 612

614, 651-653, 659-663 there are strong factors

which dictate that that decision should not be

applied retroactively in this damage suit, which

is based upon surveillance which occurred be

fore the date of that decision

(2) Since they were acting in their official

capacities, defendants should be absolutely im

Judge Pratt, on cross-motions for sum-

mary judgment in the District Court,

sustained this assertion and granted de-

fendants’ motion, finding as a matter of

fact that the Attorney General had au-

thorized the wiretaps “after a determi-

nation was made by him that the activi-

ties of the JDL were obviously detrimen-

tal to the continued peaceful relations

between the United States and the Sovi-

et Union and threatened the President's

ability and constitutional authority to

conduct the foreign relations of this

country,” Zweibon v. Mitchell, D.D.C.,

363 F.Supp. 936, 942 (1973), and holding

as a matter of law that “[n]o prior au-

thorization from a Court is necessary

where, as in this case, electronic surveil-

lances relate to the foreign aspects of

our national security.” Jd. at 943."

Judge Pratt then concluded that when

there is a “clear threat to this country's

foreign relations, it is the executive and

not the judiciary, which should deter-

mine whether or not an electronic sur-

veillance req ires prior judicia! autho-

mune from liability because of the doctrine of

official immunity

(3) Damages should not be awarded because

defendants acted in the good faith belief that

their actions were lawful

Plaintiffs contend that if we find the wire-

tapping to be illegal we should find these de-

fenses to be invalid and grant summary judg

ment on the issue of hability. Both parties

have extensively briefed these issues) Com

pare brief for appellants at 45-71 with brief

for appellees at 41-66 However, we do not

express any opimon as to the merits of these

arguments, and in hght of our disposition of

the question of the legality of the wiretapping

we leave the initial determination concerning

these affirmative defenses to the District Court

on remand See infra, 170 U.S. App.D.C

at & note 274, 516 F.2d at 670 673 &

note 274

19. Judge Pratt found that, because “foreign as

pects” of national secunmty were involved in

this case, the Supreme Court's decision in

Keith, see infra, 170 US App DC. at , 516

F.2d at 651 652, was “clearly distinguishable ™

363 F Supp at 943 However, he failed to

articulate any basis for deciding the question

which Keith had reserved, see infra, ;79 US

App. D.C. at . 516 F.2d at 612, in the manner

that he did See generally 363 F Supp. at 936

944

15a

608

rization, id., and that the Attorney Gen-

actions were within

the meaning of the Fourth Amendment

and were therefore lawful.” Jd. at 944

Judge Pratt's findings that these sur-

veillances were motivated by

threats to the national security, and

were a reasonable response in light of

premised on the ac-

of JDL members

and the reactions they provoked on the

part of officials of the Soviet Union

Although the JDL was originally organ-

ized to

eral s “reasonable

foreign

those threats, are

tions and statements

achieve various domestic goals,

20. See, e g. Schwartz, Threats and Bombs—-A

Nasty Phase for the Two Nations, N.Y. Times

Jan. 10, 1971, § 4, at 3, col. 1

21. Many of the more violent illegal activities

attributed to the JDL by the

Government, or reported by the news

media to have been undertaken by individuals

who were active members of the JDiI See, ¢

g.. Exhibit B- 1(3) at 1-2 (telegram from Amer

ican Embassy, Moscow to Sec of State), Ex

hibit B-2(1) (translation of letter from Soviet

Ministry), Exhibit B-2(6) (transiation of letter

from Soviet Embassy to Dept. of State), Ex

hibit B-3(5) (telegram from American Embas

sv. Moscow to Sec. of State), Exhibit B 3(6)

(telegram from Sec. of State to Amencan Em

bassy, Moscow), Schwartz, supra note 20, at

2. col 8 Even if these acts were in fact

perpetrated by JDL members, there ts substan

tial latitude for abuse when such determina

tions are made by those engaged in investiga

tory or prosecutonal functions rather than by

neutral members of the judiciary See

infra, 170 U.S App.DC. at & note 98, 516

F.2d at 633-635 & note 98

were Soviet

were

22. Amtorg is a Soviet trade organization, and

Intourist-Aeroflot is the Soviet airline

activity was alse directed at Soviet political

installations in New York and Washington

Violent

23. For a summary of many of these activities

see 363 F.Supp. at 939-942. Some of the a

tivities which the Soviet government

ally

specifi

protested were clearly protected First

Amendment speech. For example, Soviet Am

bassador to the United Nations Malhk wrote to

the Mayor of New York tn an effort to prevent

a “hostile demonstration” from taking place at

his residence in Glen Cove, New York

1 can not but express my surprise over the

fact [that] * * °* the demonstration, as

you suppose, may take place It is hard to

imagine that the authoritative U. S. authon

ties can be so powerless to deal with the

group of hoodluming Zionist element who

are propagating ultrachauvinistic rasist [sic }

and fascist ideology of “chosen people’ that

516 FEDERAL REPORTER, 2d SERIES

its focus eventually shifted to the inter-

national arena, where it was primarily

directed at opposing the Soviet govern-

ment’s restrictive emigration policies as

they related to Soviet Jewry.™ In fur-

therance of these ends, JDL members ®!

engaged in a broad spectrum of activi-

ties directed against Soviet officials and

installations in the United States. These

activities ranged from purely peaceful

demonstrations through acts of violence,

including the bombing of Amtorg and

Intourist-Aeroflot ® offices in New York

City. Soviet officials vigorously and

create animosity and hatred in your country

towards the people of other nations and that

openly proclaimed the worsening of relations

between the USA and the USSR as its goal

Exhibit B 2(4) (April 1971) (unofficial transla

tion) The Soviet government was particularly

upset by demonstrations occurring near its in

stallations, and by such “hostile acts” as con

a clearly planned and, for the Soviet

insulting scenario before the lenses of

numerous movie and television cameras,” Ex

hibit B-2(6). and “using offensive language”

against members of the Soviet mission, Exhibit

B 3(1) But even where violence resulted, the

demonstrations and speeches which led up to

them were probably protected speech. See, e

g.. Brandenburg v. Ohio, 395 U.S. 444, 447, 89

S.Ct. 1827, 1829, 23 LEd2d 430 (1969) (per

curiam) (speech advocating violence cannot be

prohibited unless “such advocacy is directed

to inciting or producing imminent lawless ac

tion and is likely to imcite or produce such

action”). Of course, much of the activity attri-

buted to the JDL was clearly illegal. But the

Soviet government primarily wanted punish-

ment of such criminal activities and indemnifi

cation for damages. See, e. g., Exhibit B-2(1)

at 4 (translation of letter from Soviet Ministry)

(“The Ministry expects that * * ° effective

measures will be taken immediately to protect

the USSR Mission to the UN and other official

Soviet establishments * * * and that the

persons guilty of carrying out the above-men

tioned impermissible actions will be severely

punished, and that appropriate Soviet estab

lishments and citizens will be fully indemnified

for the damage inflicted as a result of these

actions’), Exhibit B-3(6) (telegram from Sec

ot State to American Embassy, Moscow)

(“USSR embassy insists that State Dept. take

all suitable steps immediately to ensure securi-

of Soviet establishments and their employ

ees in U. S.; to fine and punish criminals who

are perpetrating explosions * * * and to

pay compensation for damages * * *”")

Moreover, there is no indication that the State

Department wanted intelligence information

ducting

Union

_».-.,rermreeeoOoOoOoOO ee

16a

ZWEIBON v. MITCHELL

609

Cite as 516 F.2d 504 (1975)

continuously protested these activities,

for which they held the United States

Government responsible. In the wake of

these protests the Attorney General,

fearing the possibility of international

embarrassment or Soviet retaliation

against American citizens living in Mos-

cow, initially gave his approval to an

FBI request for authorization to install

wiretaps on JDL headquarters during

the month of October 1970 on the occa-

on the activities of the JDL, since it was ap-

parently content with “the return of indict-

ments and resulting prosecutions” as deter-

rents to illegal activity and was concerned

with formulating “Federal legislation designed

to deter future acts of violence and harass-

ment.” Exhibit B-1(5) (letter from the Under-

secretary of State to Attorney Genera! Mitch-

ell, Feb. 10, 1971). Although we accept, for

purposes of this case, appellees’ assertion that

the purpose of the surveillance was intelli-

gence gathering, these and other aspects of the

facts before us, see, e. g., infra, 170 U.S.App

D.C. at —— & notes 24, 26, 31-32, 34, 516 F.2d

at 609-610 & notes 24, 26, 31-32, 34, demon-

strate the potential for abuse of such surveil-

lance as a means for circumventing the war-

rant requirement in normal criminal investiga-

tions. See also infra, 170 U.S.App.D.C

at — -—, —— - —., 516 F.2d at 633-636,

648-649.

It should also be noted that the acts which

the Soviet government protested were all pub-

lic acts, and even the Soviet protests and the

worsening of Soviet-American relations were

publicly known phenomena rather than nation-

al security secrets. See, e. g., Schwartz, supra

note 20, at 2, col. 8; N.Y. Times, Jan. 9, 1971,

at 1, col. | (reporting “stern protest” and “So-

viet threat to retaliate against Americans in

Moscow”); N.Y. Daily News, Jan. 13, 1971, at

3, cols. 1-3.

‘

24. The memorandum requesting approval of

the surveillance stated three reasons for the

installation: (1) the JDL's “proclivity for dem-

onstrations and violence” against Soviet and

Arab diplomatic installations which resulted in

injury to private citizens and iaw enforcement

officials, (2) news media reports that the lead-

er of the JDL stated that the organization

might attempt to hijack an Arab airliner if

similar activities by Arab terrorists continued:

and (3) the fact that foreign dignitaries would

be in New York during the United Nations

commemorative ceremonies, which would af-

ford an opportunity for JDL demonstrations

and violence

The surveillance purportedly was to provide

advance information concerning JDL activities

S14 © 24190

sion of the 25th session of the General

Assembly of the United Nations.*

Although there was no evidence that

this surveillance had achieved its pur-

ported aim of “providfing] advance

knowledge of any activities of JDL

causing international embarrassment to

this country,” the Attorney General

approved a second FBI request for au-

thority to install a wiretap beginning in

early January 1971. This second request

which “could create a situation of internation-

al embarrassment to this country." See Plain-

tiffs’ Exhibit M-1 (memorandum from J. Edgar

Hoover to John Mitchell, Sept. 14, 1970). No

mention was made of Soviet threats of retalia

tion against American citizens in Moscow or

the effect of JDL activities on diplomatic rela-

tions with the Soviet Union. The Attorney

General nevertheless contended that his deci-

sion to order the wiretap was also based on

other oral information imparted to him during

conversations with Dr. Kissinger (then head of

the National Security Council), Undersecretary

of State Irwin, and Assistant Secretary for Eu-

ropean Affairs Hildebrandt. JA at 30-32, 34-

36 (deposition of Mr. Mitcheil); 363 F Supp. at

938-939. There is no evidence that the State

Department or the National Security Council

actually requested installation of a wiretap,

however. Even accepting Mr. Mitchell's state-

ments that he did rely on information imparted

by those sources, we nevertheless note the

possibility of abuse when there are no written

records of the justifications for instituting a

surveillance. Such lack of records allows a

search to be justified on information subse-

quently obtained from the surveillance and

permits the assertion that more information

was relied on than was in fact the case. Prior

judicial approval for wiretapping, among other

benefits, of course freezes the record as to the

data upon which the surveillance was based

See, e. g., Beck v. Ohio, 379 U.S. 89, 96, 85

S.Ct. 223, 228, 13 LEd2d 142 (1964) (in re-

viewing constitutional validity of arrest, court

must look to “the facts available to the offi-

cers at the moment of the arrest’’); Aguilar v

Texas, 378 U.S. 108, 109 nl, 84 S.Ct. 1509,

1511, 12 L.Ed 2d 723 (1968) (“It is elementary

that in passing on the validity of a warrant,

the reviewing court may consider only infor

mation brought to the magistrate’s attention”

(emphasis in orginal)). See also infra, 170

U.S.App.D.C. at —— & notes 143, 144, 516 F.2d

at 644-645 & notes 143, 144

25. Plaintiffs’ Exhibit M-1 (memorandum from

J. Edgar Hoover to John Mitchell, Sept. 14,

1970)

610

for a on JDL

which was approved to last for a period

of 90 days,™ was based solely on the fact

that JDL demonstrations, many of which

were “marked by violence,” were target-

ed against Soviet installations in this

country and were the subject of official

Once again the sur-

wiretap headquarters,

Soviet protests.”

veillance was “expected to provide ad-

vance knowledge of activities of the

(JDL] directed against anti-Jewish diplo-

matic establishments, which could create

international embarrass-

ment to the United States.”"* This

wiretap was extended for another 90-day

period, based on the FBI's unsubstantiat-

ed assertion that “the authorized surveil-

situations of

tinued to reveal details of

* * JDL to continue

lance has «

plans by the

its program of harassment of Soviet and

Arab bloc officials * °* °. In each in-

stance the [wiretap] installation fur-

26. Routine Justice Depar.ment policy 1s to au

thorize national security wiretap installations

for 90-day periods. See Testimony of Clarence

M. Kelley, Director, FBI, Concerning Senate

Bill 2820, “Surveillance Practices and Proce

dures Act of 1973,"’ Before the Subcommittee

on Criminal Laws and Procedures and Const:

tutional Rights, at 12 (Oct. 2, 1974) (Justice

Department release). And once such approval

is given, it appears there is no reconsideration

of the necessity for the surveillance during

that penod. Although Mr. Mitchell asserted

that he had discussed information

from the surveillance, he could recall no spe

cific information which was communicated to

him, see JA at 40-42. Moreover, he admitted

that he had never reviewed the logs of the

surveillance and expressed his belief that ne:

ther the State Department nor the National

Security Council had done so. Id. at 47 49

obtained

27. See Plaintiffs’ Exhibit

from J. Edgar Hoover to John Mitchell, Jan 4

1971). The memorandum also noted tha the

Soviet Union had blamed the JDL for cancella

tion of tours in this country of Soviet cultural

groups. Id at 2

28. Id at 2

29. Plaintiffs’ Exhibit M3 (memorandum from

J. Edgar Hoover to John Mitchell, March 3}

1971)

M.2 (memorandun

30. See 363 F.Supp. at 942 (Conclusion of Law

ll(w))

31. See note 10 supra Although Mr. Mitchell

could not recall the reason the installation was

17a

516 FEDERAL REPORTER, 2d SERIES

nished otherwise unobtainable informa-

tion, advance of public state-

ments by the JDL, thereby allowing for

adequate countermeasures to be taken

well in

by appropriate police and _ security

forces.””™ Apparently despite any intel-

ligence information so gathered, JDL ac-

tivities continued in full force during the

period of the indeed, the

surveillance failed to generate informa-

tion that have prevented the

bombing of Amtorg offices on April 22,

1971, which was reportedly executed by

JDL members. After 208 days, the

wiretap installation was finally terminat-

ed, on June 30, 1971." During this peri-

od, neither Mr. Mitchel! nor other offi-

cials of the Attorney General's office re-

viewed the information obtained from or

the necessity for the taps,” and Mr

Mitchell was unaware that the taps con-

than a after

surveillance;

would

tinued for more month

discontinued, it coincided with motions for dis

closure made in the criminal cases, United

States v. Bieber and United States v. Joffe

supra. See JA at 56-57, 62-64. Motions for

disclosure were made on June !{8, and a hear

ing was held on July 6 The wiretaps were

terminated on either June 30 or July 3. See

note 10 supra

32. Q Was there, at any time, during the

period of this installation any check by

someone at your instruction to see whether

in fact, there had been any conversations

overheard which produced such [national se

curity intelligence) information in advance?

A * * * {[T]o the best of my recolle

tion, we had been provided by the [FBI] that

was conducting the surveiilance with infor

mation im this area

Q But it was not a part of ihe regular

routine to have someone from the Attorney

General's Office or someone in the Interna!

Security Division check after ten days or

after thirty days to see specifically what had

been recovered by a wiretap of this kind?

A No That was the obligation of the

FBI, to keep us informed of it

JA at 56 (deposition of Mr. Mitchell) Al

though Mr. Mitchell asserted that he persona!

ly reviewed all requests for national securit,

wiretaps, see id. at 59, a recent Supreme Court

decision indicates that the Attorney General

somewhat less faithful concerning his

statutory duty to authorize surveillance under

the provisions of Title Ill

Giordano, 416 U.S. 505

lL Ed 2d 341 (1974)

was

See United States

94 S.Ct. 1820, 40

_ »EE@EEEUUUUoO7o~oO_—ee

18a

ZWEIBON v. MITCHELL

611

Cite as 516 F.2d 504 (1975)

criminal indictments were handed down

against several individuals (five of whom

are plaintiffs in this case) whose conver-

gations, including those with their attor-

ney,4 were overhead in violation of Jus-

tice Department regulations.™

[2] In Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcot-

ics, 403 U.S. 388, 91 S.Ct. 1999, 29

L.Ed.2d 619 (1971), the Supreme Court

held that a federal cause of action exists

to remedy violations of the . Fourth

Amendment and that damages are re-

coverable upon proof that injuries result-

ed from the violation. There is stil!

some doubt, however, as to whether ali

warrantless wiretapping constitutes such

33. Plaintiff Zweibon was an attorney repre-

senting several of the defendants in the crimi-

nal proceedings

34. JA at 57. See also note 100 infra. The

Sept. 14 and Jan. 4 requesis for wiretap autho-

rizations recognized that monitoring of the

surveillance might result in “interception of

conversations involving individuals who are or

may be defendants or attorneys in pending

Federal cases.” The requests indicated that

the FBI would comply with a prior memoran

dum from the Attorney General which ordered

that any overhearings of such individuals were

to be turned off, and that the logs of any

accidental overhearings were to be sealed and

kept unavailable to anyone else in the Justice

Department. JA at 57

35. Olmstead v. United States, supra note 6,

had previously held that wiretapping and use

of evidence obtained through such surveillance

did not violate the Fourth Amendment since

there was no trespass into a constitutionally

protected area and nothing tangible was

seized See also infra 170 U.S. App D.C

at - , 516 F.2d at 616 618 Similarly,

a “bug was considered to be free from consti-

tutional strictures if there was no unauthor

ized physical invasion of the subject's premis

es. See, e. g, Goldman v. United States, 316

U.S. 129, 135-136, 62 S.Ct 993, 86 LEd 1322

(1942) (evidence admissible where federal

agents used detectaphone attached to wall of

one room to overhear conversations in adjoin-

ing room)

36. Commenting on the majority's footnote 23

Mr. Justice White indicated that such an inher

ent Executive power did exist

We should not require the warrant proce

dure and the magistrate’s judgment if the

a violation. In 1967, the Supreme Court

first ruled that warrantless electronic

surveillance conducted through non-tres-

passory methods® is an unreasonable

search and seizure within the meaning of

the Fourth Amendment. See Katz v.

United States, 389 U.S. 347, 88 S.Ct. 507,

19 L.Ed.2d 576 (1967). But in a foot-

note, see id. at 358 n.23, 88 S.Ct. at 515,

the Court explicitly cautioned:

Whether safeguards other than prior

authorization by a magistrate would

satisfy the Fourth Amendment in a

situation involving the national securi-

ty is a question not presented by this

case.

Although three Justices expressed their

views on this subject in concurring opin-

ions, the issue was not squarely

President of the United States or his chief

legal officer, the Attorney General, has con-

sidered the requirements of national security

and authorized electronic surveillance as

reasonable

389 US. at 364, 88 S.Ct. at 518. Alarmed by

this “wholly unwarranted green light” to Exec-

utive surveillance, Mr. Justice Douglas, with

whom Mr. Justice Brennan joined, responded

vigorously

Neither the President nor the Attorney Gen-

eral is a magistrate. In m_ ters where they

believe national security may be involved

they are not detached, disinterested, and

neutral as a court or magi* rate must be

Under the separation of powers created by

the Constitution, the Executive Branch is not

supposed to be neutral and disinterested

Rather it should vigorously investigate and

prevent breaches of national security and

prosecute those who violate the pertinent

federal laws. The President and Attorney

General are properly interested parties, cast

in the role of adversary, in national security

cases) They may even be the intended vic-

tims of subversive action. Since spies and

saboteurs are as entitled to the protection of

the Fourth Amendment as suspected gam-

blers like petitioner, | cannot agree that

where spies and saboteurs are involved ade

quate protection of Fourth Amendment

rights is assured when the President and At-

torney General assume both the position of

adversary-and-prosecutor and disinterested,

neutral magistrate

Id at 359-360, 88 S.Ct. at 516, cited with ap-

proval in Keith, supra note 2, 407 US. at 317,

92 S.Ct. 2125

19a

516 FEDERAL REPORTER, 2d SERIES

612

presented” to the Court until United

States v. United States District Court

[Keith], 407 U.S. 297, 92 S.Ct. 2125, 32

L.Ed.2d 752 (1972), narrowed the scope

of the possible exception to the warrant

requirement.

In a carefully reasoned opinion, Mr

Justice Powell, writing for six members

37. Alderman v. United States, discussed at

note 14 supra, involved procedures to be fol-

lowed in determining whether evidence was

tainted by illegal wiretapping, and the Justices

split over the proper procedure to be apphed

when national security interests are implicat-

ed In particular, Mr. Justice Fortas argued

that national security material—‘a rigid and

limited category * * * [of material] specif

ically directed to acts of sabotage, espionage

or aggression by or on behalf of foreign

states,” 394 US at 209, 89 S.Ct. at 985 (opin

ion concurring in part and dissenting in part)

—should not be subject to the Court's ruling

that illegally obtained surveillance data must

be turned over to a criminal defendant wheth

er or not it is relevant to his prosecution. The

Court did not decide, however, whether war

rantiess national security wiretapping was in

fact unlawful. See, e g. Giordano v. United

States, supra note 14, 394 US. at 314-315, 89

S.Ct. 1163 (Stewart, J., concurring)

38. Mr Chief Justice Burger concurred in the

result, while Mr Justice Rehnquist took no

part in consideration or decision of the case

Mr. Justice White, concurring in the judgment

of the Court, would have premised the holding

that the surveillance was illegal on purely stat-

utory grounds. See notes 46, 222 infra

39. See infra, 170 U.S.App.DC. at

189, 516 F.2d at 651 653 & note 189

In their opimons concurring in the judgmen

of this court, Judges McGowan and Robb have

indicated, contrary to the submission of the

Government and the finding of the District

Court, that this is merely a case involving do

mestic crime rather than national security

This assertion, however, is simply not sup

ported by the record evidence. See, eg. Wi!

key opinion infra, 170 U.S.App.DC. at &

n.ll, 516 F.2d at 690-692 & nll Judge

McGowan quotes two State Department mem

oranda out of a voluminous record (and one of

the two was written after the surveillance had

been instituted) to prove that the State Depart

ment only sought “more effective enforcement

of the criminal laws,"” McGowan opimon at

682, and that the FBI and the Justice Depart

ment “significantly shifted the emphasis away

from criminal law enforcement alone.’ ld

However, Judge Pratt found as a matter of fact

that pror to the initial wiretap the Attorney

General had (as his affidavit and deposition

& note

tional security.

of the Court.™ held that no exception

exists for surveillance justified solely on

the basis of domestic threats to the na-

Despite the fact that

the Court expressed no opinion as to the

result that would be required if foreign

powers were involved in the threat to

the national security,” some courts have

testimony indicated) had conversations with

the Director of the FBI as well as other mem-

bers of the National Security Council (including

Henry Kissinger) and the State Department (in

cluding Undersecretary Irwin, Assistant Secre

tary for European Affairs Hildebrant, and State

Department Counsel Stevenson) concerning

the impact of JDL activities on this nation's

foreign affairs (including threats of Soviet re-

taliation against United States diplomats in

Moscow, cancellation of cultural exchanges,

and a general detenoration of Soviet-American

relations), and that the wiretaps were installed

after the Attorney General had determined that

those activities threatened the continuation of

peaceful relations and the President's ability

and constitutional authority to conduct this na-

tion's foreign affairs. Similar allegations in the

Attorney General's affidavit in Keith were ac-

cepted by the Supreme Court as indicative of

internal security threats, even though those

threats also involved domestic crime. See, e

g.. 407 US. at 300-301 & n2, 303, 92 SCt

2125; infra, 170 U.S. App.D.C. at

516 F.2d at 651-654

Judge McGowan acknowledges that the

wiretap authonzations ordered that evidence

derived therefrom not be used for prosecutori-

al purposes and admits that there is nothing in

the record to indicate that any surveillance

fruits were in fact used for such purposes

Yet Judge McGowan, without suggesting that

Judge Pratt's findings are clearly erroneous,

seems to say that these were electronic sur

veillances actually conducted for law enforce

ment purposes and thus were not within the

comprehension of the national security proviso

of Title Ill, see infra, 170 US.App D«

at . 516 F.2d at 659-673. Although

we disagree with Judges MacKinnon and Wij

key to the extent they state we have made a

finding that these wiretaps were in fact inst:

tuted in good faith purely for the acquisition of

foreign affairs information (we leave it to the

trial court's discretion on remand to reopen

that question of motivation, see note 274

infra), on the present record we are con

strained to accept the District Court's finding

that the surveillance was neither intended nor

employed for the acquisition of evidence per

taining to criminal prosecutions as opposed to

mere intelligence information. See note 23 su-

pra

Moreover, Judge McGowan indicates that

even if “the fruits of the surveillance in this

NN eee ae eS

20a

ZWEIBON vy. MITCHELL 613

f @anxr Sigh 24 "hi ¥.%

subsequently held that such an exceptior ly poses the problem of the meaning and

to the warrant requirement in fact ex ope of the Keith decision and the valid

ists We have serious doubts as to the ty and viability of any distinction be

metnodology employe | DD thie ( vurts # twee; pve iianece ju tified on the DASIS

and we therefore indertake to analyze of foreign “Ss opposed lo domestic,

threats to the national security

the rT with which we are presented .

in a manner more faithful to the spirit [3-5] Although we beleve that an

| and rationale of Keith For althnoup? analysis of the polren implicated by for

his case is a civil damage it, it (quare- eign security surveillance a2 indicate

Case were ed sole for the purpose of pre in collaboration with foreign powers, and “in

jing i t te pr tect f reiper hip rriat ternal security or domestic sec irity Ssurvel

and avoid exacerbation of S et American re lance will refer to surveillance which 1s pred

sions, see McGowan opimon at nn). the pr sted on such threat« See infra.170 US App

mary purpose of the surveillance would still be DC at 516 F 2d at 651 653 Foreipr

aw enforce ent Dec ause t irréeie¢ ant that security will refer to threat to the structure

the threatened crimes in thi ase were of a or existence of the Government which emanate

kind that the FBI would have preat pre either directly or indirectly from a foreign pow

ferred —t the pr or f se rit and +t er, see infra,1170 US App DC at & note

other precautionar step: t prevent rather 189. 516 § 2d at 651 653 & note 189 and a

than prosecute °° ° ®& The effort to pre foreign secunty” surveillance will refer to sur

ery? r ‘ ‘ WA fa if ni ri case pre ‘ ince which 1 pred sted on such threat«

‘ r t 1 “ Id 170 US Apy A surveillance is a foreign security surveillance

( § 2d at 682 643 Tt reyardiess of the stimulus that provoked the

ne | nv ea f tentia fore yr power thu the surveillance im thie

it i ee t ive nee Case will be treated as a foremn security sur

J ip McG iT 4 ild re pect the re jent velliance even though the Soviet threats were

nat ‘ t justification and treat the provoked by actions of a hostile domestic or

‘ mice i re rected at crimina iv yanization We beheve such treatment is re

enfor est rOWweve Judge McGowar if juired by the limited holding of the Supreme

proach w tin effect mean that most pre Court in Keith See id National security

lentia setior traditionall considered ¢t re will penerally be used interchanveably with

within toe nat mal security sphere are not. is foreign security except where the context

fact, witl th phere For example, pre makes it clear that it refers to both “foreign

dential! a f indertaker to protect nationa security and “internal security

rit nformation against foreign inte It should also be noted that the Government

k e activitie re NOL OF considered vi see note 47 infra, is not limiting its argument

wr natior ecunty, but are also specifica for an exception to the warrant requirement to

‘ mpassed in the language of Ih U S¢ tuations of foreign security, rather, it argues

& 25113 discussed infra 170 US App D¢ that ich an exception, based on the Presi

at 6 F 2d at 659 673 And cer dent's preeminent powers in the field of for

tainly im taking those actions the President eign affairs, is justified for any intelligence

would prefer ’ see the crime of ae | Nay patherinp irveiilance that will pr rduce infor

prevented rather than have the culprits prose mation that sffect: our relations with for

cuted after the crime has transpired ret eign powers See, e pg. brief for appellees

judge McGowar approach would deny that at 29 %32 infra 17° US App D¢ at

such surve ance snould be cateporized a 516 F.2d at 655 657 For the

having @ primary national security purpose rr part our analysis will treat the Govern

nee. if the surveillance failed to prevent the ment position as if it were limited to the

rrime of « , nay prosecution i* sure te f nr re reasonable catepory of security situa

uw tior However, there is no litmus test for

40. Se nfra US App D ¢ st Separating those actions of foreign power:

516 F 2d at 636 64) which affect our secunty from those which de

: — ' not, particulariy when it is recalled that even

+! os intra : US App DA na - minor trade difficulties in the present may

6 F.2d at 626 633, 639 have a substantial corrosive effect on our se

ad curity in the future Thus our analysi pro

42 Ihroupt I pil ! nternal secunty eeds with the recognition that there may be

and JOmest ‘ r / refer to threats t if practical or lopical way to differentiate na

+} ture ‘ f the Governme nal security situations from other situatior

whict rigs pect from domest rpar within the President's foreign affair powers

Zatior , ret r aj nor actin; ee al note 10% & 20% infra [his does not

614 516 FEDERAL

that, absent exigent circumstances all

warrantless electronic surveillance is ur

reasonable and therefore unconstitution

al, our holding need not sweep that

broadly Instead, we hold today only

that a warrant must be obtained before

a wiretap is installed on a domestic or-

ganization that the of

nor acting in collaboration with

eign if the

installed under presidential directive

is neither apent

a for

power, even surveillance

the name of foreign intelligence gather-

ing for protection of the national securi-

ty We reach thi

lightly or without sensitivity to the

do not conclusion

port or the controversiality of the prob

lem of national security wiretapping

; pping

But the Constitution compels us to do no

less In any event our en or dos not

limit in any way the ability of the I’re

of course. mean that if an exception to tne

warrant requirement were recognize line

could be drawn within the foreign affairs area

For example, although there are strong poli

cies against allowing any such exceptions, see

infra, 170 US App DC at 516 F 2d

at 633 651, it would be possible to allow war

rantiess surveillance of foreign agent gard

less of the importance of the informatior

sought, so long as post hoc judicial review

found the surveillance to be reasonable, while

requiring a warrant whenever a domestic or

ganization is wiretapped repardles of the

enormity of the foreign security threat which

its act provoked

43. There is no indication that the Presider

himself authorized or had knowledge of this

that

his constitutional powers were properly dele

gated to the Attorney lejach

head of a department is and must be the Presi

dent's

surveillance However, appellees assert

General since

alter ego in the matters of that depart

ment where the President is required by law to

exercise authority Memorandum of Points

and Authorities in Support of Defendants

Cross-Motion for Summary Judgment and Op

position to Plaintiffs’ Motion for Partial Sum

mary Judgment, at 15 n 10, in Zweibon v

Mitchell, Db D¢ Civil No 2025 71 (brief filed

April 24, 1973), quoting Myers v United

States, 272 US. 52, 133.47 SCt. 21, 71 LEd

160 (1926) We do not doubt the President:

power to delegate execution of many of his

functions to responsible subordinate official

See, e pg. Knauff v Shaughnessy. supra note

+ 33K 1! S at 543. 70S Ct 309 However, we

find it curious that, in hght of the fact that the

asserted complexity and specialized nature of

fore yn pole matters i advanced a a factor

REPORTER,

2d SERIES

dent to conduct legitimate national se

curity wiretaps, since we do not addres

* he ibstantive Coys of that powe r“ or

the exact standards upon which war-

rants should issue. Rather, we merely

decide that whatever the legitimate

scope of that power, and whatever the

standard which must be met to justify

the the

as to whether the has been exceed-

intrusion of a wirelap, decision

SCOP

ed or the standard has been met is to be

4trate

made a neutral and disinterested

map or judge rather than by an

Executive official engaged in investiga

tory or prosecutorial duties, at least in

situations where the subject of the sur-

veillance is a domestic organization that

is not the agent of or acting in collabora-

tion with a fore ivn power.

tating apa prior judicia ght of

foreign secur rve ance see infra, 170

US App D¢ at 516 F 2d at

639 6540, GAl OAK, this function has been dele

gated to the Attorney General rather than te

the Secretary of State See also infra, 170

US App .,. a 516 F§ 2d at 643 5644

44. In particular, we do not decide whether it

would have been proper for a judge to autho

rize a surveillance under the circumstances of

th case, or whether any authorized surveil

lance should have been of a different scope or

duration than that actually conducted See

note 274 infra

45. See infra 170 US App. D¢ at

516 F 2d at 655 659

46. Section 2511 of Tithe Hl of the Omnibus

Crime Control and Safe Streets Act of 1968. 1%

U.S §§& 2510 2520 (1970), declares that

le)xcept as otherwise specifically provided i

this chapter [Title Il], interception of “any

wire Or oral communication’ is tlegal, and

§ 2520 of Title Ill specifies broad remedia!

rehef, including hquidated damages, for sur

veillance conducted “in violation of this chap

ter However, § 2511(3), the so-called “na

tional security proviso” of Title Il, disclaim

at congressional intent, inter alia, tv larnit

the constitutional power of the President |

take such measures as he deems necessary ti

protect the Nation against actual or potentia

attack or other hostile acts of a foreign power

to obtain foreign intelligence imformatior

deemed essential to the security of the |! nited

States, or to protect national security informa

tion apainst foreign intellipyence activitie

Ser penerally infra 170 t App bD ¢

ZWEIBON v. MITCHELL

615

Cite as O16 F 2d SO (1975)

Before engaging in our Fourth

Amendment analysis, we must dispose of

an argument, based on alleged prece-

dent, that has been implicitly advanced

by several courts as well as by appel-

lees in this case This argument in ef-

fect asserts that prior presidential prac-

tice and several Supreme Court holdings

establish the President's preeminent

power over the conduct of foreign af-

fairs, and that this power in turn estab-

lishes the inherent authority of the Pres-

ident to engage in warrantless national

at . 516 F 2d at 659 673. Thus. al-

though any electronic surveillance is presump-

tively unlawful if instituted without comph-

ance with the strictures of Title II, a surveil.

lance within the comprehension of the national

security proviso would not be rendered unlaw-

ful by Title Ill. As we will develop more fully

later in our opinion, see infra. 170 U S App

D.C. at & notes 239, 244, 516 F 2d

at 664-667 °& notes 239. 244, the national

security proviso was fashioned to encompass

any presidential surveillance which the Su-

preme Court might subsequently hold to be

immune from the Fourth Amendment's war.

rant requirement, Congress was at pains not

“to limit or disturb such power as the Presi-

dent may have under the Constitution.”

Keith, 407 U.S. at 303, 92 S.Ct. at 2130 See

also, @& g. note 240 infra (Senate Report

broadly referring to proviso as encompassing

presidential “conduct of foreign affairs’’)

Since, on the record before us. the surveillance

of JDL headquarters was installed for national

security reasons, it at least arguably falls with.

in the language of the proviso: thus we must

first analyze whether a national secunty sur

veillance instituted under these circumstances

is subject to prior judicial scrutiny. See also

Keith, 407 U.S. at 308, 92 S.Ct. 2125 Whatev

er disagreement we have with Judge Wilkey

on the interpretation of § 2511(3), compare

infra, 170 US AppDC at . 516 F 2d

at 659 673 with Wilkey opinion 170 US App

DC at 516 F 2d at 689 700. we

are in accord in accepting the principle that, at

4 minimum, the legislative history and lan

Buage of that section reflect a congressional

intent that in any case in which no warrant ts

constitutionally mandated. Congress did not

intend to impose a statutory warrant require

ment Indeed. although the premise is ques

tionable, see note 228 mfra Congress appar

ently believed it would be unc onstitutional to

restrict any inherent Executive power to en

Rage in warrantless surveillance See. ¢ g.

infra’ 170 USAppDC ar & notes 239

244. 516 F 2d at 664 667 & notes 239. 244

security surveillances as a necessary con-

comitant of his responsibilities as Com-

mander-in-Chief of the Armed Forces ®

and Chief Executive of the nation.”

To be sure, the fact that the Keith

Court found the President’s powers with

respect to domestic affairs insufficient to

justify an exception to the warrant re-

quirement when the domestic aspects of

national security are involved, yet

refused to specify what procedures

would be entailed if the national security

threat had its origin with foreign pow-

ers,*! indicates that any difference in re-

Moreover, in Keith, Justice White. speaking

only for himself, argued that Title I] should be

analyzed by first determining whether the sur-

veillance was one encompassed by the exact

language of the national security proviso; con-

cluding that it was not, he avoided any consti

tutional analysis. See note 222 infra. This is

in effect Judge McGowan’'s approach. See, e

&.. McGowan opinion at n.12. He, too, would

approach the proviso by first determining

whether a surveillance falls within its exact

language And although the broad Statutory

language makes no distinction with respect to

the subjects of such surveillance (as opposed

to its purpose) Judge McGowan would simply

construe the statutory language to exclude all

“noncollaborators” even if the President could

constitutionally institute surveillance on them

without compliance with the warrant require

ment of the Fourth Amendment. Yet the Su-

preme Court in Keith, rejecting the methodolo-

gy of Justice White, recognized that if the

President could conduct warrantless national

security surveillance permissibly under the

Constitution, the framers of § 2511(3) did not

intend to interpose Statutory barriers to the

surveillance’ Thus, under the facts of our

case, if no warrant is constitutionally required

Title Ill cannot apply. That is why, as in

Keith, we must initially undertake the consti-

tutional analysis which follows

47. See cases cited infra, 170 US App DC

at . 516 F 2d at 636 641 See also

Unsted States v United States District Court, 6

Cir, 444 F 2d 651, 658 659 (1971)

47. See generally brief for appellees at 21 32;

Memorandum of Points and Authorities in

Support of Defendants’ Cross-Motion for Sum.

mary Judgment and Opposition to Plaintiffs’

Motion for Partial Summary Judgment, at 13

20, in Zweibon v Mitchell. Supra note 43

49. USConst. Art Il, § 2

50. Id § 1

Sl. See infra,i70 US AppDC ar

at 651

. 516 F 2d

653

23a

616

sult must turn on the President's pecu-

liar powers in the field of foreign af-

fairs. However, the precedents of Exec-

utive practice and judicial decisions

merely substantiate the existence of

those powers and legitimate the authori-

ty of the President to obtain information

necessary to protect the national security

from foreign aggression; they do not

preordain the procedures with which the

President must comply in exercising that

authority. We will therefore discuss

these precedents to elaborate why they

are not themselves conclusive of the pro-

cedural ® question; in a later section of

this opinion we will scrutinize them to

determine whether they are based on

any policies which would be frustrated if

a warrant requirement were to apply to

the category of foreign security surveil-

lances.

[6,7] Admittedly, Presidents since

Franklin Roosevelt have authorized their

52. In referring to the warrant requirement as

“procedural,”” we do not mean to imply that it

does not have important substantive aspects

and purposes. Rather, we employ the term to

contrast the existence and scope of any Execu-

tive power to gather information with the safe-

guards pursuant to which such power is to be

exercised. However, it is important to note

that, in contrast to the detailed standards and

procedures elaborated in Title Ill for regulating

the warrant proceeding, see infra, 170 U.S

App.D.C. at —, 516 F.2d at 668-669, the re

quirement of a warrant itself was for many

years closely associated in congressiona! de

bates with the substantive powers of the Exec

utive to use evidence derived from national!

security surveillance in criminal prosecutions,

see infra, 170 U.S.App.DC. at & note 240

516 F.2d at 664-667 & note 240

53. See Appendix A; Keith, supra note 2. 407

US at 310-311 & nn 10-11, 92 S.Ct. 2125

See generally Brownell, The Public Security

and Wire Tapping, 39 Cornell L.Q 195, 195

200 (1954), Donnelly, Comments and Caveats

on the Wire Tapping Controversy, 63 Yale LJ

799, 799-800 (1954), Gasque, Wiretapping A

History of Federal Legisiation and Supreme

Court Decisions, 15 S.C.L.Rev. 593, 600-601

(1963), Rogers, The Case for Wire Tapping. 63

Yale LJ. 792, 794-797 (1954), Theohans &

Mever. The “National Security” Justification

for Electronic Eavesdropping. An Elusive Ex

ception, 14 Wayne L.Rev. 749, 753 768 (1968).

Note. Wiretapping and Electronic Surveil

516 FEDERAL REPORTER, 2

SERIES

Attorneys General to approve investiga-

tions “to secure information by listening

directed to the conversation or

other communications of persons suspect-

ed of subversive activities against the

devices

Government of che United States.” ®

However, this practice has never re-

ceived Supreme Court approval, and

there can be no doubt that an unconsti-

tutional practice, no matter how inveter-

ate, cannot be condoned by the

judiciary“ Indeed, the Supreme Court

in Keith merely treated the similarly

long-standing Executive practice of con-

ducting surveillance “in cases vitally af-

ative of the unchallenged Executive

power to obtain intelligence information,

not as determinative of the proper proce-

dures to be followed in so doing. Even

more important, this Executive practice

must be considered in its historical con-

text, which illustrates why,the 30-year

policy of presidentially directed electron-

lance--Title Ill of the Crime Control Act of

1968, 23 Rutgers L.Rev. 319, 337-339 (1969),

Note. The “National Security Wiretap”: Presi

dential Prerogative or Judicial Responsibility,

45 S.Cal.L Rev. 888, 902.905 (1972); Com

ment, Privacy and Political Freedom: Applica

tion of the Fourth Amendment to “National

Security” Investigations, 17 U.C.L.A.L.Rev

1205, 1217-1224 (1970)

54. See, e zg. Committee for Public Education

v. Nyquist, 413 U.S. 756, 792, 93 S.Ct. 2955, 37

LEd2d 948 (1973), quoting Walz v. Tax

Comm'n, 397 US. 664, 678, 90 S.Ct. 1409, 25

L Ed.2d 697 (1970); Roe v. Wade, 410 US

113. 93 S.Ct 705, 35 L_Ed.2d 147 (1973); Fur

man v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33

L.Ed 2d 246 (1572), Katz v United States, 389

U.S 347. 352-353, 88 S.Ct. 507, 19 L.Ed. 2d 576

(1967). Reynolds v. Sims, 377 U.S. 533, 579

580. 84 S.Ct 1362, 12 L.Ed 2d 506 (1964)

55. Although President Roosevelt's memoran

dum authonzed surveillance of “persons sus

pected of subversive activities,” the thrust of

the memorandum is to authonze surveillance

which would be considered “foreign” security

surveillance under the Keith opimion. The first

presidential directive condoning surveillance in

“cases vitally affecting the domestic secunty™

came six years later See Appendix A

56. Compare 407 US at 310 311 & n10 92

SCt. at 2133 2134 with id at 314 315, 92

Sct 2135 2136

24a

ZWEIBON v. MITCHELL

617

Cite as 516 F 2d St (1875)

ic surveillance has no substantial bearing

on whether the practice of warrantless

surveillance is now constitutional

To appreciate this problem, one must

remember the Supreme Court's unfortu-

nate decision in Olmstead v. United

States, 277 U.S. 438, 48 S.Ct. 564, 72

L.Ed. 944 (1928). Over vigorous dissents,

including the renowned Brandeis cele-

bration of personal privacy, the Olm-

stead Court held that, absent an actual

physical trespass, there is no search

within the meaning of the Fourth

Amendment. Thus, from 1928 until

1967," there was simply no dispute that

the Fourth Amendment was inapplicable

to non-trespassory electronic surveil-

lance; it was for this reason that war-

rants were not required. However,

shortly after the Olmstead decision, Con-

gress enacted Section 605 of the Federal

Communications Act of 19348 which

provided that

no person not being authorized by the

sender shall] intercept any communica-

tion and divulge or publish the exist-

ence, contents, substance, purport, ef-

fect, or meaning of such intercepted

communication to any person.

Section 605 was interpreted to prohibit

the introduction into evidence of both

the contents of conversations overheard

on wiretaps installed by law enforcement

officials, see Nardone v. United States,

302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314

(1937), and the fruits of such overhear-

ings, see Nardone v. United States, 308

U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307

(1939).

Although various bills were subse-

quently introduced to avoid the effects

57. In 1967 the Supreme Court decided Katz \

United States, supra note 54, which overruled

Olmstead and informed us that “the Fourth

Amendment protects people, not places’ See

389 US at 351, 88 SCt. at 511 Legitimate

expectations of personal privacy were there

fore to be shielded against “the uninvited ear’

as well as “the intruding eye" Jd at 352, 88

S.Ct. 507

38. Ch 652. Title VI. § 605, 48 Stat 1103

(1934), as amended, 47 USC § 605 (1970)

of these decisions, they never received

congressional approval. Nevertheless,

the Justice Department construed the

Nardone decisions not to prohibit wire-

tapping itself. As one Attorney General

explained:

The question soon arose as to wheth-

er mere interception by federal agents

of messages was forbidden by Section

605. The Attorney General [Jackson]

at that time took the view that what

the law prohibited was both intercep-

tion and divulgence, and that mere re-

port of the intercepted message to

public officials by FBI or other federal

agents did not constitute divulgence.®!

Attorney General Jackson announced in

1940 that the Justice Department would

discontinue wiretapping; he reversed

that position, however, two months later,

after receiving a confidential memoran-

dum from President Roosevelt, the first

such presidential directive in the corpus

of Executive precedents cited as autho-

rizing warrantless wiretapping. In ef-

fect, the memorandum was actually a

reaction to the statutory construction de-

cision of Nardone, not an assertion of

presidential immunity from constitution-

al constraints. Accepting the Nardone

holding that evidence obtained through

wiretaps could not be introduced in crim-

inal prosecutions, President Roosevelt

nevertheless did not accept the view that

the statute prohibited the wiretapping

itself, since he discounted the possibility

that any dictum in Nardone was intend-

ed “to apply to grave matters involving

the defense of the nation.”

The Roosevelt memorandum clearly

related solely to “wiretapping” which,

unlike “bugging,” was generally accom-

59. See also, e g. United States v. Coplon, 2

Cir. 185 F.2d 629 (1950), cert. demied, 342 US

920, 72 S.Ct. 362, 96 L.Ed 688 (1952)

60. For a relatively comprehensive picture of

the legislative efforts in this area. see generally

Theohans & Meyer. supra note 53. See also

Gasque, supra note 53, Rogers. supra note 53

61. Brownell, supra note 53, at 197

Donnelly, supra note 53, at 800 80]