# Appendix — ZWEIBON v. MITCHELL (Nos. 75-1056, 75-1046, 75-1059) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1627%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 ## Text la Appendix A 994 Bertram ZWEIBON et al., Appellants, v. 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 2a 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 3a 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 4a 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- 5a 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 6a 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 7a 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- Sa 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 (c) Both appellees in this case and 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 ee 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- Yn 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 he 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.™ I] [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 as is in 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 im 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 21 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 by 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) A. 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. 1. [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- fecting the domestic security” © as indic- 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] See also 618 plished without a physical trespass. Thus neither his memorandum nor those of Presidents Truman and Johnson ® ac- tually discussed the warrant require- ment, since Olmstead had rendered the Fourth Amendment inapposite where non-trespassory surveillance was in- volved. Indeed, presumably because bugging was generally of a trespassory nature and thus subject to Fourth Amendment strictures even before Katz, President Johnson’s pre-Katz memoran- dum on national security surveillance recognized that “[uJtilization of mechani- cal or electronic devices to overhear non- telephone conversations is an even more difficult problem [than wiretapping], which raises substantial and unresolved questions of Constitutional interpreta- tion.” “ [8] We need not recount how this practice of presidentially authorized elec- tronic surveillance has grown from a 62. For a description of “bugging” and “wire- tapping” devices, see, e. g., A. Westin, Privacy and Freedom 73-78 (Atheneum 1967) 63. See Appendix A. 64. id. Apparently despite this recognition that the practice of warrantless trespassory nation- al security surveillance might be unconstitu- tional, it was engaged in by law enforcement officials during the Johnson Administration See Appendix A (memorandum from Acting Attorney General Clark to all United States Attorneys). . 65. For example, President Roosevelt recog- nized that “under ordinary and normal circum- stances,” wiretapping should not be employed because “it is almost bound to lead to abuse of civil nghts.” Yet, faced with impending entry into World War Il, he recognized the need to obtain information concerning sabotage and other “fifth column” activities. Nevertheless, he instructed the Attorney General to “limit these investigations so conducted to a mini mum and to limit them insofar as possible to aliens." See Appendix A. It should also be noted that, in addition to the fact that the Fourth Amendment was not considered appli- cable to non-trespassory surveillance at the time, aliens were considered to have less than full Fourth Amendment mghts. See, ¢ 8. Johnson v. Eisentrager, 339 U.S. 763, 769-772. 70 S.Ct. 936, 94 L.Ed. 1255 (1950) See also note 105 infra 25a 516 FEDERAL REPORTER, 2d SERIES highly circumscribed and infrequently employed device under President Roose- velt § to its extensive scope under Presi- dents Truman and Johnson and its mag- nitude as an explicitly asserted constitu- tional exception under Presidents Nixon and Ford. Nor need we maintain that if the Supreme Court in Olmstead had held the Fourth Amendment applicable to non-trespassory surveillance, prior Presidents would not have claimed a con- stitutional exception from the warrant requirement. We recount the back- ground of this Executive practice only to refute the argument that it should be viewed as an affirmative statement by prior Presidents that they were not sub- ject to the warrant procedure of the Fourth Amendment when they acted for national security purposes. Indeed, there are no similar memoranda from these Presidents advocating unwarranted physical trespasses, to which the Fourth Amendment would have applied. To 66. For details of the expansion of surveillance activities from the Roosevelt to the Johnson Administration, see, e. g., Theoharis & Meyer, supra note 53; Comment, supra note 53, 17 U.C.L.A.L.Rev. at 1221-1224. As indicated in text, both Presidents to hold office since the Katz decision have through their Attorneys General advocated the broadest possible ex- ception to the warrant requirement when in- ternal or national security matters are at issue See, e. g., brief for the United States in Keith, supra note 2; Statement of Attorney General William B. Saxbe on National Security Elec- tronic Surveillance and S.2820 Before the Sub- committee on Crnminal Laws and Procedures, Oct. 2, 1974 (Justice Department release), Washington Post, May 19, 1975, at 2, col. | (Ford administration asserts that federal agents have right to break into citizen's home without a warrant and search for items that might be used in foreign espionage or intelli- gence cases) 67. Nor is it likely that amy court would have accepted the argument that, in the name of national! security, officials of the Executive Branch could break and enter a home and rummage through books and papers without pnor judicial approval For the Fourth Amendment was specifically propounded and ratified with the memory of Wilkes v. Wood. 98 Eng Rep. 768 (1763), and Entick v. Carring- ton, 95 Eng Rep. 807 (1765), in mind See generally Boyd v. United States, 116 U.S 616, 624-630. 6 S.Ct. 524, 29 L.Ed 746 (1886) (dis- cussing the English and Amencan abuses 6a ZWEIBON v. MITCHELL 619 Cite as 516 F 2d S04 (1975) be sure, the Executive Branch and its law enforcement agencies had become accustomed vo conducting non-trespasso- ry electronic surveillance unhampered by prior judicial scrutiny; it was therefore expedient to argue for a constitutional exception once Katz eliminated the tres- passory/non-trespassory distinction in Fourth Amendment doctrine. However, even if we ignore the fact that expedien- cy is no soil in which to root a constitu- tional doctrine, we must still stress the fact that support for a constitutional ex- ception simply cannot be derived from Executive actions that solely concerned statutory matters and whose evolution was based on considerations other than the Fourth Amendment and the proper means of effectuating its guarantees. 2. The second type of precedential au- thority relied on to justify warrantless which led to enactment of the Fourth Amend- ment). See also J. Landynski, Search and Sei- zure and the Supreme Court 28-48 (1966), N Lasson, The History and Development of the Fourth Amendment to the U. S. Constitution 43-78 (1937). The Boyd Court indicated that the Founders would have been particularly ac quainted with Carrington, ‘this monument of English freedom, * * * the true and ulti- mate expression of constitutional law.” 116 U.S. at 626, 6 S.Ct. at 530. Carrington was an action in trespass occasioned when the Earl of Halifax. a British Secretary of State and Lord of the Privy Council, sent his personal messen- gers, under color of a purely executive warrant issued by Halifax in the King’s name, to in- vade the studies of Entick and other political dissidents in search of papers which could be used as proof of the crime of seditious libel Although “at different times from the time of the Revolution to this present time, the like w?rrants with that issued against the plaintiff have been frequently granted by the Secre tanes of State.’ 95 Eng Rep at 810, Lord Camden unequivocally repudiated the practice [W]e can safely say there is no law in this country to justify the defendants in what they have done, if there was, it would de stroy all the comforts of society * * °* It must have been the guilt or poverty of those upon whom such warrants have been exe cuted, that deterred or hindered them from contending against the power of a Secretary of State and the Solicitor of the Treasury, or such warrants could never have passed for lawful till this time national security surveillances is com- prised of Supreme Court decisions not implicating the Fourth Amendment but relating to the President’s broad powers over the conduct of foreign affairs. A very brief survey of these cases will re- veal that they may be roughly divided into three overlapping subclasses: (1) cases finding that our “political” rela- tions with foreign governments are non- justiciable; (2) cases recognizing that the President has certain “inherent” powers in the field of foreign affairs which are not dependent upon congressional autho- rization; and (3) cases recognizing an ev- identiary privilege shielding information pertaining to military or diplomatic se- crets from disclosure in open court. It will be seen that despite broad dicta in some of these cases, none stands for the proposition that the Executive Branch is immune from constitutional strictures in Id at 817-818 Lord Camden considered sedi- tious libel an “evil” which might “prove fatal to liberty, destroy Government and introduce anarchy,” 95 Eng Rep. at 818; in 18th century England, such libels were considered substan- tial threats to national security. Against such a background, it is understandable that Execu- tives in this country did not assert any prerog- ative to rummage rough the books, papers, and other effects c dissidents in the United States based on an Executive determination that they posed a threat to national security. However, it is difficult to see why such a pre- rogative should not exist if the Executive Branch is permitted to conduct non-trespasso- ry electronic surveillance without a warrant. For once Katz rendered such surveillance sub- ject to Fourth Amendment strictures, there was no reason to allow an Executive exception to the warrant requirement in non-trespassory searches and seizures but not in trespassory searches and seizures Given the fact that warrantiess trespassory searches were the “hard core” Executive abuses which the Fourth Amendment was designed to proscribe. see. e g. Keith. supra note 2, 407 US. at 313. 92 S Ct. 2125, and the fact that Katz abrogated the trespassory non-trespassory line as a via ble criterion for categorizing Executive actions for Fourth Amendment purposes, we believe it 1S more in keeping with the spirit and purpose of the Fourth Amendment to close areas of assertediy nonreviewable Executive preroga. uve rather than to retreat in doctrinal areas which have been settled since the Amendment was first promulgated See generally supra, 170 USAppDC at - -, 516 F2d at 611-614. infra, 170 US App.DC al — , 516 F 2d at 628-633. See also 9 = 516 FEDERAL REPORTER, 2d SERIES 620 the conduct of the nation’s foreign af- fairs. Indeed, after discussing these cases we will scrutinize a separate line of cases which has clearly subjected the Ey- ecutive Branch to the normal system of constitutional checks and balances, and which has clearly indicated the limited ability of the President to justify actions taken in the United States on the basis of conditions abroad or relations with foreign powers. [9,10] The paradigmatic case of the first subclass of precedents concerning the President’s conduct of foreign affairs is United States v. Belmont, 301 U.S 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937), which appellees cite for the broad propo- sition that “the conduct of foreign rela- tions was committed by the Constitution to the political departments of the government, and the propriety of what may be done in the exercise of this polit- ical power [is] not subject to judicial in- quiry or decision.” Jd. at 328, 57 S.Ct. at 760, quoted in brief for appellees at 23 See also Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed 726 (1918); United States v. Pink, 315 U.S. 203, 222.223, 229, 62 S.Ct. 552, 86 L.Ed. 796 (1942). United States v. United States District Court, supra note 47, 444 F.2d at 665 This language should 68. The act of state doctrine is essentially a doctrine which provides that the acts of a for eign sovereign are not subject to review in the courts of another sovereign and must be pre sumed to be valid See, e g. Underhill \ Hernandez, 168 U.S. 250, 252, 18 SCt. 83, 42 L.Ed 456 (1897), Ricaud v. American Meta! Co., 246 US. 304, 309, 38 S.Ct 312, 62 L.Ed 733 (1918), First National City Bank v Banco Nacional de Cuba, 406 US. 759, 763, 92 S.Ct 1808, 32 L.Ed. 2d 466 (1972), H. Steiner & D Vagts, Transnational Legal Problems 587 58& (1968). However, rather than declining juris diction, a court is supposed to exercise its ju risdiction and decide a case on the merits. aft er according the foreign act an irrebuttable presumption of legality See. e g. Banco Na cional de Cuba v. Sabbatino, 376 US 398 471 472, 84 SCt 923, 11 LEd2d 804 (1964) 69. The Oetjen case was a suit in replevin for a large consignment of hides in deciding the case the Court emphasized the act of state 7a ‘ not, however, be divorced from its factu- al predicates. Belmont, Pink, and Oetjen were all basically “act of state” cases,“ and the sole presidential decision that was given conclusive force con- cerned who was to be considered the lawful sovereign of the foreign power Once the legitimate sovereign is deter- mined, the act of state doctrine pre- cludes his acts from being reexamined by the courts of another sovereign state In Oetjen, which only involved the “action, in Mexico, of the legitimate Mexican government when dealing with a Mexican citizen,” 246 U.S. at 303, 38 S.Ct. at 311, this doctrine disposed of th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1627%3A2. Public record. Not legal advice.