Petition for Writ of Certiorari — United States v. United States Dist. Court for Eastern Dist. of Mich.

x the Sagi dint Cf the tite Stas

4 | OaroBER TerM, 1970 a

a) .

: Usrrep Srares or AMERICA, PEITTIONER

ia : @. .

Usrren Srares Districr Court : Yor THE Kasten’

‘District oF. MICHIGAN, SOUTHERN | Division AND

Hon, Damon d. ket

* PEITTION FOR A WRIT OF CERTIORARI 10 THE UNITED STATES

4 _ COURT OF APPEALS FOR THE = CIRCUIT

The - Solicitor Genskut on behalf of the United

; States, of America, petitions for a writ .of certiorari

‘to review the judgment of the United States Court .

of Appeals. for the Sixth Cireuit in this « case.

SA

OPINIONS BELOW

The opinion of the court of appeals (App. A, -in-

fra) is not yet reported. The opinion of the district

court pide: B, pemiren is not reported.

JURISDICTION

On April 8, 1971, the Court ‘of Appeals denied. the

‘government’ S. petition for. a writ of mandamus seek-

‘ing: to compel the respondent district judge to vacate

~ Qa

Te ee

.

aly 423-955-711.

Y ; 2 wed

- % celia order. entered in a pending sabia Case, .

The judgment of the court, of appeals is set forth in |

_ App. C, infra. The jurisdiction of this Court i is invoked -

: under 28 US, C. 1254(1).

_ QUESTIONS PRESENTED.

1. Whether electronic surveillance ‘is webiniible

within the meaning of the Fourth Amendment when it _

Z ~ has been specifically authorized by the President, act-

, \- ing through the Attorney General, to gather intelli-

\.._ gence information deemed neséssary to protect against .

\ attempts to gverthrow the government by force or other .

unlawful means or against other clear and Paes dan-

gets to the government’s structure or existence.

2.\If such national security" surveillances are ie

; lawful) whether—notwithstanding Alderman v. United ©

States, 394 U.S. 165—it would be appropriate for the .

district court to determine in camera whether the in-\ _

terceptions a re arguably relevant to the prosecution \

before requiri their. disclosure to the son eae

, \

\ STATUTE INVOLVED

. The pertinent provisions of the Omnibus Oriine Con-

/ trol and Safe Streets Act of 1968 are set forth in App. :

oh D, infra. re \ : :

STATEMENT — ie }

This petition | arises from_a ¢rimina} vied

pending trial in the United States District Court for —

. ‘the Eastern District of Michigan, i in which the three de-

fendants are charged, with conspiracy to destroy gov-

ernment property in violation of*18 U.S.C. 371, and

_ one of -the defendants, Plamondon,. is ehargéd with

destruction - of gove®ament “property \in violation of

18 US.C. 1361. The charges. arose from the bombing

of an office of the Central Bec my Agency i in Ann

Arbor, — ae

3 ‘

In the course of pretrial proceedings, the defend- ° .-

ants filed a motion for disclosure of electronic surveil-.

lance information. ‘With its response, the government. . _

fled and served upon the movants an affidavit of the

Attorney General of the United States, acknowledg-

ing that government agents had overheard conversa-

tions participated in by Plamondon; it also filed the -

logs of these surveillances as-a sealed exhibit.” :

The Attorney General’ s affidavit: réads as follows:

JOHN N. ‘Mrrenenz, being duly. sworn deposes: :

and says: :

~ 1. f am the Attorney General of the United WS

States. : Pee 601%:

2. This- affidavit. is sulenithed in connection ees

with the Government’s opposition: to the dis-.

closure to the defendant Plamondon of ‘infor;

- mation concerning the ov erhearing of his con- |

. versations which occurred during the.course of -

.. electronic surveillances which the Government.

contends were legal. .

: 3. The defendant Plamondon_ has partici-

ee pated in cpnversations. which were overheard -

-by. Government: agénts ‘who were monitoring

“wireta ich were being employed to gather —

intelligence ° information ' “deemed necessary to

protect the nation from attempts of domestic

3 organizations to attack and‘subvert the exist-

_ ing structure of the Government. The records 4 <

__» of the Department of Justice reflect the ins :

lation of these wiretaps had been expr ap-

- proved by the Attornéy General. ~~ - meg xs

4, Submitted with this affidavit is a sealed. ns

exhibit containing the records of the. inter-

- cepted conversations, a description of the prem-

, ises that were - the subjects of the —

* The sealed exhibit is: ; part of the record before this Court

Sete

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BTS soy — ” " fom, . — = ee 4 Mae A pee

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Stee Fie a Ae

oe. Gites * nsiabs nd copies of the memoranda reflect

‘ \ Sheas. : ing ‘the. Attorney. General’s. express approval of

o\o o's the izistallation of the-surveillances.

Ue to BL certify that it. would : prejudice the Na-

a tional igterest ‘to disclose’ the particular facets

ey par these surveillances other thaw to the

‘court, in camera. “Accordingly, the sealed eX:

oki ft . senibit referred to herein is ‘being submitted sole-

a es * Wy for tho, court’s : in camera inspection | and a

-. copy. of th ie. sealed exhibit isnot Jeing fur.

. sy, .« “mished -ta' the defendants. I request the

ade court, ‘at: the conclusion of its ‘hearing. oni this

" s mafter, to: piace the sealed exhibit in a sealed

“4. envelope and return it ‘to ‘the Departinent of

| +Justice where it will be rétained under’ seal

A ys oe that. it. may . be submitted to any appellate

ou court that maf review this matter, \ ~~

On: the basis ‘of this affidavit and the sealed oxi

pret " ing piveiniasint asserted: that the. stirveillanices were

“OS lawful,- ‘though conducted without prior judicial ap-

5 ipréval, as. “a reasonable” exercise’ of the ‘President's

"power: (exercised. through the “Attorney General) to

utilize the investigative’ resources at his disposal to

- secure’ the Intelligence “necessary for. .Preser vation of

.the natienal security. ~~ | : ats

Ji udge Keith rejected this : argument, ina heh that

‘ the surveillance; because it. had’ not received: prior’

7 °\Gudicial sanction, violated the Fourth Amendment.

et He. ordered ; the. government’ to inake full. ‘diselosure

“ ‘to Plamondon of his overheard conversations looking-

Pease = , . earing to determine taint at the.

oo oe --eonelusion of the trial. ‘App. B, infra. —

: ~The government. then filed in‘ the court af appesi

an petition: for a: writ of mandamus. to set aside this

a ’ . °, 8 a @*:

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OPE I Bg SE a SEROW NER SA, Le arie a! ome Yarn dntet a tee ras Gl LS PCN PIRI EN er EE IR ace YS apy he Sandy iii

i order. The court of siaheall denied the petition. It igreed.

‘Ty that the case was an appropriate one for mandamus,

since the ‘order was not appealable and raised: “[g]reat

| issues ** * for all parties. concerned” that were of first

| impression in any appellate court. (App. A,: infra, °p

-15).* It held, however. (by a two-to-one vote), that the

district court had properly found the surveillances'un- -

law ful under the: Fourth Amendment, and had prop-.

erly required their-disclosure. The court further Te-

jected the government’s alternative argument that even

| it the surveillances were illegal the special circum-

stances of this case made appropriate ah in camera de- =

termination, yithout. disclosure to the defendant, that

‘the conversations intercepted were 8 wholly irrelevant -

ae ~ prosecution. ae ,

ae REASONS FOR GRANTING THE WRIT

1. The: issue .of the President’ S authority to. order —

warrantless electronic surveillance ji in national security _

cases. is plainly en issue of national importance that

warrants this Court’s consideration: Its determination

_ is required bgth for the guidance of the lower federal

courts in theeonduct of criminal prosecutions and for’

the guidance of the executive i in carrying out its obli-

alles to utilize all lawful measures«-and. only those

~ measures‘that are laivful—in ‘the protection of the na----

tional security both th internationally-and domestically.

o—Presitentially : author ized surveillance i in national se-

+ eiity cases baa setae judicial sanction has —

* The court voted the government’s representation, that affirm.

* ance ,of the disclosure order would force the dismissal of the

. prosecution against Plamondon. Jbid. |. ~ | as

ig

2».

—

an

ene

P ;

been undertaken by successive Presidents over a pe

riod of thirty years,’ and was given explicit recogni-

tion by Congress in the Omnibus Crime Control and

‘Safe Streets Act of 1968, 82 Stat. 197, 18 U.S.C.

(Supp. NV) 2511(3). This well established practice was

thought to be a proper exercise of Presidential: power,

lawful under the Fourth Amendment. The court below,

in the first appellate consideration of this question, held

to ‘the contrary, as did Judge Keith ‘in the district.

court. One district. court has agreed, United States

v. Smith, 321 F. Supp. 424 (C.D. Calif.); but two.

district courts have upheld the power, United States

v. Dellinger, et al.,. Criminal No. 69-180, N.D. Ill,

ED., decided February- 20, 1970; U nited States v.

O’Neal, Criminal No. KC-CR 1204, D. Kan., decided

September 1, 1970.4 =

This Court has specifically left undecided “Tw heth-

er _Safeguar ds other than prior authorization by a

magistrate would satisfy the: Fourth Amendment ‘i

". a“situation involving the national security * * aN

Katz v. United States, 389.U.S. 347, 358 n. 23; see

Giordano v. United States, 394° Us. S. 310, 313, 314

This issue should now be considered by this Court. .

_ «The Fourth Amendment does not forbid all seizures

without ’ a warrant. There 1 is no constitutional require

’ See the orders of Presidetts Roosevelt, Truman and Johnson, |

set forth as Appendices to the Spinion « of the court of ——

(App. A, infra, pp. 44-48).

'*The Dellinger decision is pending on appeal to the Court

of Appeals for the-Seventh Circuit. The government has jeti-

‘tioned for a writ of, mandamus’ in the Court of Appeals for

| the Ninth Circuit seeking vacation of the order in the. Smith

_ ease. The O’Neal case has not been-appealed; the defendant.

: has fled the jurisdiction. (

a’

7

ment that thére must always be judicial intervention

before a search and seizure can be made: The €onstitu-

: tion forbids only “unreasonable” searches and seizures;

and the use of that word obviously implies some flexi-

bility. The scope of the flexibility i is subject to judicial

_ . supervision, but the particular seizure need not be. In.

the present case, power auxiliary to the responsibilities +

. of the President, our Chief Magistrate, and by him ex- ~ °°

pressly. delegated to the Attorney General, for whom the

_ President is responsible, provides the basis for reason-

’ abléness specified by the Constitution? — :

The presidential power relied.on to make lawful the |

surveillance in this case is narrowly defined and limited

by strict procedural safeguards. First, the area of “na- —

tional security’’ is limited by the Omnibus Crime Con-

~ trol and Safe Streets Act of 1968 to five particular gov-

ernmental concerns: (1) protection against actual or

_ potential attack or other hostile acts of a foreign power; -

(2). gathering of foreign intelligence information -

deemed essential to the security of the United States;

(3) protection of national security information against _

_ foreign. intelligence activities ; (4) protection against .

the overthrow of the government by force or other un-—

lawful means; and :(5) protection against any other .

clear and present danger to the structure’or existence of

the government (see Appendix D, infra).’ As the At-

torney General’s affidavit indicates (pp. 3-4, supra) the -

‘*The Court of Aviad for the Fifth Circuit recently indi- .

cated that. it did not consider a warrantless national security _

surveillance, limited exclusively to: foreign intelligence informa-

tion, constitutionally defective. United States v. Clay, 430 F. _

_ 2d 165. This Court’s limited grant of certiorari in that case,

6-400 US. 990, did not disturb this he holding. |

8 _o

surveillance in this case-was based primarily upon the

- last two of these concerns; of course, these condgrns may

_ frequently tend to. merge with the first.three, sinte the:

, line between domestic activity and foreign intelligence

is often blurred, or merged. It is also important that.

such electronic. surveillance is aiithorized only by the ;

Attorney General—and no other official—acting on be-

_ half. of the President.

.. " Thus, the issue is whether, i in. the areas defined above, |

the standard of reasonableness specified by the Fourth

. .Amendment allows the judgment of the President’s

q -. chief law enforcement officer—who is directly account-

; ae able to the President and through him to the elector ate—

to be relied upon in this narrow and important area of

national security in lieu of the judgment of the numer--

* ous judges ‘and magistrates who may “happen to bave juris:

i diction in the locality where a warrant might be sought.

2. If national secur ity. surveillances of the kind here

- involved are at variance with. the Fourth Amendment,

then we suggest that this Court. should reconsider

~ what procedures. are appropriate and necessary: to ©

+ assure that a particular criminal prosecution is not

|,» tainted by them. The automatic disclosure require.

| ment seemingly established by Alderman v. United

. States, 394 U.S. 165, for every situation of unlawful

interception of a defendant’s voice—which Was ap-

plied’ below—is,.we suggest, inappropriate and uninec-

essary in a case such a’ the present one. We urge the

Court. to consider again whether the district courts

shouldbe permitted to screen such national security

interceptions in camera to-determine whether they are. .

_ arguably relevant to the prosecution before directing

ARR INEGNLIE SataeiNGls.,

8a

_ that they 1 be disélosed to the defendant, withholding

those that the court can satisfy itself are not arguably

relevant. Cf. Laglianetti v. United States, 394 US.

- 316. This is, we submit, an adequate protection of the

defendant’ s Fourth Amendment rights, and it is nec-

~ essar y to relieve the gov ernment of the dilemma of

~ either dropping a prosecution of a serious criminal

offense (as here) or revealing information damaging

to the national security. y

CON CLUSION

For the 1 reasons stated, it is respectfully submitted -

that: the petition for a writ of certiorari should be

a mo

; Frwy N. -Grisw OLD,

_ Solicitor General,

_ Ropert C. Marpian, .

| Assistant Attorney General.

Wm. TERRY Bray, -.

Assistant to the_Solicitor General.

Rosert L, Kevcu,.

. _ GEORGE W. CaLioun,

a ee, . Attorneys,

May 1971, | |

”

«

| 48-855—1--2 2

_ APPENDIX A * aoa

UNITED STATES COURT*OF APPEALS FOR

pe ‘THE SIXTH CIRCUIT |

_ (No. 71-1105—Decided and Filed April 8, 1971.)

| (ON PerITIoN FOR WRIT OF Manpamus).

_ Unrrep States oF AMERICA, PETITIONER.

.

>

Unitep States District Court For THE Eastern D1s-—

-TRICT OF MicHIGAN, SouTHERN Division anp Hon-

ORABLE Da Mon J. KEITH, RESPONDENT - _

Before Puituies; Chief J nde, WEIcK and Epwarps,

aa | _ Cireuit Judges ae

Epwarps, Circuit Judgé. At issue in this ease is the _

power of the Attorney General of the United States —

as agent of the Presidént to-authorize wiretapping in

internal security matters without judicial sanction.

This ease has importance far beyond its facts or the |

_ litigants concerned. eon See

_ If deeided in favor of the government, the citizens -

of these United States lose the protection of an inde-

pendent judicial review of the cause and’ reasonable--

ness of secret recordation by federal law enforcement. -

of thoughts and expressions which had been uttered in

" privacy. If it is decided in favor of the respondent,

_ it may prejudice an important criminal prosecution.

_ And more important, of course, in all future surveil-

_ lances undertaken in internal security matters, it may

ao ee 2

A

‘add at least. some dimension of risk of exposure of.

- federal investigatorial intentions. — |

The background of this case is the pending trial in

“the United States District Court for the Eastern Dis-

trict of Michigan in Detroit of three young men for

conspiracy ‘to destroy government property. in Ann

_* Arbor, Michigan, in violation of 18 U.S.C. 6371

. (1964). One of them named Plamondon. was. also

- charged with destruction of government property ina

value exceeding $100, in violation of 18 U.S.C. § 1361

(1964). The particular case before.us is a petition for

writ of mandamus filed originally inthis court by the

United States to compel the District Judge who is

_presiding at the Detroit trial to vacate an order direct-

ing the United States to “make. full disclosure to de

féndant Plamondon of his monitored conversations,”

_ STATEMENT OF FACTS

For purposes of this case, we accept the statement -

of ‘facts from the petition filed by the United States: |

On December 7, 1969, defendants in the court

below were indicted by a Federal Grand Jury for:

destruction of Government property in violation

of 18 ea 1361. In the course of the pre-trial

proceedings, defendants filed a motion for dis- |

closure of certain electronic surveillance inform-

_ ation. That motion was granted by respondent,

_ and. petitioner has been ordered by respondent

to disclose the information sought. Respondent’s

_ Order is the subject of this petition. - :

On October 5, 1970, defendants filed a “Mo-

tion for Disclosure of Electronic or other Sur-

veillance, For a Pretrial Héaring, To Suppress

' Evidence and to Dismiss the Indictment.”’ * *'*

eaeee. On December 18, 1970, petitioner filed, in re

*" * "". sponse, an opposition to defendants’ motion. By -

. way of: an affidavit of the Attorney General -

ee 7

° *

oe »

DF IAAL eA 8 Hg SO gael Ot Pe ea oN aehipe wm ¢

| ,

Me ay - i

- of the United States, John N. Mitchell, which

_ was attached to petitioner’s opposition, peti-

tioner,acknowledged that one of the defendants,

Lawrence Robert “Pun’’ Plamondon, had par- «

_ ticipated in conversations which were overheard -

_ by. government agents.’ The logs of these sur-

veillances were given to respondent in the form of

a sealed exhibit for respondent’s in camera

inspection only and are available to this Court

on those terms as well. , | Por s icy

, Oral argument was had beforé. respondent .

_.. on January 16, 1971;-on January 25, 1971, re-_

‘spondent, holding that the surveillance was ille-

gal, granted ‘defendants’ motion and ordered

petitioner ‘to disclose the information sought.

Respondent then granted petitioner a 48-hour -

. _ stay which ‘was, in. turn, extendéd to and in-

~ cluding February 9, 1971, to afford petitioner

an oppoytunity to. present this matter to this

To this statement of facts the United-States.also-at-

'-tached-the affidavit of. Attorney General Mitechell—the

~ full context of which follows: ~ -. . -

“JoHN N.’ MitcHELL being duly sworn de-

poses and says: =. ieee. tan: Pe

_ “1. I am the Attorney General of the United

ae ao pA gape eee, |

_“* Tt is important to note at this point that although he was

‘overheard, defendant Plamondon was not the object of the sur--

" ‘veillance. This distinction: apparently went unnoticed by re-

_ Spondent for he stated in his decision ordering disclosure that mt a

the Attorney General, ‘had authorized and deemed necessary

the wire tapping of cértain of defendant Plamondon’s conver-

oe? hg AGS DRE 7 it Coes

“The sealed exhibit submitted to the court below will quickly

demonstrate that defendant Plamondon was not the object of -—

the gurveillance, and petitioffer respectfully refers this Court's

‘attention to that exhibit and the additional sealed exhibit being

made availabléto the Court for the grounds and objectives of”

the Attorney General’s authorization.” (Footnote in quotation.)

- view this matter.”

@ 2. This affidavit is submitted in connection

_' with the Goverriment’s. opposition. to the dis.

“closure to the defendant Plamondon of infor.

-Mation concerning thé overhearing of his con-

versations which. occurred during the course of

electronic surveillances which the Government

contends were legal. =

“3. The defendant Plamondon has partici-

pated in conversations, which were overheard

by Government age who were monitoring

wiretaps which were being employéd to gather

_intelligence. information. deemed ‘necessary to

protect the nation from attempts of doméstic

organizations to attack and subvert the existing

structure of. the Government. The records of

the Department of Justice reflect the -installa-

_tidn of these wiretaps.had been expressly ap

¢

proved by the Attorney Generali = ss:

. “4, Submitted with this affidavit is a sealed

exhibit containing. the records of*the inter-

cepted conversations, a description of the prem-

‘ises that were the subjects of the surveillance,

and copies of the memoranda reflecting the At-

torney General’s express approval of the instal-

lation of the surveillances.. - = = >. -

“OS. I eertify that it -would . préjudice: thie

national interest to disclose the particular facts

concerning these-surveillances other .than to the

- court tn camera. Accordingly, the sealed exhibit

referred to herein is being submitted solely: for.

the court’s in camera inspection and a copy of

- the sealed exhibit is not being furnished to the.

defendants. I -would request: the court, at the’

2 conclusion of its hearing on this matter, to place

‘the sealed exhibit in a sealed envelope and

return it to the Department. of Justice where

it will be retained under seal so that it.may be

submitted to any appellate court that: may re

fe

i This court stayed the order of the District. Court’

pending hearing and final disposition of the petition ee

for writ of mandamus: ,

From the ite oats statement of. facts, it ap-

pears that the exact question this court must answer is:

Where the Attorney General determines that ¢ertain

‘wiretaps: are “necessary to protect thé nation from. °

attempts of omestic organizations to-attack and sub-’

vert the existing structiire of the government,” does .

his authorization rende? such wiretaps lawful without-

. judicial review 2 "i

3 THE MANDAMUS QUESTION. é

Preliminary to answering this “questjon, there is a

~ challenge to-our jurisdictien. It is claimed ‘that man-

damus is' not an appropriate form of action in which

to review: the question: just.posed in the céntext of: '

/*the instant case. It is clear that the District Court ..

order under attack is a pretrial order, interlocutory

» in nature, and hence, not appealable under-28 U.S.C.

§1291 (1964) which conveys ‘appellate power to this

court to review only “final” orders of the District

‘Courts. Cogen v. United States, 278 U.S. 221 (1929).

Nor is the order here under attack subject to appeal

' under 28.U.S.C. § 1292 (1964), which grants appellate ~

power to this court in certain limited classes of inter-

locutory- oxders, nor under 18 U.S.C. '¢ 3731 (Supp.

VY, 1965-69), which ''deals specifically - with criminal

appeals? chat tae fd geek |

poe | is, of ‘cours¢, the general rule that mandamus |

“Imay not be substituted for appeal. Roche v. Evapo-

-° . ¥The amendment to 18 U.S.C. § 3731, approved Januaty a

1971, ig\by. its terms‘ inapplicable to this case. Pub> L. No.

91-844, $114 (Jan. sie a : oon eee

Fee,

t

"cert. denied, 377 U.S: 933 (1964). —~ :

~~” Petitioner, United. States, “however} “Pathe the’

"All Writs Statute, 28-U. S.C. § 1651 (1964), as source of ~

.. ‘this court’s power to grant the writ prayed for and.

23 eS 8? Swedes

pe ca

aoe aes ive Coen "Ine. x. "Dasveriy

National Life Ins.’Co., 2d 425, 426° (6th Ce), :

argues that-this is an-éxtraordinary case wherein the

__ respondent has entered an illegal order which, if al-

_ lowed to stand, “would result i in grave and isrepgrable.

| : harta to legitimate Governmental interests.’’

r Concerning’ the use ‘of inandamus in “exeeptional

: eases," this ‘court has id:, ee

- . ~~ Tt is settled that although sparingly ‘ied: the

2 power to issue a writ of mandamus exists and

_ . will be exercised by the court‘when in its dis

_ ., -eretion the exceptional circumstances of: the

ae cabs requits its use: Its use in such exceptional

’ tases, ‘however, does. not’mean that the All

Writs Statute grants the appellate court a gen- .

eral power to supervise the ‘administration of -

8 justice in the district. court and to review any _

. otherwise unappealable. order. Black v. Bogs,

248 F. 2d 156, 159-60 (6th. Cir. 1957). °

geal Soe also Ex parte United States, 287 U. S. 241, (1932);

LaBuy x. Howes Leather’ Co., 352 U.S. 249° (1997) ;

Will, Ne United States, 389 U. S. 90, 95-98 (1967).

In this last case, Sustice.. Black in a. coneurring a

- opittion said: eas WR ees

) “1 Tomgeeec thik manabheiahen: is an ordi

: a which Should not be issu —_ in’,

7

_extraordlitany GN {asia ales reattis )

> + that: ‘the ‘granting of mandamus may bring»

about the review of a casé as would an appeal, ast

Yet this does. not deprive a court of its power

_ to issue ‘the writ: Where there are extraordi- —

“nary: circumstances, mandamus may be. used —

to review an interlocutory order which is by no

>. Means “final’’ and thus appealable under federal :

_..- -° statutes. Will v. United States, supra-at 108.

Bone CH

< “From what has already heen suid, it ix Obvious that.

we agree that this is in‘all respests an extraordinary :

- ease. Great issues ate at stake for all parties con-

cernéd. Further, the government asserts the illegality

~ of the. order, that it represents ah abuse of the Dis. --

trict Sadge’s discretion, and claims that it-will have . __

‘the effect of. forcing the government, to oom. the

prosecution of ofe defendant. © ~_.

. ‘Tf this were. not énough to océasion our tem

_ this ease-on the merits rather than on proced e

® gtounds, it also clearly appears that the issne- ‘posed .

_\ here is a basie issue which has never been Wecided at.

\the appellate level by.any court. It has been decided

. favorably to the government’s position by two District -

_ Courts and wpe to the governineht by two oth-

. ets.2 The Courts Appeals have the power to review

by. mandamus “an issue ‘of fitst impression,”

. Schlagenhauf v. Holder, 379 U.S. 104,. 110 @964),

involving a “basic and undecided problem,” Id. at110. - -

We hold oncogenes reread

sera ? eta ‘

; “Tale, Stes Del de, ob a, cna i, 69-180 ,

(U8.D.C. ND. Ml. BD. ied Febraaty 40, 1970; United .

States. v. O'Neal, 7 KC-OR. {O04 wane. p. Kansas) <

devided 1, 1970; United Stites +. Soiith, Criminal —

No. 49t7 (O.8.D.c. GD. Californiay decided —: % 1971;

* and the instant case, respectively. =r

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es ae = oe = : : 16

be)

"3 ii} THE FOURTH /

he: District Tadge in’ in

.Felied upon the Fourth Am :

- tion of. the United States, Ww:

The right. of the pi

- persons, houses, pay _ |

‘- ‘"unreasonable searche. e

be violated, and no

“upon, probable ‘ cause 3

affirmation, and- ‘pa:

He . place to. be searched, . .

to be. seized. U.S. Con | -

oe “‘In-a series of cases, ‘thi:

- Court. has held that ele

recordation by: wiretap is ;

erned by the Fourth Amend .

"> States, 365 U.S. 505. (1962

‘389 U.S. 347 (1967); Alder

“U.S. 165 (1969) ; .. Giordano -

: ee Taglianetti v.

. 316 (1969). >

~The basic holding: of: thes -

| Katz ease by Mr. Justice St

. Phe Government

.. agents relied upon +. -

and Goldman, and J —

here than. ‘they migh

prior judicial sanctic

tA. ‘validate their conduc

-. 4, . -is- apparent that the

eS with restraint. Yet t

? selves, not bya judi

- tached scrutiny by a

were not compelled,

4 fe. %

3s,

<« . -

| ecise . limits estab"

je ¢ourt order. Nor:

¢ seareh had: oe <

\orizi

t seize “Tn, ae

is Court. has never:

sole ground that

to find. evidence

oluntatlly confined

trusive mearis ‘eon-! .

2es conducted. With

_unlawful notwi

‘ _y showing probable

fates, 269 U.S. 20, :

uires ‘that the de-

: of. a judicial offi< -

ven the. citizen and

. United States, 371

- .d again this Court Ss

. .. mandate. of ‘the... -

tres adherence fo

| t; ales © Jeffers, 342 ..° -

- 3 conducted outside: -

‘ .. prior approval by — |

or se unreasonable

ent “—subject only |

shed and well-delin-

_» how any, of those

-g the sort of search

is ease. Even elec-

ally: contemporane-

ot U.S. 493, 497-499; <i

s Chapman v. United

- California, 376 US.

A 6t US., 139, ‘153, 156; ee

- i, 454-456; Brinegar ee

Dav California, 298 eee

- 298-300, ,

a 18 : ; “

ous ‘with an individual’s arrest. éould ‘paraigl 2

_- deémed-an ‘incident’ of that-arrest.” Nor could

the use of electronic surveillance without prior /

.: authorization be justified on. grdunds of ‘hot

. . pursnit.”™ And; of course, the very nature of,

_ el@tronic Surveillance precludes its sot ‘purse:

ant to the suspect’s consen eepestil

"Kate y. United States, 389 US. 3A, 356-58 (_96,.

~ Footnotes’ in quotation.). .

These cases and the requirement of. judicial review

"just quoted * Pepresent settled law which the govern-

-ment-does: not dispute as. generally applicable. It is,

a8 we have. noted, however, the government's position

E “20 Tn Agnello v United | 2, om B.S. 90,30, the Gout

| stated: ° 2

‘The right without seme warrant erinbesiapicieitocmalyy to .

search persons lawfully arrested while committing crime and

-. to seatch the place where the arrest is made in order to find

- and seize things connected with the crime ‘as its fruits or a

| the means by which it was committed, as well as weapons and

_ other Ghings to en ‘an eacape from Samy, is not to be

| doubted.’

- Whatever nies view of the. long- standing practice ‘of search.

‘ ing for other proofs of guilt . Within the control Rfid oe

. 56,

61;- ¢f/ id., at 71-79 (dissenting opinion of Mr. “Suathbe Frank-

"funterh the concept of an ‘incidental’ search cannot readily be

‘extended to ‘include sur®»ptitious- surveillance. of an individual

‘

© Warden ¥. sate. ae 298-999, there

~ either immediately before, or immediately after, his arrest.

‘fom Although [tlhe Fourth: Amendment does not require ‘police

“officers to delay in thé course of an investigation if to do »

would gravely endanger tlieir lives or the lives of others

wotikd be a realistic poss

‘urgency.

“2 A’ search to shieh ae individeel consents meets Fourth

| Amendment requirements, Zap v. United States, 328 US. 6,

» but of cotire ‘the usefulness of electronic gurvaillanos depends

on lack of notice to the suspect.” Lopes v. United States, 3%

Bets 463 (dissenting ‘opinion of. Mr. JUSTICE. ea.

t

. : . ‘

ius note ee pote td

4 . us : g A

- . ‘. A _ 2 ‘. . .

' : j . ‘

’ ° . . ¢ :

»- 5° : _-

; . ie * $ jf

Pa ‘ - .

: that: in ‘national seeurity’’ cases the Presideht of: the

: United. States, in‘ his capacity as Chief. Executive,

: pom mae tere of the desiring which ‘Serve to

tee PRESIDENTIAL ‘POWER

js both eloquent ant’ breathtaking. In the memoran-

dum | Jaw _ -with - its ——, the government os

The President. in his dual. role as ds

~ mander-in-Chief. of ‘the armed forces and Chief

another serious power and. '

Executive, ty—that of safeguarding t ity

mat — oO securi

- of the nation against those who wauld subvert

_. the Gevernmeént by unlawful means. This power

_ 48 the historical power of the souereige | to ae

serve itself. (Emphasis added.)

‘ a ee ree the claim i is.some-

what broadened : ate

The power at issue in this gab San tha. inherent.

power’ of the-President to saf aateguerd the secu-

rity of the nation. .

We-find in the. government’s brief no seicepebioas of

~ litnitations on such power, nor, ‘indeed, any Peeognition

_ that the sovereign power of this nation is by Constitu-

tion distributed among three coordinate branches of

-. government. 7 yest

While the governm i no identify ¢) them,

there-are important constitutional grants of power to.

- the President of the United States. We find these

express powers of the President of the United. States

ic ne eer ee ae |

Fant to this case: oe eee ae

F

pe EC

F The sweep of the assertion of the Presidential p power

et

. ? ; ; ; '

; ; . oi “Ingres 2 4 '

; J ESS ° 5 \ ‘ :

> . ee 1 13 ms y :

we Pee Pre 7.

‘ , ° ae .

Spey ; P > : .

. 2 ‘ -o . a Me * é

the executive: Power ‘shall be ani De in a

“President of the United. States of 5 rable

He shall :;shold his Offi > during the .Term, of -

i, four Years, and, together with the ‘Vice. Presi-

dent, chosen r_ thésame Term, be. stented as

Bases TOS. wining art. i, +h

a fom shall <n yet in aN ,

"of the Army and Navy of the United States,

and Yof the Militia of the several,States; when

into the actual Service of. the nited

- States; he may require the Opinion, in writing;

- : of the principal Officer in each ofthe executive .

-Departments,. upori. any Subject Spent 2 pce 4 e

/.. . Duties of their respective Offices,-and 3,- ‘shall

, have Power to grant R

' -Offences_agai

o be Pardons for

the United tates, except, in

“Gases of Impeachment, : ee

He shall-have Power, by and with the Adviee. *

and Consent ‘of the Senate, to make Treaties,

tf ¥ provided’ two thirds of ‘the Senators present

concur; arid he shall nominate, and by and with

4 “the Advice: and Consent. of Ahe Baneke: shall —

a

ap int’ Ambassadors, other . public Ministers

- Consuls, Judges of the Supreme Court,

Pie ad all other: Officers of ‘the United States,

whose Appointments are not hérein otherwise

- ‘provided for, and which shall be established by

-- law: but. the Congress may. by Law vest the

_Appointment of such inferior Officers, as they _

_ think proper, ‘ii the President alone, in the °

. Gourts of Law, or in the Heads of Depart

are US. Const. saree § 2.

* 8 MS . * data

at shall receive ‘Kiaideesisick and-other

ublie Ministers; “he shall take Care that the_

awe be faithfully ‘executed, and shall Com-

mission: all. the Officers of: tHe United be ges

oe Const. art IE, §3.

°

upon ‘the war powers or forei

_ the ‘presidency—Chicago &, ! Southern ‘Air Lines, Ine. .

_ vs Waterman—Steamship Corp., 333 U.S. 103,\109

(1948): United States v. Curtiss-Wright Corp., 299

TS. 304, 319-20 (1936) ; Cafeteria Workers v. Me:

Elroy,.367 U.S. 886, 890. (1961) ;° Oetjen v. “Central. :

_. Leather €o., 246: U.S. 297 (1918); United. States v.

Pink, 315 U. S. 203 (1942) ; Totten v. United States, ..

92.0.8. 105 (1875). None of ‘these cases are criminal

eases. None of them involve the Fourth Arhendment. |

- None of them‘ involved wiretapping. These cases we

- deem totally inapplicable’ to the i stant: éaie where -

the Attorney General has ce ‘ified that we deal with

Noe express tink ot power to die Prehddiog- imal ae.

: searches .and seizures without regard to- the ‘Fourth

‘Amendment ‘may be found>in these constitutional pro- |

yisions: As we have noted, the. government cites no —

constitutional language to support, its position, but it:

+ does cite some case law.

Decision of six of. the cases relied- ion ‘6 liehed as

“Telatiqns powers of

a domestic security problem,“ 3 -

Generally concerning presidential power: in domes-

tic ‘affairs the government cites two other civil cases.

In re Debs, 158 US. 564 (1895); Marbury-v. Madi- :

son, 1 Craneh (5 US. ) 137 (1803). °

: The Debs case was a petition for writ of habeas.

‘corpus. It dealt: with eontempt . of - court ‘seritences

meted out by a federal court for violation of an in- | :

- junction issued during the Pullman Car: strike of

1894. The opinion upheld the jurisdiction of the court

which issued the injunction and entered the contempt

* But see Norris-LaGuardia [Anti-Injunetion) Act, 29 US. C.

& 101-15 Resa , 2 : P

Sentences." The opinion does contain dictum ‘which 3

described broad powers on the part of “the national

: . 2s : ee f a, sr | 22 = ee rs 4 :

" government”: to: comple forée. ee aye f ob 2

mero ar the United States mails, Avid the: Debs case

ean hardly be: read as ‘authority for ignoring dadicin} :

" Processes., -

As to Marbury v. M adison, suprii, the governiient’s

ue " itation seems to us to he questionable from its point -

OE vison OO toes dows deal with wevekiential pow.

. -Mis-a-vig the Constitution. But itis also Chief Justice

UMgrshall's ringing affirmation. of the supremacy of

-4ie Constitution over all. three branches. of govern:

. . Iijent and of the authority and obligation of the Su-~

_ + Breme Court of the United States to make’ binding

as interpretations of that document. We shall quote from :

: pak ngich ay eA EMRER perc

opinion.”

. | As for In re Neagle, 135, vs. I (1890), we thank

. the: government for calling to aur attention this’ fas-

_ ginating story of the problems of the judiciary in an

earlier day: But the holding that the President has a

tight under Article IT,’{3 to appoint a Deputy Mar-.

| ~ shalto protect the threatened life of a Supreme Court

: Fustiee is hardly precedent for this case. oe be :

The government also cites Abel: v. United States,

—-362-U.S. 217 (1960), This case involved a prosecu- -

tion for espionage against the most important foreign

_.. Spy -known to the American public in the Twentieth —

_... Century. He was an alien and, hence, subject to stat-

ee utory: regulations providing for administrative pro- |

_- @edures: for deportation for violations of the laws and’

regulations of the United States. He. was arrested by

_ Warrant, which the opinion of the Court found to

have been, lawfully issued by a lawfully authorized -

: ee ee

‘there ara certain established exceptions to the require-

nent of ‘a priot judicial warrant for a. search. See

4 T5196). None of these cases, however, were wire-

"Lube (oe v. Sawyer, 343: U.S. 579 (4962). There Presi-

that the laws are “faithfully exeeuted.” ‘The Supreme

Court squarely rejected the inherent: power -doctrine

eva pai ac mee ay ada

————

~ to issue the: order he did, it must. be found in

some provision ef the

“.'@ contention is 1s nee ee poe Becalt be

=> pales of his powérs under

tution. =a

: test,

‘6,

It is Glear that if the inatibk haa Saiteonity 3

Fira: ro

r) ,

’ i "nee -

.

‘

.

‘ p ‘

ae <

- Finally, the government: relies upon the fact that 7

Chantbers v..- : Maroney, 899 US. 342 (197; Terry

_¥: Ohio, 392 US. 1 (1968); Warden v. Hayden, 387

- US. 294: (1967); Schmerber v. Catifornia, 384 U.S. &

_ tap cases...All_ involved emergency situations which ee

a were held‘to prevent obtaining or exeuse absence of a. ae

. Prior warrant. And in all instances there was sub- ue

". mission. of evidence for suibsequelit j ‘Teyiew. . -

' .. The point at which the claim of inherent

| “power: of the sralivetr ic ealeits Wie coteany |

caine to/docisiom in tortnd in; Yowsgetourn. Shoot & :

dent Truman’s seizure ofthe steel wills to atoid a -

nationwide steel strike. was @eferided #3 withiq his ‘in-

7 iat fener 9 Cie Re ee

bt)

ay. Constitution: And it es

See not claimed that: express constitational lan-

guage S power to the President. The

terecnnt r gomgtes = fea

~exgputive ‘Power s all be vested in a President

be faithfully executed’’, and that -he ‘‘shall be

of the United States.”’

° a ie ‘+ \ Commander in: Chief of the Armed -Force:

5 STs, “ber of cases upholding; broad powers in mili:

ee - », Ing ina gona ok war. Such eases need not

-, concern us here:

_ — be an expanding concept, we cannot with faith-

‘3 - ‘> -sion of private property in order to keep. labér

_tary authorities.

/ «4 +e. that grant executive power to-the President. Ih

” dent’s power tg see that the laws are faithfully

executed refute the idea that he is to be.a law-

~. wDrthe lawmaking process to thérreecommending

~@f laws he thinks wise and the vetoing: of laws

ent nor equivocal about who shall make laws

section of the first article says that ‘All legis-

si - lative Péwers herein granted shall be vested in

oS epee of a the United States, .. .”’ After

all Laws which be necessary and proper

vf

n though “‘theater of war”’

eg to bad. And: the Constitution is neither:

. which the President is ‘to execute. The first.

“on provisions in Agticle ir ry say 7 that “The” )

.”*that “he shgil take Caré that. the Laws —

- ° ta Oenkindnilan: in ‘Caief of the Army: end Navy |

yar _ The order ‘cafnot properly be sustained as an

an _ | exereise of fh: ‘President’s military: pow ne ; as

The

Nor. can. the ished, order be sustained be-

maker. The Constitution limits his functions —

, granaged many powérs to the’ Congress, Article —

goes-on to provide that Congress -may ‘‘make _

', Government attempts to do so by citing’ a num © :

tary cominanders engaged in day-to-day fight-- ”

fulness to‘ our ‘eonstitutional system hold that. 3

' the Commander ‘iin Chicf. of the Armed. Foreées

_ has the ultimate. powér as such to take posses- -.

_ -.\. disputes from ‘stopping, production. This is a _

~~

l - job for the Nations: jJawmaker s, not for its mili--. -

gautse of the several constitutional provisions |. .

the framework of our Constitution, the Presi-. |

a

‘

for earrying into Execution the foregoing Pow--

~ers,-and all other Powers vested: by\this Con- —

3 in ‘the Government of ‘the Tnites:

.- e : ai ca eee ® ee

. 2 d : 3 > . v. . : _

d 2 : at . . bd ’ : 3 : . 1

. : ] . °% 3 .. Fr

. : om - o . :

ken eee SORE ania ‘ans not Saucon that con-

gressional | policy be executed in a manner pre-: -

_; .:* seribed by ie aor directs that a préesiden-

Ae. tial policy be ated in a manner prescribed by ..

the: President. The preamble of the order itself, —

. fike that of many statutes, sets out reasons why

'_- ° the President’ believes eertain policies should be -

. adopted, oroctainia these policies as rules of con-

* duct, to, be followed, and again, ‘like a statute, au-

_ - thorizes a government official to promulg: ad- °

itional rules’-and regulations consistent with

the policy proclaimed and:needed to carry that

policy into execution. The, power of Congress to

‘adopt such public policies as those proclaimed by

the order is beyond question. It can authorize the _

M taking of private property for public-use. It can

make laws regulating thé relationships between

employers and employees, prescribing. rules de- *

signed to settle labor disputes, and ‘fixing-wages

and working conditions in-certain fields of our ©

‘ economy. The Constitution does not subject this

lawmaking power of CongY¥ss to proteinase or

far% military Supervision or control. |

aa _ Tt is said that other. Presidents without: con-

“> gregsional authority;have taken possession of

. private btisiness. ‘etterprises in order to settle .

' labor disputes. But even if this be true, Congress

has-not thereby lost its exclusive constitutional

- - authority to make laws necessary and proper to

_ earry out the powers vested by the Constitution

.. -° “in the Government of the United. States, or any .

Department or Officer thereof.”

_ making power to the Congress alone in both good’ -.

and bad times. It would do-no goog, to reall ¢ the

/

The Founders of this Nation entrusted the law ert |

a : |

; iiinaidted denims; te tein col ponte aad te :

hopes for freedom that lay behind ‘their choice,

Such a review would but confirm ‘our helding that

‘this seizure order cannot stand. Youngstown.

Sheet & Tube Vo. v. Sawyer, supra at 587-89.

~ The Youngstown case, of course, had nothing to do

“with wiretaps. But it is the authoritative case deal- -

ing with the: inherent powers of the Presidency—a -

. doctrine which is usta adh relied ween oe the DUNS

“ment'in this case. :

UHR WERETAP ISSUE IN THE SUPREME COURT

xy " Historieally there: have been four positions - stated

. en the legality of wiretapping or the ev. of

ier evidence derived therefrom.

is 1. In its first encounter with the problem, the

-_ United States Sapfeme Court simply decided that -

- snes there was ne trespass infoived in the wiretap

there concerned, it was therefore not a search and

seizure and the Fourth Amendment did not apply to it.

Olmstead ¥. United States, 277 U.S. 438 (1928) ; Gold- :

. man v, United States, 316 U.S. 129 (1942).

z. In Olmstead Justice Bramdeis in dissent (joined

by Justice Holmes, who called: wiretapping a ‘‘dirty _

Z business”) staked, out a position which has many ad- -

herents today. This position is that wiretapping repy

resented an unfair invasion of privacy which the gov-

ernment should not undertake under sed cireun-

stance. :

. 3& The third position, one which the Supreme Court .

-eame to gradually,‘ is now the dominant one in our

| CSiteerman v. United States, 365 US. 805 (1961); Mapp v.

Ohio, 367 U.S. 643° (1961) ; Wong. Sun v. United. States, 311

—. US. 471 (1983) ; Osborn'v. United States, 385 U.S. 323 (1966);

Warden v. Hayden, 387°U.S. 294 (1967) ; Berger v. New Xork,

388 U.S. 41.- (1987) ; Kate. v. United States, 389 CS. a,

(1961), fi |

. 6 en aaah

C—O o

~

.

, ae ee

law and best expressed in Katz v. Umited States, 389

U.S. 347 °(1967).. The Supreme Court now clearly re

_ gards the‘ protection of the Fourth Amendment to be

’ one afforded to the right of privacy. rather than te,

‘property. In Katz. and: its progeny (diseussed and -

«ited above) the Supreme Court specificaHy held that .-

- wiretapping which did not invade property rights was

nonetheless goyerned by the restrictions of the Fourth |

Amendment. -

4. The fourth position. is the one just set forth in

the preceding section of this opinion wherein the At-

: _ torney General and his representatives claim special’

powers for the presidency and for law enforcement

officials acting with the authorization of the Attoriféy

General. to wiretap in ‘national. security cases,” The

_argument for this*power is best exemplified by articles

by former’ Attorney General Brownell and former _

-Deputy Attorney General Rogers. Brownell, The Pb-

= Security and, Wire Tapping, 39. COrNELL L.Q. 195

_ (1954) ; Rogers, The Case for Wire Tapping, 63 Yax

LJ. 792 (1954), This position is also explicated in’

‘ memoranda exchanged between -three former Presi- ~

dents of the United States and their Attorney Genefal |

commanding or authorizing them to ‘make. greater: or:

‘lesser use of. this asserted Presidential power. See

“Appendix A.

It appears to us that. this ‘fourth. position could

+ (and perhaps should) be further subdivided as be- -

tween foreion and domestic applications. (Note that

the American Bar Association has recently adopted on

Similar .position.: ABA. SranDARps: FOR ELECTRONIC

SURVEILLANCE, 8 Crim. L: Rep. 3097 (Feb. 17, 1971);

~ ABA. DELEGATES APPROVE ELECTRONIC EAvEspRopPIng. |

Stanparps, Reports and Proposals, 8 Crim. L. Rip.

2371 (Feb. 17, 1971) ).. But it-is clear that 4 in neither -

_ event has the specific power thus asserted ever been

es

%e *.

NN _ : Z

°. ‘ a“ > - . bd

° . 4A

wy ¢ ‘ - -¢ :

xv r 4 -

we \ e

wee . .

r . ® . .

.

* the subject of - adjudicat’. —

preme Court. In fact, in.

_. Mr. Justiee- Stewart, “wri

vi reserved decision, thereor —

23: Whether safe:

a Fourth Amendme:

ee » the national securi

by this case. Kat:

: 308 n. 23. 3

Even more recently in «

context, the Supreme » Co

on application for writ '

3 _ . writ as applied. to this ©

=~ 430 F.2d 165 (5th Cir. 1

| _quéstion 4, 39 saeebel

(No..783). |

_ From’what has ty Sy

the Appellate Courts * -

a clean slate.

- CONGRESS}

* The wiretap problem ! .

great concern in the L-

_ ‘ment. Early in the histo:

ahd with little debate, Ce

Says in part:.

_ no person not be’. .

shall intercept ans

‘ or.publish the ex

purport; effect, 0: ,.

= communication: oe

‘$605°(Supp. V, 1°

Section 605 played sor

- the Supreme:Court cass

_. bidding interception an:!

_ offense). failed to estab:

'+ thorization by ais > |

minal, bad every ‘inter.

sive Attorneys General _

‘ » wiretap so long as their — -

- Brownell, The Public _

39 CORNELL L.Q..195 .- :

Wire Tapping, 63 YALE ark

ie

L& Safe Streets Act of ©

Supp. V, 1965-69), was,

cer. It followed the Su- -

‘v. United States, supra, —

spects it — Katz

tant sections of the bill

‘h warrant application

in emergency exception

hours, and those which

ot ‘seeking to restrict

the President Possessed

oe:

aeral, or any hates

ly designated by the At-

10rize an application to

petent jurisdiction for,

int in conformity with -

er an‘order authorizing

sption of wire or oral

federal Bureau of In- ’

agency having respon-

ion of the offense as to! ©

‘nade, when such inter-

has provided evidence

unishable by death or

r more than one year

7 2277 of title 42 .

' Code (relating to the.

ay ae ‘

. . .

enforcement’ of the Atomic Energy Act of.

1954}, or under the following chapters of

this title : chapter 37 (relating to espionage),

chapter ‘105 (relating to. sabotage), chapter

115 * (relatitig to treason),, or chapter 102

(relating to riots); ~~ =

(b) a violation of inna 186 or section

501(¢) of title 29, United States Code -

(dealing with. restrictions on payments and -

' Yoans to labor organizatifns), or any offense.

- which involves murder, kidnapping, robbery,

or extortion, and which is pumishable under ae

this titles

“(e) any offense. which is "punishable :

_. * under the following sections of this title:

-. , section 201 (bribery of public officials and

witnesses), section 224 (bribery in sporting ~..

epntests), section 1084 (transmission of ‘

wagering information), section 1503 : (in- *:

fluencing or injuring. an officer, juror, or '

witness. generally), section 1510 (obstruc-

tion of criminal. investigations), section .

: ° 1751 (Presidential assassinations, kidnap-—

_ ping, and assault), section 1951 (interfer-

ence with commerce by threats or violence),

section 1952- (interstate and, foreign travel

or transportation in aid of raeketeering —

. « enterprises), section “1954 (offer, accept-

ance, or solicitation to influence operations .

of employee benefit plan), section 659 (theft

_ from interstate shipment), section 664_(em-

bezzlemett. from pension and welfare

’ : funds); or sections 2314 and 2315 (inter-

(d) any offense inYolving counterfeiting

punishable under

of this title; ~~

(e) . any offense. involving bankruptcy —

fraud or the thanufecture, importation, re- _

eelving, concealment, buying, selling, or

state vany offense inolving property );

ee otherwise dealing in narcotic drugs, mari-

on 471, 472, or 473 4

° e*

ce €a-g) (Supp. V, 1965-69).

_

huss; or other datectoun uy - punish aish-.

. able under any law of the United ‘States.

_ (f)-"any. offense including extortionate

- eredit transactions under seetions 892, Oe,

_or894ofthistitle;or | ae

__. (g) any conspiracy §o commit any 0 e

4. foregoing. offenses.”’. 18 U.S.C. nat (1) ..

; $

q ) N otwithstanding any other rovision of.

this chapter, ‘any investigative.or law enforce-.

ment officer, specially designated by the Attor-

x

ney General or by the. . principal prosecuting ——~ 7

- attorney’ of-any State or a

. acting pursuant ‘to a statut t State, ‘who

| Fenny determinesthat— --—s :

‘(a)4an emergency situation exists with |

: wespect to conspiratorial activities threaten-

ing the national security interest or to con-

- spiratorial activities characteristic of or-

_ ganized crime that requires a wire er oral

_ communication to be intercepted before an

order. authorizing such- intereeption can

’ with due diligenee be obtained, and

\ es (b) there are grounds upon which, an -

order could be entered under this’ chapter

to authorize such interception,

may intercept such wire or oral communication

if an application for an order approving the

interception is made-in acgordance with this

ception has occurred, or begins to occur. In the ,

absence of an order, such interception shall im-

mediately terminate when the -communication

sought is obtained or when the application for

. the order is denied, whichever is earlier. ‘In the ©

event such application for approval is denied,

_ or in any other case where the interception is

terminated without an order having been issued,

the contents of any wire or oral communication

intercepted shall 1 be treated as hayjng been ob-

tained. in violation of this sce ite 2 — an in-

423-855 —11_5

' ” seetion within forty-eight hours after the inter- "--

\

ais verges dani: inivesd an ptosiiea tot ins we

saga: (d) of this section on the person named

in the application. 18 USC. § 2518(7) (Supp.

V, 1965-69). - =

ae (3) Nothing contained in ‘this chapter or in «

section 605 of the Communications Act of 1934

(48 Stat. 1143; 47-U.S.C. 605). shall -limit the.

constitutional power pf the President to take -

such measures as he deems necessary to protect’ -

the Nation against. actual: or potential attack

_ or other hostile acts of a foreign power, to ob-

‘tain foreign intelligence information deemed -

se essential ‘to the security of the United States,

or to ‘protect ational security information |

against. foreign intelligence activities. Nor shal] .

anything contained in this chapter be deemed ©

_ ' to’ limit the constitutional power of the Presi-.

dent to take such measures as he deems neces-

sary to protect the United States against the.

aa ovevilirew of he ‘Government by force or other

unlawful , Or: against any other clear and ~

“present danger to the structure or existence. an

the Government. The contents of any ‘wire or:

orfl communication interggpted by authority of

_ the President in-the exercise of the foregoing

powers may be received in evidence in any trial -

hearing, or other proceeding only where such —

interception was reasonable, and shall not be.

' “ atherwise used or disclosed except as is neces —

sary to implement that power. Be U.S.C.

— -§2511(3) (Sapp. V, 1965-69). 7

“Without now passing specifically -upon any of. the

a more ‘controversial aspects of this legislation; we view

@ . the wiretap provisions of the Omnibus Crime Bill as 4

general recognition by Congress that the Fourth

Amendment ‘does: “mandate judicial review -of pro-

. posed _ searches and seizures of oral communications:

> ‘by wire. In: addition, in § 2518(7) (a) Congress pro-.

vided a statutory remedy for the éxact sort. of “na-

‘ional Security” problem, which is , presented. py this:

. 4%

ease. It is ain 5 that the Attorney Gen- >

eral chose not to employ ‘it. *

While the government appears to rely heavily upon

- BUSC. § 2511(3), the language chosen’ by Congress,

“Nor shall. anything contained in this chapter be

deemed. to limit the constitutional power of the Presi- fe ae

dent . .” is not the language used for. a grant. of zi

=< power. On the contrary, it was in our opinion clearly —

designed to place ‘Congress ina completely neutral

ze position in the very Sotrerery with which this casé

— concerned. — ; a

: 2A HOLDING

3 “During more difficult times for the Republic than

. these, Benjamin Franklin said: . -- er

: They that éan give up coouutial: ‘liharty to ob-

oe tain a little temiporary | Safety Seer pee a

liberty nor safety.*

iti is the historic role of the Sudiciheh to see that i in

periods. of crisis, when the eBallenge to constitutional

oms is the greatest, the Constitution of the United - Z

} States remains the -supreme. Jaw of our land. No one

: _ proclaimed this message with more force than did

\'one of the first and one of the gteatest' Chief Justices _

of the United States. In Marbury v. Madison,1Cranch

(5 US.) 137 (1803), Chief. Justic Marshall se on

constitutional supremacy :

That the P the have an acest right to :

_ establish, for their future government, such ~

_ prineiples as, in their opinion, shall most con-

_. duee to their own happiness, is the basis on.

which the whole. American fabric has been \\. :

_. ereeted.“Thé exercise of this original right is .

i a very great exertion ; nor can it nor ought it to:

“- § Historical Review of Pennoylooubicted in 3. Bane Barr-_

ierr’s FAMILIAR — 227 (C. Morley & La ree ed.

1951). - a

>

— ©

be treiuienitiy repeated. “The sila iol thesis

fore, . so- ied aré’deemed fundamental,

“* Aad asthe anshocity, from. which. they proceed,

Is SADFEME,

and can seldom act, they ate de-

Ore to be permanent.

is

original and supreme: ewill organizés the

: -, government, and assigns to different de

"ta

tents their-respective powers. It may. ‘either

‘ stop here; or. establish certain limits ‘not. to be

transcended by noe deperenante. |

*. rae ; *

" Certainly all those ebo: have framed written

constitutions contemplate them as forming the.

fundamental and paramount law of: the nation, -

and consequently the theory of every’ such gov-

". ernment. must be, that an act of the legislature -

repugna ugnant to the constitution is void.

theory is essentially attached to a writ-

ten constitution, and is conséq Be be con-

@idered by this court as one of the

prineiples of our society. M arbury v. ve adi,

- supra at

In the same opinion. n Chief Justice Marshall outlined

the- -function of the courts in ee the: a

‘tation :

It is: exxphatically. the province and antg-at:

7. the: judicial department to say: ‘what. the: law

_ -. is. Those who apply the nile to ery

must of necessity. expound .and interpret res

rule.: If. two laws, conflict with each other, the

courts. must decide’ on the operation of each.

So if a law be in, opposition to the constitu-

tion: if both the law and the-constitution apply. -

'to.a particular case, ‘so that. the court must _

either decide that case conformably to the Law; —

ing the’ constitution ; or confor: x

to the constitution disr rare ]

. court must determingtyhich of.

rules’ governs the case.. ‘cent is of the very | very

oe} ) sence of. syria —

\

i t Cea a tg

: ; . ’ eae _ 3 et \ ©

° Rg. - ap ei . : “+t j «+ » a -, :

Ce eae nae

. bt ;

:

tion; and the constitution is ‘superior to any

woe 6 Wy

w $e2.. 2 .

3 a ere | _—

+ Se oe a

yy

cS ae . *

.

?

ordinary act of the legisla ; thie co:

. _ and not such ordinary act, niust govern the case

to which they both apply. ;” .

-' y+. hose then who controvert the prineiple that rd

pee the constitutio# is, to be manne in court, as...’

ied to the necessity _

yn pe theireyes |.

on the constitutiGh, and s¢e only the law. © - :

| St thin thos pothts tbo tb siguted thie exuiahite- ore

‘This doctrine would su vert the véry founda- eee

tien. of all written constitutions. Ae Vv.

Madison, Supra at 70.. ‘a

‘The government has’ not poititd tes ‘ea we do. not

- find, ‘one written, phrase in the Constitution; in the °°

° statutory law, or in the case law. of the: United States, —

“ which exempts the, President, the Attorney General.

. or federal law. enforcement from the- restrictions of:

| the Fourtht Amendment in the case at hand. I clear

that. at Conroe in the Omnibys Crime Control :& °

Sake 8 of 1968, 18 U.S.0; § 2510 et -seq. .

(Supp. VY, 1965-69), refrained from attempting to. -

‘convey to ‘the President any radu which he did not

ye already possess..

_ Essentially, the. government rests its’ case upon the oO

‘inherent powers of.the President as Chief of State to.

“ defend.*the existence of the State. We ‘have already

shown. that this very claim( was rejected by ‘the. Su-

‘ preme Court in Youngstown, Sheet: & Tube Co. v.

' Sawyer, 343 U.S. 579 (1962), and | we shall not repeat nN

its holding here. . . ~

_ ‘Art additional: difficulty. with the inherent: power

ie argument:i in the context of: this case is that the Fourth eon

, Amendment was’ adopted in the immediate. aftermath :

of abusive searcWes and sejzures directed agaist: ©

. American colonists Qinder.the sovereign: and inherent

‘aise of. ane George £ yi. The United Ryne ‘ee

ot

a stitution was vniobied to weirs a: hock: uppn: ‘so TER, |

'. eign’. power. The’ creation of three ‘coordinate -

branches of. Sovernment by. that Constitution was de-

signed to require sharing i in the —— of that: :

awesome power... a

It is strange, indeed, that i in ‘this case the’ traditional

power of sovereigns like King George III should be -

Lo. invoked. on behalf of an American President to defeat

‘one of the fundamental freedoms fer which the found-

ers of this country overthrew King George’s reign. ~

The argument. for unrestricted employment of Pres-

idential power to wiretap is basically “an afgument i n

—“terrorem.. It ‘suggests’ that constitutional government

Carrington, 19

vy. Search Warrant}

‘for the United States ‘Supreme Court. summarized

- the. long history of the English striving’ for. freedom

is, too weak, to survive in 4 difficult world and urges’

worried judges and worried citizens to return to accept-

ance of the'security of “sovereign’’ power. We are earn-

estly urged to believe that the awesome power, sought .

for the Attorney G —o wall always be = with de. |

cretion. x . & :

Obviously, even in “very recent: days, as. we shall’

see, this-has not always been the case. And the his- _

tory of “English peaking peoples (t® say nothing of

others) ,is replet® with answers. See e.g., Entick-v.

aw. St. Tr. 1029 (1765). In Marcus ~

67 U.S. 717 (1961), the opinion

of ae and press and noted :

, Historically the struggle for freedom of specs

"and press in England was bound up with the

_Assue of the scope of -the search ‘and seizure

ae” power. Marcus. v. Search Warrant, supra at

. ae ~ 724,

The Court also pointed out that as eae as the. |

ad _ 1760" S aon Camden has Genounced .~ eae

8

| power given to messengers to search wherever their :

suspicions may chance to fall. If such. a power is

37

truly invested in a secretary of state, and he can-dele-

» gate this power, it certainly may affect the person

“and property. of every in this. kingdom, and is

- totally ‘subversive of the liberty of the subject.’ Id., ;

. 1167" [Wilkes v. Wood,.19 How. St. Tr. 1153]. ”? Mar- |

_ cus v. Search Warrant, supra at729. - .

The Court’s opinion concluded :

This history was, of course, » part of the intel-

: ‘Jectual matrix within which our own constitu-

tional fabric ‘was shaped. The Bill.of Rights - .

_. Was fashioned against the background of knowl- —

edge that unrestricted power of search and.seiz-

ure Id also be an instrument .for stifling

libefty’ of: expression. For the serious hazard of

suppression of innocent expression inhéred in =~

the: tion confided in- the officers authorized

to.exercise the power. Id. at 729.

That which has distinguished the United States of -

America: in the history of the world has ‘been its con- —

stitutional protection of individual liberty. It is this

| which has created the wonderful diversity of this

' great country and its many and varied opportunities.

It is this which has created Justice Holmes’ free mar-

ket-place of ideas €rom* which have ‘come our most : :

signal advances in stientific and technological achieve- —

ment and in social progress. Beyond doubt the First

Amendment is the ‘cornerstone of American freedom.

.' The Foufth Amendment stands as guardian of the

First.

.Amendment’s judicial review requirements do not

prohibit the President, from defertding the existence |

of the state. Nor does the Fourth Amendment require

that law enforcement officials be. deprived of elec-

Of course, it should be notéd that’ the Fourth

wo”

|

|

tronic surverilance. What the Fourth Amendment =

does is to establish the methdd they must follow.

_ If, as the government asserts, following that method

| ‘poses security problems (because an indiserete or "

corruptible judge or ¢ourt employee might betray the

proposed investigation); then surely the answer is

- to take steps to refine the method and. éliminate the

problems. No one’ could be in better position to help

the courts accomplish. this goal than ~ Attorney,

_ General.

If there be a ngeit for’ ‘increased sociirite in the

presentation of certain applications for search war- ..

. rant in, the federal- court, these are.administrative

problems. amenable to solution through the Chief Jus-

. car of the be—United States:.and the United States.

icial Cnatentone and its affiliated judicial. orga-

sea The inclination of. the judiciary to meet

the practical problems. of enforcement in this area is -

evidenced in the specific holding of this court and the

| United States Supreme Court in United States v.-

Osborn, 350 F. 2d 497 (6th Cir. 1965), afd, 385 U.S.

. 323. (1966), and in the dictum in Katz v. .United

States, 389 U.S. 347 (1967), upon which “the search

warrant terms of the.Omnibus Crime Control & Safe”

Streets Act § 2516 were largely based. Congress clearly

_ . coneeived situations so delicate that, for example, the;

' “ Attérney General might seek his warrant for a search™ -

from. the -Ghfef Judge-of the appropriate United...

States Court of Appeals..18 U.S.C. § 2510 (Supp. Vv...

1965-69) : So.do we. But what .we cannot conceive is -

that in’ the midst ofthe. turmoil of the present day,

the courts of the United States should suspend an

important principle of the Constitution. Thé very

nature of our government .requires us to defend our

. nation with the tools which a free society has created

| and proclaimed : | which, indeed, are justification for t.,

. its existence.

We hold that in dssltng withthe threat of Aiteniedie

. subversion, the. Executive Branch of our government, - : .

including the Attorney General and the Jaw enforce-

ment agents of the: United States,. is: subject td the

limitations of the Fourth Amendment to the Consti- °

tution . when. undertaking searches and seiziires for | oo

_ ,oral communicatiotis by wire. © . rag

_ We seek ‘to ‘be equally explicit about dae wedo

not decide in this case: _

-O 3; 0

1) We do riot decide “what the ‘President ‘of the _ A

United: States ean or cannot lawfully do under his_

constitutional powers’as @omriander-in-Chief of the ~

Army. and Navy to defend this eowntry from attack,

espionage or sabotage by forces or agents of a foreign

-power. As we have noted, the cértificate filed by the

Attorney’ General in this case makes no reference

to and claims no reliance upon any such authority.

- 2).We_do not decide whether’or not there ‘were

facts available to the Attorney General in ‘this case

_ which -might have constituted -probable cause for is-

suance of a prior warrant for the wiretaps ‘under —

18 U.S.C. § 2516 (Supp. V, 1965-69), or a- subsequent

- warrant (within 48 hours) as provided for by 18

_ indicates plainly that no such applications were made. '

- Indeéd; this record is devoid of any shewing that any

presentation of information under oath was ever made ~

before, or any probable cause ‘findings. were .ever |

- entered by any se official—let alone any

judge. | ae

In our view, ‘the Clay case (United. States v. Clay,

430 ‘F.2d 165 ,(5th Cir.. 1970), cert. granted, limited ~

- to question 4, 39 U.S.L.L. 3297 (U.S. ‘Jan. 11, 1971)

(No. =). cannot appropriately be read as authority |

?

UW®.C. § 2518(7) (Supp. V; 1965-69). This record —

e at om

- ASS

| for warrantless wiretap -

- In that case the gover .

'” illegality of cfour. separ

under: the same inherent

_ The transcripts of defen,

a Versations: | were turned .

“ment of Justice:-In one s

tap was upon the telepho’

King, Jr. One wonders, |

Presidency were bread »

~taps in the first instaner.

. concededly unconstitutio:: ——.

As to the “fifth” wiret:

_ the Attorney, General's

“for the purpose of ge

information.”” The Fifti

_that such foreign intel!

judicial warrant was 1

This was the. second’ is

sought from the Supr

noted, the Supreme Co...

issue while granting ce:

matter. -

'-In-the case behice. lis,

~- eral’s certificate makes el.

were thought to be war

problems. We have note

powers of the Presidency. .

Fifth Circuit thought jus -

intelligence ‘information’

Withoiit passing on that

have found no. such spec

-to disregard the Fourth

curity cases:like this one.

' The last-issue argued °(_

concerns the order-of ¢

&

~

-overnment contends that

dge found the intercep-

should have determined

ot relevant to this case, ~

closure. This very issue

‘y the United States Su:

United States, 394 US. -

pinion of the Court said:

ent phrase, ‘a chance re-

;. what appears to be a

*, the identity of a caller -

. he other end of a tele-

.her of spéaking or using

| significance to one who

te facts ‘of an accused’s

rmation may be wholly

meaning to one less well |

vant circumstances. Un-

ter of judgment, but in

too complex, and the

reat, to rely wholly on

it of the trial court to’

which might have con-

, ent’ S case.

+ ° ‘ - -

‘to be more ‘than a for-

- 1ot left entirely to. reli-

cimony, there should be.

records of those over-

ch the government was

lilding its- case against

uted States, supra at:

-d).

related: - case, the Su- —

as giving the District,

' duty to sereen govern-

ercepted conversations _

nously :

2

| tie the defendant - was entitled to see a |

~ transcript of his own conversations and nothing

else. He had no right to rummage in govern-

- ment files. Taghanetts Vv. United ciancanes 394

~ U.S: 316, 317 (1968). |

Thus. the Supreme Court held that all illegally |

_ intercepted. conversations | of a_defendant __must._be... :

-. » made~availablé to him, but that the District Judge —

“May in camera ascertain which transcripts are COv-:

ered by this ruling. Of course, in-this case we have _

no problem concerning standing. The government

concedes that Plamondon’s own voice. was intercepted

-and recorded and the District Judge and this court —

have- held the interception to have been illegal. .

| We cannot agree: with the dissent that Justice |

Stewart’s concurring ‘opinion in United States vy.

Giordgno, 394 U.S. 310, 313-15 (1969), in any way

_ weakened the disclosure ‘requirement of Alderman.

The full text of J ustice Stewart’s opinion makes -

it clear that the “preliminary determination” with. .

which he was concerned was whether or not “any of

the surveillarices. did violate the Fourth Amendment.”

This determination Justice Stewart held could be

- eo by in camera ‘inspection—as has been done in

ff thjp goase | both by the District Judge and this court.

; e believe that the Supreme Qourt has “held that

a defendant: whose personal conversations haye been

‘illegally recorded is entitled to transcripts of the .

. illegally recorded material without regard to whether. -

a judge on inspection in camera might or might -

- not be able to find relevancy. ‘Nonetheless, we have

- considered remand of this case to. the District Judge

’ for an expression on the relevancy issué so as to have

a complete appellate record. On inspection of the

sealed exhibit’ in this case, however, we cannot (and

we do-not believe the District Judge could) ascertain

with any certainty whether or not the government — ~

had derived prosecutorial benefits from. this illegal

search to. which benefits defendant would have the .

right to object-at trial under the doctrine of ‘“‘the fruit;

of the poisonous tree.’? Nardone v.-United States, .

308 U.S. 338, 341 (1939) : 3 Wong Sun Ye U nited States,

<974- U.S_ATL_(1963). Sy

_ The dissent in this case A males this comment upon |

the sealed exhibit: = ’

The sealed exhibit, which nisined one a

few pages, was examined more than once by the.

members of this panel. The monitored conver- —

sations took place. subsequent to the bombing ~

and after the conspiraey alleged in the indict-

ment had terminated. They ‘did not relate m

any way either to the conspiracy ‘or to the

substantive offense charged in the indictment,

and would not be relevant or admissible at the °

trial; nor did they lead to any relevant. and

admissible evidence.

If this paragraph be read as carefully ‘as it has

-been written, we have no reason to disagree. With all.

respect, however, we think two other facts néed to be

added before conclusions are drawn. First, the illegal

interceptions’ occurred well before the indictments. in

this case were returned, and thus they could have

been employed in the investigation which led to the

indictments. Second, we have no way of knowing.

whether or not the government’s "investigation was

materially aided by associations or leads developed |

from these conversations, regardless of whether or °

hot the statement providing the lead appears on its

face to be ‘‘admissible at the trial.”’

_. These considerations, of course, primarily ‘affect ”

this. trial. Far morg important, however, is the fact

that disclosure may well prove to be the only effective.

protection against illegal wiretaping available to de-.

44

- fend.the Fourth Amendment rights of the American

_ public. - .

_ For these reasons, we hold that the District Judge

properly. found that the conversations of defendant .

_ Plamondon were illegally intercepted, and we cannot

_ hold, that his disclosure order. (as interpreted belew) :

is an abuse of judicial discretion. | '

In perhaps an excess of caution, we note aay we

read the District Judge’s disclosure order as limited

solelyte--the transcripts and dates of defendant

_ Plamondon’s ‘illegally. intercepted. telephone. conversa-

- tions. (See Taglianetti y.. United’ Stgtes, supra).

The petition for writ of mandamus is denied.

- APPENDIX A

‘THE Wuire. Hovss, Wasinaton

) Mae 21, 1940,

CONFIDENTIAL MEMORANDUM ‘FOR ‘THE ATTORNEY

ff : : GENER AT . . * aa

I have agreed with the brow purpose of the Su-

preme “Court decision relating to wire-tapping in.

investigations. The Court is undoubtedly sound both —

in regard to the use of evidence secured over tapped

_ wires in the prosecution ‘of citizens in criminal cases;

- and is also right in its opinion that under ordinary °

and normal circumstances wire-tapping by Govern-. |

“ment pani should not be. earried on for t

ae SP Sa

from any broader order by filing a motion ‘ander Rule 40,

Fep. ‘rR. App. P.

“at reason ‘that it. is almost bound to lead to sie of

civil rights.

*- However, I am. convinced that the Minced Boast

never. intended any dictum. in the particular case ©

which it decided to apply to sii matters erie vbaea

': the defense. of the nation.

It. is, of course, well known that certain: other na-

tions have been engaged in the organization of: prop-

aganda of so-called ‘fifth columns’”’ in other coun-

tries and in preparation for sabotage, as welt as. in

actual sabotage.

‘It is too late to do anything aboufit after sabotage,

i assassinations and ‘‘fifth sera activities are com- —

pleted. ©

You are, therefore, authorized sia dikeeted in such .

cases as you may approve, after investigation of the 7

need in each case, to authorize the -hecessary inves- |

‘tigation agerits lat they are at liberty to secure: in-

formation by listening. devices direct to the conversa-

tion or other communications of persons suspected. of

" subversive activities against the Government of. the

United States, including’ suspected spies... You'-are.

{

requested furthermore to limit these investigations a

so conducted toa minimum and to as them | ‘inso- _-

‘far as. possible. to aliens. -

(8). F, D. R

OFFICE OF THE ATTORNEY Gunaar,

‘The Present, —__

The White H Ouse.,

“My DEAR. Mr. ‘PRESIDENT: ‘Under date of May ‘21,

. Washington, . DC., July 17, 19468 P

1940, President Franklin D. Roosevelt, in a memoran-

dum addressed to Homey * ‘General J. aoe stated :

wz .

. ae,

GB then ERE NS AOA Li EE pe CEE LN EDLY ELE GELLER A AE OLE SOL LI TILE DM re

. — “£ 2

ie, ee cer

| 8. oe ~ ‘sb.

You are therefore, authorized... and ‘directed in

such cases as you: ‘aay approve, after invéstiga-

tion of the need in each case, to authorize the

necessary. investigating agents that they are at

liberty to secure information by listening devices .

- directed to the ‘conversation or other comniuni-

‘ ¢ations of persons suspected of subversive ac-

- tivities against the. Government of..the United

States, including suspected spies. | a :

: “This directive was’ followed by: Attorneys. General

_ Jackson and “Biddlé; and is being followed ‘currently

in this: Department. consider it appropriate, how-

ever, ‘to bring Whe: subject to your attention at this

tims oo vaiiis

- It seems ‘to me : that in the presen troubled period

in international. affairs, ‘accompanied as it..is by an

+. increase in subversive activity here .at home, .it is as

. _. necessary as it was in 1940 to take the “investigative -

measures. referred to in President Roosevelt’s memo-

randum. At the same time, the country is threatened

by a very substantial increase in crime. While I am

reluctant ‘to suggest any use whatever of these special

investigative measures in domestic cases, it.seems to -

me imperative to use them in eases vitally affecting

the domestic security, or where ‘human life is in

"Jeo ardy,

so ‘nodified, I Believe: the pee het directive

should be continued in force. If you concur. in this

policy, I should appreciate it if ‘dees would so indicate :

at the foot of this letter. ;

‘In my .opinion, the measures proposed a are within

the authority of law, and_I-hay e in the files of. the

Department. materials pn as yme that my two

ft .

most fecentt picinccastite as. Attorney General would |

concur in this view.

esas; | 30

Respectfully yours,~ isons "G

; | » *.. (6) Tom OC. Orarx,

7 ey TY AOE nr

T concur. Reh , poe aa ft

: (s) Harry 8..Troman. -

ADMINISTRATIVELY CONFIDENTIAL

We te - WHITE HOUSE = xf ,

bat WASHINGTON i

one : - i ae Ale: Town 30, 1965.

~ (Memoréndum for the Heads of Executive rn

| Departments and Agencies) _ :

-I am aeae opposed to the. Nisbehitans of. nis

phone conversations as a general investigative’ tech- .

-. nique, I recognize that mechanical and electronic te-

- vices may sometimes be essential.in protecting our

national security. Nevertheless, it is clear that indis-

~ eriminate use of these investigative devices to overhear _-,

_ telephone conversations, without the knowledge orcon-

_ sent of any.of the persons involved, could result in —

, serious abuses, and invasions of privacy. In my view, «

the i invasion of privacy of communications is a highly ~

_ offensive. practice which: should be engaged in ‘only

__ where the national security is at. stake. To avoid any

. misunderstanding on this subject in the Federal Gov-

ernment, I am ¢stablishing the following. basic guide-

___ lines to be followed by all governmentagencies: = . -.

: (1J No. federal personnel is to intercept tele-

_ phone conversations within the United States eS

+ *The: possibly. cigfiicting. dates: are quoted as set forth _ ya

the original document. __ | Cae

| Cd

. Ul

PN se on ee eS Sees, eR te a ke ke ee ons thats PGI . ae Leta et Sd ae AIL AA AGIOS aa

7. Se . 48

Pea by any- meclianical' or electronic device, without

* the consent of one of the parties involved, (except

_in connection with investigations ‘related to the

national security ). ; ;

(2) No interception shall be andetaies or con-.

tinued: without -first obtaining the epproyal of

the Attorney General. .

‘+ (3) All federal agencies shall Ganedigiels con.

férm' their practices and a to the pre-

aks -, visions of this order.’ « 2\

Utilizatign of . mechanical or electronic devices to

overhear non- telephone conv ersations.is an even more

difficult\, problem, which raises ‘substantial and un-

-. resolved questions of Constitutional interpretation. I~

S@ desire thatXeach agency conducting such investigations —

... consult. wit the -Attorney : General to: aseer tain -

- whether ‘the agéacy’s practices are fully i in aeterd syith

‘the law and w itha ea hte Bo ate for the rights’ of

. others. ©. NX.

. Every ‘agency head shall. subrait to the Attoyney ~

Genet al within :30 days\a complete inventory of all

—\ -mechanical and electronic’ ey lipment and, devices used *

- for. or capable. of. intere ping telephone conversa-

~ tions. In‘addition, such reports shall contain a. list of -

_ any interceptions currently authorizedvapd™ the reasons

; for them. r ‘

“2 Oe &) Lyxpow B. Jor me

~~,

™~\.

¢

iwincix, ‘Greuit J nidge, ‘dizabnting. “AL ino abet’ in-

‘dictment: was ‘returned: in the District. Court charging

the defendants,’ John Sinclair, Lawrence Robert.

| “Pun’’.Plamondon, and John Waterhouse Forrest, in:

» the/first count with entering into a conspiracy bom- .

ahs _menéing on or about-September 1,.1968, and contin-.

TN ing thereafter Bo to and.’ meluding, N ovember ) i

es Pr

. . . . : :

° ° e

. sy

42 * . 7 —-——— — *

"49°

. to bomb by means of dynamite the offices of the Cen-

_ tral “Intelligence Agency, 4 facility of the United

States Geyetnment, in Ann Arbor, Michigan. ae

ond count of the indictment charged Plamondonone

on. September 29, 1968 by dynamite, all in violation .

of 18. US.C. §§ 371 and 1361. | “a on

__Inits response to the motion filed by defendants for

- disclosure of the:logs of the electronic sugveillance, |

the Gavernment attached an affidavit of the Attorney |

General stating positively that the wiretaps “‘were

_ .being employed to gather intelligence information

-\deemed netessary to protect the nation from attempts

of. domestic. organizations to attack and subvert the

. existing structure of the Government.’ He certified

“that it would prejudice the national interest to dis-

close. the particular facts concerning these surveil-

. lances other than to the Court iIncamera.” 60

-, The District Judge, in his Memorandum -opinion,

_- Stated that the Government: had submitted to him for

~ in camera inspection a sealed. exhibit containing the

logs of the monitored conversations ‘but ‘he. made. no

finding that the conversations were relevant: to any

_ issue in the ‘case or might lead to the discovery of any °

relevant and admissible évidence. He ordered the Gbv-

ernment to produce the’ logs for inspection by the de-

fendants. He further ordered an evidentiary hearing

at the end of the trial to determine the existence of

“saint inthe indictmen or in the evidence.: This last

order would seem to indicate that in the opinion of -

* the District Judge the logs. contained no such dis-

Closure“ ae ae “3

' . The sealed exhibit, which contained only a - few

_ pages, was, examined more than oncé by the members

of this-panel. oe f |

@° ™ | f4

, . .

with the substantive offense of damaging the facility -

| The monitored exnvetvations took place subsequeni

- to the bombing and after the conspiracy alleged in the

indictment had terminated. They did not relate in.

any way either to the conspiracy or to the substantive

offense charged-in the indictment, and would not be

‘ rélevant'or admissible at the trial; nor did they. lead .

to any relevant and admissible evidence.

The surveillance was not directed at Plamendon,

nor at:any property owned or possessed by him. Dis-

closure of the dates and the monitored ‘conversations, _

however, might furnish valuable information to the.

' . organization under surveillance as to the: activities of

the Government. The Government was of the view

that a -protective order would furnish no. protection

te against disclosure. The Government sought to prevent —

‘disclosure by resisting the motion. to produce, and {n

all probability will decline to comply with the order.

of the District. Court, which would result in‘the dis-’

missal of the indictment and. the. defendants would _

gofree. .

~The fact that the interceptions took ples before

- the indictménts’ were returned is of no eonsequence.

- Since the interceptions contained no useful informs-

tion relative to the-conspiracy or bombing, they could. |

not have assisted in the investigation.

In my opinion, the District. Judge could not deter-

- mine illegality by merely examining the logs. He con-

ducted no evidentiary hearing but postponed it until -

_the end of the trial. In my opinion he abused his dis-

cretion by ordering production of the logs.

The District Court interpreted Alderman v. United

States, 394, U.S. 165 (1969), as requiring an adversary

_. proceeding to determine illegality in every case of.

electronic surveillance, even though critical material ©

may be involved and the issues in’ the criminal case

are ‘not -eomplex. The majority opinion takes the

> '

x

51

-same position. I read Alderman as requiring an ad- -

versary proceeding in that case, but not as specifying °

. the procedure to be followed by a District Court.in =

_ In my opinion, the interpretation of the District °

Court was erroneous. In decisions subsequent to Al- _

_ derman, the Supreme Court clarified any ambiguity .

whith might theretofore have existed by holding that

an adversary proceeding and full. disclosure are not-

required for resolution of every issue raised by elec- _

tronic surveillance. In Giordano v. United States, 394

US. 310, Mr, Justice Stewart, in a concurring opinion,

stated : : : ne Beet |

Moreover, we did not in ‘Alderman, Butenko, -

_ or Fvanov, and we do not today, specify the pro-

cedure that the District.Courts are to follow in.

making this preliminary ‘determination. We

have nowhere indicated that this determination

cannot appropriately be made in ex parte, in

camera proceedings. ‘“Nothing in ‘Alderman v.

United States, Ivanov v. United States, or

Butenko v. United. States, ante, p. 165, requires

an adversary proceeding and full disclosure for

_ resolution of every issue raised by an electronic

-

surveillance.” Taglianetti v. United States, post,

p.316..(39US.at314)) 02

my judgment, the Supreme Court-in Alderman.

did. not abolish nor intend to impair the traditional

use of 1 camera proceedings which for so many. years.

have been so efficacious in the protection of the rights

- of litigants. There may be cases involving. a multitude

of documents and complex issues where an adversary

_ Proceeding: is required,"but such is not the case here. |

The s

The iks

ealed exhibit contains verysfew sheets of paper. _ |

ues were not complex. Only. Plamondon. was*

charged with the actual bombing on September 29,.. -

1968, and he either didor did not do it.

The -precise questio1

. Government in Unitea —

- (5th Cir. 1970),- which

-surveillange sttbmitted.

- camera inspection. The

illegality with respect

- wére-turned over to tk .

related in any manner

- for violation of the §.

< no pearing on his co

- “related to the gatheri

held to be lawful survi.

sary tothe protection 0° .

The District Court i.

“an tn camera inspectio)

davit of the Attorney €

affidavit. in the present

: turn-over to: the defen.

further determined fron

the hearing with respec

the defendant had failec ._

The Court of Appea:

the fifth log in camera

Court that the ‘contents

mane to any issue in t -

that the Court was cor)

production.

In an opinign, writte

‘Court held:

Under the cirew’

» the fifth log to. de

' would be contrary

ing been. obtained

veillanee. The Co:

_ pf the fifth log -e:

_ that the contents «

J

is criminal prosecution

ias been no use against

‘mation gained by the ©

- . h'wiretap and the in-

2 would not have heen —

-ecutor in constructing

_ i There is no indication

is o» could be used in

nt. -

. pase , requires that we ©

be defendant«and the

\ttorney General, who

ob and Commander-in- -_

effidavit that the fifth

. “for the purpose of

‘enee information’’ and

posed ‘disclosure at the

ud prejudice the na-

: particular facts con- -

v ‘other than: to -the ©

‘ubmitted by the.Gov-

“@ examination by the |

‘- sede both here and in

ghis of defendant and |

e thus ‘been properly

‘ielal inquiry would be

t ‘oeeur. . It -would - be

‘ithout the relevant in-

and perhaps nullify

iaken on_information

teago & Southern Air -

Corp:, 333 U.S. 103,

Ed. 568 (1948). We,

titutional prohibition’

430 F. 2d at 171) |

rtiorari in Clay as to

the Supreme Court)

‘issue number 4 re-

.¢laim to exemption

- us objector. 39 US.

oe

In my opinion, the Supreme Court in declining to .

-- tule on the constitutional issue merely followed ‘‘the

. traditional practice of this Court of refusing to decide

eonstitutional questions when the record discloses .

other grounds of decision, whether or not they have.

been properly raised before us by the parties.”? Neese

v. Southern Ry., 350 U.S; 77, 78 (1955).. :

In Alma Motor Co. v. Timken- Detroit Azle Co., 329

U.S, 129, 136 (1946), the Court said:

This Court has said repeatedly | that it ought

not ‘pass on the constitutionality of am act of

7, Congress unless such. adjudication is unavoid-

able. This .is drue even though the question is |

properly presented by the record. If two ques-

_ tions are raised, one of non-constitutional and’

the other of constitutional nature, and a deci-

sion of the non-constitutional- question would

make unnecessary :a decision of the constitu-

tional question, the former will be decided.

“The Court will wait on a concrete fact situation in |

order to avoid rendering a series of advisory opinions. :

Zemel Vv. Rusk, 381 U. 8. 1 (1965), rehearing cone,

”

- 382 U.S. 873..

The District Court should have followed the a

cedure adopted in Clay. Had it done so, it would not -

have been necessary to’ rule on the constitutional is”

sues in this case. eo :

Rule 16 of the Federal Rules of Criminal Proee- -

dure relating to pretrial discovery permits discovery’

only of evidence-which/is relevant and material. The

te intercepted communications were neither relevant nor . |

= material, The rule d

not authorize the order en-

tered by the District Court in the present case,

' - In ruling that the President, acting through the”,

Attorney Genera], was without constitutional power —

to utilize electronic ‘surveillance to gather intelligence —

| information deemed necessary to protect he, nation,

@

6

_ from attempts of.domestic’ organizations to attack and-

< subvert the existing structure of the Government, the

District Judge said: ee -

In this turbulent time of ‘unrest, it is often

. difficult for the established and contented mem-

bers of our society to tolerate, much less try.to

understand, the contemporary. challenges to our

existing- form of Government. If democracy as

it is to stand, then ‘attempts of domestic or- |

ganizations to attack and subvert the existi :

' : structure of the Goverriment’ (See affidavit of .

Attorney General), cannot. be, in and of itself,

a crime. It becomes criminal only where it can

be shown that such activity was accomplished

through unld#wful means, such as invasion of

the rights of others, namely through force or .

violence. . ° | | at

-- he affidavit of the Attorney General of’ the

United States makes no assertion that at the

time these wiretaps were installed, law enforce-

-ment agents had probable cause to believe crim-

inal activity (e.g. the illegal overthrow of the -

.Government through. force or violence) was

‘. being plotted. Indeed, if such probable cause did

exist, a warrant: to search may have properly

been issued. a |

The established and contented members of our

society are required to tolerate peaceful dissent even

though they may find it difficult to understand at all -

_ times. But they are not ‘required to tolerate, much less

understand, plots of discontented members to over-

throw the Government by force arid violence.

In my opinion, it is the sworn duty of the President ©

Armed Foreés and as Chief Executive, to protect:and

defend the nation from attempts of domestic subver-

_ Sives, as well as foreign enemies, to destroy it by foree.

f * *.

we know it, and as our forefathers established. —

under the Constitution, as Commantder-in-Chief of the © .

56 Se

and. violence. The risk of injury to the Governnient

is just as great whether the attacks are from within

or without, and domestic attacks’ may even be insti-.

gated, aided.and abetted by a foreign power. — |

Attacks by domestic subversives and saboteurs, may

be even more dangerous than those of foreign sourees,

because of the difficulty , of detection of “Fifth Col |

umn” ’ activities.’ s

_ At a'time when our soldiers : aré fighting on foreign 7

_ soil and there is turbulence at home, thereby confront- |

ing the President on two fronts, with many Serious, —

perplexing. and complex problems, there rests ‘upon his

. shoulders a heavy responsibility to protect, not only

_ the fighting men abroad, but also the people at home,

from ‘ destruction of their Government by domestic

subversives. :

~The legtslative- and judicial branches of fis Govern-

ment do not have the facilities to cope with the de-

struction of publie buildings by saboteurs. Only the

Executive. Department Sf the Government has the

facilities and know-how ‘to, deal with. these intricate _

problems. When the Chief Executive deems it neces-

(sary to gather intelligence, information for this pur-

pose he ought not. to be required first to make detailed:

explanations of classified information to a magistrate

| and procure: ‘his consent as a ndition precedent to the -

exercisé of his constitutions powers.” |

-. 11096 “bombings and- 176 attempts were reported in the

United States in 1970, against 549 bombings in 1969. 79 ex-

‘ plosions were reported in January, 1971. The. latest bombing »

was the Capitol building in enone US. News & Worild-:

- Report, March 15, 1971.

* This. would . occasion ‘ delay, mn eee the possibility of

leaks. To require the Presideht of the United States to: have

se cause before he can - investigate spies, subversive,

>

. <4

87 |

_ Nor do I think that the Executive has to-wait until

“the: ‘activity ‘of. the subversives is’ accomplished .

through unlawful means, such as invasion of the rights -

of others through force and violence.’’ It is teo late

‘to act after there has been-a fait accompli.

'. As former Atterney General Brownell. stated :

It is,of course too late to do anything. about |

it after sabotage, assassinations and fifth column. “© _

- activities have been completed. The Public Se- .-

/ 1 eit and Wiretapping, 39 Cornell Law:

Quarterly 205.

__ As well stated by Chief Justice. Vinson in ‘Dade V.

United. States, 341 U.S: 494 at 509 (1951) : ,

Obviously, the words cannot mean that before

_ _ the Government may act, it must wait until the

putsch is about to be executed, the: plans have

been Jaid and the signal is awaited. If Gov-

_ ernment is aware that a:‘group aiming at its

overthrow is attempting to indottrinate-its mem-

bers and to ¢ it them to a course. whereby

they ‘will <e when the leaders feel the .cir-. °

. cumstances manit, action by. ae Government

"is required.

ie “Tn hia c, Souther Air Lines, oe ne. V. Waterman

Steamship Corp.,; 333.U.S."103 (1948), the Court con-

sidered the powers of. the President in, foreign, rela-

tions 1 in an, opinion delivered by Mr. Justice. J ackson,

ssboteaira, fifth lata and teajtors irons ebictively frus-

_ trate and prevent any meaningful investigation of these persons.

"If the President was in possession of facts establishing prob-

_ able cause he might never need to investigate. Even the Secre-

tary of Labor may investigate a Jabor union without having. —

probable cause. Goldberg v. Truck Drivers Local Union No.

$99; 993 F. 2d ‘807 (6th Ges ‘cert. denied, 368 US. 938 “

(19), } | ee

a eee a: cae

. The ‘President, both as Commander-in-Chief

- and as the Nation’s organ for foreign affairs,

has available intelligence services whose re

are not and ought not to be peiehes: to the

. world. It would be intoJerable that peourts, with.

out’ the relevant information, ‘should’ ‘review —

and, perhaps nullify actions of the Executive

taken on information properly held: secretNor

‘ean courts sit in camera in order to be taken

into executive confidences. But even if courts —

+ could tequire full disclosure, the very nature

of executive decisions as to foreign ‘policy is

political, not judicial. Such decisions are wholly

confided by: our Constitution to the’ political.

departments of the government, Executive and

Legislative. They ‘are delicate, cornplex, and

involve large elements of prophecy. They. are’

and should be.undertaken only by those directly «

responsible to the mone ‘whose welfare they

\ advance or imperil. They are decisions of\a kind .

\ _ for which the judiciary has néither a

\facilities nor responsibility and which has\long.

. been held to belong in the domain of political

pow et not stibject to judicial intrusion or- '

quiry. (333 U.S..at 111) . ;

_ See also Cafeteria Workers v. MoBiroy, 367 US.

886, 690 (1961) ; United States v. Pink, 315 U.S. 203

(1942) ; United States v. Curtiss Wright Corp., 299

U.S. 304,-319-820, (1986) ; Octjen v. Central Leather

~~ \~Go, 246 U.S. 297 (1918); In Re Debs, 158 U.S. 564

(1895) ; “Totten v. United. States, 92 U.S. 105 (1875).

I.see no. reason why the powers of the President

should be any different in dealing with either foreign -

or domestie subversives; both: are equally harmful; |

both or either could seta: in the destruction of the

Government, —

_. Congress, iti etinctivig’ Title TIT of the Omnibus

Crime Control and Safé Streets. Act of 1968, 18 U.S.C.

_- §$2511(3), provided exceptions to the warrant require

| ments of the Act, As follows: - :

.

; (3) Nothing contained in this chapter or in

~~ section 605 of the Communicatioris Act of 1934 | -

(48 Stat. 1143; 47 U.S.C. 605). shall limit the .

- constitutional power of the. President to take.

.. such measures as he’ deems necessary to protect

- ~ the Nation against actual or potential attack

or other hostile acts of a foreign power, to

obtain foreign intelligence information deemed

essential to the security of the United States,

or’ to protect national security -information

_. against foreign intelligence activities. Nor shall _

_ anything contained in this.chapter be deemed |

®

to. limit the constitutional power of the Presi- .

dent to take’ such measures as he deems neces-

_Sary to protect the United States against the

-averthrow of the Government by force or other

unlawful means, or against any other clear‘and

present danger to the structure or existence of

the Government. The contents of any wire or

oral communication intercepted by authority of

the President in the exercise of the forégoing

powers may be received in evidence in any

trial earing, or other proceeding only where .

* such interception was reasonable, and shall not:

be otherwise used or. disclosed except as iis

_hecessary to implement that power. _

‘ Referring to the exceptions, the Senate’ Repott oe

states: ! -.

‘Theonly exceptions to the above prohibition

are: (1) the power of the President to, obtain

information. by such means #s he’ may deem .

hecessary to protect the Nation. from attack or

_ hostile acts of a foreign-power, to obtain i ;

ation’s -

ligence -information essential to the

security, and to protect the internal sécurity of

- the United States from those whoadvorate its

A

overthrow by force or other unlawful means.

1968 U.S.C.C. & ALN. 2153; |

See.

: nition

2511(3) constitutes elear congressional recog- °

of the President’s power to order eléctronic

| surveillance in national security cases. i.

ner

ee i -

tes on Rap per pane > em ag ENO I! OTA at PILES AON A STR ce DS IT: Nt

| ‘The power f the President t to sre eléchecndn sur.

: ~veillanee 4 in national Security cases has been upheld j in

_---United States-¥. Clay, 430 F.2d 165 (5th Cir. 1970);

ms ‘United States . Butenko, 318 F. Supp: 66 .(D:NJ,

1 aX “amy ; and United States Vv. Dellinger, Grim. No. 69."

. -. 180, N-D. Ith, 1970: It was: denied in United States y,

- Smith, Crim. NO. 4277, ‘C:D.. Cal:, — :

. Mp..Justice, , White; ‘concurring in Katz v. United.

/ States, US. 347, at. 363-364 (1967), said: 3

xa oining the Court’s opinion,. 1 note: thee

1 come acknewledgment that there are circun-

eo mot Y which, it is reasonable to search with- '

* out a warrant. In this connection, in footnote.23°

the Court points out that today’s decision does.

Be ON agp ranch option gl security cases. Wire-tapping .

et “to protect the ‘security of the Nation has been an-

- \". thorized by successive. Presidents. The present '

Administration: would-apparently save national

, Security| eases‘ from restrictions against wite

. . . tapping, See Berger v. New York, 388,U.S. 41,

OTR ete ee 112-118. (1967) _(White,: J., dissenting). We

G\ foo 0 o¢ “should not: require the warrant procedure and the.

“: : magistrate’s ‘judgment if the President of the

Pe" in nted States or his chief legal officer, the Attor-

oe ~ ney General, ‘has considered the. requirements of

4 * national security’ and. authorized electronic. Sut:

: veillance as reasonable... -.

> o of uistiogn' ‘Douglas and.’ Brennan. expressed’ contrary

i Re st views, 389 U.S. at 359-360. The Supreme. Court has .

me ~ not decided the. issue,. Giordano ° v. - United. States, 394

"U.S. 310, 314. . fae

eG ‘regard as ; inapposite ‘the ease of Youngstown"

» Sheet id Tube’ Co. v. Sawyer, 343 U.S. 579 (1952); /

hieh: involved seizure by the President of private:

papery 3 in order to prevent a-strike which he thought

>. would: seriously affect, the economy of the: éountry.

2 |The: a of the. incurs etre attacks

ga : ‘ “i ‘ ae .

t-te. 2 oben - ae eas e Pit

ad to overthrow it hy force and. violence in-

yolves an entirely different matter,

In my opinion, the surveillance in -” present ¢ casé

c “was reasonable. :

It has been said. that wiretappitig 3 is dirty business. |

“h Professor Wigmore answered. this argument: |

-priate.

i District It Corts

But so is likely to be all’ apprehension of

_.>, malefactors. Kicking ‘a man. in the: stomach is

"dirty business’*normally viewed, but if a gun-

‘man assails' you. and you know enough of the |

French art of. savatage to kick him in the

' stomach ‘and thus save your life, is that fag

_ business for you? 8 Wigmore on Evidence —

“ § 2184(b), p. 50. Also 23 Ill. L.Rev. 377 (1928).

ft agree that the Temedy: of mandamus is appro

I would brink. the he writ”stid vacate ” inde of ‘the > | :

e

_ APPENDIX B. °

UNITED STATES DISTRICT COURT -.

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION oe

- CREMINAL No. 44375

_ Unitep States or AMERICA, PLAINTIFF.

. .

Ve.

« oW @- gt

.

JOHN SINCEAIR, :

Law RENCE ROBERT “Pun” PLAMONDON,

JOHN WATERHOUSE Forrest, DEFENDANTS

| Mac inti Opinion. and Order Granting Defeni.

ants’ Motion for. Disclosure of Electronic or Other

- Surveillance"

After the retiirh of the indietment in the present

ase, but before the commencement of trial, counsels °

‘for the defendants filed a motion: for aisdinninin of .

electronic. surveillance in accordance with the. United

‘States Supreme Court’s holding in Alderman v.

United States, 394 U.S. 165 (1969). In essence the -

- motion requests an order from the Court directing the | |

Government to divulge to defendants all logs, records,

and memorandaeof’ electronic surveillance directed at

any of thie defendants or unindicted cé6-conspirators, .

and it further réqitests that a hearing -be held to de-

termine ‘whether any of'the evidence upon which the

indictment is based or which the Government intends

to introduce at trial was tainted by such surveillance. *:

In response to this motion the Government submitted

(63)

: 7 : ° . os

PEABO ye RETR gp Ce NS ite ADE

A KR © %.*

iid Pe PRP RIES fae Es NN tan Fa oh NY

an answer which stated tl

ment had no knowledge o

-pertaining to any of the d

inquiry was ther being «

Bureau of Investigation.

ment stated that the Unit

would advise the Court if

electronic. monitoring wa_

_ event, would file a reply ti

. discloas:

, Subsequently, the Court

by the United States A-

Mitchell, stating that he b

necessary the wiretappin:

~ Plamondon’s conversation.

- were submitted with this <

inspection of the Court in ¢

these materials was a mot

ant’s request for disclosu.

dence and a ‘brief in supp

the affidavit and the above —

General has certified. that 7

particular facts eoricernir,

prejudice the national inte; |

‘been. requested that: the Go_

to any decision. regarding

determine how it will proce

ants have submitted reply.

position that this electroni —

mitted to them for their inv

_ was heard regarding this is

16th, 1971. | re

--In Alderman v. United s

Court held that the Gover —

make -available to a defend

‘standing, ary conversations ”

4

1e Government over-

egal electronic sur- +

is ruling is to reih-—

ionary rule of the

ag the Government

dence which is -ob-

ids. In the- instant

was a party to the

2 requisite standing

sea motion for dis-

becomes necessary

nce involved herein:

defendant’s Fourth

us evolved that dis-

the District Court.

vas conducted ille-

Justice White in

_§. 310 (1968).

_at in this matter,

: monitoring of de-

1s was lawful in

ance was initiated: ‘

arrant. In support ©

contends ‘that the

agent of the Pres-

to authorize elec-

warrant in the in-

lidity of the Gov- .

minder the Fourth

_ d by the Supreme

Tnited States, 389

however, a small

ch concern them-

- its oral ot:

United States VS.

. | . 66

Feliz Lindsey O’Neal, Criminal No. KC-CR-1204 (0,

_C.°Kan., September 1,°1970), a case in which. the

District , udge made an in-court ruling that surveil.

lance pursuant to the authorization of the Attorney

General was lawful. See, also, United States of Amer.

ica vs. Dellinger, Criminal No. CR 69-180. (N.D. TIL,

. February 20,. 1970); United States v. Clay, No. 783

— O.T. (5th Chr. ‘July 6, 1970) cert. _pending. '

-Particularly. noteworthy, and the basis of defend-

‘ant’s oral-argument in support of" his motion for dis.

closure, is the exceptionally well- reasoned and thor-

_ ough opinion of the Honorable Judge Warren Fergu-

son of the Central District of California. U.S. y,

Smith, Criminal No. .4277-CD (C.D. Cal., January 8

1971). The. affiday it and circumstances. which were

represented before J wdge Ferguson are identical to

. the affidavit and issues now before this Court for con:

sideration, and the Court “isccompelled to adopt the

rule and rationale of the Smith case in Teaching its

_ decision today.

The. great umbrella of vig al tiptits’ pr otected by

the Fourth Amendment has unfolded slowly; ‘but very

deliberately, througtiout. our legal history. The cele-

- brated cases of -Weeks v. United States, 232 US.

383 (1914), and Mapp v. Ohio, 367 U.S: 643 (1961),

beeame the cornerstone of the amendment’s founda:

‘tion and together these decisions established the prec.

edent that evidence secured in Wwiolation of ‘a de

. fendant’s Fourth Amendment rights could not be ad-

‘mitted against him at his trial, In Silverthorn Lum-

ber Co. v. United States, 251 U.S. 385 (1920); the

familiar legal simile of the ‘‘poisonous tree’”’ became

the pillar for the Court’s ruling that the exclusionary

rule of Weeks was to be expanded to prohibit the ad.

mission ef any fruits derived from illegally seized

evidence, The final buttress to this canopy of Fourth

4

67

Amendment aceite is derived from the Court’s.

declaration that the Fourth Amendment protects a de-

fendant from the evil of the uninvited eur. In Sil-

_verman v. United .States, 365. U.S. -505 (1961), and

Katz v. United: States, 389 U. S. at BAT, the Court

ruled that oral statements, if Wlegally overheard, and

their fruits are also subject to suppression. — |

In the instant case the Government apparently

and argues that the President, actirig through the At-

snag? General, has the inherent Constitutional: ‘pow-

:.(1) to authorize without judicial warrant, elec-.

: aie surveillatice in “‘national security’? casés; and..

(2). to determine unilaterally whether a give en ‘situa-

tion is a matter within the coneept of national secu-

rity. The Court.cannot accept this proposition fe or we |

are a country of laws and not of .men. ;

The Government contends that the President: can

‘conduct warrantless surveillances: under the author . ee

of the Omaibls Crime Control and Safe Streets Act ’

of 1968. The effect of ‘this comprehensive statute is

to:‘make unauthorized surveillance a serious. crime,

‘and the. general rule of the act is that Government: -

surveillance and/or-/ wiretapping is- ‘permitted only

upon the showing of probable cause and the issuance

of a, warrant. An exception to this general rule per- ..

mits the President to legally authorize,electronic sur- .

veillance ‘‘to obtain foreign intelligence. information

~ deemed essential to the secur ity of the United States.”’

The ‘Act also provides: |

Nothing contained in this chapter or in’ See.

tion .605 of the Communications Act of 1934

(48 Stat. 1143; 47 U.S:C. 605) shall limit the

«+. constitutional power of the President to take.

such measures as hé deems necessary to protect

the Nation against actual or potential —

ys

\

ignores the overwhelming precedent of. these cases NN

~/

. . s

r , : ;

or other bowtie acts of a Scesied, power, or to.

_ obtain foreign intelligence information deemed

essential to the security of the United States

-6r to protect national security information

_ against foreign intelligence activities. Nor shall

anything contained in this ‘chapter be deemed

‘to limit the constitutional power of:the Pregi-

dent to take such measures as he deems neces. -

sary to protect the United States against the

overthrow of the Government by force or other

unlawful means, or against any ‘other clear and.

present danger to the struc ture or. existence of

the Government .

In addressing himself ‘ ithe Selanne of this ae .

‘tas provision to the warrantless surveillance issue,

__ Judge Ferguson of the California. District Court

-“ stated succinctly that; “Regardless of these excep.

‘tions in the criminal statute the President is, of’

. course, ‘still subject to the Constitutional limitations

imposed upon him by the constitution. This Court is.

in full aecord with this rationale for it is axiomatic

- that the Constitution. is the Supreme Law of the

-. Land. Marbury v. Madison, 1 Cranch (5 U.S.) 137.”

_ The. contention by the Government that in éases

involving “national security”? a warrantless search ii

not an illegal one, must be cautiously approached and

_ analyzed. We dre, after all; dealing not with the rights -

of one solitary. defendant, but rather, we are. here cot-

cerned with the possible infringement of a funds

i

_. mental freedom guaranteed to all American citizens

In the first Supreme Court case involving wiretapping;

. Justice Brandeis concisely. stated the issue at. staké

in a case of this nature:

The makers of our Oolistitution sprite

«to secure conditions favorable to the pursuit

_ of happiness. They recognized the significance |

of man’s Seniee 3 nature, of his ee and

«8 ,

-

| of his intellect. They aon that only a part of

the pain, pleasure, and satisfactions of. life

are to be found in material things. They sought

to protect ericans in their beliefs; their» .

thoughts, their emotions and their sensations.

They conferred, as against the government,

the right to be let alone—the most comprehen-

sive of rights: and the .right most valued. by

civilized men. To protect that right, every un-

justifiable ‘intrusion by the Government upon

the privacy of the. individual, whatever the

means employed, must be deemed a violation

‘of the Fourth. Amendment. Olmstéad v. U’ wired

States, 277 U.S. 438, 478 (1928).

| It is ‘to be. remembered that: the puiledtive sword :

which is enshrouded in the scabbard.of Fourth

Amendment rights and which insures that these

. fundamental rights will remain inviclate, is the well

defined rule of exclusion. And, in turn, the cutting |

- edge of the. exclusionary rule is derived from the re- ~

2 quirement that the Government obtain a search war-

rant before it can conduct a lawful search and \

seizure. It is this procedure of obtaining. a warrant

that inserts the impartial Judgment of the Court si

tween ‘the citizen and the governm :

Genérally, in order to search .a

law enforcement ‘agents must ap] .

_ or Magistrate’ and‘ request a warrant. The request -

~ must describe the place to be searched, matter to he

seized, and, most importantly, there must be a state-

-ment made under’ oath that’ the Government has ©

probable cause to believe that criminal activity exists.

‘Through ‘this procedure, we as citizens are assured — *

the protection of our constitutional right to. be free

from unreasonable searches’ and seizures by ‘the main- —

tenance of a “system of checks and balances between the

arms. of f government. Prior to issuance of any search

je

_. reasonable and not in ‘violation of Fourth Amend-

~ evaluation \as to the reasonableness, the scope, and the

_ to authorize electronic surveillance which he deems.

_. argument, however, is untenable for although it has.

. “dential power of surveillance ‘is specifically \imited —

Ee

warrant the Court must independently review the re-

quest to search and make an objective determination

whether or not probable cause of some criminal activ.

ity exists, which activity would make the searching

ment rights. In absence of such a requirement ofan -

' objective determination by. a.magistrate, law enforce

ment officials would , be perniftted to make their -own «:

evidence of probable cause for a search. This,Court

‘is loath to let such a condition come to exist. .

‘In its brief’ the Government cites several cases -

which have held that ‘the President has the authority’

is necessary to protect the nation against, the hestije 5

acts of foreign powers. Using this precedent the Gdv-

_ernment submits that the President should also have -

"the constitutional power to gather information con-

- cerning: domestic organizations , which seek to attack

—and subvert the Government by unlawful means. This _

jong been recognized that the President has unique and

plenary powers in the field of foreign relations; Chi-

cago &° Southern Air Lines, Inc. V. Waterman BB. .

Corp., 333 U.S. 103 (1948) ; inthe area_of domestic .

‘affairs the Government can act. only in limited ways.

See, Brandenburg v. Ohio 395 U.S. 444. (1969): .

The Government ‘also asserts, that the President's

authority | for warrantless. monitoring; stents from a

confidential memorandum written by President Roose-

velt in 1940. But if the President is givezi power to

. delegate who shall conduct wiretaps, the question

arises whether there is any timit on, this power..Fur- —

thermore, the Smith case, supra, in tracing the history: '

of. the Roosevelt directive, establishes that the Presi-

~

oie

_ to“exceptional cases’’—cases of a non-criminal ‘nature

or ‘Which. concern the country’s international security.

» An idea perverse to permeate much: of the Gov- -

ent: is that a dissident /domestie or:

” ernmhent’s arg

‘ ganization is akin’ to an unfriendly fore power and

-must be de

It with in thé same: fashiork There is great.

danger in an argument of this natuve for it strikes’

- at the very constitutional privileges and immunities -

that are inherent. in ‘United States citizenship. It: is

~ to. be remembered’ that in our democracy all men are

‘to receive equal and. exact. justice regardless of their

pees beliefs or persuasions. ‘The ‘Executive branch ae

-of:our Government cannot be given the power or the

opportunity, to investizate and prosecute criminal vio-

- lations under two different standards simply’ because

‘an accused espouses views. “which are inconsistent,

_with our present form of évernment.

In this turbulent time of unrest; it ‘is often difficult Re

for the. established. and. contented metibers of our so-

ciety to tolerate, much less try- to understand, _

contemporary challenges’ to our existing form of Gov-

ernment. Ef democracy as we know it, and as our fore-

’ fathers established it is to stand. then “attempts of

domestic organizations ‘to attack and subvert the exist- .

ing structure of the Government” (See affidavit of

Attorney General), cannot be, in and of itself, a crime.’ -

It. become criminal only where Tf can: be shown’ that

such activity was aceémplished through unlawful

- means 5, Sach as invasion of the rights of others, name- :

sly through force. or violence.

"Phe Affidavit of the Attorney General of the United

States makes-n0_ assertion, that at the. time these wire-

taps were installed} taw-enforeement a cents had prob-

- able cause to sing84i that “eriliiiret- activity (e.g.,, the.

the Gov ernment ‘through. foreeor- om

vcouian was being plotted: Indeed, if such pr rans

_ illegal overthrow of

a

oe pee ia : i oa : aot : .

. e . . 3 < 4 eS. ie

" ; a ‘ ae . a ha z 5 : 3 -

a 7 . a eatemete~ . Ko. ee

Genaral is.in error: it 3 is supported neither ©

nor by the language ; of the Omnibus Crime 7

- ‘by .one individual was never

ets of our Constitution and

adopts the hold- .

powe

contemplated: by the r

cannot be tolerated today. This G

. ing of Judge Warren J. Ferguson i in U:8.-v.. Smith,

-. . Criminal.‘No., 4277-CD, eto a Cal., Jan. 8 ge 3

a which held that: ees “ys

ei

. in: ‘wholly domestic stianlpid there ts.

. no national security exemption from the war- |

_ rant requirement of the Fourth, Amendment.

. » Sinee there is no reason why the Government

~., eould not have coniplied with this requirement —

. by obtaining the impartial judgment of a court

before conducting the electronic | surveillance

‘In’ question. here, it was- obtained in violation

_of the Fourth Amendment. . ~ ©.

This Court hereby ORDERS that the Givereagil

make full diselosure to defendant Plamondon of his

monitored | conversations. The* Court; in ‘the exercise

of ‘its discretion, further orders- that an. evidentiary :

* hearing to determine the existence of tairtt éither in -

ae

‘+ the indictnfént or in ‘the evidence introduced at trial .

‘be conducted at, ‘the — of ‘the trial of this *

matter. 7

a “Widies J. KEITH,

United States District J: en

‘9

Trocuaner 25, 9. Se yicigs & ake ee

ae ope

ri :

we ARE _ Me

: INTHE UNITED STATES COURT OF APPEALS :

| 7 . FOR THE SIXTH CIRCUIT ee

cw ~ No. 71-1105" oer |

_ Usrrep Snares Or Amenica, PETITIONER ee ee

Sey on ea Comin: FOR THE pices De.

ORABLE Damon J. KEITH, RESPONDENT *

i siencilanes with the opinion this day filed, the Peti-

tion for ‘Writ of Mandamus is heréby denied. (~~

Entered by order of the Court. |. hag : =

Sudge Weick dissents.» eaten

ee tee

Cant w. - Raw, Clerk.

Ap 8, i911, )

‘ . 73)

“mcr OF MICHIGAN, Srerees Denese Te —

ww .

cau aan ane . es

, "The ia ae Crime Control bid Safe Streets he

i= 1968 provides, in pertinent ‘part (e Stat. 214, 18

0. S:C. (Supp. V+) 2512(3)): .

ar Simkar: ocnitainedl- ia ids dealer: or iti see-

* tien 605 of the Communications Act of 193448

‘Stat. 1103; 47 U.S.C. 605) shall limit the co

. tutional power of the President. te take such

measures as he deems necessary to protect the

- , Nation against actual or potential attack or other

_* ». hostile acts of a foreign power, to obtain foreign

--. ° -jntelligence information deemed essential to the

' ° geeurity of the United States, or to protect m-

+. tional security information against foreign in-

-__ teligence activities. Nor shall anything contained

_ in this chapter be deemed to Hmit the constiti-

tional power of the President to take such meas-

-~ ‘ares as he deems neeessary to protect the United

_ States against the overthrow of the Government

- py force or other unlawful means, or against any

other clear and present danger’to the structure

"or existence of the Government. The contents of

. any wre or oral conimunicatidn-intercepted by

‘authority of the President in the exercise of the

“foregoing. powers. may be received in evidence

. in any trial hearing, or other proceeding only

where such interception was reasonable, and shall

not be otherwise used or disclosed except as isnet-

— to implement that power. =

: ved

ros?

~~. meee

U.S. GOVERNWERT PRINTING OFFICE: 972

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